Sher Muhammad, respondent/land--lord filed eviction petition against the appellant Itbar Gul for his eviction from Shop No.36 constructed on Plot No.444/16 Khyber Medical Centre, Dabgari Gardens, Peshawar Cantt. On the ground that the same was required by him (petitioner) in good faith for his own use and. Occupation. The eviction petition was resisted by the appellant/tenant by filing written statement. The learned Controller of Rents, Peshawar Cantt. Framed issues, recorded pro and contra evidence of the parties and allowed the eviction petition vide judgment/order dated 8-6-2002. Feeling aggrieved with the said judgment and decree, appellant/tenant has filed the appeal in hand.
2. Sheikh Wazir Muhammad, assisted by Mr. Salahuddin, Advocate the learned counsel representing the appellant argued that the eviction petition filed by the petitioner was based on mala fide. In fact one Gul Sher Khan was owner of entire Plaza known as Khyber Medical Centre and in order to obtain eviction order against various tenants, specific portions of the said Plaza were transferred in the names of his various relatives for nominal sale consideration for example in the case in hand, a shop alongwith 5 storeys constructed thereon has been transferred in the name of respondent/ landlord for a meagre sum of Rs.10,000, whereas the monthly rent of the transferred property in his name'" was Rs.9,675. This shows that the property was transferred in favour of petitioner/landlord to obtain eviction order.
3. It was also argued that it was admitted by the respondent/landlord that there were constructed 5 storeys upon the upper portion of the shop in dispute, but he (landlord) did not file eviction petition against any of the tenants in occupation of such portions of the property of the said building. The respondent/landlord was receiving huge amount towards rental from upper portion of the shop and he was admittedly a Transporter wherefrom he was also deriving sufficient income hence by no stretch of imagination it can be said that he required the shop in question for his personal business. He was not jobless because he was running his business of transport and he does not require the shop at all for his personal occupation.
4. It was also argued that there is only solitary statement of respondent/landlord on the record which is not sufficient to establish his bona fide requirement. He did not produce any other evidence in support of his respective claim.
5. It was also argued that the law helps the needy landlord and eviction order cannot be passed on the whims and wishes of the landlord.
6. On the other hand Mr. Abdul Aziz Kundi, the learned counsel representing the respondent/landlord argued that the shop in dispute alongwith upper portion was purchased by the respondent/landlord from one Akhtar Munir who was the owner of that portion of the property.
There is nothing on record to indicate that said Akhtar Munir had any relationship with Gul Sher and it was the prerogative of the owner to sell the property at any rate and the tenant cannot object to the fixation of sale consideration. There was no mala fide of the respondent/landlord to purchase the property at a lower rate. Moreover, the upper portions of the shop in dispute were admittedly on rent to other tenants and the respondent/landlord did not file any eviction petition against them because he did not need any of such portion. He only needed shop in dispute for which he filed eviction petition. This speaks of bona fide on the part of the landlord. Since the shop in dispute is situated at the ground floor, where the medicine business is being run and in the upper portions there were no shops but either Laboratories or Clinics of the Doctors and on the top two floors Medical Centre's Hospital is located therefore, those upper portions were not suitable for the requirement of respondent/landlord.
7. It was also argued that in accordance with the judgment laid down by the august Supreme Court of Pakistan in Barkat Ali v. Muhammad Ihsan 2000 SCM R 556, the respondent/landlord submitted affidavit Exh.P.W.1/1. He was cross-examined at length and his statement with regard to his bona fide requirement in the affidavit as well as in the cross-examination could not be shattered. It was sufficient to establish the bona fide of the landlord through his solitary statement and if such a statement was not shattered in cross-examination, the same could prove his personal requirement. The respondent/landlord reiterated the same in his affidavit and despite lengthy cross-- examination his veracity could not be shattered. I have heard the learned counsel for the parties and perused the record.
8. The argument of the learned counsel for the petitioner that the transfer of the shop in dispute and upper portions thereof in favour of respondent/landlord was mala fide because one Gul Sher was the owner of the entire Plaza known as Khyber Medical Centre has no force at all. It is on record that the shop in question alongwith its upper portions were purchased by respondent/landlord from one Akhtar Munir. There is no evidence on record to show that Akhtar Munir who had sold the shop in question with upper portions thereof was related to Gul Sher. No doubt the attorney namely Abdul Rashid through whom the property was sold to respondent/landlord was sun of Gul Sher and son-in-law of respondent/landlord but this fact would not prove that the shop in question alongwith upper portions were sold with mala fide intention to respondent. So far as the meagre sale consideration for which the shop in question with upper portions is sold were concerned, it is between the seller and the buyer to fix any price and the tenant could not raise any objection to the fixation of the sale consideration.
