This appeal under Section 24 of the Cantonments Rent Restriction Act 1963 was filed against the order dated 27-2- 1988 whereby the learned Additional Rent Controller, Lahore Cantt. Accepting the ejectment petition directed eviction of the petitioner from the shop in dispute.
2. Notice of preliminary hearing and for summoning of record was issued vide order dated 24-4- 1988. Mr. Muhammad Siddique Butt, Advocate entered appearance in pursuance to the notice.
Learned counsel for the parties have been heard and record has been perused.
3. The objection to the effect that the court-fee affixed on the memorandum of appeal was deficient, was raised. The said objection was conceded by the learned counsel for the appellant and deficiency in court-fee was made good. Learned counsel for the respondents raised another objection to the effect that one of the landlords namely Zameer Akhtar was not impleaded as party to the appeal and as such the appeal was liable to be dismissed as improperly constituted. This objection was also conceded as an application (C.M. No. 2855/C/88) under Order I rule 10 C.P.C.
Read with Section 151 C.P.C. Was moved seeking premission to implead Zameer Akhtar as one of the respondents. This application was moved on 9-6-1988 with the assertion that the legal heirs of the original petitioner/landlord (Roshan Din) were impleaded as petitioners on the death of the landlord during the pendency of ejectment proceedings and that the name of Zameer Akhtar was omitted from the title of appeal due to typographical error. It was asserted that there was no malice for this inadvertent omission because all the respondents are closely related inter se and are living in the same house and as such the filing of the appeal was not meant to be concealed.
Learned counsel for the appellant added that the typist was handed over the judgment and decree and through inadvertisement, he omitted to type the name of Zameer Akhtar one of the heirs of deceased landlord. Learned counsel of the respondents in reply submitted that the omission was neither due to any typographical error nor it is an inadvertant omission as the names of the respondents do not appear in the title of the judgment. He pointed out that a decree is not prepared in rent cases and as such the plea that typist omitted to type one of the names or that in the judgment or decree one of the names of, the respondents was omitted and hence the mistake occurred while preparing the memo of parties, is not available. It was added that the memo of parties which includes the names of all other heirs, obviously was prepared by the learned counsel who had also represented the appellant before the Rent Controller. Learned counsel submitted that name of Zameer Akhtar appeared in the pleadings alongwith his brothers and sisters and he could not be missed as he was the person who was prosecuting the petition on behalf of others as he had entered the witness box and made the statement on behalf of landlords/respondents. Despite all this, his name was omitted. This omission according to learned counsel for the respondents was either deliberate and mala fide with a view to deprive the respondents to prosecute the matter or in any case was due to sheer negligence.
4. There is weight in the submissions of the learned counsel for the respondents. Zameer Akhtar, the omitted landlord had been prosecuting the case and in view of the submissions noted above, the omission of the name from the array of respondents cannot be considered to be the result of any typographical error. In the similar circumstances it was held in Mehtab Beg and others v. Chiragh A.I (1975 SCMR 54) that the case was not one of error on the part of typist but equally of the learned counsel for which the petitioners have to suffer. It may be added that the parties are pursuing this ejectment petition since its institution in 1978. No basis exists on record to support the plea of typographical error. The plea of inadvertisement also cannot be accepted as the appeal was filed in the most casual manner. The memorandum of appeal was filed without affixing the proper court-fee thereon. The deficiency in court-fee was made good only when the objection was taken thereto and order was passed by this Court for making good the deficiency. Even the application for impleading Zameer Akhtar was filed with some delay after raising of the objection by the respondents. The application for impleading Zameer Akhtar is, therefore, rejected. The appeal being improperly constituted is liable to be dismissed on this score alone.
5. Even on merits, I am satisfied that no interference is warranted in the impugned eviction order.
Ejectment has been ordered upholding the plea of bona fide personal need. Learned counsel for the appellant argued that some shops owned by the landlords are lying vacant and are available to them and had the shop in dispute been needed m good faith, the same i.e. The vacant shop could be occupied by the landlords. This was controverted by the learned counsel for the respondents with the explanation that these are godowns and not shops and that no shop is available for occupation. I inquired whether the appellant would like to shift to the shop which is allegedly vacant and available but the learned counsel was not willing to shift to the said alleged vacant shop. It is pertinent to note that even in cross examination no such suggestion that any shop suitable to the requirements of the landlords was available, was put to Zameer Akhtar when he made statement as PW.
2. Neither any misreading nor any non-reading of any material piece of evidence was pointed out.
6. Before parting with the judgment it is appropriate to note that during arguments learned counsel for the respondents offered to allow three months time to the petitioner to deliver vacant possession of the shop. In view of the offer made, it will be just and appropriate for the respondents not to execute the eviction order for a period of three months.
7. For the reasons given above, I find no merit in this appeal and the same is, therefore, dismissed in limine. The respondents will be bound to honour their commitment.
H.B.T./K-202/L