2017 PLP 182 (CLCN)

MUHAMMAD FARRUKH IRFAN KHAN, J.

Through this second appeal the appellant calls in question the validity of impugned judgment/order dated 18.10.2011 and 10.05.2014 passed by the learned courts below. Through the former learned Rent Controller while accepting eviction petition of the respondent directed the appellant to vacate the demised shop within two months and through the latter the learned lower Appellate Court dismissed her first appeal against the judgment of the learned Rent Controller.

2. Facts of the case in brief are that respondent filed an ejectment petition against the appellant for her eviction from the demised property fully described in para No.1 of the petition inter alia on the grounds of peronal bona fide need. The appellant contested the said ejectment petition by filing written reply wherein she denied that the respondent required the premises for her personal bonafide need. Out of divergent pleadings of the parties, learned Rent Controller framed necessary issues, recorded evidence of the parties thereupon and proceeded to accept ejectment petition vide impugned judgment dated 18.10.2011. Being aggrieved the appellant filed appeal before the learned First Appellate Court which was dismissed vide impugned order dated 10.05.2014. Hence, this second appeal.

3. Learned counsel for the appellant submits that the impugned judgment/order of the learned courts below are based on surmises and conjectures and result of mis-reading and non-reading of the evidence; that neither the respondent has personal bona fide need nor she requires the demised premises for establishing business in good faith; that the respondent has also got vacated upper portion of the demised premises where she can easily set up business if so desires; that the respondent's sons are already running their shops at other places as such demised property is not required by her for personal bona fide need; that the respondent has also certain other properties which may be used for the purposes of establishing business; that the learned First Appellate Court has not afforded full opportunity to the appellant to argue the case and proceeded to decide the same in the absence of appellant's counsel which is not warranted under the law; that propriety demands that the matter may be remanded to the learned First Appellate Court with a direction to decide it afresh after affording reasonable opportunities to appellant's counsel to argue the case.

4. Conversely, learned counsel for respondent submits that the impugned judgment/order are well reasoned; that the respondent through cogent and reliable evidence has proved that she required the demised premises for her personal bona fide need; that it was prerogative of the landlord to decide suitability of the premises for establishing her business and the tenant cannot give guideline to the landlord to do business somewhere else; that numerous opportunities were afforded to the appellant's counsel by the learned lower Appellate Court to argue the case but of no avail, therefore, the learned First Appellate Court was fully justified in passing of impugned order on merits and there is no need to remand the case; that both the courts below after due appreciation of the material available on record have passed eviction order of the appellant and no occasion arises for this Court to intervene with the same in this second appeal.

5. I have heard the arguments advanced by the learned counsel for the parties and gone through the record.

6. Scanning of the evidence makes it abundantly clear that sons of the respondent are retired Army personnel. Faisal Yousaf Siddique one of the sons of the respondent while appearing in the witness box as AW1 deposed that he is engineer by profession and intends to start his business in the demised premises. The appellant has failed to controvert him by producing any counter evidence. Furthermore, as per own version of the appellant, respondent has also got vacated the upper portion of the demised premises which also strengthens her claim of personal bona fide need, otherwise, there was no occasion to get the same vacated.

7. So far as contention of the learned counsel that respondent has certain other properties is concerned, it is well established principle of law that it is the choice of the landlord to only plead that a particular property is required for his/her personal bona fide need. It is his/her sole prerogative to decide which premises is suitable for his/her requirements. The law of ejectment of tenants on the grounds of personal need is pretty well settled law. In case reported as Juma Sher v. Sabz Ali (1997 SCMR 1062) it has been held as under:- "Sole testimony of the landlord is sufficient to establish the personal and bona fide requirement of landlord. In the case before us, the statement by the appellant on oath was quite consistent with his averments made in the ejectment application and neither this statement was shaken nor anything was brought in evidence to contradict his statement. In fact, the respondent did not even step in the witness-box to controvert the testimony of the appellant in the case. In these circumstances, the Rent Controller was fully justified in accepting the evidence of the appellant and order eviction of respondent from the premises."

