P L D 1983 Peshawar 67 (PLP)

2. The respondent Syed Bazrug Shah contested the petition on factual as well as legal grounds. Following issues were framed' in the case by the learned Rent Controller :‑ (1) Has the petitioner cause to bring this application? O. P. P. (2) Is the application bad for misjoinder of parties? O. P. R. (3) Is the application not competent in its present form? O. P. R. (4) Does the petitioner intend to demolish the disputed house and wants to re‑build it on the same site? O. P. P. (5) Has respondent 1 sublet the disputed house to respondents 2 to 4 without the consent of the petitioner? O. P. P. (6) Does the petitioner need the disputed house for his own occupation? O. P. P. (7) Relief.

3. After recording such evidence as the parties wished to produce, the learned Rent Controller, by his order dated 30‑6‑75, decided Issue No. 1 in favour of the petitioner, Issue No. 2 against the respondent, Issue No. 3 favour of the respondent, Issues Nos. 4 and 6, which were discussed together, against the petitioner and Issue No. 5 also against the petitioner. He, consequently, dismissed the petition filed by the landlord.

4. Feeling aggrieved by the decision of the Rent Controller, the landlord went in appeal to the Court of District Judge, Peshawar, before whom the findings of the learned Rent Controller on Issues Nos. 3, 4 and 6 were challenged. The learned District Judge did not agree with the learned Rent Controller on the point that the pleas of re‑construction and personal use taken up in the ejectment petition were mutually destructive. He, therefore, impliedly and not expressly, reversed the finding of the learned Rent Controller on Issue No.

3. On Issue No. 4 the finding of the learned District Judge was that although evidence was available on the record to show that the petitioner had been granted permission by the Municipal Committee (now Corporation), Peshawar to re‑construct the house, but since no evidence was brought on the record to show that the house was in dilapidated condition, thus, requiring re‑construction, and since before granting permission for re‑construction the tenant was not afforded any opportunity by the Municipal Committee (now Corporation) to disprove the claim of the landlord, the sanction for re‑construction , granted by the Municipal Committee (now Corporation) was of no use to the landlord. On Issue No. 6 the learned District Judge held that the landlord had failed to prove that the disputed house was needed by him for his personal use. He, therefore, dismissed the appeal filed by the landlord.

5. Not satisfied with the result of the appeal, the landlord has filed this Second Appeal in this Court wherein the Orders made by the learned Rent Controller and the learned District Judge have been assailed.

6. The learned counsel for the appellant confined his arguments to issues Nos. 4 and 6 and contended that the findings of the two forums below on these issues, being contrary to law and also being the result of misreading of the evidence brought on record, were unsustainable. His arguments precisely were that in view of the relevant provisions contained in the relevant Ordinance and in the light of the decisions made by the superior Courts in this context the appellant had brought sufficient evidence on the record to prove both the grounds. He, therefore, submitted that the Order made by the two forums below may be reversed.

7. The main argument of the learned counsel for respondent No. 1, however, was that the two forums below have given concurrent findings on both the issues raised in this appeal, and since they related to questions of fact, such findings have become final and cannot be disturbed in Second Appeal. He further argued that the evidence brought on record was not sufficient to prove that the house in dispute was required by the landlord in good faith for his own occupation or for the occupation of any of his children, or that it was reasonably and in good faith required by the landlord for re‑construction. He submitted that this appeal may, therefore, be dismissed.

8. Both the learned counsel referred to many authorities of the superior Courts, to which I would refer while discussing each point raised in this appeal.

9. It is true that the concurrent findings on facts reached by the Rent Controller and the first appellate Judge cannot be disturbed in. Second Appeal, unless it is shown that such findings are based on no evidence or on misreading or non‑reading of evidence on the record or on considerations totally irrelevant or are in violation or disregard of the relevant provisions of the statute or the law laid down by the superior Courts in that respect it is, therefore, to be seen whether or not in this case there has been any misreading or non‑reading of evidence on the record by the two forums below or any violation or disregard by them of the law as provided in the Ordinance or as laid down by the superior Courts.

