P L D 1975 Lahore 200 (PLP)

(3) Relief. Both the learned Courts below in well‑considered judgments, wherein the evidence has been noted and discussed in detail, found that the respondent ‑required the shop in dispute in good faith for his and his son's use. On questions of the alleged pagri paid to or demand of advance rent made by the respondent, there is no finding in favour of the appellant, namely, that 'he had been able to prove these assertions. On the other hand. it has been observed that even if the appellant initially paid any pagri it had not conferred any additional rights on him and did not subject the respondent to any liability. The fact that in the locality pagri could be obtained or that the respondent asked for advance payment of rent would not necessarily show that he did not require the shop in dispute in good faith. The learned Rent Controller criticised the evidence produced by the appellant with regard to the alleged demand by the respondent of advance of Rs. 10,000 and with regard to pagri he does not appear to have accepted the version of the appellant except that in a general way it has been observed that ‑even if the allegation were true the respondent would not incur any disability because he had, by cogent evidence, proved his bona fides in so far as the ‑requirement is concerned.

4. Learned counsel for the appellant took me through the entire ‑evidence led by both the parties as also their pleadings. While reading the evidence he offered comments with regard to which the learned counsel for the respondent contended that they are relevant only if it was permissible for this Court to reappraise the same with a view to disturb the findings of fact. In this context, learned counsel for the respondent, relying on Sh. Muhammad Ikhlas and others v. Muhammad Ismail (P L D 1963 S C 466), Muhammad Ishaq .and another v. Muhammad Rafique (1972 S C M R 450), Malik Nisar Muhammad and another v. Abdul Rauf (1972 S C M R 561), Seth Abdus Sattar Haji Ahmed v. Sh. Fazal Hussain (P L D 1966 Lah. 733) and Haji Pir Bakhsh v. Mst. Almas Begum and others (P L D 1967 Pesh. 49), contended that the considerations in so far as the assessment of evidence in second appeal under section 15(4) of the Rent Restriction Ordinance is concerned, would be the same as are under section 100, C. P. C. Proceeding on this assumption, learned counsel further contended that the criticism of evidence is directed against so‑called miss-appreciation of evidence; it cannot therefore be treated as either misreading or omission thereof. In reply, learned counsel for the appellant relying on Sh. Khushi Muhammad v. Kh. Muhammad Rashid Wain (1968 S C M R 1158) contended that if the approach of the Courts below in the appreciation of evidence is erroneous and is not in accord the requirements of law as contained in section 13(3)(a)(ii) (a) and section 13(3)lb) of the Ordinance, then this Court would interfere in second appeal despite the fact that ordinarily findings of fact would not be disturbed at this stage. In this connection, while maintaining that even the approach of both the learned Courts below is consistent with the provisions of the Rent Restriction ordinance, learned counsel for the respondent raised an alternative additional plea, namely, that even if the reliance by the Courts below would have been on the. Mere subjective expression Of the requirement by the landlord, the same in the absence of circumstances to indicate otherwise would have to be accepted by the Rent Controller because, amongst other reasons, the landlord has, as he put it, superior rights to possession/user in so far as the needs of both the parties (tenant versus landlord) are concerned. In order to support this proposition, he relied on pages 81‑82, commentaries by Kazi Muhammad Ashraf on West Pakistan Urban Rent Restriction Ordinance, 1959,1973 Edition, wherein such a view has no doubt been expressed with the support of some recent case‑law from Indian jurisdiction.

