1998 PLP 911 (MLD)

8. The two appeals were filed, one by the appellants, to challenge the order refusing eviction and the other by respondent, to challenge the findings on issue No.

1. Both these appeals were dismissed by the learned Additional District Judge, vide order, dated 9-5-1996, who affirmed the findings of learned Rent Controller.

9. Second Appeal from Order No. 122 of 1996 has been filed by Mst. Fazal Bibi and others, to challenge the orders of learned Rent Controller and learned Additional District Judge, dismissing their eviction application as well as appeal, while Second Appeal from Order No. 130 of 1996 has been filed by respondent, Haji Munir Ahmad, to challenge findings recorded against issue No. 1 Vide order, dated 26-6-1996, passed in Second Appeal from Order No. 130 of 1996, the appeal (SAO 130 of 96) was ordered to be treated as cross -objections, under Order 41, Rule 22 of C.P.C., in Second Appeal from Order 122 of 1996, By this Court, both these appeals, i.e. Second Appeal from Order 122 of 1996 and Second Appeal from Order No. 130 of 1996 (registered as cross objections) are being dealt with and disposed of.

10. Learned counsel for the appellants, argued, that the learned Rent Controller as well as learned Additional District Judge misconstrued the scope of section 13(3) of Ordinance VI of 1959 and the impugned orders were passed by completely ignoring the rule laid down by the superior Courts. He submitted, that ejectment was refused, on the ground that financial resources were not disclosed and the Courts below were persuaded by the fact, that the appellants owned a residential house, though the ejectment was applied for a non- residential premises. He submitted that even if the appellants were held to be owners of residential house, the same would not debar them from seeking eviction, of respondent from a shop, to run business nor it was necessary to disclose financial resources.

11. Conversely, learned counsel for respondents, submitted; that the two Courts below after considering evidence, did not accept plea of personal use, which findings were immune from challenge in second appeal. He also argued, that the findings recorded against issue No. 1, determining the rate of rent as Rs.800 could not sustain as there was no basis for the same.

12. The submissions made by learned counsel for the parties, have been given due consideration while evidence was re-examined, in the course of hearing of this appeal, with the assistance of learned counsel for the parties, for the purposes of considering the misreading and non-reading, pleaded by the appellants. For the purposes of disposal of these appeals, the issues raised in pre-remand proceedings, need not be considered, as Ghulam Qadir, the person who filed ejectment petition and Bashir Ahmad, against whom the petitioner was initially filed, have died and in the ultimate order, the appellants were substituted as petitioners while Haji Munir Ahmad, respondent herein, was impleaded as tenant, in the eviction petition, by accepting his plea of occupation of shop. Issues were framed on merits, which led the filing of these appeals. Both the learned counsel, therefore, confined their arguments, to issue of personal use and rate of rent.

