' This judgment will decide F.A.O. No,27 of 1999 which calls in question order, dated 17-3-1999 of the learned Additional Rent Controller, Cantonment Chaklala, Rawalpindi.
2. Facts necessary for the disposal of this appeal are that the appellant filed an application under section 17 of the Cantonments Rent Restriction Act, 1963, seeking eviction of the respondent from a commercial precises, on the ground of personal use. It was claimed that the premises was required in good faith and bona fide manner by the appellant for setting up his own clinic. The petition was resisted on the ground that the appellant was owner of other premises and that he had earlier filed ejectment petition which was withdrawn.
3. From the pleadings of the parties, learned Rent Controller, framed the following issues:-- Issues:
(1) Whether the present petition is not maintainable in view of the preliminary objections of the respondent? OPR
(2) Whether the petitioner requires the disputed premises in good faith for his personal use? OPP
(3) Relief.
4. The learned Rent Controller vide order, dated 17-3-1989, dismissed the ejectment petition on the ground, that an earlier ejectment petition was filed which was withdrawn after seeking increase of rent and secondly the appellant was owner of other properties on Tufail Road wherein a school was running.
5. Learned counsel for the appellant has been heard. Respondent present in Court, has explained his own case.
6. None of the grounds which prevailed upon the learned Additional Rent Controller were in accordance with the provisions of the Ordinance or the rule laid down by the superior Courts. It is a settled rule that mere ownership of other premises is no ground to non-suit the landlord, on the plea of personal use. The landlord has the prerogative to decide which one of the properties, he would like to occupy for the business or personal use and for this purpose he need not be guided to or advised by the tenant. Even this prerogative cannot be taken away by the Rent Controller who has only to consider if the need was bona fide. The other ground is also not worthy of consideration. Mere fact that the rent was previously increased and the ejectment petition was withdrawn will not be in itself be a ground to dismiss the ejectment petition. It is settled rule that if the personal use is proved independently, the mere increase of the rent in the past, will not be a basis for non-suiting the landlord. Even otherwise, mere withdrawal of the earlier petition by seeking increase of the rent will amount postponement of personal need and will not be a ground to non-suit the landlord or debar him for all time to come to move an ejectment petition on the ground of personal need if he is able to prove that subsequently personal need had arisen in good faith. In this view of the matter, the order passed by the learned Rent Controller cannot sustain.
7. It is observed that the entire evidence on record was not considered by the Rent Controller while dealing with the question of personal use. For seeking personal us, landlord has to make statement on oath, deposing material facts and also to take the Rent Controller in confidence and if the statement is not shaken in cross-examination and is also consistent with the pleadings, then the question of personal need has to be read in context with the protective clause which provides adequate check against mala fide eviction. In these circumstances, it is the duty of the Rent Controller, to consider the entire evidence in affirmative and also the evidence in rebuttal by the tenant and to thereafter conclude if the personal need is made out or not. Without reference to any statement or without giving an impression that the evidence was minutely examined, the plea of bona fide requirement cannot be repelled, on surmises and conjectures. The order passed by the Rent Controller does not five any impression if the evidence was independently examined or if any valid reason for non-suiting the landlord was recorded.
8. For the reasons above, this appeal is allowed, the impugned order is set aside and the case is remanded to the learned Additional Rent Controller for decision of the ejectment petition afresh, on merit and in accordance with law after considering the entire evidence and by recording a speaking order, In view of the delay already occurred, it is directed that the case shall be decided within five months with intimation to the Additional Registrar of this Court.