5. It is not necessary for me to discuss the view expressed in the book by the learned author nor the supposing cases mentioned by him in the foot‑notes because our Supreme Court, in a recent ruling cited by the learned counsel for the appellant having considered this very point has rejected the proposition canvassed by the learned counsel for the respondent. In the case of Khushi Muhammad their Lordships were dealing with an observation by the Additional District Judge in the first appellate judgment in the case under the Rent Restriction Ordinance which reads as follows:- If the appellant says that. he now wants to start the business it cannot be said that he is not genuine in his claim, because it is in the evidence that he now desires doing such a business. So, on the evidence the conclusion is irresistible that the appellant actually wants to start a business again. This would show that his desire to start business is not fake. Their Lordships of the Supreme Court were pleased to make the following observations in this behalf :‑ In other words, the Additional District Judge seems to think that mere expression of desire to have the premises would meet the requirements of section 13(3) (a) of the Ordinance. While construing the expression `bona fide requirement' occurring in section 17(e) of the East Bengal Premises Rent Control Act in the case of Jagadish Chandra Sarkar and others v. Abdul Aziz( 7 D L R 314) the learned Judges of the Dacca High Court after referring to a number of decisions observed:‑ It can, therefore, be said that where the landlord wants the house for his own use and occupation, it will never be considered sufficient that he should desire to have the premises back or even that he should require them, but it has been further insisted that the requirement must be `bona fide requirement' for the purposes recognized by the Act.' See also Bhulan Singh and others v. Ganendra Kumar Roy Chowdhry (54 C W N 366). It is thus clear that the approach of the Additional District Judge to the question of requirement in good faith was not correct." The ruling is too obvious to require any further comment in so far as the question of mere desire of the landlord and subjectivity of the requirement is concerned. In this very connection, learned counsel for the respondent brought to my notice the omission of the word "reasonably" in the language used in section 13(3)(a)(ii)(a) in contrast from the use of this word in section 13(2)(vi) where the word "reasonably" in addition to the expression "in good faith' has been used. The argument being that if the Legislature wanted the requirement of the landlord expressed through desire in good faith to be also reasonable, the word `reasonably' could have been repeated in section 13(3)(4)(a). I agree with the learned counsel for the appellant that the‑ so‑called omission is insignificant because under section 13(3)(b) the Controller shall not order, eviction on the expression of the desire even if in good faith by the landlord unless he (the Controller) himself is "satisfied that the claim of the landlord is bona fide . It appears that when in section 13(2)(vi) the Legislature wanted the requirement of the landlord to be reasonable and in good faith the Controller, on the proof of these requirements, was straightway permitted to "make an order directing the tenant to put the landlord in possession". But when omitting the word 'reasonably' from section 13(3)(a)(ii)(a) the Legislature supplied the deficiency by, as noted earlier, requiring the Controller not to make an order directing the tenant to put the landlord in possession unless "he is satisfied that the claim of the landlord is bona fade". Apart from this, it needs to be mentioned that section 13(2)(vi), as it originally stood, did not contain the conditions with regard to reasonableness and good faith and mere desire of the landlord in matter of reconstruction or erection of a D building was considered enough. But by a later amendment, it was thought necessary to bring the question of requirement in line with the other subjects dealt in the same section, namely, requirement for personal use and the mere desire was substituted by reasonable requirement in good faith. As to the so‑called underlying principle with regard to requirement of the landlord canvassed by the learned counsel, namely, that he has superior right of possession and user as against the tenant, suffice it to say that the same gets neutralised in so far as the interpretation of the provisions of the West Pakistan Urban Restriction Ordinance is concerned because, as contended by the learned counsel for the appellant, the preamble thereof or the underlying spirit of its provision does not con template any such weightage in favour of the landlord. This observation is subject to the consideration that the mode of proof of reasonableness and or good faith/bona fides is dependent upon various factors and it cannot be ignored that one of the material items of evidence for consideration, o course, would be the statement on oath of the landlord himself. Unless h makes a statement in his behalf asserting his requirement it will not b possible to visualise from circumstances alone that he has a bona fide personal need. With the above discussion and these remarks, I repel the argument of the learned counsel for the respondent in so far as the general question of approach of the requirement of the landlord, is concerned.

6. Learned counsel for the appellant has made the following points in order to show, as he put it, that the approach of the learned Courts below in appreciation of the evidence was erroneous, therefore, it is a case of misreading :‑ that the burden on the respondent was heavy to show that he had given up the earlier business in Race Club as a book maker from which he earned his livelihood for many years before he allegedly gave it up; that his son was without a job. In this behalf, the main cirticism of the learned counsel was that the son had not been produced. Some of the observations in Haji Peer Muhammad v. Haji Abdur Rashid (1968 S C M R 959) were relied upon in this behalf. He also pointed out a discrepancy in the averment made in the application on the one hand and the statement made by P. W. 1 on the other in so far as the name of the son is concerned; that the locality in which the shop is situate is such that at about ‑5/6 p. m., the entire shopping center would be closed, therefore, there would be no business for a restaurant even if one was opened in that locality; that the nature of the business was not disclosed by the respondent in the application for ejectment nor there is any evidence that he made any preparations in that behalf, e.g. by purchasing furniture and obtaining licences, etc., for opening a restaurant. Learned counsel pointed out in this behalf that the witnesses produced by the respondent expressed their opinion with regard to the requirement of the respondent because otherwise they did not give the details of their knowledge qua the requirement; that the demand of the respondent for a sum of Rs. 10,000 as advance rent, the assertion with regard to which has not been rejected and has only been explained away by the Courts below, destroys the claim of good faith made by the respondent. It may be mentioned here that after reading the evidence, learned counsel did not press the point that the respondent gave another shop owned by him on rent only 2/3 months prior to the filing of this application, therefore, this also rebutted the claim of bona fide requirement; because it was found in evidence that the other shop was rented out by the appellant a couple of years prior to the filing of the application. But in this behalf, he did not give up the point raised by his learned junior that the Controller was required before passing an order of eviction in this case to give a finding under section 13(3)(a)(ii)(c) that the landlord had not "vacated such a building or rented land without sufficient cause after the commencement of this Ordinance, in the said urban area".

