1984 PLP 621 (SCMR)

MIAN BURHANUDDIN KHAN, J.‑By this petition leave is sought to appeal against the judgment and order of the Sind High Court, Hyderabad Circuit, dated i9‑6‑1983 passed in Second Appeal No. 8 of 1983.

2. The respondents filed ejectment applications bearing Nos. 213/1966 and 214/1966 against Muhammad Umar and Muhammad Hashim respectively, the predecessor‑in‑interest of the petitioners. These applications were dismis sed by the learned Rent Controller. Appeals filed before the District Judge were also dismissed. Second Appeals Nos. 387,11970 and 251/1972 were filed in the Sind High Court. Appeal No. 251/1972 was allowed by the High Court vide its common judgment dated 14‑11‑1975 and Appeal No. 387/1970 against Muhammad Hashim was dismissed on the ground that Ishtiaq Ali respondent No. 2 has failed to establish his bona fide requirement of the premises in question. The ground floor premises, in occupation of Muham mad Umar, were, however, in consequence of the above order, vacated and banded over to the respondents.

3. After the lapse of about two years Ishtiaq Ali and Hashmat Ali filed another Rent Application No.341/1977, later numbered as No. 344/1977, against the petitioners who had in the meanwhile inherited the tenancy on the demise of their father Muhammad Hashim. This Rent Application was again based on the ground of personal bona fide need of the premises by respondent No. 2 lshtiaq Ali and one Shadad Ali son of respondent No. 1 Hashmat Ali. The other ground alleged in the application was non‑payment of rent by the petitioners since June 1976. After recording the evidence, the learned Rent Controller dismissed this application vide order dated 6‑7‑1978. The respon dents filed appeal which was also dismissed by the District Judge vide order dated 27‑11‑1979. Second appeal was then filed in the Sind High Court which was accepted vide the impugned judgment.

4. Learned counsel for the petitioners contended that the learned High Court Judge has seriously erred in law by allowing the second appeal particu larly on the question of fact and set aside concurrent findings of the Courts below especially when there was no misreading or non‑reading of the evidence whatsoever that the learned Judge had entered into a fresh appreciation of evidence and substituted his own findings in the second appeal especially when the evidence on record did not suffer from any infirmities ; that the principle of res-judicata was also misapplied to the facts of the present case by the learned Judge and he did not apply his mind to material inconsistencies in the evidence of the respondents which had been elaborately brought out and discarded by the learned Courts below. These inconsistencies were not or trivial nature to be ignored but were of vital importance for the decision of the case in favour of the petitioners regarding the bona fide need of the premises for their personal use.

5. We have gone through the impugned judgment of the High Court and find that the evidence has been discussed in its correct and true perspective inasmuch as that the inconsistencies referred to by the two Courts below, which weighed with them, in rejecting the application for ejectment filed by the respondents, were not such as would have tilted the decision in their favour. The learned counsel, however, referred to Abdul Majid and others v. Khalil Ahmad (P L D 1955 FC 38) wherein the learned Judged held:‑ "The High Court has no jurisdiction to entertain a second appeal on the ground of an arroneous finding of fact, however, gross and inexcusable the error may seem '6o be, unless there is an error in the procedure provided by law, which may possibly have produced an error or defect in the decision of the case on the merits." The second case cited by tile learned counsel is Karamat Ali and another v. Muhammad Yunus Haji and another (P L D 1963 S C 191) wherein the High Court was held to have no jurisdiction to reverse a concurrent finding of fact by the Courts below by going into question of weight to be attached to particular item of evidence. In the same volume at page 466 the observation has been made regarding the second appeal governed by sections 100 and 101 C.P.C. (V of 1908) as follows :‑ "Concurrent finding of fact arrived at by Controller or District Judge cannot be disturbed in such appeal." Similar observation has been made regarding the concurrent finding of fact in Mst, Jamila Latif v. Ghulam Yazdani Khan and 4 others (1979 C L C 29 ).

6. No doubt the above authorities have settled the principle involved in cases where there is a concurrent finding of fact but in the instant case there is fallacy, as held in P L D 1955 F C 38 in appraising the evidence as to a fact amounting to a material mistaken assumption that would require re‑examina tion of the evidence. The learned Judge of the High Court, while discussing the evidence in the present case, observed on page 13 of the impugned judgment :‑ "The question before the Courts below‑ was whether the demand of Hashmat Ali to accommodate his married son separately in the premises occupied by respondents was reasonable and bona fide in view of the fact that he was living with a large family which either consisted 15 or 12 members in a small quarter in Latifabad, Hyderabad. The Courts below instead of addressing themselves to this important, aspect of the case, were unduly swayed by the discrepancy in the number of family members given by Hashmat Ali and his son Shahzad Ali in evidence, which in the circumstances of the case, was not much of importance. The Courts below were also much impressed by the fact that Hashmat Ali in his evidence stated that the house in occupation of respondents was required for accommodating his son Shahzad Ali who was married about two years back while Ishtiaq Ali in his evidence stated that he has no other house and he wants the premises for his own use. As against this evidence Shahzad Ali stated that he would stay in the premises alone. The above statements, according to the learned Courts below, amounted to a contradiction of the case of personal and bona fide requirements set up by Ishtiaq Ali and Hashmat Ali. This approach of the Courts blow to the evidence was not correct as there was no inconsistency in the above statements. Ishtiaq Ali in his cross‑examination, in reply to a question, stated that he and Shahzad Ali both will reside in the premises occupied by the respondents. No doubt Shahzad Ali in his evidence before the Controller stated that he will reside in the premises alone and that Ishtiaq Ali or Hashmat Ali will not reside with him but this statement of Shahzad Ali neither amounted to contradicting the case of personal and bona fide requirement as set up in the case, nor it was sufficient to belie the same ."

7. The learned Judge also referred to section 13 (4) of the Ordinance. This provision of Jaw, according to the petitioner, provides sufficient safeguard to attend to frivolous and male fide application by the landlord. The manner of personal and bona fide requirement by a landlord in view of the provision of this section of the Ordinance, is a sufficient safeguard against misrepresen tation made by the landlord. Thus, we find no merit in this petition which is, accordingly, dismissed. M. Z. M. Petition dismissed.