1983 PLP 1192 (CLC)

(5) whether the opponent is using the premises for the purpose other than let out ? (6) whether the applicant requires the premises in good faith for her personal use and the use of her children ? (7) whether the opponent has impaired the value and utility of the premises by making structural changes without the written per mission of the applicant (8) what should the order be ? The Controller decided issues 1, 2, 3, 4, 5 and 7 against the respon dent but decided the issue with regard to the applicant requiring the premises in good faith for her personal use of her children in favour of the respondent and ordered the ejectment of the appellant allowing one month's time from the date of the order to vacate the premises and hence the appeal. The impugned order has been challenged as being bad in law and on facts on the ground that it is based on misreading and misappreciating the evidence arid the law. It is further contended that the Controller misdirected himself in relying on the evidence of the respondent who had proved to be an untruthful witness, and further that the evidence of the respondent and her son had not been corroborated by any convincing evidence and should not, therefore, have been believed. It is further contended that since the respondent had failed to explain delay in filing the case of ejectment on the ground of personal need from 1968 to 1976 the bona fides of her claim should have been doubted. On behalf of the appellant it is contended that the Controller should not have disregard the evidence of the appellant that the son of respondent is living in) dependently in a house which either belongs to him or to his in-laws and in which be is residing since 1974. In the impugned order the learned Controller decided issues Nos. 1, 2, 3, 4, 5 and 7 against the respondent for reasons given by him, and since there is no cross-appeal with regard to these issues, it is not necessary to comment on the same. The only argument raised is that since the word of the respondent was not believed in respect of the afore said factual position with regard to the issues, her assertion about her requirement for her own personal use and that of her sons should also not have bees believed. The learned Controller has however given good reasons for the finding on issue No. 6, namely, that the premises were required for the personal use of the respondent and her sons. He observed that at the time that the premises were let out the position, according to the evidence, given by the respondent and her son was that she was residing with her husband who was a Colonel in the Pakistan Army in Rawalpindi, and her son Rashid Mansoor and daughter Mahnaz were in England where they were studying. Her son Rashid Munir finished his studies and is now a Barrister-at-Law and resides at Karachi, her other son Mansoor also resides in Karachi and both of them reside with their in-laws. Her third son of Nasir is a student of Karachi University and has been staying with a relative and sometimes in Services Club. It was further the case of the respondent that she herself is staying with her brother arid sister and she had no other house in, Karachi. The learned Controller further observed that the aforesaid evidence of the respondent had not been challenged in cross examination to show that she and her sons had owned other houses at Karachi except the disputed one which is on rent with the appellant. The Controller further observed as under :- "It is the right of every landlord to have his own house if he requires the same bona fidely for his own in the same urban area. In the present case the applicant has fully established that she has no house of her own and her children are residing with their in-laws, and her younger son is sometime residing in the Services Club and sometime with their relatives. This evidence of the applicant stands fully supported by her son Rashid Muneer who is a Barrister." With regard to the contention on behalf of the appellant that the respondent does not require the premises for her personal bona' fide use as she had demanded increase in the rent, the learned Controller, though believing that such demand had been made, held that the fact did not necessarily mean that the house is not required by the respondent for her own bona fide use and the use of her children as the letter was written 5 years prior to the filing of the case for ejectment. He also further observed that it was admitted position that the tenancy continued since 1967 till the filing of the case and the landlady had not enhanced rent and the tenancy had continued on the same terms and conditions on which it was started. The learned Controller, therefore, very properly ob served that if on one occasion the landlady had asked for enhancement of rent it does not go to prove that she wants the house vacated for letting out the same at enhanced rent. In this connection, the learned Con troller referred to the provisions of section 15-A of the Sind Rented Premises Ordinance, 1979 which is a check on the landlord if the pre mises are not occupied by him and he incurs liability for punishment- if he re-lets the premises to any other person. Mr. Muhammad Sharif, the learned counsel for the respondent in his arguments has referred to the scope of considering the finding of the Controller by the appellate Court. He has referred to the observations of the Privy Council in Nabbn Kishore Mandal and others v. Upendra Kishore Mandal and others (A I R 1922 P C 39) wherein it was inter alia observed by their Lordships that "in appeal the burden of showing that the judgment appealed from is wrong lies upon the appellant. If all he can show is nicely balanced calculations which lead to equal possibility of the judgment on