1986 PLP 1362 (CLC)

Date of hearing: 9th February, 1986. This appeal under section 15(4) of the West Pakistan Urban Rent Restriction Ordinance, 1959 is filed by the tenant /appellant against the order of VIth Additional District Judge, Karachi, dated 2‑8‑1975 acting as the First Appellate Authority under Ordinance VI of 1959. By the impugned order the learned First Appellate Authority confirmed the ejectment order passed by the Rent Controller on the application of respondent instituted against the appellant on the ground of personal and bona fide requirement. Mr. Naseem Farooqui, the learned counsel for the appellant has relied the following contention in support of the appeal:‑ (i) that the evidence produced by the respondent before the Controller was insufficient to establish the personal and bona fide requirement of respondent and as such the order is liable to be set aside; (ii) that the evidence on record showed that the premises were required by the respondent for Messrs Zeal Pak Cement which is a distinct and separate entity being a company incorporated under the Companied Act and as such the application for ejectment was not maintainable having been filed by the respondent which is a statutory corporation; (iii) that need for the premises expressed in the application as well as in the evidence of respondent before the Controller came to an end with the promulgation of Act XXVII of 1974 and, therefore, no cause of action is now left with the respondent to get eviction of appellant from the disputed premises; and (iv ) that in any case the respondent being in the process of winding up upon promulgation of Ordinance (LII of 1984) no justification is now left for eviction of appellant from the premises. The learned counsel for the respondent on the other hand supported the orders of two Courts below and further submitted that there being two concurrent findings on the issue of personal and bona fide requirement which is a pure question of fact, the findings cannot be disturbed in second appeal. The respondent in his ejectment application pleaded the personal and bona fide requirement as follows:‑ "

5. That, with the ever growing number of the various estblishments and organisations under it, the applicant is in dire need of accommodation and thus requires Godown No. 2 reasonably and in good faith for its own bona fide use and occupation. " In support of their case, the respondent examined their General Manager F.K. Khilji, K.H. Sial the Estate Incharge of PIDC and Agha Azhar Ali Khan, the Godown Inspector of PIDC. The appellant in rebuttal examined Muhammad Sharif. The witnesses of respondent in their evidence stated that the godown in occupation of appellant is needed by the respondent for the purposes of storing cement produced by Zeal Pak Cement and Maple Leaf Factory in connection with its export. They also produced evidence to show that in order to meet the requirement of storage of cement the respondent had to obtain other premises on rent. In cross -examination of those witnesses attempt was made to establish that the godown in occupation of appellant was in fact, needed by the respondent to provide storage facilities to the Government of West Pakistan. The appellant's witness in his evidence also made statement alleging these facts. The two Courts below after analysing the evidence produced by the parties reached the conclusion that the evidence produced by the respondent did establish that the godown was needed by the respondent for storage of cement in connection with its export business. The conclusion arrived at by the Courts below is neither based on misreading of evidence nor the learned counsel for appellant was able to point out any perverse appreciation of evidence by the Courts below in this regard. The fact that another view of the evidence is possible on re‑appraisal is hardly a ground for interference with the concurrent findings of facts by the second appellate Court. Mr. Nasim Farooqui, the learned counsel for the appellant, however, contended that the evidence on record is insufficient to establish the personal and bona P fide requirement. Firstly, insufficiency of evidence alone is no ground for interference with the concurrent findings of facts arrived at by the two Courts below and secondly the evidence produced by the respondent did show that the godown was needed by the respondent for storage of cement in connection with the export business and if this evidence was believed by the Courts below it was sufficient for grant of eviction application. I, therefore, find no substance in the first submission of the learned counsel for the applicant. The next contention of the learned counsel for the appellant is that the evidence on record shows that the premises was required by the respondent for Messrs Zeal Pak Cement