' This judgment shall dispose of S.A.O. No,105 of 1991 and S.A.O. No,107 of 1991, which are directed against the same judgment of the Additional District Judge, Faisalabad, dated 31st July, 1991, whereby he accepted the appeal filed by the respondents/landlords and directed the eviction of the appellants in both the appeals.
2. The dispute relates to a shop bearing No,28, Sheikh Cloth Market, Rail Bazar, Faisalabad, and arises out of an application under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959, filed by respondent against Muhammad Nawaz appellant in SA.O. No,105 of 1991 and Muhammad Rafiq appellant in SA.O. No,107 of 1991 averring that while the former was his tenant, the latter was a sub-tenant in possession of the shop in question. The ejectment was sought on three grounds, firstly, default in payment of rent from April, 1988 to October, 1988, secondly, person need of Muhammad Amjad, a son of the landlord and thirdly, of subletting. These applications were contested by appellants by filing separate written-statements.
3. After framing the relevant issues, the learned Rent Controller recorded the evidence of the parties and came to the conclusion that the landlord has failed to establish any of the grounds urged by him for eviction of the appellants. As such the ejectment petition was dismissed on 27th February, 1990.
4. Aggrieved by that order, the respondent/landlord went in appeal and succeeded before the Additional District Judge, who vide his impugned order/judgment, dated 31st July, 1991 held that the landlord has successfully proved that the appellants were defaulters and further that the shop in question was required by the respondent for the use of his son. The issue of subletting was, however, decided against the landlord.
5. Mr. S.M. Masood, learned counsel for appellant in SA.O. No,105 of 1991 and Syed Farooq Hassan Naqvi, learned counsel for appellant in SA.O. No,107 of 1991, has contended that the Additional District Judge acted illegally in reversing the findings of the Rent Controller on issues of default, personal need and his judgment is erroneous in law.
6. The learned counsel for the respondent has, on the other hand, argued that the findings on facts recorded by the Additional District Judge are not liable to be interfered with in this second appeal and the findings of the Additional District Judge are in accord with law.
7. After hearing the learned counsel for the parties and perusing the record, I am of the view that both these appeals are without any merit. So far as the issue of default is concerned, the landlord has alleged non-payment of rent for the period April, 1988 to October, 1988. Both the learned Rent Controller as also the Additional District Judge have found as a fact that the rent for this period was not paid to the landlord by. The appellants. These findings are concurrent and are amply supported by the evidence on the record. No receipt evidencing the payment of rent was produced. Even the learned Rent Controller, after having found that the appellants failed to pay the rent in question, but strangely enough, despite this finding, that the default was not wilful, so as to justify an order of eviction. However, nothing was brought on record by the tenant to show that non-payment of rent was beyond his control or that he was willing and ready to pay the rent. On the other hand, the case of the tenants throughout was that the rent had been paid to the landlord but this plea was found to be false by the Rent. Controller himself. It is, therefore, not understandable as to how the Rent Controller could after repelling this plea refused to order the ejectment of the tenant by observing that the default was not wilful.
8. Mr. S.M. Masood, learned counsel for the appellant in SA.O. No,105 of 1991, has contended that the ejectment application was mala fide and was filed in collusion with Muhammad Rafiq, his alleged sub-tenant. It was in that context pointed out that admittedly ejectment petition was filed on 17th October, 1988, while the rent for the disputed period had been deposited by the appellant with the Rent Controller on 4th October, 1988 @ Rs,215 which was the actual rent. This argument of the learned counsel is without any merit. Even if the rent had been deposited in lump sum by the tenant before the filing of the ejectment petition, yet this deposit would not wipe off the default already committed. As already pointed out, the grievance of the landlord was that the rent for the month of April, 1988 onwards had not been paid. Admittedly, the tenancy was in writing according to which the tenant was bound to pay the rent in advance on the first day of every month. That being so, he was clearly in default for the months of April to October, 1988.
9. So far as the issue of personal need is concerned, the findings recorded by the Additional District Judge are again unexceptionable. The landlord while appearing as his own witness has categorically stated that his son, Muhammad Amjad, was not doing anything nor was in possession of any shop. This statement remains unrebutted.
10. Syed Farooq Hassan Naqvi, learned counsel for the appellant in S.A.O. No,107 of 1991, however, contended that the appellant was owner of 35, shops and there was no reason as to why he should have selected this particular shop for the need of his son nor any circumstance has been brought on the record to justify the demand for vacation of shop when admittedly the son of the landlord was not doing anything for the last five years. It is by now well-settled that it is the prerogative of the landlord to select any of the shops for personal need and neither the Rent Controller nor the tenant can insist that some other shop be got vacated for that purpose. The learned counsel for the appellants is unable to point out anything on the record from which it could be inferred that the son of the appellant was in possession of any other shop or was otherwise gainfully employed. That being so, the fact that Muhammad Amjad is not doing anything for the last 5 years, lends support to the case of the respondents rather than the appellants.
' For the reasons aforesaid, these appeals are without any merit and are dismissed, with costs.
' At the request of Syed Farooq Hassan Naqvi, learned counsel for the appellant in SA.O. No,107 of 1991, one month time is granted to the appellant to vacate the premises.