7. It is true that there is no mention in the pleadings of the respondent that he wanted to open a restaurant in the shop in dispute. But there is a specific assertion that he wanted to open his own ' Karobar . As held in the case of Malik Nisar Muhammad relied upon by the learned counsel for the res pondent, such like omissions in cases under the Rent Restriction Ordinance D are not very material. The same ruling furnishes a reply with regard to the so‑called discrepancy in respect of the name of the respondent's son whom he wanted to join in his business of a restaurant. This is not all. It is in evidence that the respondent has two sons. One, who is younger, is still receiving education while the other, who is stated to be 20/22 years of age and is not much educated nor is he doing anything. The former's name is Tariq while the latter, who is mentioned in the application, is Babar. P. W. 1 is not related to the respondent nor does it appear from his statement that he has so intimate relations with him (the respondent) as not to make any mistake about the names of the members of the respondent's family. In this context, the so‑called discrepancy which is a matter of appreciation of evidence becomes insignificant and also explainable. The omission with regard to the particularisation of the restaurant business in the application is also in the context of the admissions made by the appellant's witness not at all significant. It is in the statement of Muhammad Yaqub, appellant's witness No. 4, that on having been disappointed with the conduct of the appellant the respondent had told him (appellant's witness) that he wanted to open a hotel in the shop in question. The other part of his statement with regard to the payment of Rs. 10,000 as advance will be presently dealt with. I also do not consider it essential for a landlord, before obtaining the possession of a shop, to make all the necessary preparations for running thereof as a restaurant. If it were held so, this would amount to adding another condition in the require ment of law as contained in‑ section 13(3)(a)(ii) of the Ordinance. On the other hand, wherever such a thing has been made obligatory on the landlord the same has been specified in the law as in the case of reconstruction of a building the same cannot be required by the landlord to be vacated unless he has obtained the necessary sanction for the said reconstruction or erection from the local body concerned. There is another aspect of the matter. The mere expression of the desire by the landlord as held above is not enough for the Rent Controller to direct eviction of the tenant. Good faith and bona fides are also to be shown. It is not always necessary that a landlord, who may require a shop in good faith, should also despite his good intention be able to prove the condition qua good faith and bona fides and thus might lose the case. Therefore, if he were to incur all the expenses for purchasing furniture, e. g., for running of restaurant and/or to obtain licences it might go waste. The omission, therefore, as pointed out by the learned counsel is inconsequential. The locality is not such where a restaurant cannot be opened. It is in evidence that near the shop in dispute there is a milk seller and many other suggestions with regard to other shops of eatables (of course denied), have been made to the witnesses of the appellant. The shop, it is admitted, does not fall in the Akbari "Mandi" so‑called. It is out of it but in its vicinity. It is in evidence that there are so many other shops as also residential quarters around the place. I do not agree with the learned counsel that after 5/6 p.m, in such a locality there will be no business for a restaurant. The claim of the respondent is supported by his two witnesses. They could in the circumstances make the statements as they did, showing that the respondent according to "their knowledge" required the shop in good faith. Whatever details were asked from them, they did supply the same but if they would have gone beyond this, this might have been open to the criticism otherwise. Their statements appear to be quite natural. On the question of the previous business of the respondent, suffice it to say, that even one of the witnesses of the appellant (Muhammad Shafi R. W. 3) admitted under cross‑examination that the respondent who used to be a book‑maker was not doing any business at the relevant time. Another witness, as noted earlier, admitted that the respondent had told him that he wanted to open a restaurant There is no reason to differ with the respondent's statement and supporting evidence in that behalf that one of his sons who is not educated is not doing anything. The rent from both the shops, which have been brought under reference in the evidence is Rs. 575.. As there is no reason to come to a conclusion different from the one reached by the learned Courts below with regard to the fact that the respondent is no more doing the business of book‑making in the Race Club, it would not be unreasonable to accept the claim of the respondent that he wanted himself and his son to do some business so as to earn livelihood, of course, compara tively in a better way. And, nobody can deny the fact that if a restaurant business flourishes it might not be worse than book‑making and/or any other small business. The criticism of the learned counsel that the respondent had failed to produce any certificate in writing from the Race Club to show that head given up that business is not of any help to the appellant. In face of the admission of the appellant's own witnesses and also for the reason that the other evidence produced by him in order to show that the respondent continued the race business is conflicting and is also indirect (hearsay), it was not necessary for the respondent to produce a certificate even if one could be available. With regard to the other business of making and selling stones even the evidence produced by the appellant which itself is discrepant on the point shows that it was not being done by the appellant. His brothers, who it is not denied have their independent households and, business, might be doing it. The reliance of the learned counsel on the observations made in the case of Haii Peer Muhammad by their Lordships of the Supreme Court, in so far as the non‑production of the son of the respondent as a witness is concerned, is misplaced. It was in the circumstances of that. case that it was observed in the cited ruling that "in the facts and circum stances of this case, which showed that it was being seriously contested that the alleged requirement was bona fide, for, the relationship between the petitioner and his son was not cordial and that the said Tajammal Hussain owning in his own right other suitable properties for carrying on business, could not possibly have had any need for the shop in dispute, the examination of Tajammal Hussain was material". In the present case, it has been proved that the son of the respondent is not doing any business. There is no evidence that he owns any income‑bearing property of his own. Moreover, it is not denied that he is not educated. In these circumstances, the production of the son of the respondent as a witness would have been nothing more than duplication of' the assertions made by the respondent himself. It would not have advance& his case any further. The facts and circumstances of the cited ruling, therefore; are distinguishable. After hearing the learned counsel, I feel convinced that there is no force in his contention that either there was any misreading or that the approach of the learned Courts below was in any way erroneous. In. fact, I have not been able to find an erroneous appreciation of evidence either.

