2005 PLP 1723 (CLC)

The brief facts out of which present appeal arises are that the respondent filed ejectment petition against the appellant in the Court of Rent Controller, Khushab on 2-7-2002 alleging the ground of his personal need with regard to rented property and for the purpose of establishment of business for his son. The petitioner filed written reply controverting the allegations levelled in the ejectment petition. Out of pleadings of the parties, the learned trial Court framed the following issues:- Issues (1) Whether the petitioner needs the disputed property for his personal need? OPA (2) Whether the petitioner is entitled to decree for ejectment under section 13 of the Rent Restriction Ordinance, 1959? OPA (3) Whether the petitioner has no cause of action and locus standi to file this application hence petition is liable to be dismissed? OPR (4) Whether the petitioner has taken an amount of Rs.20,000 as security from respondent and until the payment of security amount, the petitioner is not entitled to file this petition for ejectment, hence same is liable to be dismissed? OPR (5) Whether respondent has made certain improvements and developments upon the disputed property and in this regard, he has incurred expenses of Rs.50,000 which he is entitled to recover and until the payment of such amount, no order can be passed in favour of petitioner? OPR (6) Whether present petition has been filed just to blackmail the respondent as he has made certain improvements for rendering his business worth Rs.3,50,000 and present petition has been filed with mala fide intent hence, he is entitled special costs? OPR (7) Relief. The learned Rent Controller accepted the ejectment petition vide order dated 3-2-2005. The appellant-tenant being aggrieved filed appeal before the learned Additional District Judge, Khushab, who dismissed the same vide judgment and decree, dated 3-5-2005. Hence, the present second appeal.

2. The learned counsel of the appellant submits that the first Appellate Court passed the impugned judgment by misreading and non-reading of statement of Tahir Pervaiz-A.W.3 specially portion relating to personal need with regard to son of original landowner, which is at page 48 of this file, which clearly shows that his son got appointment in the Police Department. He further submits that rented property is in litigation between the landlord and Pakistan Railways. He further submits that Civil Revision No.2047 of 2004 is pending adjudication before this Court. He further submits that judgments of both the Courts below are the result of misreading and non-reading of record. He further submits that it is the duty and obligation of respondent-landlord to prove the ground of personal need with cogent evidence, but he failed to produce the cogent evidence on record. He further submits that both the Courts below have decided the case against the appellant-tenant by misreading and non-reading of record and judgments are based on surmises and conjectures.

3. I have given my anxious consideration to the contention of learned counsel of the appellant and perused the record.

4. It is better and appropriate to reproduce the operative parts of cross-examination of Tahir Pervaiz A.W.3 and Malik Rashid Rehman R.W. 1 to resolve the controversy between the parties:-- Cross-examination of A.W.3 urdu 1726 Cross-examination of R.W.1 urdu 1726

5. In case, the aforesaid portion of evidence, are put in juxta position along with other evidence on record, then both the Courts below have passed the judgments after proper appreciation of evidence of the parties on record, therefore, the learned counsel of the appellant-tenant failed to point out any piece of evidence, which was misread and non read by the Courts below. It is settled principle of law that this Court has very limited jurisdiction to interfere in concurrent findings of facts in second appeal, as per law laid down by the Honourable Federal Court A and the Honourable Supreme Court in Abdul Majid and others v. Khalil Ahmad NLR 1955 FSC 38, in Pathana's case PLD 1965 SC 134 and Mussarat Sultana v. Muhammad Saeed 1997 SCMR 1866. It is settled principle of law that concurrent findings recorded by the Courts below, cannot be interfered by this Court, while exercising power under section 15(6) of West Pakistan Urban Rent Restriction Ordinance, 1959. How so erroneous that finding may be, as per law laid down by the Honourable Supreme Court while interpreting section 100 of C.P.C. which is para metric of the aforesaid provisions of Rent Restriction Ordinance, 1959 in Haji Sultan Ahmad through Legal Heirs v. Naeem Raza and 6 others 1996 SCMR 1729, the question of personal need is considered in the reported case of Abdul Ghafoor and Abdul Qadar 1986 MLD 1636. The relevant observation is as follows:-- "That the balance of authority is that the statement of the landlord showing personal need should prima facie be a good ground for ejectment of the tenant unless the tenant succeeds in creating doubts in the story of personal need either by cross-examining the landlord or by producing evidence in rebuttal. As owner of the property it is the right of the landlord to use its property in the manner he chooses." The Honourable Supreme Court also considered this proposition of law qua personal need by the landlord in ejectment in S.M. Noor-ud-Din's case 1998 SCMR 2119 and laid down the following principle:-- "Once the landlord has duly acquitted himself by stating on oath that this requirement is in good faith as understood in law, he should normally, be deemed to have discharged his burden, with thereupon shifts to the tenant for whom it remains initially, to cross-examine the landlord and, that being done, lead his own evidence in rebuttal." The aforesaid proposition of law has also been supported by the judgments in Jehangir Rustam Kaka's case 1992 SCMR 1296 and Tauheed Khanum's case 1980 SCMR

593. The ratio of aforesaid judgments is that on issue of personal need, assertion or claim of others by landlord, if consistent with his averments in his application and not shaken and the cross-examination or disproved in rebuttal is sufficient to prove that need is bona fide. By afflux of time, the aforesaid principle is now honoured. In view of the aforesaid circumstances, I do not find any infirmity or illegality in the impugned judgments passed by the Courts below, therefore, this appeal has no merit.

6. However, the appellant-tenant is directed to hand over peaceful possession of the rented property in dispute to the respondent-landlord within three months from today, as per principle laid down in Messrs Yasmeen Riaz's case 1999 SCMR 832, subject to payment of rent in the learned trial Court in terms of section 13(6) of Rent Restriction Ordinance, 1959, failing which appellant-tenant shall be liable to be ejected from the rented property in dispute. The respondents-landlords are also directed to deposit Rs.20,000 as security amount before the learned trial Court, so that the same shall be handed over back to the appellant-tenant. With these observations, this appeal is disposed of. Copy Dasti on payment of usual charges. H.B.T./R-148/L Appeal dismissed.