1985 PLP 614 (CLC)

Muhammad Fazil made a petition for eviction of Sh.Muhammad Yousaf, a tenant in occupation of the premises on two grounds:- (i) Default in payment of rent since 1-9-1981. (ii) Personal bona fide requirement of the shop for his own as well as his son's use. Tenant filed written statement of defence and seriously resisted the ejectment petition. Both the grounds urged in support of the ejectment petition were controverted by Sh. Muhammad Yousaf. Rent Controller, Urban Area, Rawalpindi, .settled the following two issues:- (1) Whether the petitioner requires disputed premises for his personal use and for the use of his son? (2) Whether the respondent made any wilful default in payment of rent? (3) Relief.

2. Parties produced parol evidence. Landlord and his son for whose benefit, the shop was required, both appeared as A.W.1 and A.W.2. Respondent-tenant, besides, appearing himself, produced two more witnesses. This was all the evidence, produced before Rent Controller in support of the two above-noted issues. Issue No.2 was not pressed, before the Rent Controller by the landlord. Finding on issue No.1 however, was recorded in favour of the landlord. Vide order dated 27-11-1982 learned Rent Controller, accepting the ejectment petition, ordered tenant's eviction from the premises in dispute. He was, however, allowed four months' time, to vacate.

3. Sh.Muhammad Yousaf appealed to the learned District Judge, Rawalpindi, under section 15 of Punjab Urban Rent Restriction Ordinance, 1959 as amended. The appeal was transferred to the file of learned Additional District Judge, who vide order dated 12-6-1983 reversed finding on issue No.1 recorded by Rent Controller and returned judgment against the landlord, dismissing ejectment petition. It is, in these circumstances, and background that the landlord has invoked constitu tional jurisdiction of the High Court, praying that the order dated 12-6-1983, passed on appeal, be set aside and, further, be declared to have been made without lawful authority.

4. I have heard learned counsel for the parties and with their assistance, have examined the evidence also. Copies whereof have been placed on file by Maulvi Siraj-ul-Haq, learned counsel for the writ petitioner.

5. Darned counsel for the landlord, contended, that the order dated 12-6-1983 is based on, total misreading of the recorded evidence and the finding arrived at by first Court of appeal, was opposed to the numerous judicial pronouncements of the superior Courts. He contended that the landlord appeared, as witness, to support his own need and that of his son Ghulam Mustafa. Son also appeared. Admittedly, neither the landlord nor his son was in occupation of any commercial premises owned or rented. Learned counsel contended that provisions of the rent laws enacted to restrict increase of rent and eviction of tenants, should not be so interpreted so as to leave the landlord and his progeny on road, and tenant in occupation to enjoy, the use of his property, built/constructed with sweat and hard labour. It was vehemently asserted that in assessing and evaluating the need of the landlord, fundamental importance has to be shown to the requirements of landlord as expressed in his statement before the Rent Controller. Genuine needs of landlord/owner of the premises must receive preference over those of the tenant. It was contended that there was no valid reason or legal justification, to ignore the statement of the landlord and his son, Ghulam Mustafa needing the non-residential premises for their own self-use moreso when it had legal sanction behind it in the shape of running a risk of restoring possession in case of its non-occupation within specified period. There were ample safeguards provided in section 13(4) of the above-stated Ordinance, to act as sufficient guarantee acting against the landlord in case he proceeded mala fide. Learned counsel submitted that though the question as to bona fide requirements was one of fact, turning on appreciation of evidence, yet the finding being conjectural and contrary to rule of law laid down by the superior Court, could validly be subjected to interference in constitutional jurisdiction, moreso when the finding arrived at was outcome of a mere superficial reading of the record. Placing reliance on Haji Ghulam Muhammad v. Abdul Qadir P L D 1975 Lah. 200; Muhammad Ibrahim v. Faqir 1982 C L C 230; Haji Majid v. Haji Imam-ud-Din 1981 C L C 1091; Muhammad Zaman v. Mahboob Elahi P L D 1981 Lah. 609; Fatma Bibi v. Jamil-ur-Rehman P L D 1982 Quetta 7; Habib Bank Ltd. v. Ch. Muhammad Shafi N L R 1981 U C. 507; Ahmad Din v. Din Muhammad N L R 1981 S C J 272; Muhammad Fazal Khan v. Haji Abdul Jalil P L D 1981 Pesh. 157; Abdul Ghaffar v. Haji Salamat Ullah P L D 1961 (W.P.) Lah. 233; Nasirud-Din v. Muhammad Siddique 1981 S C M R 709; Shaheen, Oil Traders v. Imdad All Shah and 2 others 1980 C L C 1558; Muhammad Siddique v. Muhammad Sharif 1981 S C M R 784; Ghulam Muhammad v. Syed Ishaque Shah 1983 C L C 2814; and Messrs Haji Janat Gul & Co. v. Ch. Nawaz Haj and 6 others 1983 C L C 241; Learned counsel, contended, that the Court of appeal, on colourable and superficial reading of evidence reached a conclusion and acted in disregard of law laid down providing guidelines for decision of such like controversies. The finding being capricious, arbitrary and conjectural, did not confer finality on the decision of the Court of appeal so as to be immune from interference in constitutional writ juris diction.

