' Muhammad Ishaq and another the appellants before this Court filed an ejectment petition regarding a shop against Mst. Adiba Musharraf the respondent, herein their tenant in the Court of learned Rent Controller, Rawalpindi Cantt. on the ground of bona fide personal use of the appellants and default in the payment of rent. Ejectment petition was contested and the Rent Controller on the basis of pleadings of the parties settled the following issues:--
(1) Whether the respondent is a rent defaulter?
(2) Whether the petitioners require the disputed premises in good faith for their personal use?
(3) Relief.
' The appellants subsequently did not press issue regarding the default in the payment of rent and hence the trial proceeded on Issue No,2 alone. The evidence was produced by the parties and the learned Additional Rent Controller, Rawalpindi Cantt. vide order dated 3-5-1992 dismissed the ejectment petition on the ground that the appellants landlords, have failed to prove that they are in bona fide need of the premises in question for their personal use and occupation. According to the learned Rent Controller the landlords have been able to prove only a "desire" to get the premises vacated rather than bona fide "need" as required under the law. For coming to the aforementioned conclusion the Additional Rent Controller has relied upon notice dated 22-10-1991, Exh. P3 whereby the respondent was intimated regarding transfer of shop in question in favour of the landlords wherein no mention of the personal need had been made. Learned Additional Rent Controller has also taken note of the fact that although the landlords are in possession of the upper portion of the premises in question yet they have not disclosed this fact in the ejectment petition nor have proved the said portion to be insufficient for their personal need. This order has been challenged by the landlords in this first appeal.
2. Mr. Bashir Ahmad Ansari, Advocate has appeared on behalf of the appellants whereas Raja Imtiaz Ahmad Kiani, Advocate has appeared on behalf of the respondent.
3. Learned counsel for the appellants has contended that the learned Additional Rent Controller has misread evidence and omitted to take into consideration material portions thereof while coming to the conclusion that the appellants have not been able to prove that the premises in question are required by them in a bona fide manner for their personal use and occupation. To elaborate his argument learned counsel has drawn my attention to a copy of the notice Exh.P8 dated 7-11-1991 which preceded the filing of the ejectment application which was filed on 25-11-1991, wherein it has specifically been mentioned that the landlords need the shop in question for their use and occupation. Learned counsel has further pointed out that the upper portion of the shop in question which is possessed by the appellants is not at all suitable for the needs of the landlords, and the factum of existence of this portion is also mentioned in the notice dated 22-10-1991 Exh.P3.
According to the learned counsel there is evidence on the record that only approach to the supper portion is two feet wide staircase and, therefore, the said upper portion is not at all suitable for the needs of the landlords inasmuch as they want to shift their "garments business" from Kohati Bazar to the premises in question which have been purchased by them for the aforementioned purposes vide sale-deed, dated 25-8-1991 and 9-9-1991. It is contended that Muhammad Idrees R.W.1 who is close relative of the respondent has unequivocally admitted that staircase leading to the upper portion is two feet wide and further that the shop in Kohati Bazar where presently landlords are doing business does not belong to them. It is vehemently argued by the learned counsel for the appellants that the premises in question have been purchased by the appellants for the purposes of shifting their business from Kohati Bazar and it is prerogative of the landlords to decide as to which premises and to what extent are needed by them. The finding of the Additional Rent Controller is absolutely incorrect that the appellants have failed to prove the need of the landlords is bona fide. It is established that it is not a case of merely a "desire" but is a case of real "need" of the landlords which has been corroborated in the statement made by one of the appellants while appearing as a witness which statement is in line with the averments made in tbe application for ejectment. Learned counsel further contends that plea taken by the respondent in her evidence to the effect that ejectment proceedings have been filed for the purpose of getting "Pagri" is not supported by any cogent evidence and, therefore, the judgment rendered by the learned Additional Rent Controller is not lawful.
3-A. Learned counsel for the respondent has argued that the appellants have failed to prove that they are in bona fide personal need for use and occupation of the premises in question and that it is only a case of "desire" and not a case of real need and hence, on the basis whereof the ejectment order cannot be passed in favour of the appellants. According to the learned counsel view taken by the Additional Rent Controller is quite in accord with the law declared in the case of Muhammad Aziz Ullah v. Abdul Ghaffar 1984 CLC 7837 and Muhammad Jamil Butt v. Rana Mansib Ali Khan etc. 1990 .ALD 158.
4. I have considered the arguments addressed by the learned counsel for the parties and have also gone through the record. It stands established on record that the appellants presently are doing a garments business in Kohati Bazar in a shop which does not belong to them. It is also established on record that the shop in question was purchased by them vide registered sale-deed dated 25-8-1991 and 9-9-1991. Vide notice Exh.P3 dated 22-10-1991 the respondent was informed about the factum of purchase of the premises in question. Vide notice dated 7-11-1991 which is Exh.P8 on the record the respondent was informed about the need of the appellant for their bona fide personal use. As the shop was not vacated by the respondent, the ejectment petition was filed on 25-11-1991. The dates of purchase, issuance of the notice as well as the ejectment petition clearly prove that the landlords purchased the premises in question for the purpose of shifting of their business from Kohati Bazar to the premises in question. Merely because upper portion of the shop is already in their possession is not sufficient to hold that the need of the landlords is not bona fide.
The only approach to the upper portion is two feet wide staircase. In the natural course of events the customers will not ordinarily be attracted in upper portion of the premises approach whereof is only two feet wide staircase. That portion can be used as a store alright but definitely not as a shop or a show room where the garments are sold and displayed. It is correct that in notice Exh.P3 mention of personal need is not there, but in the notice Exh.P8 which preceded filing of ejectment petition, specific mention has been made regarding the personal need of the landlords. One of the appellants has appeared as a witness in support of his case which statement is qute in line with the averments made in the ejectment petition on the question of personal need. There is no cavil with the proposition that mere desire of landlords to get the premises vacated is not sufficient ground to pass an order of ejectment but in the case in hand landlords have successfully proved that they are in real need of the premises in question for shifting of their business which is presently being conducted in the premises which admittedly belongs to some body else. It is established proposition of law that it is prerogative of the landlords to decide the premises as well as the extent thereof where the need of the landlords can be satisfied. The respondent who is a tenant cannot dictate the landlords to do their business in the upper portion and not to use the premises in question for their business, which had recently been purchased by them for the purposes of doing their own business as stated on oath before the learned lower Court. In ejectment matter filed on the ground of personal need, statement of the landlord if in line with the averment in the petition, is to be believed as correct unless there is cogent evidence of mala fides. In the case in hand although the respondent has contended that the petition has been filed for the purposes of receiving of "Pagri". The oral evidence produced by the respondent is not reliable and it cannot be said that ejectment petition has filed in a mala fide manner. It is right of the tenant to get the possession restored in case of failure of the landlords to occupy. The same is a sufficient check to guard against the mala fides of the landlords which at any rate is not the case in land.
' Resultantly findings recorded by the learned Additional Rent CoLtroller on Issue No,1 are not correct and hence are reversed and the issue is decided in favour of the appellants landlords.
' As a result of my findings on Issue No,2, this appeal is accepted. Impugned order of dismissal of the ejectment petition passed by the Additional Rent Controller dated 3-5-1992 is set aside and the order of ejectment is passed against the respondent who shall vacate the premises in question within the period of two months w.e.f, today failing which appellant landlords shall be at liberty to get the tenanted premises vacated by filing of execution proceedings in accordance with law. It is directed that during interregnum the respondents shall not transfer possession of the tenanted premises to any body else than the landlords. Parties are left to bear their own costs.