2002 PLP 1391 (CLC)

This appeal under section 15(4) of the West Pakistan Urban Rent Restriction Ordinance, 1959, by Haji Muhammad Umar appellant is directed against order, dated 23‑9‑1999 passed by learned District Judge/Zila Qazi, Swat whereby judgment and decree, dated 24‑2‑1999 recorded by learned Rent Controller/Senior Civil Judge, Swat was maintained and appeal was dismissed.

2. Shortly narrated the facts leading to the filing of this appeal are that the appellant filed an Application No. 14/RC of 1996 on 25‑7‑1996 in the Court of Rent Controller/Senior Civil Judge, Swat seeking ejectment of the respondent from suit Shop No.4 Akbar Hotel, Main Chowk Mingora, Swat, on the ground of personal need for his son Hazrat Usman, a goldsmith by profession. It was averred in the application that the respondent is tenant in suit shop under the appellant at the rate of Rs.700 per month as rent vide a compromise agreement, dated 22‑5‑1983; that the appellant requires the suit shop in good faith for his son who is working in a rented shop and that the respondent was requested time and again to vacate the suit premises but he refused to do so which necessitated the filing of ejectment application.

3. The respondent appeared in Court and resisted the application on all grounds. He controverted the claim of the appellant and maintained that the application was filed with sole object to pressurize the respondent and enhance rent. The pleas of the parties gave rise to the framing of following issues: ‑‑ (1) Whether the applicant has got a cause of action? (2) Whether this Court has got the jurisdiction to entertain the application? (3) Whether the application is based on mala fide? (4) Whether the applicant is estopped to file the present application? (5) Whether the application is bad in its present form? (6) Whether the applicant needs the suit shop for his personal need? (7) Whether the applicant is entitled to eviction order? (8) Relief.

4. After taking into account the evidence adduced by the parties in support of their respective contentions and hearing arguments from both sides, the learned trial Judge decided Issues Nos.3 and 6 together and came to the conclusion that the landlord does not require the suit shop in good faith and that the eviction application has been moved for no other reason but to pressurize the tenant to increase rent. Having held so, he dismissed the application through judgment and decree, dated 24‑2‑1999 which was upheld in appeal vide order, dated 23‑9‑1999 of learned District Judge/Zila Qazi, Swat. .

5. Hazrat Usman, Advocate appearing on behalf of the appellant, bitterly criticized the impugned order and maintained that sufficient material was produced on record to demonstrate that the suit shop was required by the appellant in good faith for the personal use of his son Hazrat Luqman, working as goldsmith in a rented shop and that the eviction application has been rejected without any justifiable reason on the ground that suit shop is not required in good faith and that the application has been moved mala-fidely in order to increase rent. The learned counsel maintained that the evidence adduced by the appellant in support of his claim has been put at shelf without valid reasons which has materially prejudiced the rights of the appellant. The findings returned on Issues Nos.1, 3 and 6 to 8 were also brought under challenge and lower Courts were accused to have failed to determine material issues of law. To substantiate the contentions, reliance was placed on Altaf Hussain v. Mst. Nuzhat‑un‑Nisa PLD 2000 SC 67, Khawaja Muhammad Abdullah v. Sufi Faiz Muhammad 1980 SCMR 974, Allah Rakha v. Muhammad Shafi 1978 SCMR 437, Nooruddin and others‑v. Asghar Ali and others 1968 SCMR 1087, M. Yazdan v: Mst., Zainab Bai 1984 CLC 2058, Muhammad Aslam v. Muhammad Younas and others 1998 CLC 163, Haji Majid v. Haji Imamuddin 1981 CLC 109, Muhammad Ramzan v. Abdul Razzaq 1982 CLC 1489, Muhammad Saeed v. Dr. Sultan Muhammad 1983 CLC 2407, Bata (Pakistan) Limited v. Tahir Mahmood 1994 CLC 337, Mushtaq Ahmad v. Additional District Judge and others 1986 MLD 428, Tahir Umar v. Messrs Bata Shoe (Pakistan) Limited 1991 MLD 1236 and Faqir Khan v. Khalid Hussain and others PLD 2000 Pesh. 65.

