1979 PLP 29 (CLC)

Madan Gopal etc v Mran Bepari etc. PLD1969 SC 617 distinguished. Mumtaz hussain for Appellant. Khan Hamid Ali Khan Sherwani and iftikhar Ali sheikh for Respondents. Date of hearing 4th june 1979 This is the tenant s second appeal from order of the District judge, Lahore dated 6-12-1976 Whereby he reversed the controllers order dismissing the landlord ejectment petition and directed the tenant to vacate the premises. 2.The dispute relates to a residential bungalow situate at 1-Chamba House Lane Road, Lahore, which was owned at the relevant time by Begum Zarina Yazdani Khan the predecessor-in-interest of the present respondents and occupied by Mrs. Jam Latif the appellant Begum Yazdani Khan sought ejectment on the only ground of her requirement for personal use of her own and her children. The relationship was not disputed but the tenant contested the application on the ground that Begum Yazdani Khan did not require the bungalow in good faith that her husband who was an employees of the Central Government was living at Islamabad and owned a house in his name at Lahore and that the Landlord had in fact demand enhancement of rent. Upon the only issued framed on the question of personal requirement both sides led evidence. The Controller came to the view that the landlord husband was a co-owner of a house in Model Town Lahore, and that he had managed to keep Government accommodation at Lahore even after his transfer to Islamabad and as such the landlord could not be said to need the disputed bungalow very urgently. He also held that documentary evidence having been produced to establish that the landlord was a heart patient or that her children were studying at Lahore, her claim that she required the premises in good faith was neither proved nor even pressed and that the purpose of bringing the proceeding was nothing but enhancing the rent or renting out the disputed bungalow at a rent higher than present to some one else after the same is got vacated from the respondent. He thus found the issue against her and dismissed the application. 2.The appellate authority however came to the view that it was not necessary for the landlord to have produced documentary evidence to support her illness or the fact that her children were studying at Lahore that there had been no rebuttal of the oral evidence led in this regard and that the landlord herself id not own directly or indirectly the residential building at Lahore. He therefore held that she required the premises in good faith for the use of herself and her children. The learned appellant authority however in view of the ruling in Hakim Aziz Ahmed V. Ijazul Mulk (PLD 1971 Lah, 305 ) did not accept the landlords assertion that the tenant admittedly owning another property at Lahore was to be ejected under the second proviso to clause (b) of subsection (3) of section 13 of the West Pakistan Urban Rent Restriction Ordinance 1959, without the landlord being required to satisfy the Controller as to the bona fides of her claim of personal use. 2.Begum Yazdani Khan is stated to have died on 12-12-1976, i.e,. only about a week after the acceptance of her appeal by the appellate authority. Her legal representatives are now the respondents in the present appeal. 2.Learned counsel for the appellant submitted that the landlord could not be held to have established her case of requirement in good faith in the absence of any documentary evidence. He pointed out that the grounds of health and education of children did need to be supported by documentary proof which is absent. He urged that the bond fides of her requirement had not even been pressed before the Controller and that the reel purpose as brought out by R.W.I. and R.W. 2 had been to secure an enhancement of the rent. Learned counsel for the respondents on the other hand submitted that the story of demand for a higher rent as put forth by R.W. 1 and R.W. could not be believed in view of the denial by the landlord A.W. 3. 2.On the question of her bound fide requirement of the premised Begum Zarina Yazdani (A.W.3) has asserted that she owned no other property and that her children were receiving education in Lahore. She herself did not assert in her evidence the ground of her aliment but the fact rematus that she had been permitted by the Controlled to be examined on commission on the basis of her application dated 9-2-1976 in which application she had urged that she had suffered a heart attack and was advised complete rest by her doctors. Her husband Malik Ghulam Yazdani Khan (A.W. 2) had however stated that his wife was a heart patient and confined to bed. The fact that she had owned another property at Lahore even if established though it was not or that her husband was owner or co-owner of another property or had retained official accommodation is not relevant. On the basis of the evidence on the record the question of her personal requirement in good faith is in my view one of fact and a decision arrived at by the appellate authority, even though at variance with that of the Controller is not amenable to interference in this second appeal Learned counsel for the appellant has relied on Madan Gopal etc. v. Maran Bepari, etc. (PLD 1969 S C 617 ) in which it had been held that a finding of fact reached by the first appellate Court which is at variance with that of the trial court could not possess the same value or sanctity as a concurrent finding and that the finding of the first appellate court will ordinarily prevail but the immunity from interference in second appeal will be available only if it is found to be substantiated by evidence on the record and is supported by logical reasoning duly taking note of the reasons adduced by the first Court which had been disfavored in the contrary finding. But the authority is not attracted to the matter in hand because it cannot be said that the finding of the appellate authority is upon no evidence or is perverse to the evidence on the record. In this view of the matter, the present appeal fails and is accordingly dismissed though I make no order as to costs. Appeal dismissed.