8. The appellant had made assertions that the respondent had received Rs. 5,000 as pagri for the shop in question; that in the locality such a shop could now fetch a pagri of Rs. 50,000 to Rs. 60,000; that the respondent had. demanded a sum of Rs. 10,000 as advance rent and the appellant had'. refused to pay him this amount; and that the respondent was doing twin business of book‑making and stones. Therefore, for all these reasons, he did not require the shop in good faith and wanted it to be vacated so that he may give it to someone else on pagri. It was for the appellant to prove these facts. The evidence produced on these matters is very weak. One of the appellant's witnesses stated that the entire amount of Rs. 9,000 including: Rs. 5,000 as pagri paid by the appellant initially to the respondent was evidenced by a receipt. As this assertion was not supported by the receipt itself, therefore, for understandable reasons the remaining witnesses changed the position and stated that only Rs. 4,000 paid as advance rent was mentioned in the receipt. It is interesting to note that the attesting witnesses of receipt have not been produced by the appellant. On the one hand, tall claims were made by the appellant that the, shops like the one in dispute could fetch a pagri of more than Rs. 50,000 ; on the other, when trying to broach the question of the so‑called demand of the respondent of Rs. 10,000 as advance rent, the appellant's case was that he could not make the payment as the business in the shoo in dispute was not that much flourishing. If that:. were so, there is hardly any chance of any person offering such a high amount as pagri. Moreover, it has been brought in cross‑examination of the appellant's witnesses that some of the shops which have at places been described as Khokhas but with pucca walls and proper doors, owned by the Corporation in ‑the vicinity of the shop in question are still lying vacant. While some witnesses did not offer any explanation as to why if such a high pagri is being offered in the vicinity those shops were lying vacant, the others made extra ordi6iary claim that even the Corporation was asking for high amounts as pagri. On the other question also with regard to the demand of the respon dent of Rs. 10,000 as advance rent, the position taken by the appellant and his witnesses is not consistent. While it was suggested to the respondent in his cross‑examination that he had filed the application for ejectment because his demand of Rs. 5,000 was not accepted by the appellant, the amount mentioned in the statements of the appellant's witnesses is Rs. 10,

000. Muhammad Hussain, appellant's witness No. 2, in his cross‑examination stated that the dispute between the parties was with regard to the new pagri. According to him, the respondent wanted Rs. 7,000 or 8,000 as pagri. The other witnesses stated that it was claim for advance rent which was refused by the appellant. With regard to the incident of demand by the respondent of Rs 10,000 as advance rent also the evidence of the appellant is not very convincing. There are discrepancies as to who witnessed it and it happened at what time and in what circumstances. It, however, appears to be correct that some dispute either with regard to demand of the respondent from the appellant's son to vacate the shop or on some other account arose which was brought before the police. But it may not be correct to say that the version about the cause of this dispute given by the appellant is necessarily true. It has been suggested in evidence in cross‑examination that action has been taken against the appellant's son, namely, Muhammad Yousaf R. W. 6 in this behalf under section 182, P. P. C.