6. Mr.Bashir Ahmad Ansari, Advocate, learned counsel, in reply stated, that the Court of appeal on proper, careful analysis/appreciation of oral evidence, came to a finding on a pure question of fact, holding that the desire expressed, in the eviction petition supported by two witnesses was neither genuine nor bona fide. Eviction petition was evidently motivated by a desire to increase montly rent. It was also asserted that the landlord wishes to alienate the property in question and with that intention in view wanted to throw out the tenant so that the property, could fetch better price. It was also submitted that the landlord himself had vacated the shop before it was rented out to the present respondent for a period of 10 years. Argument was built on section 13(3) (ii-c) of the Rent Ordinance, in that, the landlord had not shown any sufficient cause for vacating the said building when it was let out to the tenant-respondent. On the basis of rule of law declared by the august Supreme Court of Pakistan in Muhammad Sharif and another v. Muhammad Afzal Sohail etc. P L D 1981 S C 246, learned counsel stated that, after right to file Second Appeal had been withdrawn the same purpose cannot be allowed to be achieved through constitutional petition under Article 199 of the Constitution. Finding of fact based on evidence was not open to re-scrutiny by High Court in its constitutional jurisdiction assuming to it the role of a Court sitting in appeal over judgments/orders, passed by the subordinate Courts/ Tribunals in their competent jurisdiction. This, according to learned counsel, would clearly deflect the legislative intent in withdrawing right of Second Appeal in rent matters. Abdul Majid and others v. Khalid Ahmad P L D 1955 F C 38 was relied upon to contend that even in Second Appeal, fallacy in appraising the evidence as to a fact was 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. If this be the position with regard to Second Appeal, there was no scope left in the case under consideration for interference in constitutional jurisdiction, scope whereof was extremely limited. Dr. A.R. Khan v. Muhammad Ishaque 1972 S C M R 437, Nisar Ahmad v. Ahmad Din 1984 C L C 3140, the two precedent cases, were referred, to support the contention that the presence of the safeguards in section 13(4) of the Rent Restriction Ordinance did not absolve and relieve the landlord of basic onus to prove and establish affirmatively, his bona fide need and requirement.