10. I would first deal with the ground of re‑construction. The appellant's plea was that the disputed house consisted for. `Kacha Abadi', which was in dilapidated condition and required re‑construction. He alleged that for this purpose he had obtained from the Municipal Committee (now Corporation), Peshawar necessary sanction. He specifically ~ stated in paragraph 2 of his petition, the copy of which has been brought on the record after proper re‑construction order when the original file relating to the same was lost in the High Court, that he would file photostat copies of the sanction order and the site plan when the same were received. The copy of the sanction order, and not the site plan, was actually brought on record by the appellant and was duly exhibited as Exh. P. W. 1/1 in the, statement of Mr. Mukhtiar Ahmad, Vernacular Record Keeper, Municipal Committee (now Corporation), Peshawar.

11. The learned counsel for the appellant, in order to show that in respect of this ground there has been misreading and non‑reading of evidence by the two forums below, took me through the entire evidence brought on record: Besides the statement of Mukhtiar Ahmad, referred to above, there is available on the record, for the appellant, the statement of Muhammad Younas, attorney of the appellant. As against this evidence the respondent No. 1 appeared himself in the witness‑box, besides producing one other witness Fazal‑ur‑Rahim.

12. In his statement at the trial Muhammad Younas, the son of the appellant and his attorney, stated that the structure of the disputed house was `Kacha' and they wanted to re‑construct it. It was also stated by him that necessary sanction for re‑construction bad been obtained from the Municipal Committee (now Corporation), Peshawar and its photo copy on the record was Exh. P. W. 1/1. In reply to a question by the opposite side he categorically stated that the house was in dilapidated condition. In support of the ground of re‑construction there was, therefore, available on the record the statement of Mukhtiar Ahmad, who proved that the Municipal Committee (now Corporation), Peshawar had sanctioned re‑construction of the disputed house, and the statement of Muhammad Younas, son and attorney of the appellant, who stated that the structure of the disputed house was `Kacha' and was in dilapidated condition and they wanted to recons truct the house after having obtained necessary sanction from the Municipal Committee (now Corporation), Peshawar.

13. While dealing with Issue No. 4, the learned Rent Controller held that the pleas of re‑construction and personal need were mutually destructive and for that reason the landlord (appellant) could not succeed by joining both the pleas in one petition. 1n arriving at this conclusion he was influenced by the judgment of this Court, reported as P L D 1973 Pesh. 186, which has been dissented by a Division Bench of this Court to case reported as P L D 1977 Pesh. 80 and has been overruled by the Supreme Court in Dawood's case (PLD 1982 SC 227). This would mean that on the proposition above‑stated the finding of the learned Rent Controller was based on erroneous proposition of law and was thus no finding at all. The learned Rent Controller also held that mere obtaining of the, sanction from the. Municipal Committee for re‑construction of the house was not sufficient, as the landlord had also to establish his bona fide. The discussion on this issue would further show that the learned Rent Controller took the view that since the attorney of the appellant had not stated in his examination‑in‑chief that the house was in dilapidated condition, his having said so in cross‑examination was of no benefit to the appellant. This approach of the learned Rent Controller, in my view, was fallacious, because thereby he ignored the elementary principal of law that the examination‑in‑chief of the witness and his cross examination formed one statement and could be used to his benefit by either party to litigation. In my view sanction for re‑construction of the house granted by the Municipal Committee (now Corporation), Peshawar, copy whereof was brought on record duly exhibited, coupled with the state ment of the attorney of landlord (appellant), wherein he stated that the structure of the house was `Kacha' was in dilapidated condition and required re‑construction, and the safeguards available in law under subsection (5) and subsection (5‑B) of section 13 of the relevant Ordinance were enough to prove the bona fides of the landlord (appellant) in this respect. As a matter of fact in such circumstances bona fide of the landlord was not relevant to the disposal of the ejectment petition filed on this ground, as held by the Supreme Court in Amir‑ud‑Din Allah Ditta's case (1969 SCMR 131). The above discussion would show that the finding of the learned Rent Controller on this issue was based on erroneous proposition of law and once that proposition is corrected the finding disappears and consequently the rule of concurrent finding becomes inapplicable. Even otherwise, the bona fide' requirement of the landlord for re‑construction is primarily a question of law which can be determined in Second Appeal.

