P L D 1975 Lahore 308 (PLP)

The dispute relates to plot of land measuring 4 kanals 1 marls bearing property No. B-II-9-S-95/103, situated in Machine Mohallah No. 1, Jhelum city. A saw machine is installed in the said plot and the same is known as Virbhan Saw Mill. The plot along with the Saw Mill was transferred to the appellant by the Settlement Authority concerned. He has been running the mill himself for about 10/12 years before he let out the same along with the 'plot to the respondent vide rent note dated 13th of August, 1963 for a period of three years w.e.f. 15th of August, 1963 to 14th of August, 1966 at the rate of Rs. 80 per mensum. It is not denied that the permanent transfer deed has also been issued in favour of the appellant in respect of the plot in question as well as the Saw Mill, installed there.

2. According to the appellant the respondent agreed to pay the monthly rent at the enhanced rate of Rs. 120 with effect from 18th of February, 1969 vide receipt of the same date and paid him monthly rent at the said rate for the period of 15th January 1969 to 15th of February, 1969 but thereafter he refused to pay him the rent at the said enhanced rate and started depositing the rent at the rate of Rs. 80 per mensem in the Court. He has further alleged that the respondent has demolished one chappar which was standing on the plot in question and has removed its material. According to the appellant, the respondent has also removed the water pump and has closed the well. According to him he has been out of work for the last so many year's and his son Fateh Nasib aged 27/28 years an educated young man is also out of work. According to him he as well as his son require the Saw Mill premises for running the same in order to earn their livelihood.

3. All the above-mentioned allegations as contained in the ejectment application filed by the appellant have been denied by the respondent. The ,following issues were framed on the basis of the pleadings of the parties:- (1) Whether the petitioner is entitled to charge the rent of the premises in dispute at the rate of Rs. 120 p.m.? O. P. P. (2) Whether the respondent has failed to pay or tender the rent for the premises in dispute from 15-2-69 onward? O. P. P. (3) Whether the petitioner requires the premises in dispute in good faith for his personal use as well as for the use of his son? O. P. P. (4) Whether the respondent has caused material damage to the property' in dispute? O. P. P. (5) Relief. The learned Rent Controller as well as the District Judge has found all` the issues against the appellant. He has now come up to the High Court in second appeal. The appellant relied upon a receipt marked 'A' as well as-, receipt Ext. P/2 in order to prove that the respondent agreed to pay monthly rent at the enhanced rate of Rs. 120 but thereafter failed to do the needful. As for the document marked `A' is concerned there is no doubt that according' to its contents the respondent agreed to pay monthly rent at the rate of Rs. 120 but its execution was denied by the respondent. The appellant did' not produce the two attesting witnesses or the handwriting expert in order to show that the receipt was actually executed by the respondent. The other receipt Exh. P/2 is for the period 15th of January to 15th of February 1967` which is not relevant for the decision of the issue. However, it is argued by' the learned counsel for the appellant that the figures, as shown in the receipt have been altered by the respondent and a case in this regard has been register ed against him at the instance of the learned Court. Since the matter is sub- judice, therefore, I am not in a position to make any observation in this regard, at this stage. If the appellant had proved the execution of the receipt by the respondent according to law, then issue No. 1 would have been- decided in his favour. Since he has failed to prove the execution thereof, in accordance with law, therefore, no such finding can be given in his favour. therefore, agree with the findings of the learned Courts below on issue No. 1.

4. Since the enhancement of rent from Rs. 80 per mensem to Rs. 120 ,per mensem has not been proved on record, therefore, Issue No. 2 has been, rightly decided .in favour of the respondent. Similarly findings on Issue No. 4 do not call for any interference. The witnesses produced by the appellant in support of his allegations as contained in this issue have not: stated that they themselves saw the respondent removing the water pump, chappar etc. The appellant himself while appearing as P W. 5 has admitted in cross-examination that he was informed by the respondent in the morning through a messenger that chappar had fallen down. It means that if the respondent had demolished the Chappar himself; then there was no need of intimating the appellant that the same had fallen down. In that case hey would have kept silent.

