' This Constitutional petition has been filed to call in question order of the District Judge, Sargodha, dated 21-4-1984 whereby he upheld the order of the Rent Controller directing the ejectment of the petitioner.
2. Facts necessary for the disposal of this petition briefly stated, are that originally respondents Nos.1 to 3 (hereinafter called the landlords) filed a petition under section 13 of the Urban Rent Restriction Ordinance, 1959 seeking the ejectment of Muhammad Sharif from the shop in dispute on the grounds of default in the payment of rent, bona fide requirement for personal use, subletting and damage to the property. Muhammad Sharif died during the pendency of the ejectment petition. His sons, respondents Nos.4 to 6 herein were, therefore, brought on the record.
3. Muhammad Asif present petitioner moved an application before the learned Rent Controller contending therein that his late father Muhammad Boota was a tenant of the shop in dispute under the original owners who has sold it to the landlords and that respondents Nos.4 to 6 had never been in possession of the shop in dispute as tenants. This application was allowed by the learned Rent Controller and the petitioner was impleaded as a respondent in the ejectment petition. Respondents Nos.4 to 6 were proceeded ex parte and the ejectment petition was contested by the present petitioner who, in his reply, controverted all the allegations made by the landlords. Pleadings of the parties gave rise to the following issues:- "(1) Whether the respondent has committed default in the payment of rent? O.P.A.
(2) Whether the disputed shop has been sublet? O.P.A.
(3) Whether the petitioners require the disputed property for personal use in good faith? O.P.A.
(4) Whether the disputed shop has been damaged? O.P.A.
(5) Relief"
4. Learned Rent Controller found issue relating to the bona fide requirement in favour of the respondents/landlords, though decided other issues against them. In view of the finding on issue regarding the personal need, learned Rent Controller by his order, dated 27-7-1983, allowed the ejectment petition and directed the petitioner to hand over vacant possession of the shop in dispute to the landlords. Petitioner took an appeal against the aforesaid order but without any success and the same was dismissed by the learned District Judge, Sargodha by his order, dated 21-4-1984. Hence this petition.
5. Learned counsel for the petitioner has assailed the impugned, orders of ejectment mainly on the ground that the landlords did not disclose in the eviction petition that they owned and occupied another shop in the same urban area in which the shop in dispute is situated. This non disclosure, according to the learned counsel, seriously reflected upon the bona fides of the landlords qua their alleged personal need. In support of his submission, learned counsel has relied upon Abdul Majid v.
Umar Ali 1983 CLC 2511, Habibur Rehman v. Faqir Muhammad PLD 1983 Lah. 425 and Malik Muhammad Ramzan v. M/s General Iron Store etc. 1984 CLC 2418. Learned counsel also placed reliance on Nasim Shah v. Muhammad Ali Batalvi 1984 CLC 3157 to contend that a fact not alleged in the pleadings could not be allowed to be proved.
6. Learned counsel appearing for the landlords, on the other hand, argued that the omission of the landlords to disclose in the ejectment petition that they owned and occupied another shop was inadvertent and not wilful and they readily disclosed this fact in their evidence.
' He has particularly referred to the statement of Zaheer Ahmad one of the landlords, who appearing as P.W.6 deposed in examination-in-chief that they had another small shop which was insufficient for their needs. He also pointed out that Muhammad Shabbir, P.W.2 and Mehboob Khan, P.W.3 appearing as witnesses for the landlords readily admitted that the landlords had another shop in which all of them were working. Learned counsel has, therefore, argued that the judgments relied upon by the learned counsel for the petitioner are distinguishable because in these cases, it was held that the landlords has deliberately tried to supress the fact of their having owned other premises in the same urban area.
' Learned counsel for the landlords further contended that the omission aforementioned would not by itself be fatal to the case of the landlords as they were not required to specifically plead all the ingredients of section 13 of Rent Restriction Ordinance. In support of this contention, learned counsel has referred to Zahoor Din v. Mirza Ayub Baig 1981 SCMR 1081 and Muhammad Ibrahim v.
Faqir Muhammad 1982 CLC 230.
