2012 PLP 906 (CLC)

KHALID MAHMOOD, J.

This judgment shall also dispose of Writ Petition No.452, as common questions of law and facts are involved therein.

2. Petitioner filed two petitions for eviction of respondents from the suit premises on the grounds of personal bona fide need as well default in the payment of rent and subletting the shops in question. Respondents appeared and contested the petitions by filing replications. Learned Rent Controller after recording pro and contra evidence and hearing the parties dismissed the petitions vide judgments and orders dated 30-3-2011. Feeling aggrieved, the petitioner preferred appeals, which also met the same fate vide impugned judgment and order dated 9-7-2011. Hence, these writ petitions.

3. Learned counsel for petitioner with reference to law governing the subject-matter has argued that petitioner requires the suit premises for running business by his son, who is jobless. It was argued that law on the subject is very clear and petitioner can evict the respondents on the sole ground of bona fide personal need.

4. On the other hand, learned counsel for the respondents opposed the petitions by contending that respondents have invested huge amount in the suit premises and besides the suit shops there are many other shops lying vacant on the spot. It was argued that petitioner has recently sold some other suit shops after vacating the same from the tenants. It was also argued that son of petitioner is a practising lawyer and bona fide personal need of petitioner is not, in existence.

5. Arguments heard and record perused.

6. Although, petitioner's main plea for ejectment of respondent is bona fide need of the suit premises for his son Mr. Buqrat Mir Basit Advocate for the establishment of Dress Manufacturing Unit, the Petition was filed on the grounds of default in rent, sub-letting and for personal need. The legislature was conscious regarding the ejectment of a tenant on the basis of requirement of premises for personal need of landlord or for his children that is why word "good faith" has been inserted. The relevant portion of section 13 of N.-W.F.P. Rent Restriction Ordinance of 1959 is reproduced:

"Section 13--(3)(a) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession :-- (i) in the case of a residential building, if

(a) he requires it in good faith for his own occupation or for the occupation of any of his children; (b) he is not occupying another residential building, suitable for his needs at the time, in the same urban area in which such building is situated and (c) he has not vacated such a building without sufficient cause after the commencement of the Ordinance in the said urban area; (ii) In the case of a non-residential building or a scheduled building or rented land, if (a) he requires it in good faith for his own occupation or for the occupation of any of his children; (b) he or his said child is not occupying in the same urban area in which such building is situated for the purpose of his business any other such building or rented land, as the case may be, suitable for his needs at the time; and (c) he has not vacated such a building or rented land without sufficient cause after the commencement of the Ordinance in the said urban area;

7. Rent Restriction Ordinance, 1959 has been promulgated for regularizing the rights of both landlord and tenant in Urban area. In fact the main theme behind the said law is to protect the rights of tenants, especially of those tenants, who occupy the commercial building. The said tenant, who has established his business in premises and has achieved the 'good will', cannot be left on the mercy of the landlord. It is also admitted fact that not only such tenant has spent huge amount rather precious time and hectic efforts to build up his business and good will in the rented building. Not only his and, his family livelihood is involved rather in case of ejectment financial collapse of tenant cannot be ruled out.

8. The .Courts are always conscious regarding the ejectment of a tenant from non-residential/commercial building due to reasons mentioned above. However, it does not mean that a landlord, who has established and proved his bona fide personal need for himself or for his children cannot eject a tenant, who has established his business and achieved a good will in business community, The term 'good faith' is prime and essential ingredient of ejectment of the tenant. Now, the mala fide intention of landlord for ejectment on the ground of personal need can only be ascertained if it is proved that landlord in fact is not a 'needy' rather is 'greedy' and only desires to enhance the rent according to his own will or he wants to rent it out to another person on much higher rent.

9. In the present case, son of the petitioner had got education from Leeds University of U.K. and obtained degree in Law. Petitioner's stance is that though his son is a law graduate and an advocate, but he does not want to continue his practice and wants to establish his business in garment manufacturing in suit premises and wants to shift his residence, from Lahore to Abbottabad. Mr. Buqrat Mir Basit also appeared in the witness-box and categorically stated that he wanted to establish the garment business in the suit premises. Son of the petitioner, though is lawyer by profession, but now wants to change his profession. Every one has a right to choose his own business according to his temperament, aptitude; prevailing circumstances. No one can be compelled to do the job against his own will and choice. Petitioner himself is renowned lawyer during his arguments though he was not happy for change of the choice of his son to whom he has got educated in law from U.K. but half-heartedly has surrendered before the choice of his son.

