P L D 1964 (W (PLP)

This second appeal arises in the following circumstances. The appellants are the tenants of a shop. No. 1736, situated in the Dalgaran Bazar in the Peshawar City, of which the landlord is Haji Pir Bakhsh. They claim to be the successors‑in‑title as tenants of one Agha Muhammad, who was the previous tenant in occupation. The business in the shop premises is carried on by respondent No. 4, Ibrar Ahmad on behalf of the other respondents. The property in which the disputed premises are situated, was purchased by the respondent landlord in 1941. At the time of the purchase, the shop premises,, according to the appellant, fetched rent at Rs. 22 per month, and according to the landlord, at Rs. 25 per month. After the purchase, the disputes between the parties were referred to arbitration, each party nominating its own arbitrator. It was decided that the rent should be Rs. 35 per month, and this was accepted by the respondent/tenant. It is the contention of the respondent/ landlord that the shop premises were purchased by him for the rehabilitation of his two minor sons, Bashir Ahmed and Nazir Ahmed, who, according to him, had given up further education, and were without occupation. On the other hand the contention of the appellant was that the request of the respondent/landlord for the ejectment was mala fide, as from the very moment of its purchase, he had demanded enhanced rent, namely, at Rs. 70 per month, in consequence which the parties went into arbitration, and the rent was fixed at Rs. 35 per month. On the 14th of September 1961, the respondent/landlord served the appellants with a notice calling upon them to hand over possession of the shop premises to him as he needed them for the business or occupation of his two sons, already referred to, who had given u p their education.

2. On the 6th of October 1961, the respondent/landlord filed an application under section 13 (3) (a) (ii) of the West Pakistan Urban Rent Restriction Ordinance, that he needed these premises for the use of his two sons, and after evidence was recorded, the learned Rent Controller, Peshawar, by his order dated the 17th December 1962, dismissed the prayer of the respondent, holding on the three issues framed for determination that he did not require the property for his personal use, and that the circumstances indicated that his actual desire was for an enhancement of the rent. In appeal, the learned District Judge, Peshawar on the 2nd of May 1963, reversed the finding of the learned Rent Controller, that the respondent had been unable to establish that he desired to install his two adult sons in the shop premises in dispute, and disagreed with the finding that the respondent's application had been made merely with a view to secure further enhancement of the rent. In consequence respondent's appeal was allowed, and the appellants were ordered to restore possession of the property to the respondents by the 30th of June 1963 It i s with this order that the appellants are aggrieved

3. Mr. Abdul Latif Khan for the respondents raised a preliminary point, and referred to sections 100 and 101 of the C. P. C. read with section 15(4) of the West Pakistan Rent Restriction Ordinance in contending that a second appeal can only be allowed on the grounds indicated ‑in these relevant sections of the Civil Procedure Code.

4. The order sheet of this matter indicates that on the 8t of July 1963, my learned brother Faizullah Khan, J. after hearing the learned counsel for the appellant, determined that the question for consideration was whether the plaintiff required the shop premises in dispute for the bona fide use of his sons, in consequence of which he ordered that notices should issue to the parties. The presumption is that his lordship considered this a suitable ground in terms of sections 100 and 101 of the Civil Procedure Code for admission of this matter to regulate hearing. In these circumstances, the preliminary objection raised by Mr. Abdul Latif, is without foundation, and cannot be considered at this stage, for, apart from the legal aspect, it would amount to my sitting in judgment on what has been a preliminary finding of my learned brother, with concurrent jurisdiction An objection such as has been raised on this aspect can only be urged before a Division Bench of this Court.

5. Mr. Sheikh Allah Bux for the appellant‑defendant has taken me through the record and proceedings of this case, and the evidence recorded, to enforce his contention that the respondent/ landlord did not require the shop premises in dispute for the bona fide use of his sons.

6. The principles involved in the consideration of such a matter are referred to in Abdul Ghaffar v. Haji Salamat Ullah (P L D 1961 Lah. 233), where S. A. Mahmood, J. observed that true construction of the provision is that if a landlord has a bona fide need of the Building at the time for purposes of his business, whether existing for the time being or imminently to be set up, and if he is not in occupation of another building suitable for his need, he may apply to the Rent Controller for obtaining possession of the premises, and the Rent Controller has to make an order that the landlord be put in possession, "if he is satisfied about the bona fides of his claim." The need is referable to the time at which the landlord applies, and is not confined to the need of his existing business at the time.

7. In Muhammad Amin and others v. The Chief Judge, Small Causes Court, Karachi and others (P L D 1963 Kar. 695). I was sitting as one of the Division Bench Judges which heard the matter and in considering the aspect of the premises being required bona fide and reasonably for his own use or for the use of any person for whose benefit the landlord holds the premises we felt that the economic dependence of persons for whom the premises were needed or who are dependent upon the landlord for accommodation, had to be taken into account. Reference was made in this judgment to the case of Rekhabchand Doogar v. J. R. D.' Criz (26 C W N 499), where it: was contended that under the Rent Act, it was not sufficient for the plaintiff in order to defeat a plea under the Rent Act of possession that he should merely say that he desires the premises bona fide for his own occupation. The word in the Act was not "desire" but "required", and this involves something more than a mere wish, and involves an element of need to some extent at least.

8. Similarly we referred to the case of Epson Grand Association Ltd. v. V. E. J. Clarks (35 T L R 525), where it was expressed that:-- "As to the exception 'that the premises are reasonably required by the landlord for the occupation of himself or some other person in his employ', the onus was on the landlord. It was for him to establish that the exception applied, and that he reasonably required the premises for the occupation of himself or some other person in his employment, or in the employment of some tenant from him or that, some other ground existed which might be deemed to be satisfactory to the Court."

