1983 PLP 1149 (CLC)

S. 13‑Eviction proceedings‑Personal requirement of landlord‑Landlord requiring premises for use of his sons Assertion by landlord that his sons require particular premises for personal use and fact proved on record that he or his sons in occupying in same urban area any building suitable for purpose of proposed business or such other premises lying vacant to be used as such, held, such factors to be considered sufficient with regard to bona fide or good faith to be determined in context of provisioner of S.13‑fandlord required to prove his good faith or bona fide in regard to personal use and he has to state factual position‑Land lord failing to prove his bona do and good fatheads eviction, held, not legal. (g) West Pakistan Urban Real Restriction Ordinance (VI of 1939)‑ S‑ 3. 13‑Eviction proceedings‑Record supporting contention of tenant that Courts below have misread evidence and not justified In holding that landlord's case was one of personal requirement Ground of personal use not taken when application for eviction originally drafted but interpolated later‑Cannot be lost sight of in circumstances‑Findings of lower Courts, held, not based on proper consideration of circumstances available on record and as such landlord has not been able to prove that he has present reasonable need of premises‑Appeal of tenant, accepted, in circumstances. Arbab Hamayun Khan for Appellant. Nasirullah Khan for Respondents. Date of hearing : 6th April, 1983. This second appeal under section 15 of the West Pakistan Rent Res triction Ordinance, 1959 is directed against judgment of the learned Additional District Judge, Peshawar dated 27th September, 1981 whereby the appeal against the order of Miss Zaitoon the then Rent Controller, Pesha war dated 31st January, 1981 passing an order of ejectment of Gulla Jan appellant from the disputed shops was dismissed but the appellant was allowed a period of one month from the mentioned date to vacate the premises. 2. Brief facts of the case are that one Ghulam Habib initiated eviction proceedings under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1,959 against Gulla Jan son of Abdullah Jan In respect of shops No. 2 and 7 mentioned. In the heading of the petition situate on 0. T. Road, Peshawar City on tine grounds of default in payment of the rent by respondent No. 1 and subletting of the property to respondent No. 2, namely, Munalf All. The petitioner moved an application for amend ment of the petition at evidence stage, for including a fresh ground of personal use. This application was allowed by the Rent Controller, Pesha war vide her order dated 28th April, 19811 and an amended petition was accordingly presented on 5th May 1980. After receiving the written reply from the opposite party an additional issue regarding bona fide requirement of the property was framed. 3. After recording such evidence as the parties wished to adduce and hearing the learned counsel representing the parties, the learned Rcpt Controller by her order dated 31st August, 1981 disposed of the petition. Issues 3 and 4 were decided against the petitioner lie it was held that neither respondent No. I was a rent defaulter nor had he sublet the property to respondent No. 2. The additional issue framed was, however, decided in the affirmative and it was held that the disputed shops were required by the petitioner‑landlord in good faith for the use of his sons. On the basis of her finding in connection with the mentioned additional issue, ejectment orders were passed against the appellant tenant. The mentioned order of eviction was challenged in the Court of the Additional District Judge Peshawar but with no success and hence the present second appeal. 4. I have gone through the record with the assistance of the learned counsel for the parties and both of them were heard at length. The main point which was agitated in the present. appeal before me is concerning the bona fides of the claim of the personal requirement of the petitioner‑landlord. The main contention of the learned counsel for the appellant was to the effect that both the Courts below have misread the evidence which led them to a wrong conclusion. He submitted that the order passed by both the Courts below are In utter disregard of the evidence available on the record. He accordingly made a pointed refer ence to some of the admissions made by the petitioner and his two sons produced as witnesses in the Court of Rent Controller. The learned counsel contended that it has been proved that both the sons of the petitioner‑landlord were already working to other shops and two more shops were admittedly lying vacant as well. As such, according to him, the eviction of the appellant has been sought on mala fide grounds. Relying on Mohammad Siddiq v. Abdul Hameed (P L D 1976 Kar. 696) learned counsel submitted that the petitioner‑landlord and his sons being in possession of eight shops and some vacant shops being available besides the disputed one, the landlord had no ground to seek ejectment in the mentioned circumstances. Learned counsel for the petitioner‑landlord on the other hand, made a reference to Sabu Mal v. Kika Ram alias Heman Das (1973 S C M 8.185) and conten ded that since both the sons of the petitioner‑landlord are major and married, they are in need of separate and independent premises and in the circumstances the choice as to which of the shops is suitable for their business shall always remain with the landlord. While making a reference to case of Abdul Majid and others v. Khalil Ahmad (PLD1955FC38) he urged that the concurrent finding of the two Courts below on a question of fact even if considered erroneous is not to be interfered with in a second appeal. 