7. I have carefully considered the contentions of the learned counsel for the parties and have also examined the evidence which has been placed on the present record. Only question which requires consideration in this case is as to whether the omission of the landlords to specifically plead in the ejectment petition that they had another shop in the same urban area was so serious as to reflect upon their bona fides. It is,. no doubt, true that the landlords did not mention in the ejectment, petition that they owned and or occupied another shop in the same. urban area but' this omission per se would not be fatal to their case. It is quite clear from the landlords evidence referred to above that it was a case of inadvertent omission and not of deliberate suppression. No adverse inference can, therefore, be drawn from the mere omission pointed out by the learned counsel for the petitioner. I have gone through the cases cited by the learned counsel for the petitioner. As submitted by the learned counsel for the respondent, those cases are distinguishable. In 1983 CLC 2511, landlords owned a house and another shop in his occupation but he did not mention this fact in his application for ejectment. Not only this when appearing as a witness, he deposed "that he had no other shop in the vicinity than the one in dispute but in cross- examination he admitted that he owned another shop and a house adjacent to the one in dispute".
It was in view of this conduct of the landlord that it was held that "this deliberate and inexcusable omission in the pleading tells upon the bona fides of the respondent in needing the shop in dispute". PLD 1983 Lah.425, the landlord did not disclose either in his ejectment application or in his statement in Court that there were two other shops in his possession at the time of the institution of the case. It was, therefore, held that the need of the landlord was not bona fide in so far as in the eviction application as well as in his evidence, he had suppressed the fact that he was also in occupation of other business premises. Similarly, in 1984 CLC 2418, it was noted that the landlord had suppressed the material fact that he was the owner of other commercial premises. This fact was only brought out by the tenant in the cross-examination of the landlord and his witnesses. In all these cases, suppression of the material fact was found to be deliberate and wilful and therefore, it was held that it reflected adversely on the bona fides of the claim of the landlord. In the present case, as shown above, landlords and his witnesses readily deposed that the landlords had another shop. Omission to plead this fact in the ejectment application cannot, therefore, be said to be a case of wilful suppression so as to reflect adversely on the bona fides of the landlord requirement.
8. Even otherwise, question of bona fide requirement of the landlords is to be examined in the context of all the relevant facts and circumstances on the record. In the present case, evidence was led to prove that the landlords required the shop in dispute for their personal use as the other shop in their possession in which all the three brothers viz. landlords have been doing their business since 1947 was a small shop which was not sufficient for their needs as their sons have also grown-up. In these circumstances, also, mere omission to plead in the ejectment application that the landlord owned another shop would not seal the fate of their case.
9. As regards the requirement of the landlords, two Courts of competent jurisdiction have found that they needed the shop in dispute for their personal use. The findings, as may be seen hereunder, were recorded after appraisal of all the relevant evidence on the record. Finding given by the learned Rent Controller is as follows:- "The witnesses of the petitioner have stated that all the petitioners are having one shop which is not sufficient for their need. In rebuttal there is mere denial of respondent. He has not explained that how petitioners do not require the suit shop for their personal need. All the three brothers are working in their presently occupied shop since 1947. The petitioners have purchased the disputed shop for their personal need . They wanted to start their business in new shop also as their family has become large and present shop does not fulfil their requirement. The respondent has not established this fact that the petitioners are having more than one shop. The personal need of the petitioners is established."
' The aforementioned finding of the Rent Controller has been affirmed by the learned District Judge in the following terms:- "All the witnesses of the respondents had stated that they were having one shop which was not sufficient for their need. In rebuttal there was mere denial of the appellant. He had not explained that respondents Nos. 1 to 3 did not require the shop in dispute for their personal use. All the three brothers were working in the presently occupied shop since 1947. Their family had grown-up and they had purchased the disputed shop for their personal need.They wanted to start business there as their family had also enlarged and the present shop did not fulfil their requirements. There is no doubt that respondents Nos. 1 to 3 were occupying another shop since 1947 in which all the three brothers were working together and that shop was not sufficient for their need as their family had been spread and expanded".
10. Thus the requirement of the premises in dispute for bona fides use of the landlords being an issue of fact stood concluded by concurrent findings recorded by the learned Rent Controller and the learned District Judge after due consideration of evidence on the record. That being so, issue of bona fide requirement of the landlords is not open to question in constitutional jurisdiction.
' For the foregoing reasons, I find no merit in this petition which is dismissed with costs.