14. Coming now to the order of the learned first appellate Judge, paragraph 12 of the order deals with this ground in the following words: "As far as the other plea of re‑construction is concerned, the petitioner/ appellant has relied on Exh. P. W. 1/1. It is stated that on his request, M. C. Peshawar has allowed him permission for re‑construction. Exh. P. W. 1/1 was placed on file by an official of the M. C. but there is nothing in his statement nor any evidence was produced to show that the house is in dilapidated condition and requires re‑construction. Before having granted the permission, the tenant/ respondent should have been afforded opportunity to disprove the claim of the landlord. In absence of evidence to prove that the house was in dilapidated condition and required re‑construction, the document Exh. P. W. 1/1 would not be of substantial help." This, paragraph of the Order would show that not only the finding of the learned first appellate Judge was based on erroneous proposition of law, as already referred to, but it was also the result of non‑reading of material evidence available on record. Besides the sanction order Exh. P. W. 1/1 there was available on record the statement of Muhammad Younas, son of attorney of the landlord (appellant), wherein he stated that the house consisted of `Kacha Abadi' and was in dilapidated condition, which the learned first appellate Judge also failed to notice. The learned first appellate Judge also fell into error while taking the view that only a house which was in dilapidated condition could be got vacated from the tenant for re‑construction. By holding this view the learned first appellate Judge ignored the fact that every landlord has a right to make improvement in his property at any time, he wants. His view was contrary to the view expressed by the Supreme Court in Haji Allah Ditta's case (1980 S C M R 41) and Krishan Lal's case (1980 S C M R 969).

15. The learned counsel for respondent No. 1 argued that since the sanction order for re‑construction of the disputed house was passed by the concerned authority of the Municipal Committee (now Corporation) on the date subsequent to the date of filing of the ejectment petition, there was in law, no such ground available to the appellant at the time when he had filed his ejectment petition against the respondents. He submitted that the ejectment petition on this ground being premature was liable to be dismissed. While making this submission he relied on Aziz Begum v. Guarantee Life & Employment Insurance (P L D 1975 Lah. 594).

16. True that the factual position was that the ejectment petition was filed on 9‑10‑1973 and the sanction order referred to above was made on 10‑10‑1973, but even then the argument of the learned counsel for respondent No. 1, being based on misconstruction of the relevant provisions of the statute, is misconceived. The language employed in clause (vi) of subsec tion (2) of section 13 of the relevant Ordinance is that "the building or rented land is reasonably and in good faith required by the landlord for the re‑construction or erection of building on the site, and the landlord has obtained the necessary sanction for the said re‑construction or erection from the Municipal Corporation,, the Municipal Committee, the Town Committee, or the Provincial Urban Development Board in the area where such building or land is situated". This language clearly shows that in order to succeed on this ground the appellant had to prove two things, one that the house in dispute was reasonably and in good faith required by him for re‑construction and the other that the authority mentioned in the law had granted him sanction for re‑construction. It was not the requirement of law that the sanction order should have also been passed in his favour by the authority concerned, before the date of filing of the eject ment petition. All that the appellant had to do was to satisfy the Rent Controller that the requisite sanction did exist in his favour, which could be produced by him at the proper stage of recording the evidence, so that it was available on the record at the time of final determination of the relevant issue. The appellant did produce the requisite sanction order at the proper stage of the case, as already mentioned in earlier portion of this Order. This, in my view, was sufficient compliance of the provision of law referred to above.

