' The petitioner through this Constitutional petition has challenged the orders of respondents Nos.2 and 3 through this Constitutional petition.
2. The relevant facts are that the petitioner is occupying shop No,3-A Main Bazar, Mughalpura Ganj as a tenant under respondent No,1. The rate of rent is Rs,125 per month. The landlord instituted ejectment petition on 16-1-1986 and sought the ejectment of the petitioner on the ground of default w,e,f. April, 1985, personal need and damage. The petitioner contested this petition. The learned Rent Controller accordingly framed following issues:
(1) Whether the respondent in a wilful defaulter towards the payment of rent? OPA.
(2) Whether the shop in question is required in good faith bona fide by the petitioner for his personal use and occupation? OPA.
(3) Whether the respondent has damaged the property and has impaired its value and utility? OPA
(4) Relief."
2. The landlord examined Imtiaz Ahmad as A.W.1, Shamshad Ahmad Khan as A.W.2, Mahmood Khan as A.W.3 and Dr. Ijaz Ahmad son and attorney of respondent No,3 appeared as A.W.4. The petitioner in rebuttal examined Muhammad Sharif as R.W.1, Muhammad Jehangir as R.W.2 and himself appeared as R.W.3. The learned Rent Controller after hearing the arguments decided issues Nos.1 and 2 in favour of the landlord and in view of these findings accepted the ejectment petition. While issue No,3 was not pressed. The petitioner impugned this ejectment order through an appeal before the appellate authority but the same was dismissed vide order dated 1-10-1989. The petitioner has challenged these orders of respondents Nos.1 and 2 through this Constitutional petition. The petition was admitted to hearing and notices were issued to the respondents. The respondent No,1 alone appeared and contested the petition while the other respondents did not appear; therefore, they were proceeded ex parte.
3. The learned counsel for the petitioner in support of the petition argued that the landlord is an old ailing and incapacitated person, who cannot move on account of serious attack of paralysis, therefore, the ground of personal use has disappeared. It is added that respondent No, 1 was running a shop in Azam Cloth Market. The same was sold because he was not physically fit to run the business. The next submission is that the petitioner is in occupation of the shop since about 35 years. These facts are admitted by A.W. 1 and others. It is added that Irshad son of the landlord is an insane person, therefore, shop cannot be vacated for him. It is added that even otherwise this was not the ground taken in the ejectment petition. The arguments are summed up with the submission that the petitioner had deposited all the rent and was wrongly and illegally held defaulter. The learned counsel in support of his arguments have relied on the judgments in the cases of Shahriyar Ali Patudi and 3 others v. M/s. Decora Furnishers (PLD 1985 Karachi 47) and Imran Ullah Khan v. Muhammad Umar (1984 CLC 645).
4. On the other hand learned counsel for respondent No, 1 argued that his client was physically fit when he instituted the petition and this fact is fully supported by the A.Ws. It is added that it is not the requirement of law that the landlord seeking ejectment on the basis of personal use should physically occupy the premises. He is entitled to run the business through servants. The learned counsel in this behalf has referred to the judgments in the cases of Muhammad Zaman v.
Mahboob Ellahi (PLD 1981 Lah. 609), Rais Ahamd Barqi v. Sheikh Abdul Qayyum (1984 CLC 1057) and Rehmat Ali and another v. Muhammad Wajid and another (1984 CLC 1693). It is added that it is a case of concurrent findings of fact recorded by two Courts below. There is neither any misreading nor non-reading therefore, no interference is possible in Constitutional jurisdiction. In this behalf learned counsel has referred to the case of Muhammad Ali v. Mumtaz Husain Lali (PLD 1989 Lah. 187).
5. I have given my anxious consideration to the arguments of the learned counsel for the parties and gone through the record and precedent cases. Now I proceed to decide the points raised on behalf of the learned counsel for the petitioner and counter points raised on behalf of respondent No,1. The first and only important argument raised on behalf of the petitioner is that respondent No,l., is old and infirm person. He is not in a fit position at all to carry on the business after suffering serious attack of paralysis. On the other hand this argument is resisted with the submission that it is not essential for the landlord to physically occupy the business premises. He is within his right to get the business conducted through servants. The learned counsel in this behalf has referred to the judgment in the case of Muhammad Zaman v. Mahboob Ellahi (supra) wherein my learned brother M. Mahboob Ahmad, J. (as his Lordship then was) after scanning the whole law on the point observed as under; "17. Before parting with the case I may, also observe that the provision of bona fide requirement of a commercial premises for personal use does not necessarily imply that the same shall be used by the landlord personally in the physical sense. It is readily maintainable that requirement of law would be fully satisfied if a landlord chooses, to conduct his business personally through any agency such as of an employee or of a servant."
' The judgment in the case of Rais Ahamd Barqi v. Sheikh Abdul Qayyum (supra) also lays down the same principle while the case of Rahmat Ali and another v.Muhammad Wajid and another (supra) is not relevant for the purpose of the present controversy.
6. Now coming to the default, the respondent No,2 has clearly held that the rent for the disputed period i,e. April 1985 to 8th January, 1989 was duly deposited. Therefore, the petitioner was not a defaulter. The appellate authority did not stop here and proceeded to hold that the petitioner is defaulter for the period from February, 1989 to October, 1989. These findings are illegal because this period was not in dispute between the parties. The appellate authority committed two mistakes.
Firstly, while admitting the appeal it did not pass an order under section 13(6) of the West Pakistan Urban Rent. Restriction Ordinance, 1959, as to the deposit of rent during the pendency of the appeal. Secondly, it failed to direct the petitioner to produce the treasury receipts evidencing payment. But at the same time without calling the petitioner to produce the treasury receipts proceeded to hold the petitioner defaulter. This part of his order clearly shows that the learned appellate authority did not apply its mind and passed a mechanical order. This controversy is over as the petitioner has produced the receipts. The same have been checked by the learned counsel for respondent No,1 and according to him the payments are in order. Therefore, the findings of respondent No,2 as to default are reversed being unreasonable, illegal and without jurisdiction.
7. The learned counsel for respondent No,1 also contested the petition on the ground that there is a concurrent finding of fact and, therefore, no interference is possible. In this behalf, he has relied upon the judgment of this Court in Muhammad Ali v. Mumtaz Hussain Lali (supra). Actually the petitioner was not disputing the finding on the issue of personal use There is merit in the argument.
More so, because the petitioner did not dispute the finding as it stood but argued on the basis of present state of health of the respondent No,1. There is nothing wrong with the findings on issue No,2.
8. The result is that there is no merit in this petition, therefore, the same is dismissed with no order as to costs, However, the petitioner is allowed time up to 31st of March, 1991 to vacate the premises.