P L D- 1981 Lahore 609 (PLP)

This second appeal calls in question order dated 28-7-1979 passed by the learned Additional District Judge, Rawalpindi.

2. The facts necessary for the purposes of this appeal, briefly stated, are that the appellant instituted an ejectment petition under section 13 of the West Pakistan Urban Rent Restriction Ordinance VI of 1959 for eviction of the respondent from Shop No. U/633, Mochi Bazar, Rawalpindi, on the grounds of default in payment of rent and the bona fide requirement of the shop in dispute for personal use by the appellant. This petition was resisted by the respondent and both the grounds for seeking ejectment were refuted. On the divergent pleadings of the parties, the learned Rent Controller framed the following three issues :-- (1) Whether the petitioner requires the shop in dispute for his personal use bona fidely ? O. P. P. (2) Whether the respondent paid or validly tendered for payment the rent for the disputed period? O. P. R. (3) Relief. It would be pertinent to mention here that it is the admitted position that the respondent had taken the shop in dispute on monthly rent of Rs. 400 with effect from 1-12-1967 for a period of 10 years udder a written agreement. The ejectment application was instituted by the appellant on 3-1-1978, i.e. after just about a month of the expiry of 10 years' period for which the lease was granted to the respondent.

3. The learned Rent Controller on the conclusion of the trial dismissed the petition of the appellant by his order dated 31-3-1979, whereupon, the appellant preferred an appeal before the learned District Judge, Rawalpindi but the same was also dismissed by the lower appellate Court on 28-7-1979.

4. Still dissatisfied the appellant has come up in this second appeal.

5. The learned counsel for the appellant contended; Firstly, that both the lower Courts by non-reading of the record fell into an error in deciding Issue No. 1 against the appellant. Elaborating his arguments learned counsel submitted that the statement of the landlord in a case of requirement of premises for personal use has to be given the all important weight whilst the Courts below did not care to advert to the statement of the appellant in the case in hand. It was further argued that a concurrent finding on an issue of fact becomes conclusive only when it has been given after due appraisal of the evidence and not otherwise. In support of this contention, the learned counsel placed reliance on Bashir Ullah v. Mst. Sardar Begun P L D 1954 Lah. 614 ; Nazar Muhammad and another 'v. Mst. Shahzada Begum and another P L D 1974 S C 22 and Ghulam Mohyuddin v. Suba Khan P L D 1977 Lab. 1094 ; Secondly, that the Courts below made out a case for the respondent which was never set up by him by holding that the appellant is an old man using a hearing aid and as such incapable to do business. It was argued that this plea was neither raised by the respondent in his written statement nor even at the evidence stage ; and Lastly, that section 13(4) of the West Pakistan Urban Rent Restriction Ordinance VI of 1959 affords a sufficient safeguard to the respondent for securing restoration of possession if the appellant does not put the shop in dispute to his personal bona fide use after getting it vacated, which aspect of the matter was not at all adverted to by the Courts below. Reliance was placed on Dr. A. R. Khan v. Muhammad Ishaque 1972SCMR437.

6. On the other band learned counsel for the respondent made the following submissions; (i) That the requirement for personal use is a question of fact and there being concurrent findings on this issue by both the Courts below the matter cannot be gone into by this Court in a second appeal. Reliance was placed on Seth Abdus Sattar Haji Ahmed v. Sh. Fazal Hussain and another P L D 1966 Lab. 733 ; (ii) That bona fide requirement was not established by the appellant which he had to do independently of all other factors before ' e could secure an order in his favour. Reliance in support of the above contention was placed on Sh. Khushi Muhammad v. Kh. Muhammad Rashid Wain 1968 S C M R 1158 and Abdul Ghaffar and another v. Muhammad Nazar Ali P L D 1979 Lab.

317. In the above connection it was also submitted that section 13(4) of Ordinance VI of 1959 would not absolve and the from his responsibility to prove bona fide requirement ; (iii) that the factum of vacation of the premises in dispute by the appellant and letting it out to the respondent after the commencement of Ordinance VI of 1,959 established that the appellant had not fulfilled the third ingredient as contained in section 13 (3) (a) (iii) (c) of the Ordinance.