5. According to para. 6 of the ejectment application the appellant has demanded the vacation of the Saw Mill premises for his personal as well as, for the use of his son aged about 27/28. years. It is in evidence that he has been running the mill for 10/12 years before he let out the same to the respondent. In his examination-in-chief he has stated that he and his son are without any work, these days. He has further clarified his position in the cross-examination that he let out the premises in question on account of some personal compulsions, and now he wanted to run the Saw Mill along with his son who is an educated person. He has further stated that his younger son was running an electric shop, but his elder son had nothing to do with this business. The respondent has not examined any witness on this issue except himself. He has stated only that the premises in question are not required by the appellant for his personal use. No witness whatsoever` has been produced to show that the appellant or his elder son Fateh Nasib are not without work. The learned Rent Controller as well as the learned District Judge both have decided this issue against the appellant on the ground that he has not stated in clear terms that the premises in question are required for his use as well as for the use of his son. I am afraid this finding is against law and facts of the case. The statement of the appellant in examination-in-chief alone is not to be taken into consideration, but the sane has to be considered along with the averments as made in the application a well as the statement made by him in cross-examination. Taking all of them together it is clear that according to him ,`the premises in dispute are required by him for his as well as for the use of his son. He has Whether stated as mentioned above, that his younger son alone is running an electric shop and that business has got nothing to do with the appellant and his elder son.

6. It has been argued by the learned counsel for the respondent that since the appellant has failed to prove that he requires the premises in good faith and bona fide, therefore, Issue No. 3 has been rightly decided against him. It has also been contended that the finding in this regard as to whether the appellant requires the premises in good faith or not is a finding of fact and cannot be interfered with in second appeal. Reliance in this respect has been placed upon Abdul Majid and others v. Khalil Ahmed P L D 1955 F C 38, Saeed Ahmed v. Mst. Zait-un-Nissa P L D 1967 Lah. 196, Seth Abdus Sattar Haji Ahmed v. Sh. Fazat Hussain and another P L D 1966 Lah. 733 and Khuda Bux and others v. Fida Hussain and others P L D 1963 Kar.

446. It is argued that the question with regard to good faith or otherwise is a question of fact. The findings of the Courts below in this regard cannot be interfered with in second appeal. Since the appellant has not been found requiring the premises in dispute in good faith and bona fidely, therefore this being the question of fact cannot be interfered with.

7. I am afraid none of the contentions raised above has any substance in the circumstances of the case. The effect of the penal provision as contained in subsection (4) of section 13 of the Ordinance, has not been considered in any of the authorities cited above while deciding the issue with regard to personal need. Subsection (4) reads as follows:- "(4) Where a landlord who has obtained possession of a building or rented land in pursuance of an order made under sub-paragraph (i) or sub-paragraph (ii) of paragraph (a) of subsection (3), does not himself or where the building has been got vacated for the occupation of any of his children such child does not occupy it within one month of the date of obtaining possession (or having been so occupied is re-let within two months of the said date to any person other than the original tenant), the tenant who has been evicted may apply to the Controller for an order directing that he shall be restored the possession of such building or rented land and the Controller shall make au order accordingly." According to this provision if a landlord or his son does not occupy the premises vacated by the tenant within a month of the date of obtaining possession, the evicted tenant will have the right to get his possession restored On his application made to the Rent Controller. If a landlord asserts that he or his son needs particular premises for personal use and it is also proved on record that he or his son is not occupying in the same urban area any building for the purposes of his business suitable for his needs or has not vacated such a building or rented land without sufficient cause then the Question with regard to bona fides or good faith, will have to be determined in context of the provision as contained in subsection (4) of section 13 of the Ordinance. What is after all required by a landlord or his son to prove his good faith or bona fides in regard to personal use he has to make a statement with regard to factual position as it stands and if the same is disproved in rebuttal in context of the conditions as laid down in sub-paras. '(b) & (c)' of para. II of subsection (3) of section 13 of the Ordinance then it can be safely said that the landlord or his son has not been able to prove his bona fides or good faith. In the present case the appellant has made a statement without any rebuttal that he and his son both have been out of work for a long time and further that the Saw Mill in question has been in his occupation before it was let out to the respondent. He has also stated that he or his son are not occupying any premises for their business not to speak of the locality but in the whole city of Jhelum. Nothing has been brought on record to show that the statement of the appellant is not correct. In the circumstances the question will arise as to what is after all the standard whereby the bona fides or good faith can be meassured. I am of the view that the learned Rent Controller as well as the learned District Judge both have erred in law in not taking this aspect of the case into consideration. They intention of the landlord in prosecuting the ejectment proceedings against his tenant if nothing is brought on record against him in view of sub-paras. '(b) & (c)' of para. II of subsection (3) of section 13 of the Ordinance is to be seen in context of the provision as contained in subsection (4) of section 13 of the Ordinance. In case of his mala fide intention the entire proceedings started by him would be rendered useless and he will have to surrender the possession of the premises to the evicted tenant. Since the intention of the appellant to prosecute ejectment proceedings in good faith and bona fide for his personal use has not been examined in view of the provisions as contained in sub-paras. (b) and (c), as mentioned above and subsection (4) of section 13 of the Ordinance therefore, the finding as given by the Courts below cannot be treated as a finding of fact, but contrary to law.

