P L D 1966 (W (PLP)

(b) That in any case, according to the relevant law on the subject, besides the requirement being in good faith, the landlords, had further to prove that they 'had not in their occupation any other property suitable for their need at the relevant time. He submits that the learned Single Judge has not adverted to this essential ingredient and in view of the findings of the Rent Controller and the District Judge that the other accommodation with the landlords was quite suitable for their need, their application could not have been accepted. It is pointed out by the learned counsel that the learned Single Judge referred to this matter just in passing in the context of good faith and did not notice that it was a requirement independent of good faith and that finding on suitability also being one of fact could not have been interfered with in the second appeal.

4. For the purpose of showing that the question of good faith is a question of fact, learned counsel for the appellant has relied upon Rechldas Sumomal v. Uttamchand Sakhatrai and others (A I R 1946 Sind 14), Assam Bengal Railway Co., Ltd., Chittagong v. Atul Chandra Sen (A I R 1937 Cal. 314), Atma Singh v. Dr. Gian Das and others (A I R 1941 Lah. 271), Firm Ganga Ram Kishan Das v. Firm Hari Ram Ram Lal and another (A I R 1927 Lah. 909), Thakur and others v. Jawala and others (A I R 1921 Lah. 291), Ibrahim v. Firm of Ghulam Husain and others (A I R 1921 Sind 13), Abdul Samad v. Municipal Committee Delhi (75 P R 1916) and Kala Singh v. Gahna Singh and another (A I R 1932 Lah. 531). There is a considerable force in the arguments raised by the learned counsel for the appellant, and on the basis of the authorities 4 reproduced earlier, we hold that the question of good faith is a question of fact. The only thing to be noticed is whether the finding on this point, as recorded by the two Courts below was such which warranted any interference in second appeal in the High Court. The two Courts below had taken into consi deration the entire evidence which had been produced before them and it could not be said that the findings of those Courts were based on no evidence or were based on misreading of any evidence. The landlords produced five witnesses (A. W. 1 to A. W. 5) and the tenant produced four witnesses (R. W. 1 to R. W. 4). The statements of all these witness were duly taken into consideration by the Rent Controller as well as the District Judge and merely because another view could also be possible from the same evidence was no ground for interference in the second appeal. The learned Single Judge has held that the term "good faith" means free from fraud ; frank, fair seeming; openly shown; chaste or a genuine use. There is no quarrel with this meaning of the word "good faith" and nor had the two Courts below given any other meaning to it. The only question to be seen was as to whether on the evidence brought before the two Courts below they were satisfied as to whether the need of the landlord was genuine or not. The two Courts below were not convinced from the evidence produced before them on this point by the landlord and their findings could not have been upset in the second appeal. It was held by their Lordships of the Supreme Court in Pathana v. Mst. Wasai and another (P L D 1965 S C 134) as follows:‑ "In a similar case reported as Mst. Durga Chaudhari v. Jawahir Singh Chaudhri (17 I A 122), the Judicial Committee of the Privy Council held that an erroneous finding of fact is a different thing from an error or defect in the procedure and that there is no jurisdiction to entertain a second appeal on the ground of such an erroneous findings, however, gross or inexcusable the error may seem to be, their Lordships observed that where there is no error or defect in the procedure, the finding of the first Appellate Court, upon a question of fact, is final, if that Court had before it, evidence proper for its consideration, in support of the finding. This principle was also armed by the Federal Court of Pakistan in a case reported as Abdul Majid v. Khalil Ahmad P L D 1955 F C