17. The aforesaid argument of the learned counsel four respondent No. 1 can be defeated on other ground. In the provision of law referred to above, the word "already" has not been used between the words "landlord has" and the word "obtained", which word has been used in clause (vi) of sub section (2) of section 17 of the Cantonments Rent Restriction Act, 1963. In absence of the word "already" from the relevant provisions of law, it cannot be interpreted that the Legislature meant that the necessary sanction must exist before an application for ejectment is filed before the Rent Controller on this ground. . Again, the suggestion made by the learned counsel for respondent No. 1 would also run counter to the policy of law that the multiplicity of suits or proceedings should be avoided. Assuming without conceding, if such ground was not available to the appellant on the date of filing of the ejectment petition, it certainly became available to him one day after the date of filing of such petition. Any decision ending in .the dismissal of the ejectment petition on the ground of prematurity would not disentitle the appellant from instituting fresh proceedings on the same ground when sanction was received by him. This would mean that the appellant would be having right to institute fresh proceedings for ejectment on the ground of re‑construction. Such an exercise would mean multiplicity of proceedings, which should be avoided. In this view of the matter, I am supported by Supreme Court decision in Messrs Ismail Brother's case (1980 S C M R 776) and Abdur Raziq's case (1979 S C M R 534). There is, therefore, no substance in the argument of the learned counsel for respondent No. 1 that the ejectment petition filed by the appellant on the ground of re‑construction was premature.

18. The learned counsel for respondent No. 1 also argued that it was the statutory obligation of the appellant to have filed on record the copy of the site plan sanctioned by the Municipal Committee (now Corporation), Peshawar in respect of the re‑construction of the disputed house, and since it was not done by him, his petition was rightly dismissed by the two forums below, for having not complied with the requirements of law. This argument is also misconceived. There is nothing in the relevant provision of law that while claiming ejectment of the tenant on this ground the landlord has also to file on record the site plan sanctioned by the authority mentioned in the law for re‑construction of the building. The words used in the law are necessary sanction for the said re‑construction or erection", and this requirement was satisfied by the appellant in this case by bringing on record the copy of the necessary sanction, to which the two forums below have also referred in their impugned Orders. On this point I have in my support the decision of this Court in case Badar & Brothers (Arms & Ammunition Dealers) v. Muhammad Aslam and 2 others (P L D 1970 Pesh. 80). This argument of the learned counsel for respondent No. 1 is; therefore, untenable.

19. I now come to the second ground on which the appellant sought the ejectment of the respondent from the disputed house. The appellant claimed that the disputed house was required by him for personal use. In order to establish his claim he produced only one witness, his son who was his attorney as well, who stated at the trial that the disputed house was required for the personal use of the family, which would be occupied after its re‑construction. To be exact, in his examination‑in‑chief he stated that "we will live ourselves in our house". In cross‑examination, however, he stated that he would live in his house after its re‑construction and at present he was living with his father in the house which was small and consisted of two or three rooms.

20. As against this statement of the attorney of the appellant, the respondent No. 1 appeared himself in the witness‑box denying the fact that the disputed house was required for the personal use of the appellant. He further stated that the appellant owned two other houses in Mochi Late and Sabzi Mandi, which he gave on rent to some other persons after re‑construction. He also stated that the appellant's son Muhammad Younas was already living in another house. In cross‑examination he admitted that he owns a share in a house in which his mother, brother and brother's daughters were living. He, however, expressed his ignorance about the fact as to how many sons of the appellant were married. Similarly, he was not sure about the fact whether or not Muhammad Younas, the attorney of the appellant, was married. He also could not tell exactly whether or not after getting the house vacated from him the appellant would give it to his son for occupation. The respondent No. 1 also produce one other witness in defence, who stated that Muhammad_Younas, the son and attorney of the appellant, was living in a seperate house from his father. He further stated that the appellant owned a house situated in Mohallah Munawar Wali, Sabzi Mandi, Peshawar, which he gave on rent to some one, whose name he did not know. In cross‑examination, however, this witness expressed his ignorance about the fact as to bow many sons of the appellant were married. He also expressed his ignorance about the marital status of Muhammad Younas, the son and attorney of the appellant.