8. Their Lordships of the Supreme Court in their judgment dated 1st of December, 1971 in Civil Appeal No. 77 of 1970 filed against the judgment of the High Court in S. A. O. No. 357 of 1967 have considered the question as to whether the bona fide requirement of a landlord as a ground for the eviction of a tenant is purely a question of fact or a mixed question of law and facts and further the effect of the penal provisions as contained in sec tion 13(4) of the Ordinance in deciding the issue of bona fide requirement of the landlord. It has been held that if the finding with regard to issue of personal use is contrary to law, capricious and arbitrary then interference in second appeal will be justified. It has been held as follows with regard to the effect of the penal provision: "The learned counsel for the appellant has also argued that the learned Single Judge of the High Court was greatly influenced by an erroneous interpretation of the penal provisions contained in section 13, sub section (4) of the Ordinance, in holding that in the presence of those provisions, there was not much possibility of a landlord acting in bad faith in bringing ejectment proceedings against his tenant on the ground of his personal requirement or that of his male child, and that for that reason normally the Rent Controller should accept the requirement of the landlord, when it is reasonably proved on the record without putting bad faith to him, unless there were strong circumstances to the contrary. It may be that the effect of these provisions has been a little over stated in the observation made by the learned Single Judge, but as pointed out by him these penal provisions do constitute a salutary check to restrain the landlord from prosecuting ejectment pro ceedings on the basis of his bona fide requirement, as the entire proceedings may be rendered useless if the requirement does not materia lise in actual fact, in which case he will have once again to abandon the premises in favour of the tenant. As rightly contended by the learned counsel for the appellant, the provisions of subsection (4) of section 13 of the Ordinance have been enacted in favour of a tenant to restore him to possession, if a landlord has failed to prove by his subsequent action that his bona fide requirement, as alleged in the ejectment pro ceedings, has not come true. These provisions do not relieve the landlord of the basic onus on him to prove affirmatively that he does require the premises for his bona fide requirement or that of his male child."

9. There is no doubt as observed by the Supreme Court in the judgment cited above that the said penal provision does not relieve the landlord of the basic onus on him to prove affirmatively that he does require the premises for his bona fide requirement or that of his male child. In the present case the appellant has stated in the affirmative manner, as mentioned above, with regard to personal use of the premises but nothing has been brought on record against him in rebuttal. The dispute in the case as decided by the Supreme Court by the judgment as referred to above related to a shop at Murree. The landlord had applied for eviction of the tenant on the ground that he required the premises in good faith for the use of his son. The learned Rent Controller accepted the ejectment application directing the tenant to put the landlord into possession within a month of the date of the order. This order was however, upset in appeal by the learned District Judge who reversed the finding regarding the bona fide requirement of the premises for the use of the son of the landlord. It was argued before the learned District Judge by the landlord that if he did not use the premises for the occu pation and business of his son as alleged by him, the Ordinance provided a remedy for the tenant to get his possession restored under subsection (4) of section 13 of the Ordinance. This argument was repelled by the learned District Judge on the ground that this check in favour of the tenant did not absolve the Court of its duty to record a careful and well considered order as regards the bona fide requirement of the landlord. S. A. O. No. 357 of 1967 filed against the order of the learned District Judge was accepted by a Single Judge of this Court holding that in the presence of the said penal provision there was not much possibility of a landlord acting in bad faith and bringing ejectment proceedings against his tenant on the ground of his personal require ment or that of his male child. The civil appeal as preferred against this judgment of the High Court was dismissed by the Supreme Court. The relevant para. of the judgment dealing with the matter in question has been reproduced above.

