P L D 2002 Lahore 227 (PLP)

3. The matter relates to Property bearing No.23‑E, Haider Road, Chaklala Cantonment, Rawalpindi Cantt. and the respondent is the tenant against a monthly rent of Rs.5,

400. According to the landlord, he was a doctor by profession and was working as a Medical Officer in the Heavy Mechanical Complex, Taxila. That he needed the abovementioned property for his bona fide personal use as he wanted to establish his personal clinic at the abovementioned property located at Rawalpindi, where his children also were studying in school. According to him, he was not having any other commercial property in this area suitable for establishing a personal clinic. The landlord stated that previously he had filed a similar petition seeking eviction of the tenant but on account of a promise by the tenant that he shall vacate the premises in the near future when a need arose to the landlord, he entered into a compromise and withdrew the petition. That at that time, he also had dropped the idea of running the clinic for some time but he is now firm for establishing a clinic at Rawalpindi at the aforementioned premises. That when he asked the tenant to vacate the premises, he refused and, therefore, the petition had to be tiled.

4. In his written statement, the tenant took a number of preliminary objections mainly on the ground that the intentions of the landlord were tainted with mala fides because he wanted to enhance the rent as had done in the past. It was further stated that the landlord had also a property situated at Tufail Road, Rawalpindi Cantt., and in fact he did not need the present property but was trying to pressurize the tenant so that the rent could be enhanced.

5. This case was previously remanded by this Court (Najam‑ul‑Hassan Kazmi, J., as his lordship then was), while inter alia holding that the dismissal of the ejectment petition of the landlord was based on irrelevant considerations. The learned Judge had provided guidelines to the Rent Controller for a decision afresh. The present impugned findings are, therefore, after the remand order.

6. The main issue, therefore, was whether the need of the landlord was bona tide. To establish his bona fide, the landlord appeared as the solitary witness and stated that he needed the shop for opening a personal clinic: His full testimony is reproduced below in extenso:‑‑

7. On the other hand the tenant also appeared as his own witness. According to him, he was a tenant since 1987. That previously when the ejectment petition on the similar plea was submitted by the landlord, he withdrew it after the rent was enhanced from Rs.3,500 to 5,

400. He stated that the landlord had other property as well. That he was a permanent resident of Khanpur in Hazara and that the shop was not suitable for his requirement because it was surrounded by handicraft shops. He alleged mala tide against the landlord by stating that the petition was filed just to enhance the rent. During his cross‑examination, he admitted that in previous round of litigation, a compromise had been brought about. He stated:‑‑

8. The tenant admitted the fact that the children of the landlord were studying at Rawalpindi and that he himself was working in the Heavy Mechanical Complex at `Taxila. It was said that the distance between Rawalpindi and Khanpur was about 45/50 k.ms. and that the landlord could afford the commutation of his children between these two cities which was anyhow, his problem. But showed his lack of knowledge whether the landlord suffered difficulty in this respect and continued to say in his cross examination about the mala fides of the landlord.

9. While commenting on the statement of the petitioner, the learned Rent Controller stated:‑‑ "The petitioner has simply stated that the disputed shop is required for his clinic. He has not stated a single word in his examination‑in -chief that he in good faith requires the disputed shop. He has also not stated that having other property in Rawalpindi the disputed shop is suitable for his clinic. He has also not explained that being an employee of H.M.C. how he will run and manage his private clinic in disputed premises which is away from 40 to 50 kilometres from Khanpur. He has also not stated that he has any intention to reside in Rawalpindi and then start the clinic in the disputed property. It is on the record and petitioner himself admitted that he is the permanent resident of Khanpur."

10. It was also observed that the statement of the tenant that the property in question was not suitable for a clinic because it was surrounded by handicraft shops, remained unchallenged. On the basis of aforementioned observations, it was held that the landlord had failed to discharge the onus of bona tide need and his petition was dismissed.

11. It also appears that the filing of the previous petition which had been disposed of as withdrawn was also a factor which obsessed the Rent Controller while rejecting the petition of the landlord.