6. Mian Iqbal Hussain, Advocate, for the respondent, on the other hand, supported the judgment and decree of the learned Rent Controller and maintained in appeal by the First Appellate Court and contended that in view of the previous conduct of the appellant manifest from the record, ejectment application was rightly dismissed and that the conclusion of fact arrived concurrently by both the lower Courts warrants no interference particularly when no specific misreading or non‑reading of evidence has been pointed out. In this connection, he felied on Allah Rakha v. Muhammad Shafi 1978 SCMR 437 and Samiullah v. Mst. Begum Jehan 1986 CLC 2628.

7. I have heard the arguments of learned counsel for the parties and have also gone through the evidence with their assistance.

8. It needs no reiteration that good faith has to be proved by clear and definite evidence which can inspire confidence and it is the primary duty of the landlord to establish that suit premises are required by him in good faith for personal need and ejectment application has not been filed for extraneous considerations. In Malik Din v. Manzoor Ali PLD 1985 Quetta 142, the following observations were made: ‑‑

5. The term reasonable possesses an objective element and the word 'require' would import something more than the mere desire and would call for a verdict from the Controller from objective standard. The question whether or not a premises is needed by the landlord for bona fide requirement is purely a question of fact which can be inferred from the circumstances which must be proved by the landlord by producing evidence. It is thus the duty of the Controller to see that premises are required both reasonably and bona fide and thus strike a balance between the arbitrary and unbridled desire of the landlord and the tenant at large. Bona fide must be proved in the ordinary, way like any other fact and once the Court below finds as a fact that the landlord does not require the building/premises bona fide there would be no justification for the Appellate Court to interfere with such a finding. 8‑A. In the present case, ejectment is sought principally on the ground that the suit shop is required by the appellant in good faith for the use oh his son who is engaged in goldsmith business in a rented shop. They burden to prove this fact was heavily on the shoulders of the appellant but he has failed to discharge the same by way of producing satisfactory) evidence to prove good faith or bona fide. The evidence produced by him falls short of the required standard and has rightly been ignored by the lower forums. As against this, the respondent has succeeded to show that B the appellant is in the habit of filing applications for enhancement of rent. We have it in evidence that three other ejectment applications were also filed by the appellant against his tenants namely Amin, Lakshmi Das and one another which were subsequently withdrawn by him in view of the tenants' willingness to increase rent. This conduct of the appellant has created obstacle in his way for an ejectment order. I am satisfied that the ejectment application has been filed with no other purpose but to pressurize the respondent to accede to the request of the appellant and enhance rent.

9. Adverting to the concurrent verdict of the Courts below I find that no case of misreading or non‑reading has been made out warranting interference of this Court. Nothing has been brought to my notice to indicate that the shop in suit was actually needed by the appellant for the use of his son and that no mala fide was involved. It was held in Allah Rakha v. Muhammad Shafi 1978 SCMR 437 that: ‑‑ The real test would be whether the need is based on good faith is a question of fact and finding on this subject could be taken exception to in this Court 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. In the instant case both the Courts below on the subject of good faith have given a verdict in favour of the landlord. The learned counsel has not been able to point out any factual or legal error in the aforesaid finding warranting interference by this Court. 9‑A. Learned counsel for the appellant has also assailed the findings returned on issues Nos. 1, 3 and 6 to 8 but the findings in this respect and conclusions drawn are supported by actual evidence on record and hardly require interference of this Court.

10. So far as the case‑law cited on behalf of the appellant is concerned I find that the same is distinguishable and has no bearing on the facts of the present case. In the cited rulings the requirement of the landlord was found genuine and thus an order of vacation was made whereas in the instant case the position is altogether different, because the appellant has failed to prove good faith and bona fide .

11. In the wake of above discussion, I find no substance in this appeal and dismiss the same with no order as to costs. H.B.T./534/P Appeal dismissed.