10. The arguments of the counsel for the respondent that son of the petitioner has no experience in the field and petition has only been moved to eject the respondent on mala fide ground of personal need. He also stressed that change of profession of son of petitioner is a lame excuse only to eject the respondent.

11. Learned lower Court had also non-suited the petitioner on the sole ground that son of the petitioner had obtained education from abroad and that he has no experience in the field of Dress manufacturing. It is admitted fact that only on the basis of simple knowledge any resourceful person through management of experts can establish his business in any fields i.e. textile, Shoes making. sugar, and cosmetics etc. including garments.

12. Mr. Buqrat Ali Mir son of the petitioner wants to surrender his license issued by Bar Council for practising as lawyer and to start his business, as a lawyer under Legal and Bar Councils Act he cannot indulge himself in any other profession. Son of the petitioner has a right and is his prerogative to choose a profession according to his own choice, temperament, family and social compulsion. By adopting the new profession, he has to sacrify his legal profession for which he had gone abroad for obtaining the law degree. Hence, in the present case, the personal requirement for occupation of premises for petitioner's son seems based on bona fide grounds. Respondents have been failed to prove that petitioner is not `needy' but a 'greedy' person, who only wants to enhance the rent according to his own wish or to rent out the suit premises to other interested tenants for higher rent.

13. It is needless to say that in case petitioner does not occupy the suit premises within one month after its eviction or rents it out to other tenant after two months of obtaining of possession then under section 13(4) of N.-W.F.P. Rent Restriction Ordinance respondent can apply to the Rent Controller for restoration of the possession of the suit premises. Hence, rights of the respondents are also protected if the suit premises after eviction is not taken into possession by the petitioner for running business of his own or the same is rented out to someone else. In this regard wisdom can be drawn from case of Iqbal Book Depot v. Khatib Ahmed and 6 others reported as 2001 SCMR 1197, wherein it was held:

"Where the statement on oath was quite consistent with his averment made in the ejectment application and the same had neither been shaken nor anything had been brought in evidence to contradict his statement, such statement on Oath would be considered sufficient for acceptance of the ejectment application

Conclusion drawn by High Court being unexceptionable did not call for interference".

10. We have also dilated upon the question as to whether the entire building would be needed or a part of and, we are of the view it may be left to the discretion of landlord who alone has the authority to decide this aspect of the matter and no advice or suggestion can be made binding upon him as the tenants cannot act as gratuitous advisers. In this regard we are fortified by the dictum laid down in 1968 SCMR 1087, let we mention here at this juncture that "the rest test whether a premises is required for personal use is whether the need is based on good faith. This being a question of fact and finding on this subject cannot be taken exception to unless it is shown that it suffers from violation of some fundamental legal principle in the matter of appreciation of evidence or omission of evidence or misreading of evidence. 1978 SCMR

437. Nothing solid or concrete could be brought in rebuttal by the appellants showing that the need of landlord is imaginary or based on mala fide.

11. Now adverting to the contention that ejectment application has been moved with mala fides and for he need enumerates therein can be met in a few shops and eviction of entire building is not necessary hardly needs any elaborate discussion as it is well-settled by now that "so far as Ordinance VI of 1959 is concerned there is a qualifying word attaching to the requirement and that is of good faith provided in the law itself. There is a penalty provision of restoration of the property in case there is failure on the part of the landlord. These qualifications, limitations and prescriptions clearly suggest the context by reference to which the law has to be interpreted and applied in a given situation".

14. In the facts and circumstances of the case, it has been established on record that petitioner requires the suit premises for bona fide personal need of his son in good faith but both the Courts below have wrongly and illegally declined relief to the petitioner.

15. Consequently, these writ petitions are allowed, impugned judgments and orders of both the Courts below are hereby set aside and it is directed that respondents/tenants shall hand over the vacant possession of the suit premises to the petitioner within a period of four months, failing which the petitioner shall evict the respondents/tenants through proper course of law. K.M.Z./69/P Petition allowed.