' This is an appeal under section 24 of the Cantonments Rent Restriction Act, 1963 against the order dated 3-10-1998 passed by the Rent Controller, Multan Cantonment by which application for ejectment regarding Shop No,292, Ward No,3, Kotwali Bazar, Multan Cantt. Of the appellants against the respondent was dismissed.
2. Brief facts of the case are that on 29-3-1993, Haji imam Bakhsh Yousaf (the predecessor-in- interest of the appellants) filed an application under section 17 of the Cantonments Rent Restriction Act, 1963 for ejectment of respondent-tenant namely Siraj Khan from Shop. No,292, Ward No,3, Kotwali Bazar, Multan Cantt. Which was admittedly owned by the appellants. A tenancy was created through a written agreement and Rs1,000 per month the rent was fixed. Firstly it was fixed for a period of six years which expired on 30-5-1994. The respondent-tenant defaulted in payment of prescribed rent in April, 1992 and continued to default in payment of the rent and thus, an amount of Rs,11,000 became due for 11 months' rent. It was also alleged in the application that the respondent was causing waste and damage to the said shop. It was pleased that the applicant was an old and retired man and needed the shop for his use to start his personal business for earning his livelihood. During pendency of the application, Haji Imam Bakhsh Yousaf was died and the , present appellants were impleaded as his legal heirs and by order of the learned Rent Controller, they also submitted amended application for ejectment of the -respondent-tenant from the shop in dispute.
3. The application was contested and the following issues were framed.
' ISSUES:
(1) Whether the application is filed for mala fide reasons.
(2) Whether the successors of late Haji Imam Bakhsh Yousaf (applicant) cannot claim on the ground of personal requirement as this ground' was taken by the late applicant for himself.
(3) Whether respondent is defaulter from April, 1992 and is liable to be ejected on the ground of default.
(4) Whether the shop in dispute is required for the bona fide use of the applicants.
(5) Whether the respondent has impaired the value and utility of the shop in dispute if so, to what effect.
(6) Relief.
4. Evidence was recorded and application was rejected vide girders dated 3-10-1998 by the learned Rent Controller
5. Notice issued to respondent has come back as having been refused. The service has been effected by way of affixation of the notice on the notice board of the shop of the respondent in presence of witness, namely, Liaqat Hussain, as reported by the Process Server Muhammad Sharif and sworn before the learned Senior Civil Judge, Multan, which is marked as 'A'. In this view of the matter, the respondent is proceeded ex parte.
6. The learned counsel for the appellants has submitted that the order of the learned Rent Controller is against law and facts ()tribe case and there is misreading and non-reading of the evidence and even misinterpretation of the law.
7. The contention of the learned counsel for the appellants is born from the record. The learned Rent Controller has observed that the appellants had not made an attempt to assert any personal requirement of their own. This observation is against the record of the ejectment petition. The amended application is on the record, ground No,(c) clearly shows that the appellants had taken the ground that the property is needed for the purpose of personal use of the petitioners/landlords.
It is at page No,33 of the Lower Court record. The reply of it given by the appellant is also on the record in which it is pleaded that ground (c) is incorrect. Detailed reply has been given in the preliminary objection No,7 that the legal heirs of the deceased/applicant are conducting their own business individually and they never needed the shop in dispute for their personal use. This fact is available at page No,37 of the Lower Court record. The learned Rent Controller has mis-interpreted the judgment of the Hon'ble Supreme Court in the case of Muhammad Shafi and others v.
Muhammad Illyas (1986 SCM R 451) by referring to a portion of that judgment and not mentioning the portion that was in favour of the appellants. For ready reference, the full observation of the Hon'ble Supreme Court is given below:-- "We have heard Mr. A.W. Butt and Mr. Ghulam Mujtaba, learned counsel appearing for the appellants and the respondent, respectively. The grievance of the appellants is that the learned Judge in the High Court totally ignored the amended ejectment petition in which the appellants on being impleaded in place of their predecessor-in-interest, set up an independent plea of their own personal requirement, and proceeded to determine the case on the basis of abatement of the cause of action on such plea raised by the deceased landlord for his personal use. The respondent, on the other hand, supported the impugned judgment of the High Court on the proposition that the appellants, on devolution of the interest of the deceased landlord could not in the same proceedings prosecute the claim for ejectment on the ground of personal use of the deceased landlord as such cause of action, being personal in nature did not survive to the legal representatives of the deceased/landlord. On a purely legal plane the contention of the respondent is unexceptionable. This Court in Muhammad Aslam v. Wazir Muhammad PLD 1985 SC 46 has laid down that unless the personal action of a landlord on the ground of personal requirement has matured into a judgment, decree or an order of a Court, it does not vest in his estate to survive to his legal representatives on his death and accordingly would abate on his death if the same occurs during the pendency of proceedings before an order of eviction is made.