either the one side or the other being right, he has not succeeded." The learned counsel also referred to the "Privy Council Decision in the case of Kesserbai v. Jerhabhai Jivan (A 1 R 1928 P C, 277) which reads as under:- "The trial Judge came to the conclusion, after seeing all the wit nesses, that the story of the plaintiff's witnesses was true and it appears to their Lordships that there was not sufficient ground to warrant the Appellate Tribunal coming to a contrary conclu sion." It is argued by the learned counsel that the learned Controller has given good reasons for accepting the word of the respondent and her son with regard to their personal requirement of the premises, and unless strong ret sobs ate made to appear by the appellant for showing that the Controller had erred the finding by the aforesaid tribunal should h6id the field specially ,as he had the opportunity in see the witness who appeared before him and had evaluated their evidence. Mr. Muhammad Sharif, the learned counsel for the respondent, has also referred to the decision of this Court in Flour Mills Employees Union. v. Karachi Steam Roller Flour Mills Company Ltd. (P L D 1964 (W. P.) Kar. 587) on the meaning and implications of an appeal and the duty of the Appellate Court disposing of the appeal. In that case the jurisdiction had been conferred on the High Court by subsection (5) of section 12 of the Industrial Disputes Ordinance, 1959, and it was argued that in view of the provision that the jurisdiction of the High Court was unrestricted, the High Court could substitute for the view of the Industrial Courts even on the basis of its own preferences: it was observed as under:- "Counsel had reason to take that view because the appellate powers are completely undefined. There is no guidance as to how much interference can be exercised by the High Court, excepting such as can be found in the implications of the word "appeal" itself. That word is itself an undefined expression, with the result that dis cussion is to be found in various decisions given in exercise of several jurisdictions as to whether "appeal" means: (i) de novo trial, (ii) re-hearing, or (iii) merely a continuation of the original proceeding in which interference in its most proper sense should take place only when error is found in the decision from which the appeal has been preferred. The third view point appears to be the soundest as a general proposition as well as the most generally accepted one. To mention but one clear pronouncement on the subject I quote Cotton L. J., from In re: Giles. Real and Personal Advance Company v. Michell (43 Ch. D. 395), where he has pointed out the difference between re-hearing and appeal by observing that a motion before a Judge in Court to discharge or vary an order made by him in chambers is "not an appeal but a re-hear ing." A similar view was taken in Booke v. Stevenson (I Ch. D 358)." As disagreement has been expressed by counsel with respect to the above-mentioned general proposition, I may set out five inter-connected reasons in its support. They are that :- Firstly, no appeal can be conceived without the decision of an authority of a lower jurisdiction which may or may not be an inferior jurisdiction in its nature, as for instance, with reference to Letters Patent Appeals the jurisdiction of the Single Judge is not inferior in its nature ; Secondly, the starting point of an appeal is the grievance of the appellant against decision alone of the authority of that lower jurisdiction. Thirdly, when an appellant prefers an appeal, as distinguished from a writ of error, he does not select another forum of original or con current jurisdiction because such jurisdiction the Appellate Courts very often cannot exercise, but climbs higher on a graded ladder to reason a different level of jurisdiction fork obtaining redress in respect of or against the decision obtained by him. Fourthly, if the decision that is under appeal was given in exercise of a vested jurisdiction, it cannot be treated as of scant value because it is authoritative including its preferences and cannot be slighted without showing disrespect for the lower jurisdiction or the lower hierarchy of Courts. The decision of every authority or Court of a legally established hierarchy is authoritative and there is neither factually nor in law a presumption of absolute wisdom in favour of any human being however so high, though finality is conferred on the decision of the last authority or Court which the litigation reaches in order to put an end to an indefinite continuation of the process. If a material mistake of law or fact or violation of a legally recognizable policy is not found by the appellate authority or Court in the decision which is under appeal, then the substitu tion of its own preferences for those of the authority or Court of a lower or inferior jurisdiction may be impressive as an equitable settlement of a particular dispute, but such preferences, at least while coming from a Court of record as a worthy precedent, are bound to spread confusion unless they emanate front the general or x special law and can be consistently enforced as the policy of law on the authority of such a Court itself. Fifthly, the absence of sound reasoning is distinguishable from a sound view because poor reasoning may be a manifestation of unfamiliarity with technicalities or of poor use of logic only, unless the irrationality of the argument affects the soundness of the decision itself. The following passage from page 328 of law and the Modern Mind by Judge Jerome Frank will illustrate the point "Little attention has been paid by psychologists to legal rationaliza tion, although Hart states: "The distinction between the real and apparent causes of mental processes is