7. In reply the learned counsel for the appellant contended that the case of the respondent was that the appellant wanted to increase the rent and had, therefore, set up a false plea of present bona fide need but the respondent absolutely failed to establish this alleged mala fide act. Learned counsel for the appellant also submitted that there is an adequate explanation offered by the appellant as to why he had to rent out the premises in dispute after the commencement of the Ordinance by stating that he was short of funds and needed regular income for maintaining his family and now that the position has altered, he wants to restart the business in the premises in dispute. In the same string and in order to emphasise about the genuineness of the appellant's requirement of. the shop for personal use the learned counsel emphatically urged that the appellant who is present in the Court gives an undertaking that in case he lets out the shop in dispute even after three years from the date he is delivered possession thereof and does not do his business therein, the appellant would be entitled to seek restoration of possession. He also submitted that a look at the physique of the appellant would show that he is in a fit state of health to recommence his business.

8. From the arguments at the bar, I find that the questions which fall for determination in this case can be formulated as follows : (i) Whether the finding of fact about the requirement of shop in dispute bona fide by the appellant concurrently found against the appellant can be gone into in this second appeal? (ii) Whether bona fide requirement of the shop in dispute by the appellant has been established on record? (iii) Whether the orders of the Courts below are liable to be set aside having been passed by misreading/non-reading of the record and being based on extraneous considerations?

9. I would deal with the above formulations seriatim.

10. As regards the first formulation there can be no cavil with the principle that a concurrent finding on a question of fact if not arrived at by misreading/non-reading of record is of binding nature and not open to A challenge in a second appeal. The moment, however, it is shown that the concurrent findings on an issue of fact have been arrived at by misreading or non-reading of record or for that matter the same are based upon extraneous considerations not forthcoming from the record of the case, these no longer remain sacrosanct. Applying the above criteria to the case in hand it can be safely said that the 'findings returned on Issue No. 1 by the two Courts below are not such which cannot be gone into in a second appeal. Both the Courts below especially. the ' First Appellate Court laid emphasis firstly on the factor, that'-the appellant being of advanced age and hard of hearing and his son being in England it cannot be said that the requirement of the shop by him is bona fide and the second factor which appears to have weighed with the First Appellate Court was at the appellant had never been in the proposed business in his life. Now as regards the first factor suffice it to say, it was not the case of the respondent in his written statement nor brought out through evidence that the appellant being of an advanced age cannot do business. In so far as the finding of the first appellate Court that the appellant was never in the proposed business, it may only be observed that it is contrary to the record as a the appellant. categorically stated that though he previously was not doing the business of giving tents on rent but he used to deal in their sale. In his examination-in-chief he bad also clearly stated that in the shop in dispute he wants to do the business of tents. This portion of the evidence of the appellant has gone unrebutted. Again the respondent himself has admitted in his cross-examination as under :

11. In view of the above position of record it cannot be said that the findings of fact arrived at by the Courts below on the issue in question were sacrosanct so as not to be interfered with in a second appeal.

12. Having arrived at the conclusion that the findings on the issue o personal bona fide requirement of the shop in dispute returned by the two Courts below being based on misreading rather non-reading of record and partly on assumptions are no longer not touchable and can be gone into by this Court in this second appeal, I would now advert to the second formulation so as to see whether bona fide requirement of the shop in dispute has been established on record or not.

13. I am of the considered view that while determining whether an particular premises is required by a landlord for personal use fundamental importance should be attached to the statement of the landlord himself as no one else can better state about the need than the person whose need it is. If I may say so the statement of the landlord in this regard unless established directly to be untruthful has to be taken on its face value. It is all the moreso because in the case of a landlord who seeks eviction of a tenant on the ground of personal requirement of a premises and does not thereafter put it to use for which he has obtained the eviction, section 13(4) of Ordinance VI of 1959 shall come into play at once and the tenant shall that be entitled .to restoration of possession. Section 13(4) of Ordinance is thus an adequate safeguard against the abuse of the provisions of section 13(3)(a) (lf) of the Ordinance by the landlord. By my above observation it should not be taken that the landlord has just to make a bald assertion only about his requirement. What I mean is that if the statement of the landlord is confidence inspiring and there is no other material available on record to detract from its veracity then such a statement of the landlord should be given the all important weight and not treated as the statement of an interested person.