8. A similar proposition was discussed and followed in case reported as Akhtar Qureshi v. Nisar Ahmad (2000 SCMR 1292) and Iqbal Book Depot and others v. Khatib Ahmed and others (2001 SCMR 1197).

9. Next contention of the appellant is that the learned First Appellate Court has not afforded her reasonable opportunity for arguing her case. The record actually reflects a very sorry state of affairs. The appeal before the First Appellate Court remained pending for a period of about three years during which the appeal was listed for hearing for about seventy times. Repeated adjournments were sought by the counsel for the appellant or the matter was adjourned on account of some strike being observed by the bar. On the other hand, the record does not reflect an adjournment having been sought by the counsel of the respondent. On 07.05.2012 a specific warning was issued to the counsel of the appellant that in case of his non-appearance on the next date, the matter would be decided on its own merits. Yet again there was no representation on behalf of appellant on 08.05.2014 and 10.05.2014 only whereafter the appellate court was left with no other option but to decide the case after perusing the record. Even before this Court, one of my brother Judges had to excuse himself from the case. The matter was listed before this Court on 25.06.2014 whereafter four further opportunities were granted to the counsel for the appellant. This Court has noticed with dismay that the practice of granting unnecessary adjournments in routine by the subordinate courts especially in rent and family matters cannot be justified on any score. Grant of an adjournment is the prerogative of the Court concerned but it must be for a valid and justifiable reason duly established before the Court and recorded in writing in the order sheet. The law does not permit repeated adjournments on flimsy grounds without there being any application of mind qua the justification for grant of such adjournments.

10. Courts of law must be appreciative of the fact that whereas grant of any adjournment benefits a particular party it adds to the misery to the other. Courts must now adopt a proactive role to curb unnecessary adjournments and ordinarily a matter especially rent and/or family must not be repeatedly adjourned and a maximum numbers of three adjournments and that too after recording the reason thereof in the interim orders should be granted to the parties.

11. The Courts are not helpless in this matter. They should apply themselves to the facts and circumstances of the case and if still they require assistance on a question of law, parties can be asked to submit written arguments in such specified questions of law, so that ends of justice are served. I find support viz the above observation in the cases reported as Ahsan Elahi v. M/s Habib Bank Ltd. (1981 SCMR 503), Messrs Raheem Steel Re -Rolling Mills and 4 others v. Messrs Karim Aziz Industries (Pvt.) Ltd. (1988 CLC 654) and Ilam Din v. Hassan Din and others (PLD 2006 Lahore 121).

12. Both the courts below after due appreciation of the material available on record have arrived at a conclusion that respondent required demised premises for her personal bona fide need. In second appeal this Court cannot substitute the concurrent findings of the courts below unless it is established on record that these are perverse and unjust. Reliance in this regard is placed on case reported as Muhammad Mahmood v. Fazalur Rehman (1986 MLD 902) wherein it has been observed as under:- "The interference by this court in second appeal on question of concurrent facts is confined to those cases alone where the findings is based on mis-reading of evidence or the finding is arrived at in ignorance of material piece of evidence on record or the appraisal of evidence by the courts below as perverse."

13. Similar view was taken in case reported as Sheikh Atta Muhammad v. Mian Muhammad Abduallah and 10 others (PLD 1971 Lahore 210) wherein it has been held as under:- "Time and again this Court as well as former Federal Court and the Supreme Court in this country have laid down that second appeal is not competent on a question of finding of fact if the finding is based on consideration of entire evidence. Inference drawn from evidence remains an inference of fact unless it is manifestly unjust, is based on no evidence or is concluded from inadmissible evidence."

14. For what has been discussed above, both the learned courts below have not committed any mis-reading and non-reading of the evidence warranting interference by this Court. Resultantly, this second appeal being without any substance is dismissed with no order as to costs. ZC/S-19/L Appeal dismissed.