13. As for case of the appellants, set up in the amended petition, rented shop was required in good faith for personal use. In support of this plea, Hafiz Abdullah, Mian Rashid Ahmad and Muhammad Shahid appeared as A.W.1, A.W.2 and AW.3, respectively. In his deposition, Hafiz Abdullah, stated that rate of rent was Rs.800, the shop was required in good faith by the appellants for their personal use. He deposed that one of the appellants was serving in the market and had no personal business while another appellant, was jobless. The appellants were stated to be six brothers, two sisters one mother. No one was carrying any business. AW.2 deposed that as per decision of Union rate of rent was Rs.800, late, Bashir Ahmad had six sons two daughters and one widow. One of them was a servant in a shop, one was blind, one was deaf and dumb while the other appellant was jobless. He deposed that the appellants had no other shop and that they need shop for their personal business. Muhammad Shahid, one of the appellants, appeared as AW.3 and deposed that Ghulam Qadir was his grandfather, the rate of rent was Rs.800, the appellants had no other shop, there were six brothers, two of them, (he and Shaheen Ahmad) were mentally and physically sound and could do business and that Shaheen was serving in a shop while he was jobless. He deposed, that they would run the business of cloth in the shop and that they were not in occupation of any other shop to cater their need. The respondent produced R.W.1, Syed Shaukat Hussain, who deposed that he was General Secretary of Union, the rate of rent was not determined by Union. He admitted that rent was being-deposited with the Treasurer of the Union at the rate of Rs.800 per month and that the decision of Union was signed by its President. He expressed his ignorance as td the fact that the appellants did not own any other shop. Ghulam Mohy-ud-Din A.W.2, stated that the rate of rent was Rs.35 and on being asked, he expressed his ignorance as to the facts that the appellants did not own any other shop for their business. The respondent, appeared as P.W.3 and deposed in support of his reply. He also expressed ignorance, as to the fact that the appellants did not own any other shop to run their business. He did not deny, that after decision of Union, the rent was deposited with the Treasurer of Union at the rate of Rs.800 per month. From the evidence, produced by the appellants, it becomes obvious, that they do not own or possess any other shop, in the same Urban area, except the rented shop. The witnesses produced by appellants, proved beyond doubt, about their personal needs and stated that Shahid and Shaheen, appellants, want to run business in the rented shop and that they had no other place to carry their business. It is also established from these statements, that the appellants do not have any other business, one of them is working on daily basis while the other is sitting jobless. With a view to seek eviction, on the ground of personal use, a landlord is required to make statement on oath, in conformity with his pleadings, to prove his needs. The statement, disclosing needs of landlord, not shaken in cross-examination, is considered to be an important evidence which he over looked or brushed aside, for any extraneous reasons, particularly, when the material on record, and preponderance of evidence were leaning in favour of landlord.

14. A close scanning of the evidence of appellants, particularly the statement of landlord, A.W.3, leaves no room of doubt about the bona fide of the appellants. The credibility of these witnesses, could not be shaken in cross -examination. As a matter of fact, on material facts, like idleness of A.W.3, absence of any business and shop with the appellants, were not seriously cross -examined to dislodge the statement. The statement of A.W.3, and other evidence on record, clearly indicate that the appellants, did not own or possess any other shop, they had no other business, one of the appellants was jobless while the other was working on daily basis and that they intended to occupy the rented shop, for their personal business,, for which there was no bar in their way. There is nothing in cross-examination, to injure their credibility.

15. Amazingly, the learned Rent Controller, was persuaded by the factors, which were neither relevant nor material in considering the question of bona fide and good faith. The learned Rent Controller, was persuaded by the fact, that the E appellants own a residential house in Gumti Bazar and did not disclose financial resources, while the learned Additional District Judge was persuaded by the lack of disclosure of financial resources. The reasons, which prevailed with the two Courts below were perverse and devoid of any merit. Admittedly, appellants were seeking eviction from a shop and, therefore, ownership of residential house was hardly material for adversely affecting the requirements of a non-residential premises. It was not the case of respondent that the appellants owned non -residential premises in the same Urban area. Rather, the witnesses of respondent, including the respondent himself, could not deny the suggestion that the appellants did not own any other shop to run their business. For non -suiting, a landlord, in the matter of eviction from non-residential premises, one has to show that the landlord occupies vacant non-residential premises, suitable to his needs, in the same urban area or had got vacated the same and rented out Even, simple ownership of other premises would not bar the maintainability of eviction petition on the ground of personal use, as it is the prerogative of landlord, to decide, which one of the shop will be suitable for his needs and in making such determination, he cannot be guided or directed by the tenant nor the tenant can suggest, that a particular shop should be occupied by the landlord to satisfy his needs. Similarly, it is not the requirement of law, that the landlord must disclose his financial sources, for enforcing his claim of personal needs. In Haji Majid v. Haji Imamuddin (1981 CLC 1091), it 'was ruled, that landlord need not to produce evidence of availability of funds, for seeking eviction on the ground of personal need, of running business. In Messrs Haji Jannat Gul & Co v. Ch. Nawaz Haq, and 6 others (1983 CLC 241), it was observed that the landlord is not required to mention in his application as to who would do the business and what sort of it nor he is required to give source of capital experience etc. In Muhammad Usman v. Iqbal Hussain Khan (1995 CLC 931 (Karachi), it was ruled, that landlord is not under any obligation to give particulars of business proposed to be established in the rented premises.

