This appeal is directed against the order of the Additional Controller of Rent, Peshawar Cantt.
Dated 23-9-1998 whereby he passed an ejectment order against the tenant-appellant from the suit Shop No,329/330, Jinnah Street No,2, Peshawar Cantt. And he was directed to hand over the vacant possession of the suit shop to the landlords/respondents within 30 days from the date of the order.
2. Brief facts of the case are that Khalid Hussain and four others, landlord/respondents filed an application for the eviction of Faqir Khan tenant/appellant under section 17 of the Cantonments Rent Restriction Act, 1963 (hereinafter to be called an Act) from Shop No,329/330 situated at Jinnah Street, Peshawar Cantt. On the grounds of default in payment of monthly rent and personal need of landlord/respondent No,1. It was averred in the petition that the landlords/respondents are the owners of the suit shop; that the tenant-appellant is tenant in it on payment of monthly rent of Rs,750; that Khalid Hussain, landlord/respondent No,1 is jobless and the suit shop is required for his own business which is situated underneath their residence, that the landlords will not give it on rent to anybody after its vacation; that the tenant has not paid the rent for the last 2-1/2 years and that the tenant/appellant was asked to vacate the suit shop and hand over the possession to the landlord's/respondents but in vain.
3. The petition was resisted by the tenant/appellant both on legal and factual premises. Necessary issues were framed in the case and evidence, pro and contra thereon was recorded. On the appraisement of the evidence so produced by the parties, the Additional Controller of Rent, Peshawar Cantt. ,vide his order dated 23-9-1998 ordered the eviction of the tenant/appellant from the suit shop with the direction to hand over its possession to the landlords/respondents within thirty days from the date of order which is impugned herein.
4. I have heard the learned counsel for the parties and have gone through the record of the case.
5. Landlords/respondents had sought ejectment of the tenant/appellant on two-fold grounds i,e, bona fide personal need of landlord/respondent No,1 and default in payment of monthly rent for 2- 1/2 years. As far personal requirement of the suit shop in good faith by landlord No,1 is concerned, he has substantiated his claim of bona fide personal need beyond any doubt. He appeared as P.W.1 and stated that he is jobless and requires the suit shop which is suitable for his personal need where he would run the business of readymade garments. He also stated that he can give any type of surety that he would not rent out the shop to anybody and do his business therein. He was cross-examined at length but his testimony could not be shaken. Most of the questions put to him were irrelevant and were not related to the issue in dispute. In support of his claim he produced Alhaj Muhammad Yousaf (P.W.2), Muhammad Naeem (P.W.3) and Mukhtiar Ahmad (P.W.4) who all have supported his claim of personal need. As against this the attorney Feroz Khan son of Faqir Khan (tenant), appeared as R.W.1 who admitted that in private partition the property in dispute fell in the share of Iqbal Hussain and after his death his heirs the landlords/respondents refused to receive rent, therefore, he started depositing the rent in the Court of Controller of Rents, Peshawar.
He stated that the landlords/respondents have got sufficient property, therefore, they do not need the suit shop for their personal occupation. He, however, categorically stated that the landlords/respondents have never demanded the enhancement of rent. He stated in the cross- examination that Mehmood Hussain, respondent No,2 was carrying on his business under the name and style 'Diana Variety House' and respondent No,1 sits in that shop at afternoon. He said that he has no proof that Khalid Hussain shares the business of Diana Variety House, King Dairy Form or Shabir Crockery House. He admitted that Khalid Hussain has 4/5 children who are studying.
He also admitted that the tenant/appellant has purchased a house in Jinnah Street No,4 and stated that if the landlords pay him Rs,7/8 lacs, he would deliver the possession of the suit shop to them otherwise not.
6. There is nothing on the record to suggest that the landlords/respondents ever demanded enhanced rent, hence, the plea of the tenant/appellant that the ejectment petition was filed with mala fide intention for enhancement of rent, -has no substance. Even if such a demand is presumed, it would not cast any shadow on the bona fide personal requirement of the landlords.
Reference can be made to 1989 SCM R 1366. Rather the appellant's bona fides are shadowed and,doubtful as his attorney has unequivocally stated that if the landlords pay him Rs,7/8 lacs, he would deliver the possession of the suit shop to them otherwise not. He also admitted that the appellant has purchased a house in Jinnah Street No,4. It is common knowledge that the houses situated in the side streets of the main Jinnah Street have been converted into Commercial units, hence, the tenant has a premises of his own where he can conveniently shift his business. It has been sufficiently established by the landlords/respondents that Khalid Hussain is not occupying any shop independently in his own right in the Cantonment Area or in the vicinity thereof and has not vacated such a building in the area, hence, they have fulfilled the requirements laid down by section 17(4)(b) of the Act, thus the tenant is liable to the ejectment. It is also worth mentioning that subsection (6) of section 17 of the Act is a penal provision which provide a check on the mala fide proceedings of the landlord. The landlords/respondents' evidence which supports the averments of the application regarding personal need in good faith for the suit shop cannot be disbelieved in view of the abovesaid severe provisions which also ensures a tight of restoration of possession to the tenant who has been dispossessed from the premises, if such premises is not occupied by the landlord within one month from the date of obtaining its possession.
7. As far default in payment of monthly rent is concerned, the landlord's evidence to this effect is not sufficient to prove it. This issue was neither pressed before the Rent Controller nor emphasised here, hence, it stands abandoned. The Additional Rent Controller has properly assessed the evidence on record and came to the right conclusion, which do not warrant any interference by this Court. Consequently, this appeal is dismissed with no order as to costs.