38. It was pointed out in that case that a fallacy in appraising the evidence as to a fact, unless it amounts to a material mis taken assumption, is merely an error, in coming to a finding as to that fact, and such error has never been held to be an error of law justifying interference in second appeal. With respect, we find ourselves in agreement with these dicta. It was, in our opinion, therefore, not open to the learned Single Judge to set aside the finding as to the faith of the deceased, Salara, recorded by the District Judge, on the grounds mentioned by him." Similarly in Sh. Muhammad Ikhlas and others v. Muhammad Ismail and others (P L D 1963 S C 466) their Lordships held as follows:‑ "Under the West Pakistan Rent Restriction Ordinance a second appeal lies to the High Court, which is subject to that terms of section 100, Civil Procedure Code, and to the other provisions respecting appeals contained in that Code and in the First Schedule thereto. Section 100 of the Civil Procedure Code is to be read with section 101, which provides that `no second appeal shall lie except on the grounds mentioned in section 1,00'. Section 100 provides that an appeal shall lie to the High Court from an appellate decree of a Court subordinate to the High Court on any one of three grounds namely:‑ (a) the decision being contrary to law or to some usage having the force of law; (b) the decision having failed to determine some material issue of law or usage having the force of law; or (c) a substantial error or defect in the procedure provided it the Code or by any other law for the time being in force, which may have produced error or defect in the decision of the cast upon the merits. The terms of these sections were examined by the Federal Court of Pakistan in the case, Abdul Majid v. Khalil Ahmad (1954) 2 F C R 136=P L D 1955 F C

38. It was held in that, case that under section 100, C. P. C., the High Court had no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however, gross and inexcusable the error may seem to be, unless there is an error in the procedure provided by law which may have produced an error or defect a the decision of the case on the merits. In the case before the Federal Court, the High Court had come to the conclusion that the Court below had approached the evidence from a wrong point of view and it was held that `fallacy in appraising the evidence as to a fact unless it amounts to a material mistake assumption, is merely an error in coming to an error of law justifying interference in second appeal'. There were concurrent findings of fact by the two Courts below the High Court and it was held by the Federal Court that the High Court had no jurisdiction to entertain a second appeal on the ground stated above, and that it exceeded its functions in interfering with these findings." Respectfully following the above law, we hold that the interference in second appeal on question of fact by the learned Single Judge was unwarranted and unjustified.

5. The second point raised by the learned counsel for they appellant has equally great force. R. W. 1 to R. W. 5 in this case stated that the landlords have other shop or shops and until it was found that the said shop or shops was/were not suitable for the requirements of the landlords, no order for ejectment could have been passed against the tenant. On this point the finding of the trial Court was as follows:‑ "From the above discussion of the evidence, it stands proved that so far as the residential building is concerned it consists of at least three or three‑and‑a‑half storeys. This is a ‑Haveli type building with a compound in the middle of the house. It has a big gate with a deohri. Evidentially (sic) the house appears to be big enough to accommodate two families easily. As regards the shop it is also clear that it is sufficiently big enough for the business of the petitioners and it is capable of being divided into two parts, even if the petitioners intend to split up their business into two portions. The evidence that has been led on behalf of the petitioners, does not prove that the present shop occupied by the petitioners has become insufficient for the purposes of their trade or business. Section 13 sub‑para. III (ii) runs as follows:‑ (ii) In the case of a non‑residential building or a scheduled building or rented land, if (a) he requires it in good faith for his own use or for the use of any of his male children, (b) he or his said child is not occupying in the same urban area in which such building is situated for the purpose of his business any other such building or rented land, as the case may be, suitable for his needs at the time; This provision requires that a non‑residential building can be vacated only if the petitioner requires on good faith for his own use, but there is a necessary qualification which is added to this and that is, that the petitioner does not own or occupy in the same urban area a similar building suitable for his needs at the time. In‑ this case the petitioners are occupying a sufficiently big shop in Anarkali Bazar and there is no evidence on the record that the shop has become unsuitable for the needs of the petitioners. On the contrary, the entire evidence is to the effect that the shop is a sufficiently big one and the petitioners are running their business quite conveniently. The mere fact that there is a dispute between the two brothers does not make the business premises unsuitable one. There may be dispute between the two brothers for several reasons, but the existence of dispute does not attract the provisions of the Rent Restriction Ordinance. It is only the non‑suitability' for the business purposes at the time that could attract the provi sions of the Ordinance. There is evidence on the record that the shop could be divided into two or three portions. If there is really some dispute between the petitioners they can conveni ently divide the shop into two portions and thus separate their business in the same shop premises."