7. Landlord, in his petition, applied for eviction of the tenant on twin grounds; (i) default in payment of rent, (ii) bona fide personal need. Both, father and son, appeared in the witness-box and supported their expressed requirements in their deposition on oath before the Rent Controller. On the other hand, the tenant deposed that shop was not required and the move was to extract increase in monthly rent. Similar statements were made by his two witnesses. On this evidence, Rent Controller, found in favour of the landlord on ground of personal bona fide need of the shop. Admittedly, neither the landlord nor his son, was in possession of any commercial premises either owned or rented. In fact, the landlord and his son are not shown to be owning any other shop in the relevant urban area. Learned Additional District Judge finding out certain unsubstantial and inconsequential discrepancies in the testimony of the writ petitioner and his son, and also on the following grounds; (i) delay of about 25 days in serving notice upon tenant asking him to vacate the shop when the period fixed for tenancy had expired, (ii) landlord did not do any business during the period of tenancy, (iii) he had no experience in the proposed business, (iv) demand for increase in the monthly rent, found against the landlord on issue No.1. I am afraid none of the grounds could, form valid basis for reversing a well-reasoned order of the Rent Controller, who had thoroughly discussed the evidence and taken notice of all the attendant circumstances in holding personal need proved. Pivotal point which needs consideration was if the petitioner really and genuinely needed his shop for his personal use. Mere fact that he or his son did not possess sufficient experience, in the proposed business to be set up, or that there was a desire to seek increase in the monthly rent though it is not proved, were wholly unsubstantial considerations upon which the order of Rent Controller could have been reversed by the Court of appeal. No doubt the writ petitioner was described as a cobbler and further it was admitted that he had vacated the present shop some years before it was let it out to the present tenant, but that could not operate as insuperable bar standing in the way of landlord to seek eviction of his tenant, if bona fide need for self-use otherwise stood proved satisfying the judicial conscience of the Court/tribunal. Landlord was not asked as to what were the grounds, which compelled him to leave the business and let out the shop to the present tenant. Had his attention been pointedly invited to this aspect of the matter he would have given some explanation. Anyhow the needs do not remain static for all times to come and with change in time and circumstances, the requirements also undergo change. If the landlord really and bona fidely needed the premises, he could not be denied the relief to occupy his own shop on this score alone. Demand for higher rent, also did not adversely reflect on the question of bona fides of the landlord. Refer Peerzada Rafiq Ahmad v. Chaudhry Adul Rehman 1980 S C M R 772, there was no evidence that the landlord intended to sell the premises. In judging the bona fide need, one of the material items of evidence for consideration must naturally be the statement of the landlord on oath before the Rent Controller. If the statement so made rings true, fits in with the probabilities of the case and satisfies the judicial conscience that what is stated is true, then it should be sufficient, to grant him the relief moreso when account is taken of the safeguards, provided in section 13(4) of the Rent Restriction Ordinance. The evidence adduced on behalf of the tenant was hardly sufficient to rebut that produced on the other side. Learned Additional District Judge has not noticed the factum of the safeguards, provided under section 13(4) of the Rent Ordinance. Probably the Court of appeal was not even conscious of it. However I may not be understood to say, that the safeguards by themselves in the absence of other evidence, are sufficient to entitle the landlord, to seek eviction of his tenant. But then, these provide salutary check to restrain the landlord from prosecuting ejectment proceedings on the basis of his 'bona fide requirements. The effect of section 13(4) has not been considered at all by the learned appellate Judge. There is no doubt that in the last analysis the question becomes one of fact whether a landlord &es or does not require a certain permises for his bona fide requirement as contemplated by the Ordinance although the intention behind the move is purely subjective which can only be inquired from the circumstances which must be alleged and proved by the landlord by producing evidence in manifestation of that intention. In the case under consideration the finding on this point of fact went in the favour of the landlord which has subsequently been reversed by learned Additional District Judge purely on conjectural and untenable grounds. Learned Additional District Judge therefore committed serious legal error apparent on record in reaching conclusions, on mere conjectures and surmises. The judgment passed on appeal, in these circumstances, lays ground for interference in constitutional jurisdiction. It is not each and every finding of fact which was sancrosanct rendering it immune from interference in constitutional jurisdiction. With the abolition of right of Second Appeal, the Court of first appeal, has been saddled with heavy responsibility, to sift the evidence and then apply the law as laid down by the superior Courts. Learned Additional District Judge travelling in the realm of pure conjectures and surmises not sustainable on legal plane, interfered and reversed the finding recorded on issue No.1 in favour of the landlord. In this view of the matter, I think it is a fit case for interference in constitutional jurisdiction to undo an obvious wrong done to the landlord who had succeeded on sufficient evidence to prove his bona fide need before learned Rent Controller. The finding of learned Additional District Judge, is based on extraneous considerations.

8. In the light of what has gone before, I allow the writ petition, set aside order dated 12-6-1983 of learned Additional District Judge, Rawalpindi and remit the case to learned District Judge, Rawalpindi to redecide the appeal, in the light of the above observations. All efforts be directed to early disposal of this Rent appeal and preferably, the learned District Judge may look to the propriety of deciding the appeal before the start of winter vacation. In the circumstances of the case, parties are left to bear their own costs. Parties have been directed to enter appearance before the learned District Judge, Rawalpindi on 15th November, 1984. M.B.A. Petition allowed.