Company Ltd. which is a separate legal entity and as such the application was not maintainable at the instance of respondent. In support of this contention Mr. Farooqui relied on the following alleged admission made by the respondent's witness F.K. Khilji in cross‑examination:‑ "We require the godown for WPIDC on behalf of these factories." The above contention was raised by the appellant before the First Appellate Authority but it was repelled as follows:‑ "Mr. Nasim Farooqui, argues that respondent is a statutory corporation and is a legal entity while Pak Zeal Co. after its registration as Public Ltd. Co. has also acquired a nel and separate legal identity different from respondent corporation. Therefore, need of Pak Zeal Cement engaged in manufacturing and selling cement cannot be equated with personal need of respondents corporation. It is true that both Pak Zeal Ltd. and respondents corporation are two different and distinct legal entities yet the fact remains that Pak Zeal Ltd. is a subsidary organization of the respondent's corporation and respondents are managing agents of Pak Zeal Ltd. The bulk of production of this company is handled, managed, marketed and exported by respondents corporation. Therefore, if respondents corporation require the godown for storage of cement it shall for all intents and purposes be the personal need of respondent corporation. Respondent's counsel has invited my attention to various provisions of Ordinance XXXVIII of 1962, which empowers the respondents corporation to set up cement industries and other heavy industries. Admittedly respondents have set up Pak Zeal Ltd. and they manage the production, sale and export of this Co. produce viz. cement." Mr. Farooqui contended that the storage of cement by respondent was not on its own account but for Zeal Pak Cement Ltd. as admitted by the witness F.K. Khilji in his cross‑examination and as such the above conclusion of First Appellate Authority is based on a misreading of evidence. I am unable to agree with the learned counsel that the above‑quoted statement of witness in cross‑examination amounted to an admission that the premises were required for Zeal Pak Cement Ltd. and not for respondent. The above‑quoted statement of witness cannot be read in isolation but has to be read in the context to which it was made. To understand the correct meaning and import of the above‑quoted statement of witness the following portion of the cross‑examination is to be read as a whole:‑ "We were storing our cement in 1966 in K' Sher PT through Mahmood Corporation. We had nominal quantity of cement. PIDC had started exporting cement in 1967. We started shipping to East Pakistan in 1966/67. In 1966 we were exporting a nominal quantity to East Pakistan, as was West Pakistan was deficit in cement. Actual export we started in 1967. I cannot say what monthly rent we pay for godown hired by PIDC. This information I can give on perusing and refering on my record. PIDC constructed the godowns. The application is not signed by me, 'A'. It is not a fact that PIDC has been bifurcated in two portions after instituting this application. WPIDC is under the President. The shipment of East Pakistan is being done by WPIDC and other cement factories. We export cement of Zeal Pak Mapali. We are the owners of Zeal and Mapali Cement Factories. WPIDC is managing agent of these factories. We require the godowns for WPIDC on behalf of these factories. The factories are managed by WPIDC. PIDC is owner of Zeal and Mapali. Zeal Pak is a public Limited Maple Cement Factory is not a factory of public Ltd. I have no idea of how many shares public have in the Zeal Pak. I do not know the opponent has share in Zeal Pak. Secretariat of WPIDC was dealing with the matter of requisition of the godowns. Some officers are dealing with these correspondence with Zeal Pak Factory which had a production of 11 lac tons per year while Maple Leaf has a production of 2.50 lac tons. Production of cement of Zeal and Mapel leaf are only exported to foreign countries and East Pakistan. I shall not use these godown for Karachi local market but uses for storage the cement for foreign country." A reading of the above statement makes it clear that the respondent needed the godowns occupied by the appellant for storage facilities of cement which was exported by the respondent. I accordingly l, find no substance in the second contention of learned counsel as well. The last two contentions of Mr. Farooqui respectively are that upon promulgation of Ordinance XXV of 1979 the respondent ceased to be the managing agents of Zeal Pak Cement Factory Ltd. as the same stood transferred to State Cement Corporation and as such functions of respondent with regard to export of cement came to an end with the result they are now left with no cause of action