SHAFIUR RAHMAN, J.-- The petitioner, a tenant, seeks leave to appeal against the judgment of the Lahore High Court, dated 2-10-1977 whereby his appeal against eviction order passed by the first Appellate Court on reversal of the Rent Controller's order was dismissed.
2. The eviction of the petitioner was sought from a shop on the ground that it was needed by the landlord for his personal use and that the tenant had committed default in the payment of rent.
Three issues were framed reflecting the controversy and the Rent Controller decided both the material issues in favour of the tenant dismissing the application for his eviction. On appeal by the landlord the Additional District Judge held that the bona fide personal need of the landlord was established and ordered the eviction of the tenant. The petitioner's second appeal failed in the High Court. Hence this petition.
3. The learned counsel for the petitioner contended that the landlord is a Jarrah but has all along been carrying on his vocation of trade in the open on the footpath and that was the position when he let out this shop to the petitioner in 1974. Shortly after so letting it out the landlord could not invoke the ground of personal need for getting the tenant evicted for he had a choice is the matter when he let out this shop to the petitioner and having not exercised it he cannot be said to be acting bona fide in claiming the eviction of the petitioner. It has also been urged that the bona fide requirement as such was not specifically pleaded and in the absence of it the shop could not be got vacated.
4. So far as the bona fide personal need of the landlord is concerned the Rent Controller recorded the-following finding of fact:- "Besides the petitioner is a "Pehalwan" and his business is to see and care such joints of the people which become out of order. It is evident from the record that this job of the petitioner is being run by himself in open ground for the last several years. I observe that he is not needy to obtain a shop for that purpose. The nature of his job requires no shop. Had it been so, he could have occupied the shop when it was vacant prior to its renting out to the respondent."
On these observations the need of the landlord was not considered to be genuine. The first appellate authority came to a contrary conclusion as will appear from the following findings:- "These facts would clearly indicate that the assertion of the appellant that he needs the shop for his personal use is not devoid of truth. His need, therefore, appears to be genuine and the Rent Controller did not hold the scales evenly while weighing the evidence adduced before him."
5. The learned Judge in the High Court met this argument of the learned counsel for the petitioner with the following observation:- "The fact that the respondent was doing Jarrah's business prior to 1974 would not make any difference. It is not necessarily the luck and fate of the respondents that he should sit on the footpath and/or open municipal ground to do his business as a Jarrah. If he wants to improve his lot and status, no valid objection can be taken in that behalf nor does it show that the requirement is not bona fide."
6. It follows from these findings that all the three Courts have concluded that the landlord is engaged in the trade of a Jarrah, that he is carrying it on in the open on a footpath and that he now wants to do the same trade in a regular shop. To deny him this right would be unreasonable and to say that because he was doing so when he let out the shop and for that reason he had deprived himself of the right ever to seek the eviction of the tenant on the ground of personal need would be an untenable argument. The Courts have rightly concluded that on the admitted facts the need of the landlord appeared to be genuine and he could get the premises vacated from the petitioner.
7. There was also the contention by the learned counsel for the petitioner that one of the witnesses produced by the landlord stated that the need was not only of the landlord himself but also of his son. Such evidence according to the learned counsel detracted from the consistency of the landlord's case and effected adversely his bona fide need and also the need which was made the basis for seeking eviction of the petitioner. The landlord's case throughout and consistently had been that he was seeking eviction on the ground of his personal need. It was established on the record. With such proof being present on record the mere fact that one of his witnesses combined with it the need of the son would not in any manner affect the right of the landlord to get the petitioner evicted.
8. As regards the omission of the landlord to mention his bona fide need in the petition it has been considered by the learned Judge in the High Court to be a mere technicality and we would rather agree with such a conclusion in view of the material brought on record. There is no merit in the petition which is dismissed.