1983 PLP 2814 (CLC)

Ch. Muhammad Aslam Chatha for Respondents. Date of hearing : 2nd June, 1980. Briefly stated the facts of the case are that on 25th May, 1975 the respondent filed a petition under section 13 of the West Pakistan Urban Rent Restriction Ordinance for the eviction of the appellant from shop No. P 5, Street No. 1, Ward No. 2, Gurdwara Bazar, Faisalabad which is in occupation of the respondent on a monthly rent of Rs.

200. In the petition for eviction the appellant had specifically stated that he required the shop in question for his own use as well as for his sons. The. respon dent contested the application by denying the bona fide personal need of the appellant and it was further stated that the sole purpose of the respondent in filing the petition for eviction was that after getting the shop in question vacated he wanted to give the same to some other person on enhanced rent and to obtain a paghri. The learned Rent Controller, Faisalabad after appreciating the entire evidence on record came to the conclusion that the shop in question was needed bona fide by the appellant for his personal use as well as of his son. The application was accepted by the learned Rent Controller, Faisalabad vide his order dated 27th October, 1976 and the respondent was ordered to be ejected. The res pondent filed an appeal against the said order and the learned Additional District Judge, Faisalabad reversed the findings and the appeal was accep ted vide his order dated 16th April, 1977. This is the order which has been challenged in the present appeal.

2. The learned counsel for the appellant has argued that the very basis on which the learned Additional District Judge has reversed the findings cannot be legally sustained. The contention raised by the appel lant has much force. A perusal of the said order would show that the learned Additional District Judge, was wholly unjustified, that the appel lant had raised a vague assertion that the appellant required the shop in dispute for his personal use and his sons and that the need has not been specifically stated. The assertion is absolutely incorrect. In paragraph ‑1 of the petition the appellant had given details of what his sons were doing and the fact that two of his sons Abid and Sadaqat were without any job. In respect of other sons it was stated that they were doing odd business due to lack of proper business premises. The learned Additional Dis trict Judge was perfectly unjustified in observing that the appellant while appearing as his own witness as P. W. 1. had not specifically stated for whose benefit the shop in question was being got vacated. After giving the details of his sons who were doing other jobs it was specifically stated by the appellant in the following words Previously after giving, the details of all the other sons who were doing other jobs the appellant had stated that his son Abid was jobless. His name had been specifically mentioned in paragraph 1 of the petition The appellant had also stated that he had no other shop to carry on the business. He stated that he was carrying on his business on a premises for which he paid Rs. 20 to the owner and it was not a regular shop but a small shack. He further stated that he used to do business of cut‑piece in the shop and that he was not doing any business. The appellant had also stated that the respondent demanded Rs. 50,000 for vacating the shop in dispute. In spite of the fact that the appellant had mentioned the game of Abid and his statement that he was jobless was supported by A.W. 2 Muhammad Ashfaq. The statement of Tariq one of the sons of appellant was discarded as an. interested witness without any reason. The fact that A.W. 2 has supported the case of the appellant also find, mention in the impugned order: Again the observations of the learned Additional District Judge that in the cross‑examination the appellant had been trying to confuse the matter was wholly unwarranted. A plain reading of the statement of the appellant appearing as A.W. 4 belies that contention. The question whether‑the shop for which the appellant was paying Rs. 20 as rent was sufficient for the need of the appellant had not at all been considered. The statement to the effect that now he was not doing anything has been completely ignored. As already stated the case of the appellant was that he had been carrying on the cut piece business in the said shop and that he was no more doing that business. Even if it may be assumed that the appellant had another shop in his occupation which is rented premises it would not amount to such building within the meaning of subsection 3 (a) (ii)(b) as held in Abdul Aziz v. Muhammad Ibrahim (P L D 1977 S C 442). The finding of the learned Additional District Judge that three sons of the respondent are in occupation of the building for their business in the very area though one of them was an employee was not strictly in conformity with the evidence on record. The appellant had four sons. The eldest son Javed is working with Jan Muhammad as his employee. The second, son Tariq is carrying on the business on a rented shop which he had taken from Usman. His next son Khalid is working in a shack (Khokha), and the last son Abid was not doing any job.

3. The learned Additional District Judge has also completely ignor ed the principle laid down in Ghulam Muhammad v. Abdul Qadir (P L D 1975 Lah ‑200). In this case also similar assertions had been raised. It was further consi dered that the proper reasonableness, good faith and bona fide were to be determined amongst other factors on the statement of the landlord himself. It was further held that if there was no proof that he occupied another shop for the purpose of his business or such shop being suitable for his needs or that landlord had even vacated ‑such shop without sufficient cause, the shop could be got vacated on the ground of personal need. The relevant observations of Mr. Justice Muhammad Afzal Zullah (as his Lordship then was) relevant for the purpose 'may be reproduced below: "If the landlord or his child would have occupied in the same urban area any other building or land for the purpose of his business and the premises are suitable for his needs at the relevant time, then he: could not be permitted to take advantage of his own act by vacat ing such building or rented land so as to avoid the condition con tained in clause (b). That is why in clause (c) it was provided that if he or his child was in occupation of such premises then he would have to show that he did not vacate the same without sufficient cause after the commencement of this Ordinance. In this case it is riot at all proved that the respondent or his son. ever occupied the other shop for the purpose of his business, nor has it been proved that the other shop is suitable for his need and there is absolutely no evidence that he ever "vacated such other shop without sufficient cause". The mere ‑proof of the fact that he rented out the other shop to a new tenant after getting it vacated from the old tenant when it is not shown that he or his son ever occupied the same, would not be enough to show that his claim is hit by the condition contained in clause (c)."

4. Even the witness produced by the respondent admitted that the appellant was not in occupation of any shop of his own and reference in this behalf may be made to Muhammad Sharif R. W. t Muhammad Shafi (R. W. 2) also admitted that the appellant did not have any. other shop in his occupation and this witness also agreed to the suggestion that the appellant might be requiring the shop for his personal need. This admission had been completely ignored by the learned Additional District Judge.

5. It is abundantly clear that the findings of the learned District Judge were based on wrong assumptions, and the material evidence on record has been either ignored or misread, and, therefore, could be inter‑fered with in the present appeal.

6. In view of the above discussion this appeal is accepted, the order of the learned Additional District Judge, Faisalabad, dated 16 April, 1977 and that of the learned Rent Controller, Faisalabad dated 27th October, 1976 are set aside (sic). As the respondent is in possession of the business premises he is allowed four months' time to deliver the vacant possession subject to his regularly paying the rent. The parties are left to bear their own costs. M. Y. H. Appeal allowed.