well illustrated in the advice given to the newly-created Judge, `Give your decision, it will probably be right. But do not give your reasons, they will almost certainly be wrong' ." The job of the appellate Courts is to mind the soundness of the results and of basic notions as far as they concern them and to provide guidance in that respect rather than to be vainly critical like an inexperienced teacher, who impresses the learned but con fuses and depresses his pupils." Qadeeruddin, J. (as he then was) further concluded that there should be some defect of law or fact or violation of a legally recognizable policy in the award to call for interference. Applying the aforesaid principles to the instant case, there is no apparent legal error or misrepresentation of evidence involved in the case of arriving at the finding by the learned Controller which calls for interference in appeal. In Abdul Aziz and another v. Muhammad Ibrahim (PLD1977SC422), a decision of the S C, the expression "any other such building" in the expression meant building owned by landlord, and it was further held that the require ment of subsection (3) (a) (ii) (b) of section 13 does not extend to cover rented premises. In the instant case, premises belonging to in-laws would not mean that the respondent or her sons had a building within the meaning of the aforesaid expression. A perusal of section 15 of the Sind Rented Premises Ordinance, 1979 would show that the landlord of a building who needs the building for personal use has merely to give notice to the tenant to deliver vacant possession of the building and subsection (?) further provides that the land lord shall not be entitled to avail of the benefit of subsection (P L D 1978 Kar. 188) if he is in occupation of a building owned by him in any locality. For the reasons already stated, the aforesaid disability does not apply in the case of the respondent as it is not even the case of the appellant that she is in occupation of a building owned by her in the locality. The reasons already given also apply to the requirement for use of any of the children. Clause (viii) of subsection (2) of section 15 provides that the landlord should require the premises in good faith for his own occupation or use or of the occupation or use or for the occupation or use of his spouse or any of his children. The words "in good faith" which also appear in section 13(3) of the West Pakistan Urban Rent Restriction Ordinance, 1959 came in for interpretation in the decision of this Court in Mushtag Ahmed v. Mrs. Mumtaz Zohra Rizvi (1) and it was observed :- "Subsection (3), clause (a) of section 13 of the Ordinance lays down that a landlord may apply to the Controller for an order directing the tenant to put the landlord in possession in the case of residen tial building, Inter alia, if he requires it in good faith for his own occupation or for the occupation of any of his children. Clause (b) of this subsection, then lays down that the Controller shall, if he is satisfied that the claim of the landlord is bona fide, make an order directing the tenant to put the landlord in posses sion in the building. Accordingly the jurisdiction of the Controller to order eviction on this ground is dependent upon his satisfaction that the claim of the landlord is bona fide and his requirement is in `good faith.' The term "good faith' has not been. defined in section 2(27) of the West Pakistan General Clauses Act, 1956 as follows:- "A thing shall be deemed to be done in "good faith" where it is in fact done honestly, whether it is done negligently or not." This definition of the expression `good faith' necessarily, therefore, implies that the demand for possession of the rented premises must be honestly made. Honesty is a state of mind and is there fore, a psychological fact capable of proof or disproof only by evidence or conduct. The word `Bona fide' in the context of the provision in question would also appear to mean the same as `good faith.' Mala fides, conversely means "in bad faith". It has been held that action taken for collateral purposes not authorised by' the law under which the action is taken or actions taken in fraud of the law are mala fide. It is necessary, therefore for person alleging that as action has been taken mala fide to show that the person responsible for taking the action has been motivated by any one of the considerations mentioned above P L D 1974 S C

151. In actual practice a landlord would be deemed to have satisfied the aforesaid conditions by leading evidence of the reasonableness of his needs and if he succeeds in doing so, the onus would shift to the tenant to prove facts which militate against the existence of good faith or which positively establish the dishonesty of purpose on the part of the landlord to claim possession of the premises on the ground of personal need." The contention on behalf of the appellant that the bona files of per sonal requirement was doubtful because of the demand for enhancement of the rent has been properly dealt with by the learned Controller in the impugned order. In any case, the increase in the rent after such a long period of tenancy to the extent indicated in the alleged letter written to the appellant is apparently compatible with marked fall in the money value undergone during the period and could not be considered to as any action connected with the proceedings for ejectment as the demand had been made 5 years before the ejectment proceedings were started. The learned Controller was, for the reasons given by him, satisfied that the premises were required for the bona fide use of the respondent and he children. 1, therefore, see no weight in this appeal which is according dismissed, however, with no order as to costs. Appeal dismissed.