10. Another authority Messrs Amir Din Allah Ditta v. Seth Adamji Abdullah and others 1969 S C M R 131 can be cited in support of the contention that the effect of penal provision as mentioned above, has to be taken into considera tion while determining the bona fides or otherwise of the landlord in filing the ejectment application. The relevant para. of the judgment lays down as follows: "The argument that the respondent's requirement of the new building was neither reasonable nor bona fide was not relevant to the disposal of the ejectment petition filed under section 13(2)(vi) of the Ordinance aforesaid. The penal provision contained in subsection (3) of section 13 of the Ordinance afford an adequate safeguard against a landlord acting in bad faith." Petition for special leave to appeal filed by the tenant was dismissed in view of the above finding. In that case the landlord had desired to demolish the old building and intended to construct the new one for the installation of a Printing Press. Subsection (5) of section 13 of the Ordinance contains a penal provision against the landlord and in favour of the tenant whereby the landlord can be punished for a term which may be extended to 6 months or with fine or with both, if he does not build the demolished building within a period of 4 months from the date of taking possession of the same or does not construct the new building within a further period of two years after the expiry of the period of 4 months. This authority has been relied upon in Qamar Raza Khan v. Mst. Rashida Begum and others 1970 Law Notes

495. It was held that the objection of the tenant that the landlord's requirement of the building was neither reasonable nor bona fide was not relevant for the disposal of the ejectment application in view of the penal provisions as contained in sec tion 13(5) of the Ordinance. Another case in support of the contention that the effect of penal provision while determining the bona fide intention of the landlord has to be considered is Fazlur Rahman v. Nayeema Khatoon P L D 1963 Dacca

84. It was a case under East Pakistan Rent Control Ordinance (XXV of 1961). The provision as contained in section 17(4) of the East Pakistan Rent Control Ordinance (XXV of 1961) was also taken into consideration while deciding as to whether the requirement of the building for the use of the landlord was bona fide or not. The relevant para. of the judgment may be reproduced below for benefit :- "It may not be out of place to mention in this connection that sec tion 17(4) of the East Pakistan Premises Rent Control Ordinance, 1961 provides that if the landlord after recovering possession fails to occupy the house or to commence the rebuilding thereof within two months of the date of vacating the premises by the previous tenant and the said premises are re-let within six months to any person other than the previous tenant, then the Controller at the request of the previous tenant can put him back into possession if so desired within seven months of his vacating the premises. This indicates that there is sufficient provision for checking as to whether grounds for requirements are bona fide or not." Since the learned Rent Controller as well as the learned District Judge have not considered the effect of penal provision in question while deciding the bona fides or good faith of the appellant in prosecuting the ejectment application and have further failed . to take into consideration the conditions as laid down in sub-paras. (b) and (c) of Para. Il of subsection (3) of section 13 of the Ordinance, they have erred in law in deciding the case against the appellant as far as Issue No. 3 is concerned.

11. The argument on behalf of the respondent that a finding howsoever erroneous it may be cannot be interfered with in second appeal and that there is no jurisdiction to entertain second appeal on the ground of such an erroneous finding, however, gross or inexcusable the error made may seem to be, may be correct but where there is such an error or defect in the pro cedure or the finding of both the Courts below in this behalf is contrary to law, capricious and arbitrary, interference in second appeal will not be un justified. The circumstances of each and every case will determine as to whether interference in second appeal can be made on not. As discussed above nothing has been brought on record against the appellant as far as the, conditions laid down in sub-paras. (b) and (c) of para. 11 of subsection (3) of section 13 of the Ordinance are concerned. The condition as laid down in para. (a) that if the landlord requires a non-residential building in good faith for his own use or for the use of any of his male children is to be read in context of the conditions as laid down in subsequent sub-paras. (b) and (c). If it is proved that the landlord or his male child is not occupying in the same Urban Area, any building for the purpose of his business suitable for his needs or has not vacated such a building or rented land without sufficient cause then his good faith or bona fides will have to be determined in context of said sub-paras. (b) and (c). Both the Courts below have not adverted to this aspect of the case and as such have erred in law in deciding Issue No. 3 against the appellant. The circumstances of the case, discussed above, show that the premises in question are required by the appellant for his and for the use of his son in good faith. Further the effect of the said penal provision has also not been considered while deciding the issue with regard to personal use. In this view of the matter it cannot be said that the finding on issue No. 3 against the appellant is a finding of fact. As such the arguments advanced on behalf of the respondent and the authorities relied upon by him in this behalf do not help him.

12. For the aforesaid reasons, the findings on Issue No. 3 with regard to personal use are hereby set aside being without lawful authority and of no legal effect. This issue is decided in favour of the appellant, in view of the discussion made above. The respondent would vacate the premises in question within two months from the date of this order. The appeal is accepted without any order as to costs. S. A. H. Appeal accepted.