' The dispute in this case relates to a shop bearing No,1 out of property No,51, New National Cloth Market, Chiniot Bazar, Faisalabad, which is in occupation of respondent No,1 as a tenant under the petitioner. On 19th of April, 1983, an application under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959, was filed by the petitioner, against respondents 1 and 2 inter alia on the grounds of personal need and subletting. The allegations in the ejectment petition were controverted by the respondent No,1 by filing a written statement which led to the framing of as many as seven issues.
The Rent Controller after recording the evidence of the parties, directed the eviction of respondent No,1 from the shop in question on the ground that it was required by the petitioner bona fide and in good faith for his own use and also that he had sublet the premises to respondent No,2. This order of the Rent Controller dated 13th February, 1986 was assailed by respondent No,1 by filing an appeal which was accepted. The finding on the issue regarding subletting and personal use was set aside and the ejectment petition was dismissed by the Additional District Judge, Faisalabad, vide order dated 29th April, 1986 which has been assailed by the petitioner/landlord by filing this Consitutional petition.
2. Ch. Riasat Ali, Advocate, appearing on behalf of the petitioner has challenged the finding of the Addl. District Judge on issue No,5 relating to personal use alone and has argued that it was proved on the record that the shop in question was required bona fide and in good faith by the petitioner, for his own use and the Addl. District Judge has acted illegally in reversing the findings recorded by the Rent Controller in this behalf.. The learned counsel further emphasized that the provisions of section 13(4) of the Ordinance were completely omitted from consideration by the lower Appellate Court.
3. Ch. Mushtaq Ahmad Khan, learned counsel for the respondent has, on the other hand, supported the judgment of the Addl. District Judge.
4. From a perusal of the judgment of the Additional District Judge, it is to be seen that while non- suiting the petitioner on the issue of personal use, he took into consideration the following two factors:-
(1) That another shop i.e, shop No,6 situated in the same market was vacated by its tenant during the pendency of the ejectment petition, but the petitioner instead of occupying the same, rented it out to Mushtaq Ahmad, which shows the mala fides of the petitioner.
(2) That the petitioner is in possession of another shop bearing No,2 in the same market where he is working alongwith his brother.
5. Having heard the learned counsel for the parties, I am of the view that the judgment of the Addl.
District Judge is in accord with the law and is not liable to be interfered with by this Court, in the exercise of its constitutional jurisdiction. It is not denied by the learned counsel for the petitioner that Shop No, 6 had fallen vacant during the pendency of the ejectment petition and was rented out to Mushtaq Ahmad. The explanation offered by the learned counsel that non-occupation of this shop by the petitioner is that it did not belong to the petitioner alone, but to three co-owners and also that since at the time of the filing of the ejectment petition, that shop was not available for occupation, the petitioner was justified in insisting that he would occupy the shop in possession of respondent No,1. The learned counsel also pressed into service the principle that it is the prerogative of landlord to choose any shop for his own use.
6. There is no cavil with the proposition that so far as it goes a landlord is free to choose any property for his-own use and occupation. However, the fact remains that in the present case, admittedly Shop No,6, in the same building had fallen vacant, therefore, the petitioner/landlord was certainly under an obligation to explain as to why he did not occupy that shop. The explanation offered by the learned counsel for the petitioner for not occupying the shop as given in para. 4 above cannot be accepted. It is clear from the evidence on the record that the disputed shop as also Shop No,6, both are owned by three co-sharers. It is also in evidence that the shop was rented out to Mushtaq Ahmad, by the petitioner alone, in whose favour alone a rent note was executed.
The view taken by the Addl. District Judge that in such an event, the petitioner is not entitled to have a shop vacated, is supported by Haji Khuda Bakhsh v. Muhammad Anwar 1982 CLC 1006 and Mst. Birjis Khatoon v. Jabbar Ahmad 1983 CLC 3066. That being so, no interference in the impugned order is called for.
7. As regards the contention of the learned counsel for the petitioner that the provisions of section 13(4) execution notice by the Rent Controller, suffice it to say that this provision does not relieve the landlord of the obligation to prove that he requires the shop bona fide and in good faith as held by Haji Ghulam Muhammad v. Abdul Qadir PLD 1975 Lah.
200. As the petitioner has failed to prove his bona fides, the ejectment petition could not be accepted, merely on the basis of section 13(4) of the Punjab Urban Rent Restriction Ordinance, 1959.
' As a result of what has been said above, this petition fails and is dismissed, leaving the parties to bear their own costs.