21. The learned Rent Controller while dealing with the relevant issue expressed that since the plea of personal need and re‑construction were mutually destructive, the appellant was not entitled to the relief claimed for. He also expressed that it was admitted by the attorney of the appellant that the appellant owned many plots (property) which had been rented out to others. For this reason, it appears, the learned Rent Controller denied the relief to the appellant. This conclusion was clearly in violation of the law laid down by the Superior Courts that the choice is always of the landlord possessing more than one house in the same urban area as to in which house he or his children would like to live. The law does not empower either the tenant or the Rent Controller to determine as to where the landlord or his children or any one of them would personally reside. The decision of the Supreme Court in Sabu Mal's case (1973 S C M R 185) is relevent in this context.

22. The learned Rent Controller has also expressed in his Order that in the ejectment petition it was alleged that the disputed house was required by the landlord for his own occupation, but his attorney stated at the trial that he would occupy the same after re‑construction. The learned Rent Controller, however, failed to mention in his Order as to what was the inference drawn by him . from these statements. He probably meant that if in the ejectment petition it was stated that the house was required for the personal use of the petitioner and if at the trial it was stated by the attorney of the petitioner, who was his son, that he would occupy the house, the bona fide of personal requirement was not proved. If such was his deduction, the learned Rent Controller failed to notice that the law allows ejectment of the tenant from residential building if it is required in good faith for the occupation of the landlord or for the occupation of any of his children. Nothing would turn on the fact if in the ejectment petition it is stated that the residential building is required for the personal occupation of the landlord and the attorney of the landlord, who is his married son, states at the trial that upon eviction of the tenant he would occupy the house, for, such eviction could legally be directed for either of them. It was also not material if during the proceedings of the ejectment petition the landlord had not yet decided either to himself occupy the house after eviction of the tenant therefrom or to give it‑ to one of his sons for occupation. It was also immaterial if in the beginning the landlord had the intention to occupy the house after it was vacated by the tenant, but during the eviction proceedings he changed his mind and decided to give that house to one or more of his children. The decision of the Supreme Court in Khuda Bakhsh's case (1978 S C M R 89) supports this view. It is, therefore, in evidence that the finding of the learned Rent Controller on this issue was based on wrong appreciation of law. Consequently, this finding was no finding at all, and once this finding disappears the rule of concurrent finding becomes inapplicable.

23. The finding of the learned lower appellate Judge on this issue was also based on misreading of evidence and wrong appreciation of the law laid down by the Superior Courts in this context. It has come in the evidence of both the parties that the other property owned by the landlord (appellant) was in possession of other tenants and no house was lying vacant to be occupied by the appellant or by any one of his children. The learned lower appellate Judge failed to notice that the attorney of the appellant had in cross‑examination stated that the house in which he and his father were living together was small and consisted of two or three rooms. The learned lower appellate Judge also failed to notice that Muhammad Younas, attorney of the appellant, had stated that he and his brother were married. In these circumstances the house in which the appellant and his attorney were living together, being small, was not fit for their occupation. The observations of the learned lower appellate Judge that "there is no evidence that the said accommodation is not fit for their occupation" were clearly the result of misreading of evidence brought on record. The finding of the learned lower appellate Judge on this issue was also against the law laid down by the Superior Courts because the prerogative to select a house for residence was surely that of the landlord and not either of the tenant or of the Court or authority trying the ejectment petition.

24. It follows from the discussion above that the findings of the two forums below on issues Nos. 4 and 6 being the result of misreading of evidence and wrong appreciation of law are not maintainable and are hereby reversed. There is available on the record evidence to warrant a decision on these issues in favour of the appellant.

25. In the result, while accepting this appeal and setting aside the judgments and decrees of the two forums below, I direct that the respondents shall put the appellant in possession of the house in dispute. They shall, however, have two months to vacate the house; provided that the respondent No. 1 continues to pay or deposit the usual rent and undertakes to hand over peaceful possession of the house to the appellant on the expiry of this period. S. Q. Appeal accepted.