14. Apart altogether from the above position I may also observe that in the case in band the bona fide requirement of the permises in dispute by the appellant stood adequately established otherwise also so as to warrant the return of a finding in his favour. The reasons for my above conclusion are (i) the making of the application by the appellant immediately after the expiry of lease period of 10 years as it could not be moved by him earlier by virtue of the prohibition contained in the proviso to section 13(3Ka)(ii) of Ordinance VI of 1959. (ii) the reasons given by the landlord as to why he wants to re-start the business in the disputed premises which was to the effect that in view of increase in the cost of living the rental receipts are not adequate to maintain the family. This portion of the statement of the appellant has gone unrebutted ; (iii) the assertion of the appellant as to the non-availability of any other premises suitable for the business intended to be undertaken by him. This assertion of the landlord finds corroboration from respondent's own witness Rana Muhammad Aslam, R. W. 2 ; (iv) the admission of the respondent's witness that premises in occupation of the appellant in the upper storey of the premises in dispute is not suitable for the business intended to be undertaken by the appellant ; (v) the reasonable explanation offered by the appellant about the renting out of the premises in dispute after the commencement of Ordinance YI of1959; and (vi) lack of proof about the alleged desire of the appellant for the enhancement of the rent, and (vii) last of all the undertaking now given at the bar by the learned counsel for the appellant that if the appellant lets out the premises even after three years of the date from which the possession of the disputed shop is delivered to the appellant the respondent would be entitled to seek restoration of possession.

15. In view of the above factors which as already observed above were not adverted to by the Courts below though there was enough material available on record pertaining thereto it can hardly be said that the finding given by them on Issue No. 1 could not be assailed in second appeal and that t those are not liable to be set aside. I would, therefore, hold that the finding of the two Courts below on Issue No. 1 having been arrived at by not full adverting to the record cannot be sustained and must, therefore, reversed.

16. These findings are also liable to be reversed for the reason that those are based on extraneous considerations as to age of the appellant, hi capacity of hearing through a hearing aid etc., which pleas were not set u by the respondent in his pleadings nor brought out through evidence. It ma pertinently be observed here that the working capacity of people of the same age may differ from person to person and thus it cannot be laid as a rule that a person with advanced age cannot do business. As regards applying, of bearing aid by the appellant he has clearly stated. while appearing as big own witness that the hearing aid has been applied y him only from last -year and that he has been hard of hearing since childhood. The factum of being hard of bearing could, therefore, be not construed so as to hold that this would be a deficient factor for the appellant in doing his business as he has lived with this handicap all through his life. The - appellant was present in Court and to me he appeared to be of sturdy health.

17. Before parting with the case I may also observe that the provision of bona fide requirement of a commercial premises for personal use does no necessarily imply that the same shall be used by the landlord personally in the physical sense: It is readily maintainable that requirement of law would be fully satisfied if a landlord chooses to conduct his business personally through any agency such as of an employee or of a servant.

18. Reversing the findings of the Courts below on Issue No. 1, I would therefore, hold that the issue had been proved by the appellant adequately so as to give an answer thereto in the affirmative. Resultantly, this appeal is accepted, the orders of the Courts below dated 21-3-1979 and 28-7-1979 respectively are set aside and the ejectment petition filed by the appellant is allowed. There will be, however, no order as to costs. The premises in dispute being a commercial premises, four months' time is allowed to the respondent to enable him to make an alternative arrangement and vacate the premises in dispute and deliver possession thereof to the appellant. In case of failure of the respondent to deliver possession within the aforementioned period of four months from the date of order, the appellant shall be entitled to seek possession through process of Court. s. Q.???? Appeal accepted.