16. Even otherwise, in the modern age of advance economy, where the business community, uses finances of banks and financial institutions, it is not difficult to raise funds, by getting financial assistance from any banking institution against a security of the property. This fact can be taken note of that in these days huge business is being carried in the Country, with the assistance of financial institutions and, therefore, arrangement of funds is hardly a problem, in these days. Even otherwise, it is no requirement under the Ordinance, to disclose, financial resources, for seeking eviction on the plea of personal use to run business in the rented shop. The learned Rent Controller as well as learned Additional District Judge, therefore, committed material C illegality, by being persuaded by extaneous and irrelevant considerations and ignoring, that the bona fide and good faith, was proved, in this case independently.

17. In Mst. Saira Bai v. Syed Anisur Rahman (1989 SCMR 1366), it was held that the landlord has to state to his application, the material facts; which constituted cause of action which prima facie show that the requirement was according to law and was made in good faith. It was ruled that landlord is not required to state nature of the business, which he intended to carry, as the same was neither essential nor formed part of cause of action. It was further observed, that demand of higher rent by itself would not cause any doubt on the bona fide requirement, where the bona fide needs were independently proved. It was ruled, that the High Court, could interfere in concurrent findings, if there was misreading of evidence or legal principle laid down by Supreme Court had not been followed.

18. In Sh. Muhammad Yousuf v. District Judge (1987 SCMR 307), an order of ejectment was upheld, where the landlord had worked throughout his life, as a cobbler and wanted to run his business of Goldsmith alongwith his son. In Juma Sher v Sabz Ali (1997 SCMR 1062), it was held that it was not a legal requirements that the landlord, seeking ejectment from commercial premises, on the ground of personal need, must disclose the nature of business he intended to start nor it was necessary to prove that he had experience in the trade business which he intend to start. It was observed that the statement of landlord on oath, consistent with the averments made in ejectment petition, will justify acceptance of evidence of landlord and ordering eviction.

19. The review of rule, laid in the cases, noted supra, would reveal, that in the cases, seeking ejectment, on the ground of personal use, the landlord, has to make statement on oath, consistent with the averments made in the petition, which has to be given due importance for deciding the question of bona fide and good faith. If the statement made on oath, is consistent and the credibility is not shaken, while the material on record and the circumstances of the case, lean in favour of upholding the plea, then the matter has to be examined, in the light of protection, provided by section 13(4) of the Ordinance, which extends salutary check to protect the tenant, against any mala fide eviction.