12. The question for determination is whether the Rent Controller had acted in accordance with law and had appreciated the evidence of the landlord as such. First of all, it may be mentioned that there is no legal requirement for a landlord to give a lengthy detail or to urge all ingredients in detail showing his bona fide requirements. If he has come forward and has made a statement on oath about his bona fide requirement and this statement is consistent with his petition and his statement is not shaken in cross examination, this is to be accepted. Reliance in this connection is placed on the following cases: (1) Chhappar Khan and another v. Chief Land Commissioner, West Pakistan and others (PLJ 1976 Karachi 336); (2) Hassan Khan v. Mrs. Munawar Begum (PLD 1976 Karachi 832). In case he was occupying any other building for the same purpose in the same area he should fail. Reliance may be placed on the case of Mian Abdur Rehman v. Haji Muhammad Hussain and another (PLD 1971 Baghdad‑ul‑ladid 17).

13. Some of the factors which may give the impression about mala fides of the land includes the fact that he did not have training in the type of business which he intend establishing at the premises.

14. But in the present case, it is an accepted position that the petitioner was a doctor who wanted to open a clinic in accordance with his profession.

15. Regarding the previous litigation on the similar plea of bona fide need and the withdrawal of the case, it has already come on record from the mouth of the tenant that all that happened because of the intervention of the Court. And pertaining to the previous litigation, one finds statements of the tenant and the landlord showing that on the offer of the tenant of increasing the rent provided the landlord withdrew his petition, the landlord agreed to withdraw the previous petition.

16. Merely having ownership of other premises and the type of premises I whose mention was made in the record of this case, was no ground for non -suiting the landlord on the plea of personal use. The landlord has the prerogative to decide amongst his properties which one he needed for his personal use.

17. Reference in this connection may be placed on the case of Badar‑ud -Din Hassan Farooqi through his 5 legal representatives v. Manghi Industrial Home (PLD 1976 Karachi 620)

18. Likewise the withdrawal of the earlier petition and postponement or the desire to occupy the premises cannot also be taken as a ground merely to show mala fides without pointing to other circumstances. Because it is possible that on the subsequent occasion, the need was there.

19. Bona fide need would stand proved if the statement of the landlord in the pleadings is consistent with his evidence, his statement has not been shaken in cross‑examination and the statement of landlord has not been repudiated through evidence by the tenant.

20. We find that the statement of the landlord is consistent both in the pleadings and the evidence. His statement has not been shaken in cross examination inasmuch as that it has not been established that he lacked the requisite qualifications to run a clinic or that he lived far away from Rawalpindi City where his presence on a daily or a regular basis was impossible. Whereas, it is an accepted position that his children resided at Rawalpindi and he worked at Taxila which was hardly 20 miles away from Rawalpindi and it was impossible for the landlord to go to his work and also to attend to his clinic in the evening on a regular basis. No question has been put to him suggesting that he had no intention of living at Rawalpindi.

21. The next question was whether the location of the shop amongst the handicraft shops created any difficulty. The answer again is in the negative because the doctor's clinic can run amongst the handicraft shops and nothing has been brought on record to a different effect. A bald statement of the, tenant challenging the intentions of the landlord calling the place as un suitable site for his needs, would not shake the testimony of the landlord. As a matter of fact, we have the sole testimony of the landlord and the sole testimony of the tenant and it would be strange not to accept the testimony o, the landlord on oath showing his intentions to use the premises rented out by him for his personal use. Besides we have the safeguards provided by the Rent Restriction Ordinance. On the file of the Rent Controller, one also finds an affidavit sworn by the landlord to the effect that he shall not let out the property and shall only run it as his clinic. So, why under these circumstances a landlord should be disbelieved?

22. During arguments, it was stated that as he is a doctor employed with the Heavy Mechanical Complex, the landlord needed NOC for running the clinic. According to his learned counsel, it is commonly known that the doctors who were Government servants were running their privates clinics in the evening and this was allowed. No such question was asked from the landlord and this argument has been raised perhaps for the first time before this Court. Anyway, since this point has been raised, it will be proper to direct the landlord to submit a No‑Objection Certificate for private practice before the Rent Controller who shall only after the receipt of such a Certificate, will order for the ejectment of the tenant and not otherwise.

23. This Court, therefore, feels that the findings of the learned‑ Rent Controller fulfilled the requirements as suggested by the case‑law in determining the question with respect to personal need of a landlord and as such this Court while accepting the appeal, sets aside the impugned order and allows the petition of the landlord.

24. During the course of arguments, it was suggested on behalf of the landlord that he was willing to allow six months' period to the tenant before ejectment. This will be allowed to the tenant. The appeal is accepted in these terms with no orders as to costs. Q.M.H./M.A.K./J‑44/L Appeal allowed.