' But the position in this case is different. The appellants were not obviously claiming ejectment of the respondent by virtue of the devolution of rights from the deceased landlord qua the plea of personal requirement. As already observed they were allowed to amend the petition and plead their own case of personal requirement in their own right as landlords for the time being. On the death of Ghulam Muhammad, the previous landlord, they succeeded to him as landlords and could obtain possession if they required the premises for their own use. Therefore, the amended ejectment petition qua this plea was for all intents and purposes, a fresh petition which they could maintain in their own right. This is what actually happened as is reflected from the proceedings and in fact one of the appellants appeared as their witnesses to support their plea of personal requirement. We are unable to see any force in the submission of the respondent that such procedure was illegal or not permissible in law. The objection is purely technical and of no consequences."
8. It is also factually incorrect that no evidence has been led by the appellants to prove their personal need. Independent witnesses have been produced to prove that facts. Murid Hussain, A w.1, who has clearly stated that the petitioners need the shop fol. Their use bonafidely. To a suggestion, this witness also stated that it was incorrect that the sons of Haji Imam Bakhsh Yousaf were in service or that they do not need the shop for personal use. The witness produced by the respondent namely Rashid Ahmad (R.W.1) has stated before the Court that appellants have another Shop which they have given on rent since 2/3 years and they themselves are carrying business in another shop. He has also stated that two of the appellants are working there and that they do not need the shop in dispute. When asked, what was the number of Shop which was given by the appellants on rent, this witness could not tell the number of the rented shop. Further, he stated that Sheikh Muhammad Hanif is the tenant in it. Another witness Fayyaz Khan (R.W.2) has referred to the shop given on rent by the appellants but also could not tell its number. Muhammad Saqlain (A.W.1) in his cross-examination has stated that the shop in which the appellants are doing their business belongs to their maternal uncle and they are paying Rs,1,300 per month as rent.
9. In this view of the matter, the finding of learned Rent Controller on Issues Nos.1, 2 and 4 are not sustainable both on facts and law.
10. Regarding Issue No,3, the onus was on the petitioner to prove that the respondent was a defaulter in payment of rent from April, 1992. On this issue, Murid Hussain, A.W.1, has stated in the examination in chief that he along with Haji Imam Bakhsh Yousaf and Muhammad Saqlain son of Haji Imam Bakhsh Yousaf had gone to Siraj Din respondent to demand rent who had not paid the rent for the last five years and the respondent had replied that his circumstances were not favourable and he could not pay the rent. In cross-examination, the witness deposed that it was the month of March, 1992. It was also stated in the cross-examination that they had gone to demand the arrears of rent four years back and that the rent was demanded for 11 months. The evidence of this witness was recorded on 24-5-1997. If five years period is taken, the date of demand comes 24-5-1992 and if four years period is taken, the date of demanding of arrears of rent comes 24-5-1993. Similar is statement of Muhammad Saqlain one of the petitioner witness appearing as A.W.2 but he deposed in the cross-examination, that the demand of rent was made in April, 1992.
11. On the other hand, Rashid Ahmad (R.W.1) has deposed that the father of the petitioner had fallen ill in the year 1992 and the rent was paid to his son whose name he did not know and gave his name as Siddique or Hussain Bakhsh. He further deposed that the payment was mentioned in a copy but the same was taken by the respondent on the excuse that receipt was to be got made from their father and thereafter, the said copy was never returned to the respondent. He also stated that the rent was never sent through money order. Fayyaz Khan R.W.2 stated that Haji Imam Bakhsh Yousaf had fallen ill in the year, 1993. It has also come on the record that the respondent had offered the petitioner to state on Oath about the default in payment of rent but to which he did not agree. It is a matter of common sense that had the father of the petitioner would have issued receipt for the payment of rent to the respondent, they could have produced it before the Court and it does not appeal to reason that a person possessing payment would not put forward the proof available with him. As such, plea taken by the respondent that the payment of the rent was mentioned in the copy seems to be plausible and the non-production of that copy by the petitioners is again an inference against them. The findings of the learned Rent Controller on Issue No,3 is correct and is, therefore, maintained.
12. As my findings on Issues Nos.1, 2 and 4 are against the respondent. As such, the appeal is allowed and the order of the learned Rent Controller rejecting the ejectment application is set aside and ejectment is ordered on the ground of bona fide need for personal use to the petitioners/appellants. However, four months' time is given to the respondent to hand over vacant possession of Shop No,292, Ward No,3, Kotwali Bazar, Multan, to the appellants. No order as to costs.