20. One of the reason, which prevailed with the Courts below, was, that in filing ejectment petition against Bashir Ahmad, the appellants, adopted a device to eject the respondent, in execution of the eviction order secured against Bashir Ahmad, which was taken as an adverse factor to assume mala fide against the appellant, so as to doubt their plea of bona fide. This assumption, was not only untrue and illogical, but also without any basis. Reason being, that in the first instance, the ejectment was not instituted by the appellants against Bashir Ahmed tenant Ghulam Qadir, filed eviction petition, against Bashir Ahmad and in those proceedings, eviction order was passed which was subsequently set aside and the case tried on merits, to determine the bona fide needs of the present appellants, who were impleaded as party through an amended petition. In this situation, it was not the bona fide need of Ghulam Qadir, which was in issue but was the need of present appellants which was under consideration and, therefore, any plea raised against Ghulam Qadir, could not be possibly used against the appellants, for the purposes of assuming mala fide against them, particularly when they were neither responsible for the same nor beneficiary thereof. The appellants; proved their bona fide needs, independently and nothing was brought on record to establish any mala fide against them. This being so, they could not be non-suited on a plea which was not available against them. Even otherwise, filing of ejectment petition against Bashir Ahmad, could not be termed as mala fide. The fact of the matter is, that tenancy of Bashir Ahmad was not in issue but the respondent, jumped in the proceedings with the claim, that he had joined Bashir Ahmad in the business, he had some claim of money against Bashir Ahmad and in pursuance of the decision of Union, he was agreed to be taken as tenant in the shop. It was never the case of respondent, that he was initially a tenant in the shop or that the ejectment against Bashir Ahmad was filed, fictitiously, to non-suit him, but his case was, that as a result of the subsequent arrangement, he was to be taken as a tenant and, therefore, could not be deprived from the rights in the shop, in pursuance of an ejectment order against Bashir Ahmad Assessing the facts as they are, it could not be argued, that the filing of eviction petition against Bashir Ahmad, was a mala fide device to non -suit the respondent. As a matter of fact, the appellants could have pleaded, that an arrangement between the respondent and late Bashir Ahmad tenant, could not affect their rights nor could create any rights in tenancy, but, with a view, to avoid contest on these questions, the respondent was accepted as a tenant and consequently, the eviction proceedings contained against him, to ascertain the plea of default and personal needs of the appellants. In this back-drop, the learned Rent Controller, as well as the learned Additional District Judge adopted an absolute perverse reasoning, while assuming mala fide, for the filing of eviction petition against Bashir Ahmad. There was hardly any basis to raise such inference or assumption. Even otherwise, to non-suit the landlord, the act of mala fide, must be linked up with the individual conduct of the persons, who are raising plea of bona fide. The appellants, who intended to use the shop, which being sought to be vacated, were not in picture, at the relevant time and had joined the proceedings, on the filing of amended petition, to raise their present plea of bona fide needs, which had to be decided by the learned Rent Controller, on its own merits, being uninfluenced by any extraneous reason. Taking the case as it is, it could not be said, that the appellants had used and device of illegally ejecting the respondent from the rented shop and the observations made by the learned Courts below were without any legal or factual justification.

21. In this backdrop and for the reasons taken hereinabove, it is concluded, that the appellants had proved their bona fide needs, independently, and without any shadow of doubt and that the findings recorded by the learned Courts below, suffer from misreading, non-reading of the evidence and non-consideration of the rule laid by the superior Courts and, therefore, the same are reversed.

22. In so far as, objection of respondent, to the findings on issue No. 1, is concerned, the same is not well-founded. The witnesses of appellants, have proved, that the rate of rent was Rs.800. Even otherwise, it is in the evidence of respondent, that as a result of understanding, in the conciliation proceedings before Union, the rate of rent was agreed to be Rs. 800, at which rate, the respondent had been depositing the rent with the Treasurer of the Union. Later; the rent deposited with the Treasurer, was ordered by this Court to be deposited with the learned Rent Controller while the respondent was required to deposit the rent at the same rate. The respondent claimed tenancy, on the basis of the decision before the union and after having taken benefit of the said decision. He cannot object to the rate of rent; at which, the rent was deposited with the Union and subsequently, with the Rent Controller. The learned Rent Controller, as well as the learned Additional District Judge, held the subsisting rate of rent as Rs.800, of which, no exception can be taken, in view of the evidence on record.

23. For the reasons hereinabove, Second Appeal from Order 122 of 1996 is accepted and by reversing finding of the learned Courts below, on issue of personal use, ejectment is allowed, on the ground of personal use of appellants. The appeal (Second Appeal from Order 130 of 1996), treated as cross objection, is dismissed.

24. The respondent is directed to deliver vacant possession of the shop, within two months. No order as to the costs. A.A./F-45/ Appeal accepted.