KHALIL-UR-REHMAN KHAN, J.-Malik Muhammad Aslam, petitioner, filed this constitution petition to assail the judgment dated 24.4.1989 whereby the order dated 7.12.1986 of the learned Rent Controller rejecting the eviction application, filed by the respondent/landlord was set aside, the appeal was accepted and eviction of the petitioner was directed.
2. The respondent/landlored in the ejectment petition dated 18.6.1984 sought eviction of the petitioner/tenant on the grounds of default in payment of rent for the period commencing from 2.2.1985 to June, 1985; bona-i.e personal need; and reconstruction of the shop in question. The petition was resisted and the learned Rent Controller framed as many as six issues arising out of the pleadings of the parties. The learned Rent Controller dismissed the ejectment petition by recording the findings adverse to the landlord on all the three grounds urged by him vide order dated 7.12.1986. On appeal, the learned Additional District Judge, Gujrat, reversed these findings holding that the petitioner/tenant having failed to make payment within two months committed wilful default; that the shop was required for reconstruction for which a site plan was got sanctioned from the Municipal Committee, Lalamusa. On the question of bona-i.e personal need (issue No.2), the appellate Court reversing the finding of the learned Rent Controller, held that the respondent/ landlord bona i.e and in good faith requires the shop in question for his personal use.
The appellate Court also reversed the findings on issues No.4 and 5, on the questions of maintainability and mala fide nature of the petition. These findings were then assailed in the present constitution petition.
3. I have heard the learned counsel for the parties and have also gone through the relevant record, copies of which are available on the i.e, as well as the order of the learned Rent Controller and the impugned judgment of the appellate Court. learned counsel for the petitioner-tenant argued that the appellate Court erred in law in reversing the findings recorded by the learned Rent Controller.
He thus supported the reasoning given and the finding recorded by the learned Rent Controller for rejecting the eviction application. In reply, the learned counsel for the respondent-landlord argued that the petitioner stands disentitled to invoke the extraordinary discretionary jurisdiction of this Court as he had bound himself to deliver the vacant possession of the shop in dispute by 3.2.1985 but in breach of the said understanding, which undertaking was further secured through a guarantor namely Ch. Muhammad Aslam, the process of law is being abused with the result that the petitioner is continuing in possession for the last more than i.e years. It was added that the learned appellate court was, even otherwise, justified in reversing the findings of the learned Rent Controller and holding that the three grounds on the basis of which ejectment was sought, had been established on record.
4. I have considered the respective pleas of the learned counsel for the parties in the light of the available record. The plea of requirement of the shop in dispute for reconstruction prevailed with the learned appellate Court. The learned Rent Controller had rejected the plea observing that a building comprising of two portions cannot be reconstructed if one is not vacated by another person and the concealment of the facts clearly shows mala i.e intention for eviction of the tenant from the premises in question and that the paid plea of re-construction was also taken in the previous ejectment petition filed by the father of the petitioner in 1976 and the same plea has been raised almost after nine years in this eviction petition. The observation that the building comprised of two portions is further based on the premises that the one portion is in possession of one Muhammad Yousuf and from the said portion neither ejectment of said Muhammad Yousuf has been sought nor the said portion has been included in the reconstruction plan. Firstly, the copy of the reconstruction plan has not been filed along with this petition and secondly, it is also pertinent to note that suggestion was put to the respondent-landlord and to his witnesses when they appeared in the witness-box to the effect that back of the shop is in possession of Muhammad Yousuf but the suggestion was refuted. In order to controvert the said suggestion, Muhammad Yousuf appeared as one of the witnesses for the respondent-landlord and denied the suggestion that he is in possession of back portion of the shop in dispute. It is also pertinent to note that physical examination of the spot through commission could be obtained but no such request was made during the inquiry held by the learned Rent Controller. Even the measurement of the shop in dispute or the other relevant features indicating the extent of the area in possession of the petitioner or the impossibility of raising the construction without inclusion of the other area were not brought on record: The re-construction plan having been sanctioned by the Municipal Committee, it has to be presumed that the building proposed to be reconstructed is capable of reconstruction. The mere fact that in the earlier petition plea of re-construction was also raised would not show that such plea is essentially mala i.e. The learned appellate Court was, therefore, justified is reversing the finding of the learned Rent Controller on the question of reconstruction of the building.
5. There is yet another formidable objection to the invocation of discretionary Constitutional jurisdiction by the petitioner. The petitioner vide agreement dated 18.2.1980 Exh AW1/1 compromised the litigation pending between himself and the respondent-landlord. This litigation included eviction application. According to the compromise arrangement, the petitioner undertook to deliver vacant possession of the shop in dispute after expiry of i.e years. He not only bound himself to abide by all the obligations including the undertaking to deliver the vacant possession but also secured these obligations by offering Ch. Muhammad Aslam as his surety. The petitioner after expiry of the period did not deliver the vacant possession voluntarily and contrary to his undertaking started remitting the rent through money orders. According to the petitioner, these money orders were refused but according to the respondent-landlord no rent was remitted through money orders though later on the petitioner has started depositing rent unauthorizedly with the Rent Controller. It was on these premises that the learned counsel argued that the petitioner due to his aforesaid conduct, which is violative of the solemn undertaking given, stands disentitled to seek relief by invoking discretionary jurisdiction of this Court.
6. Learned counsel for the petitioner, in reply, submitted that notwithstanding the undertaking to deliver vacant possession of the shop in dispute contained in the agreement Exh AW1/1, the eviction of the petitioner cannot be directed as the Rent Controller has the jurisdiction and power to order eviction only on the grounds given in Section 13 of the-Punjab Rent Restriction Ordinance. He added that the compromise arrangement contained in the document cannot be got implemented through the Rent Controller. Assuming that the above noted plea is available to a tenant before the Rent Controller but certainly this Court can refuse to allow invocation of its consitutional jurisdiction where the petitioner is guilty of misconduct or where substantial justice has been done or where allowing of such a plea is to result in encouraging breach of solemn undertakings as this jurisdiction is essentially an equitable discretionary jurisdiction. It may be added that the agreement Exh AW1/1 which contains the aforesaid undertaking was executed with a view to settle the controversy existing between the parties which had led to the filing of eviction petition and other suits. All this litigation was brought to an end through the arrangement contemplated in the agreement Exh AW1/1. Had this agreement been produced before the Rent Controller and the eviction application had been decided in terms of the agreement, the ejectment order would have become operative after the expiry of the period of i.e years. It may, therefore, be seen that the mere omission to have the agreement Exh AW1/1 made operative through the Rent Controller should not result in equipping the petitioner with a t technical plea and he should not, therefore, be allowed to use the machinery of law brazen facidly in breach of his own undertaking. For all these reasons, I am not persuaded to allow invocation of extra ordinary jurisdiction which is essentially a discretionary jurisdiction. The writ petition is, therefore, dismissed. However, the petitioner is allowed one month's time to deliver the vacant possession of the shop in dispute to respondent No. 1. The parties are left to bear their own costs.