6. When the matter came up before the learned District Judge, he recorded the following finding:‑‑ "He added that it has two small doors and one big entrance. Regarding the shop in dispute, he stated that it has a frontage of 10 feet. Also he deposed that the residential house of the petitioners is 3 storeyed spacious building, which is sufficient for the needs of the petitioner s. He further stated that the sons of the petitioners are running business in various localities of Lahore. "

8. As noted supra, the witnesses produced by the appellant landlords themselves state that their house is 2 or three storeyed building, comprising 8 or 10 rooms. Fazal Husain petitioner, however, controverted the above statement of his own witnesses and deposed that the residential house consists of six rooms and is a 2 storeyed building. Obviously, his statement is contradicted by his own witnesses, namely, "Muhammad Yusuf Pleader (A. W. 1) and Gulzar Muhammad (A. W. 2). Apart from this, Gulzar Muhammad stated that the settlement between the petitioners, who are brothers inter se, was arrived at their house in the presence of their women folk where it was decided that they should have separate business and residence. Muhammad Ibrahim (P.W. 4), how ever, stated that the settlement had been arrived at their, shop. It is obvious that the evidence with regard to settlement, between the brothers, is a made‑up affair. Briefly stated, there is ample evidence on record to show that the residential building occupied by the petitioners is spacious one, where both of them can live separately with their families. Regarding the shop, which they are occupying at present, Muhammad Yusuf (R. W. 1) admitted that it has two doors. As such the shop can be divided between two petitioners where each of them could have his separate business. There is, therefore, no satisfactory evidence on record that the petitioners require the premises in dispute bona fide for their personal occupation. Assuming that there is difference between the brothers and they want to separate their business and residence, this by itself is no ground for ordering the ejectment of the respondent from the premises in dispute. Needless to add that I have already stated that both the brothers can occupy the house of which they are in posses sion, separately. Also they can separately run their business after partitioning the shop which is quite spacious one." "

9. For the foregoing reasons I am of the opinion that the order of the Court below requires no interference by this Court. I accordingly dismiss the appeal with costs. Pleader's fee Rs. 20." 7: The above passages would shout that it was a concurrent finding of fact of the two subordinate Courts that there was another suitable premises with the landlords and in view thereof there was no justification for ordering the ejectment of the tenant. This finding of fact could not have been set aside unless a proper case under section 100, C. P. C., was made out. Both the Courts had referred to the entire evidence and taken all the aspects into consideration. As far example, the extent of the area of the shop or house already in possession with the landlords and its accommodation, the fact that there were two other shops one in Anarkali and one on Brandreth Road where also the sons and nephew of the petitioner‑landlords were doing business, the plea that they had entered, upon a sort of settlement to separate, the possibility of dividing the existing accommodation and the magnitude of family members etc, After taking all these factors into consideration the finding was arrived at that the existing accommodation was quite suitable for the landlords. There was no misreading of evidence and nor was any evidence omitted from consideration. In these circumstances, the case fell within the principle as laid down by the Supreme Court. We find that there was no justification to upset the concurrent finding of the two subordinate Courts on this point. All that the learned Single Judge has done is to take a different view from same set and circumstances which was beyond the scope of his jurisdic tion. The learned Single Judge was influenced by the fact of the increase of the family members of the petitioner‑landlords and opined that what was sufficient for them earlier could not be considered sufficient even now. This was merely one aspect of the matter and the other attending circumstances were the area of the existing accommodation, the possibility of its convenient demarcation or division, and the fact that some of the family members were already equipped with business and shops at other places, since the scope of a second appeal in the High Court is limited the consideration of the kind on which the finding of fact was disturbed could not constitute a legal basis for that disturbance. So long as evidence was, there, in support of the finding of the two subordinate Courts below, it could not have been set aside in second appeal merely because one aspect should have been more emphasised while appreciating the evidence than the other. Similarly, the fact that the other shop in occupation of the landlords was under litigation was not sufficient by itself to disturb the finding of fact because this, at the most, was a consi deration relevant towards the appreciation of evidence. The evidence having, fully been appreciated and the findings of the two Courts below being based on that evidence were not liable to be disturbed in second appeal.

8. For the various reasons given above, we accept the present Letters Patent Appeal with costs throughout, and setting aside the judgment of the learned Single Judge restore that of the learned District Judge and the Rent Controller. K. B. A. Appeal accepted.