5. It is true that the pronouncement of the Court of First Appeal on question of facts is for all purposes final and shall not be questioned in a second appeal in the normal circumstances but no sanctity can be attached to a finding which is not based on proper appreciation of evidence. It is settled law that if a finding of facts is found absolutely perverse, based on no evidence or misreading of evidence or non‑consideration of relevant evidence then the High Court has the powers to interfere and I find in the present case that the finding is based on misreading of the evi dence and non‑consideration of the relevant evidence. 6. The bona fides requirement of the landlord is to be seen in the context of the case in which the controversy has arisen. The plea of the landlord that he requires the shops in question has got to be proved him through cogent and reliable evidence and when he fails to established such allegations, he cannot succeed in getting an order of eviction. In the case in hand the landlord has sued the appellant on the ground that he needs the premises in question for the use of his sons as they are intending to start business of their own in the mentioned premises. The petitioner was, therefore, required to prove that he had a reasonable need of the shops in question and that his such need is not motivated by extraneous considerations. The contention of the learned counsel for the petitioner landlord is that in such cases the convenience of the tenant is not to be looked into as the landlord is not to be deprived of his rights on that ground. It is well settled that if the landlord requires the premises in good faith for personal use, no amount of to convenience to the tenant will stand for the landlord to evict him. But he shall have to prove clearly that his requirement is true and genuine. 7. In the case in hand Ghulam Habib in the course of his cross examination has clearly admitted that he is owner of 12 shops and that both his sons, namely, Imtiaz and Inayat Ali are presently working with him in some of the shops. He further admitted that out of the mentioned 12 shops eight are in his possession while the remaining four are in possession of his tenants. In his statement, Imtiaz Ali P. W. 2 son of the petitioner‑landlord admitted that he and his elder brother Inayat Ali are presently working in the shops situated in the serai. This Inayat Ali appearing as P. W. 3. when cross‑examined frankly admitted that some of the shops are lying vacant but added that those shops were not quite suitable for their business, and further stated that they are presently working in four shops. The onus to prove that the mentioned two vacant shops and the other six in their possession were not suitable for their requirement lay heavily on the landlord. Not only that he had also to show that the premises from which he is seeking eviction of his tenant would provide him better premises for the business then those already in his possession. There is no such evidence available on the record excepting the solitary statement of Inayat Ali (P. W. 3) who has stated that the vacant shops are not quite suitable. In the circumstances, the landlord has not been able to discharge the onus and has failed to show the mentioned requirement. The law does not lay any converse responsibility on the tenant to show that the shops occupied by the landlord and his sons wero1 suitable for their requirement. If a landlord asserts that his son needs a particular premises for per sonal use and it is proved on the record that he or his son is occupying in the same urban area any building suitable for the purpose of proposed business or such other premises are lying vacant to be used as such then such factors shall be considered sufficient with regard to the bon fide or good faith which is to be determined in context of the relevant provision of section 13 of the Ordinance. It is required of a landlord to prove his good faith or bona fides in regard to personal use and he has to state factual position as it stands and if the same is disproved then it can safely be said that the landlord has not been able to prove his bona fides or good faith. 8. The stated facts clearly supports the contention of the learned counsel for the appellant‑tenant that both the learned Courts below have misread the evidence and were not justified in holding that the petitioner landlord's case was one of personal requirement. The fact that the ground of personal use was not taken when application for eviction was originally drafted but was interpolated later on cannot be lost sight of in the given circumstances. The finding of the two Courts, as such, is not based on proper consideration of all the circumstances available on the record and I am of the view that in the instant case the petitioner‑landlord has not been able to prove that he has the present reasonable need of the premises for the said purpose. 9. For the reasons stated, I accept the appeal, set aside the orders of both the Courts below and dismiss the petition with no order as to costs. M. Y. M. Appeal accepted.