9. In consequence of these principles, it was necessary and incumbent upon the applicant/landlord here to satisfy the Courts below not only that he was acting bona fide but that his request for requiring the premises was reasonable. It was contended in terms of A I R 1951 Pat. 496, that the expression "his own occupation" is not limited to the occupation of the landlord himself, but that it should be given a wider and liberal meaning, so as include the occupation of persons who were living with the landlord, and economically dependent upon him. In that respect only, the advantage is on the side of the respondent/ landlord. Nor indeed, can it be denied that the two sons, Bashir Ahmad, and Nazir Ahmad are economically dependent upon him. Nevertheless, the over‑riding circumstance to be assessed is whether the respondent/landlord, on the evidence examined, and the circumstances that arose out of it, had established that he required the shop premises in dispute in good faith for the use of his two sons, Bashir Ahmad and Nazir Ahmad.

10. It is not denied that the respondent/landlord is running a grocery business in another shop premises and that the landlord of those premises in which the respondent is the tenant, has not presisted in his action of attempting to eject the respondent from those shop premises. A reference has been made to a dispute between the respondent and his landlord in respect of those shop premises, but is admitted that the dispute between the parties was settled, and did not at the time of the respondent's application, exist. It is also admitted that the eldest son of the landlord is running a truck and consequential business. Nor indeed is it disputed as stated by respondent No. 4, Ibrar, who is running the shop business on behalf of the first three respondents, that he had been sending the rent to the respondent‑landlord since September 1961.

11. In my view, the assessment of the entire matter by the learned Rent Controller, Peshawar, was more to the point, and more substantial than the considerations that actuated the learned District Judge in appeal to decide in favour of the petitioner. The circumstances to be taken into account are that during the entire proceedings before the learned Rent Controller, the two sons of the respondent, Nazir Ahmad and Bashir Ahmad, were neither produced nor examined, nor indeed any documentary evidence produced to substantiate either that they had been receiving education for some time, or that they had given it up, and that economically the present business of the respondent/ landlord was not sufficient to maintain himself and his family, in consequence of which his request for the shop premises in dispute, and the ejectment of the appellants from it, was necessary. Indeed, it appears that all that was produced in the Court of the first instance, was a statement made on the 4th of July 1962, that one of the two boys of respondent, namely, Nazir Ahmad had appeared in the 10th class examination of the year privately, and it is now stated at the Bar that Nazir Ahmad had failed in the examination.

12. The other contention against the respondent qua his averment, is that he had purchased the property in April 1961, for the purpose of rehabilitating his two sons. The petitioner's persistent averment has been that the respondent had proceeded against them as he needed enhanced rent. On account of these disputes, arbitrators were admittedly appointed, one Kazi Muhammad Yaqoob on behalf of the respondent/landlord, and Malik Daulat Khan for the petitioner/tenant, who settled them by holding that the rent should be Rs. 35 per month of these shop premises. The respondent acquiesced in this decision. This agreement to refer the matter to arbitration, in the context of his earlier statement, undoubtedly indicates his mala fides in respect of his application for ejectment of the petitioner. On the other hand, it has been stated at the Bar with reference to the power-of‑attorney given by the respondent/landlord in favour of one of his sons, that the respondent, in the course of this document, has referred to his being the owner of several houses and property situated in Peshawar. Besides, there is the statement of Malik Daulat Khan, one of the arbitrators, which, as the learned Rent Controller remarked, goes a long way to prove the actual intention of the respondent, namely, that he was anxious for the increase of the rent of the disputed premises, and not for the ejectment of the petitioners on the ground of rehabilitating his two sons. The learned District Judge, Peshawar, fell into an error in concluding in favour of the respondent on the ground that when the respondent purchased the property and agreed to the enhanced rent at the rate of Rs. 35 per month, it did not prevent him still pursuing his alleged object of acquiring the property for his personal use, or that of his sons. Indeed, the very fact that the respondent did not apply initially to the Rent Controller under section 13 of the Rent Restriction Ordinance for the eviction of the petitioners, and instead accepted a enhanced rent, by itself, is a strong circumstance militating against the bona fides of the respondent, and did not mere indicate that the respondent was ensuring "the more economic utilisation of the property till such time as he was able to get the tenant ejected through the Controller", or that "the landlord had the right till the determination of such proceedings to ensure a more economic rent agreeable to both the parties." It is necessary to emphasise and repeat to the context of the dispute between the parties, and since the respondent/landlord had contended that he had purchased the property for the sake of his sons, the swiftest attempt should have been made in law towards this object if that averment was bona fide. There is no doubt is my mind that the conduct of the respondent in all these circumstances was inconsistent with the case of personal use or that of his two sons. Besides, as I have already stated, the respondent-landlord has not discharged the burden of establishing that the business he had in hand, was not sufficient to meet the needs of the maintenance of his two sons.

13. The overall consideration in such a case as referred to in 26 C W N 449 is to be given to "require" and not "desire and the former involves more than a mere wish and an element of need. This the respondent had clearly failed to establish, I am, therefore, definitely of the view that the consideration of which the learned District Judge, Peshawar, passed his order are not in consonance with the principles which should apply in such a case, and that the order of the learned District Judge canny be upheld, and must be set aside, and that finding of the learned Rent Controller Peshawar must be restored, namely, that the respondent's petition for ejectment of the petitioners from the premises, was mala fide and was rightly dismissed.

14. The result is that the appeal is allowed with costs. K. B. A. Appeal accepted.