9. The argument of the learned counsel for the petitioner that there was a solitary statement of respondent/landlord which was not sufficient to establish his bona fide use of the shop in-question has no force at all. The parties, in compliance with the judgment of the august Supreme Court of Pakistan in Barkat Ali v. Muhammad Ihsan 2000 SCM R 556 had submitted affidavits. They were cross-examined at length by the opposite sides. The respondent/landlord not only in the affidavits submitted by him but in the cross-- examination also stated that he was jobless and the shop in question was required by him in good faith and bona fidely for his own use and occupation. This statement of the landlord was consistent with the averments of eviction petition and as mentioned above, the same could not be shaken in lengthy cross --examination or disproved in rebuttal. A solitary statement of the landlord was sufficient to prove his bona fide. Reliance in this regard is placed on the following reported judgments: -- (i)Iqbal Book Depot v. Khatib Ahmad and 6 others 2001 SCM R 1197; (ii)Sardar Nabeel Wali v. Additional District Judge/Appellate Authority, Sahiwal and others PLD 2000 SC 829; (i.e)Muhammad Shuaib Alam v. Muhammad Iqbal 2000 SCM R 903; (iv)Juma Sher v. Sabz Ali 1997 SCM R 1062; (v)F.R. Irani & Co. v. Begum Feroz 1996 SCM R 1178; (vi)Jehangir Rustam Kalia v. State Bank of Pakistan 1992 SCM R 1296, and (vii)Muhammad Iqbal Khan v. Sardar Bacha and 2 others 2002 YLR 1940.
10 Keeping in view the dicta laid down in the above judgments it can be safely held that the solitary statement of the landlord which was not shaken in the cross --examination or disapproved in rebuttal and which was consistent with the averments in the eviction petition was sufficient to prove the bona fide of the landlord and the learned Additional Controller of Rents, Peshawar Cantt.
While appreciating the law has rightly treated the solitary statement of respondent/ landlord to be sufficient for passing eviction order against the petitioner/tenant.
11. The argument of the learned counsel for the petitioner that there were 5 storeys on the upper portion of the shop which were on rent to other tenants but the respondent/ landlord did not file any eviction petition against them also shows his mala fide has no substance at all. The admitted position is that in the upper three storeys, there were Laboratories/Clinics of the Doctors and in the top most upper two storeys there was Khyber Medical Centre's Hospital. All the upper portions were admittedly in occupation of tenants. Moreover, those upper portions were not proper for the requirement of the respondent/landlord. Even otherwise it was the prerogative of the landlord to choose from all the several tenements occupied by tenants to avail of the personal requirement.
Wisdom in this regard is gained from S.M. Nooruddin and 9 others v. SAGA Printers 1998 SCM R 2119, where it was held:-- "The law is too well-established on the point viz. That a landlord had a complete option to choose from one of the several tenements occupied by tenants to avail of the personal requirement and the discretion is not assailed, except in the rarest cases of bad faith."
12. Likewise in Shahzada Ayyaz v. Mst. Zainab Bibi 2000 SCM R 485, Messrs F.K. Irani & Co. v. Begum Feroz 1996 SCM R 1178 and Nasrullah Jan v. Mst. Farzana Begum 2002 CLC 1523. Same view was taken. In the first cited authority i.e. 2000 SCM R 485 the august Supreme Court of Pakistan observed as under:-- "It has been laid down in numerous cases that the choice to occupy a particular shop cannot be denied provided the landlord proves that he had no other shop suitable for his business and that the shop in question would suit his requirement and which he requires in good faith for his own occupation. If the tenant is unable to prove occupation of any other shop by the landlord sufficient for his requirement, then he cannot be allowed to say that the landlord should occupy another shop than the one in his possession."
13. Another aspect of the case is that subsection (6) of section 17 of the Cantonments Rent Restriction Act, 1963 provides sufficient protection to the petitioner/tenant. In case of failure of landlord to occupy suit shop within the stipulated period, the tenant has every right to seek re- possession by filing an application in the Court of Rent Controller. Wisdom in this regard has been sought from the following reported judgments: -- (i)Nasiruddin v. Muhammad Sadique 1981 SCM R 709; (ii)Mst. Toheed Khanum v. Muhammad Shamshad 1980 SCM R 593; and (i.e)Nasrullah Jan v. Mst. Farzana Begum 2002 CLC 1523.
14. Keeping in view the above discussion I have no hesitation to hold that respondent/landlord had successfully proved that he bona fidely needed the shop in question for his personal use. The learned Additional Controller of Rents had elaborately discussed the evidence in her judgment and had given proper findings on the issues. No justification thus exists to interfere with the same.
I have not been able to find out any misreading/non-reading of evidence or any illegality or any infirmity in the impugned judgment/order. Resultantly, the appeal in hand is dismissed with no order as to costs.