9. After hearing the learned counsel and going through the evidence in this behalf, although the appellant made positive confident assertions with regard to the question of pagri and advance rent, the evidence on the file is weak and not convincing enough to give a positive finding in favour of the appellant and against the respondent in this behalf. The conclusions reached by the learned Courts below, therefore, on all questions of approach and appreciation of evidence are unexceptionable. In coming to the above conclusions, I have respectfully kept in view the rulings of the Supreme Court in the cases of Sh. Muhammad Ikhlas, Muhammad Ishaq and Malik Nisar Muhammad.

10. The only remaining argument to be considered relates to the interpretation and effect in this case of the condition specified in clause (c) .of section 13(3)(a)(ii) of the Ordinance. It reads as follows:- "(c) he has not vacated such a building or rented land without sufficient cause after the commencement of this Ordinance, in the said urban area." This provision as it stands, particularly with the expression. "after the com mencement of this Ordinance" would have had real meaning in case it was contained in a temporary law. The Ordinance is in force for the last one and a half decade. The aforementioned expression appears to have lost its signifi cance. This provision, therefore, needs amendment qua at least specification of the period so as to restore its original significance. Learned counsel apart from surface reading of the provision and insistence on enforcement thereof ,could not assist on its pith and substance of course as it stands in the present form. Leaving this aspect of the matter to be taken care of by the legislature, I proceed to consider the argument as raised from the side of the appellant. It is contended that the shop belonging to the respondent adjacent to the premises in dispute (in this case) was admittedly rented out by him to a third party after the commencement of the Ordinance and as it is in the same urban area, therefore, condition in clause (c) has not been satisfied. Learned counsel ‑for the respondent contended that clauses (b) and (c) of section 13(3)(a)(ii) are in effect provisos to clause (a) thereof; therefore, the burden of their proof was on the appellant and as he has failed to discharge this burden, therefore, he cannot be allowed any benefit in this behalf. He in the alternative relied on Bashir Ahmad v. Muhammad Han f and another (P L D 1972 Kar. 98) to contend that there was sufficient inferential material in evidence to show that the respondent did not rent out the other shop without sufficient cause. Clause (c) has also been referred to in the Supreme Court ruling in the case of Muhammad Ishaq which has already been referred to. The contention raised before their Lordships was similar as has been raised in this case. It was observed that the essentials in clauses (a) and (b) having been considered by the Rent Controller and the first appellate Court and the landlord having succeeded qua the said two clauses "the contention as regards the third essential, therefore, does not arise'. In this case there is no dispute about the requirement contained in clause (b) and it has already been found that the landlord has succeeded qua the requirement contained in clause (a). Therefore the question with regard to the requirement contained it clause (c) does not arise. With respect it may be added that clauses (b) and (c) are to be read together. The word `such' used in clause (c) has reference to the building or land referred to in clause (b). If the landlord or his child would have occupied in the same urban area any other building or land for the purpose of his business and the premises are suitable for his needs at the relevant time; then he could not be permitted to take advantage of his own act by vacating such building or rented land so as to avoid the condition contained in clause (b). That is why in clause (c) it was provided that if he or his child was in occupation of such premises then he would have to show that he did not vacate the same without sufficient cause after the commencement of this Ordinance'. In this case it is not at all proved that the respondent or his son ever occupied the other shop `for the purpose of his business,' nor has it been proved that the other shop is "suit able for his need" and there is absolutely no evidence that he ever "vacated such" other shop without sufficient cause". The mere proof of the fact that he rented out the other shop to a new tenant after getting it vacated from the old tenant/s when' it is not shown that he or his son ever occupied the same, would not be enough to show that his claim is hit by the condition contained in clause (c). On this view of the matter alone the contention raised by the learned counsel must fail. However, as held in the Karachi case of Bashir Ahmed there is sufficient inferential material in this case to hold that the respondent has been able to prove that he `did not vacate, any `such building or rented land, without sufficient cause, `after the commencement of the Ordi nance'. On this score also the argument advanced on the side of the appellant fails. None of the contentions raised on his behalf has succeeded. No justifi cation has been made out for interference in this appeal. The same, therefore, is dismissed. There shall be no order as to costs. s. A. H. Appeal dismissed.