1995SCMR1125 (PLP)

Kh. M. Akram, Advocate Supreme Court and Ejaz Ahmad Khan, Advocate‑on‑Record for Respondents. Date of hearing: 14th October, 1990. MUHAMMAD AFZAL LONE, J‑‑‑This appeal through leave to appeal by a landlord against the High Court's judgment dated 7‑11‑1993, dismissing his writ petition, arises out of an ejectment petition filed by him against respondent No.l for his eviction from the demised property comprising a room in building No. 100, Block No.4, Sargodha, used as a godown for hardware, inter alia on the ground of bona fide personal use. On consideration of the evidence on the record, the Rent Controller held that the appellant succeeded in establishing his bona ride personal need. He thus passed an ejectment order against the respondent. In appeal filed by the tenant the learned Additional District Judge found that the appellant was running two Chakkis within the municipal limits of Sargodha and failed to disclose in the ejectment petition the nature of the business he intended to start in the demised property. In his opinion, these facts militated against the appellant's bona fide. In view of these findings, the appeal was accepted, the Rent Controller's order set aside and the ejectment petition dismissed.

2. This dismissal was called in question by the appellant through a writ petition, which as already stated, was dismissed. The reasons which prevailed with the High Court to concur with the Appellate Court and dismiss the writ petition are: "While appearing as his own witness, in examination‑in‑chief he deposed that he is not doing any work and that he wants to conduct his personal business in the shop in question and that he has no other shop with him except the one in dispute. He, however, admitted that he has a machine. In his cross‑examination it was brought out by the respondent that he has another shop adjacent to the shop in dispute and that he is running flour `Chakki' since 1953‑

54. He further deposed in the cross‑examination that he has only one `Chakki' and then added that he has another `Chakki' as well and that he pays income‑tax and that he has a good business with the grace of God. He, however, denied the suggestion that he does not require the shop for his personal need. He further added that after leaving the business of machines, he wants to do some business in the shop in dispute as the running of machines is expensive and the income which he derives is less." The learned Single Judge observed that the shop adjoining the property in dispute belonged to the appellant, wherein his son‑in‑law, namely, Bashir rari his business, but the fact, as to the owing of other properties as well as running of flour Chakkis were suppressed by him. It was further maintained that the appellant "should have pleaded these facts and after pleading the same, it was open to him to explain that the said premises were not suitable for his need or were not available to him for occupation." In the circumstances of the case, according to the learned Single Judge, the appellant failed to establish his good faith regarding self‑use.

3. Leave to appeal was granted to examine the following questions:‑‑ "(1) Whether the property owned by the landlord and which is with either his son‑in‑law or son or other tenant would constitute a bar for his seeking eviction of the tenant on the ground of personal requirement. (2) Whether the fact that the landlord was doing business, other than one he wanted to start in the premises in dispute, in another rented building would constitute a bar for seeking eviction of the tenant on ground of personal need? and (3) Whether it is incumbent on the landlord to disclose in the application or in examination‑in‑chief all facts and circumstances with regard to his properties occupied by other persons or his having occupied other rented premises for doing some business, before asking for the eviction of his tenant on ground of personal requirement."

4. We have heard the learned counsel for the parties, and examined the record thoroughly to evaluate their contentions. According to the evidence, the other commercial premises owned by the appellant comprised of a room adjoining the disputed property and a "Baithek" of his residential house converted into a shop. It is in the statement of Syed Akhtar Hussain R.W. 2 that in the room in question the appellant's son‑in‑law Bashir runs a Kariana Shop. As regards "baithek" the evidence is that it has been rented out to one Manzoor Elahi, Goldsmith with whom according to Nanak A.W. 3 the appellant's son Islani works as a partner. These premises could not be used by the appellant for running his independent business. There is no proof and even an allegation that the premises were available to him. The ownership of these properties was thus, not a bar for him to get the demised property vacated from his tenant, for personal use. ,

5. So far as running of the Chakkis by the'appellant is concerned, it is not disputed that the premises wherein these are installed do not belong to him. While appearing as his own witness, the appellant unequivocally stated that he wanted to abandon the Chakkis and run other business in the property in possession of the respondent. It is the privilege of the landlord to choose anyone of his properties for self‑use considered by him suitable for his requirement, provided his need is not tainted with mala fide. In this respect, the statement on Oath made by the landlord in support of his bona fide requirement should not have been brushed aside readily. We feel that upon the material on the record the preponderance of probabilities lean in favour of the appellant. The evidence examined by the respondent in rebuttal itself sufficiently indicates that the appellant is not in possession of any shop in urban area of Sargodha to run his business muchless to be suitable for his requirements. It has not been alleged that he vacated any business premises suitable for his needs. Section 13(3)(ii) of the Rent Restriction Ordinance cannot be extended to cover a non‑residential building occupied by landlord, not owned by him. Reference in this connection may be made to Abdul Aziz v. Muhammad Ibrahim (PLD 1977 SC 442). Some doubts have been cast by the High Court on the proposed change of business from Chakkis to trading in the shop by the appellant. It is true that in his deposition the appellant stated. But it is to be noticed that it is an Article of Faith for every Muslim, to always seek benevolence of the God Almighty. It was presumably in this context that the appellant, who is an old man, uttered these words. The true picture of his business, however, is reflected by the latter part of his statement: In the attending circumstances of the case, there is hardly ‑any basis to spell out any mala fide from the statement of the appellant. In our view, the running of Chakkis by him was not an obstacle in his way to adopt another business, which in his opinion was more profitable and approach the Rent Controller for possession of the demised property.

6. We now advert to the question of suppression of facts by the appellant, which influenced the decision of the learned Single Judge, in holding that the appellant's move for eviction of the respondent on the basis of his personal need was not bona fide. As already observed, the learned Single Judge is of the view that the factum of appellant's ownership of other business premises and running of Chakkis by him should have been disclosed in the ejectment petition. Upon the facts of the case, it is not possible to agree with him. In the ejectment petition, it has clearly been averred that the property is required by him for his personal need, to run his own business. He was not required to anticipate the respondent's objections and include the answer thereof in the ejectment petition or to spell out all the factors in support of his personal need and make their disclosure therein. We have already found that the appellant could not lay. hand on the premises occupied by Bashir and Manzoor. A reference to these properties in the ejectment petition would have been inconsequential, particularly, when according to the respondent's own evidence the appellant did not have any shop at his disposal to do business. In, common parlance a Chakki for grinding food grains is usually called "machine atta". In his statement the appellant has specifically made mention of machine. When his statement is read as a whole there is hardly any reason to attribute suppression of facts to the appellant who is decidedly an illiterate person. The contents of the ejectment petition and his deposition in support thereof satisfy the requirements of law. We are of the view that there was no justification for interference by the learned Additional District Judge with the orders of the Rent Controller. The decision rendered by the High Court is in disregard of the material on the record and founded on incorrect assumptions of law on the subject. This appeal is, therefore, accepted; the impugned judgment is set aside and the order passed by Rent Controller restored, leaving the parties to bear their own costs. The respondent shall hand over the vacant possession of the property to the appellant within four months. A.A./M‑2226/S Appeal accepted.