to seek eviction of appellant, and secondly, in any case the respondent being in the process of winding up in view of the promulgation of Ordinance, 52 of 1984 there is no justification now for making the order of eviction and the appellate Court after taking into consideration the changed circumstances should allow the appeal and set aside the same. It may be mentioned here at this stage that on 18‑12‑1985 when the appeal was already heard by me partly, the learned counsel for the appellant moved an application under Order XLI, rule 27, C . P. C . for allowing the appellant to lead further evidence in the case to establish that the respondent after passing of the impugned order has ceased to deal in cement in any manner. This application is opposed by the respondent on the ground that it is not only highly belated but it amounts to setting up a entirely new case in second appeal which is not the object of Order XLI, rule 27, C.P.C. It need not be emphasized here that the object of allowing parties to lead evidence at appellate stage is to enable the Court to decide the controversies finally and the necessity for such evidence should be felt by the Court and parties to an appeal have no right to lead additional evidence. In the present case no such case is made out. It is an admitted position that the above ground was not taken before the Controller. The learned counsel contends that this grounds became available only after passing of Ordinance XXV of 1974. Even, if this contention is accepted, Ordinance XXV of 1974 was promulgated in April, 1974 when the appeal before the First Appellate Authority was pending. The appeal was decided by the First Appellate Authority on 2‑8‑1975. It is not disputed that under section 15(2) of Ordinance, the First Appellate Authority is possessed of power to hold further enquiry in a case pending before it in appeal. No reason whatsoever, is assigned by the appellant for not moving this application before the First Appellate Authority while the appeal was pending there. I therefore, find no case for grant of application under Order XLI, rule 27, C.P. C. at this stage. In so far merits of above contentions are concerned, the learned counsel for the appellant was unable to point out any provision in Ordinance XXV of 1974 which prohibited respondent for carrying on export of cement upon promulgation of the Ordinance. Similarly, I am not impressed by the contention of the learned counsel for the appellant that as the respondent is under a process of dissolution upon enforcement of Pakistan Industrial Development Corporation (Dissolution) Ordinance, 1984, therefore, there is no justification for maintaining the order of ejectment passed against the appellant. No doubt Section 4 of Ordinance LII of 1984 provides that the Federal Government may by order direct that the business, projects and properties of the Corporation shall stand transferred to a company to such subsidiary on such date in such manner and to such extent as may be specified in the order of Federal Government but such transfer or vesting cannot take place unless a date is also specified by the Federal Government after passing of the order under section 4, in accordance with the provision of section 7 (ibid). It is admitted at the Bar that neither any order under section 4 of the Ordinance is passed by the Federal Government so far, nor any date has been specified in the official Gazette in accordance with the provision of section 7 of the Ordinance. Apart from it the combined effect of sections 5 and 6 of the Ordinance is that in spite of transfer of business, project and properties of respondent to the company or to any subsidiary under section 4 of the Ordinance, a continuity is maintained and under section 5(2) of the Ordinance all proceedings pending by or against respondent shall be continued, prosecuted and enforced by or against' the company or the subsidiary as the case may be. It is, therefore, quite clear that in spite of an order of Federal Government under section 4 of the Ordinance and specification of a date under section 7 (ibid), the ejectment order passed in favour of respondent would not have abated and the company or the subsidiary to which the business and properties of the respondent is transferred under the orders of Federal Government would be entitled to the benefit of the same. Mr. Nasim Farooqui cited the case of Mst. Amina Begum v. Mehar Ghulam Dastagir P L D 1978 S C 220 to contend that in the changed circumstances the Court can mould the relief but this case has neither any application in the present case nor it is of any assistance to the learned counsel. In view of the above discussion, the appeal is dismissed with no order as to costs but the appellant is allowed four months' time to vacate the premises. A.A. Appeal dismissed.