P L D 2000 Supreme Court 829 (PLP)

(On appeal from the judgment dated 22‑12‑1999 of Lahore High Court, Multan Bench passed in W.Ps. Nos.943 to 946 of 1994 and 5035 to 5038 of 1993). (a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑ ‑‑‑‑S. 13‑‑‑Bona fide personal need of landlord‑‑‑Burden of proof‑‑ Principles‑‑‑No absolute rule that in every case landlord must appear in person in support of his claim for personal need‑‑‑Exception could always be there when on account of some unavoidable circumstances it was not possible for the landlord to enter in the witness‑box to support his plea but in some of the cases non‑appearance of the landlord may affect his case adversely‑‑ Instance. Once the landlord had duly acquitted himself by stating on oath that his requirement is in good faith as understood in law, he should normally be deemed to have discharged his burden, which, thereupon shifts to the tenant to whom it remains initially, to cross‑examine the landlord and, that being done, lead his own evidence in rebuttal. As far as the requirement of rented property for personal bona fide use was concerned, it is ought to be proved as a fact through cogent, convincing and trustworthy evidence. Mere a desire of the landlord that he intended to occupy a particular premises, may be residential or non residential or rented land, itself would not be sufficient to accept his claim unless the requirement/need was proved as matter of a fact and the Controller enjoyed full authority to issue directions to the tenants to deliver the possession to the landlord to his satisfaction on the basis of evidence available on record. Nothwithstanding the fact that there is a safeguard available to a tenant in terms of section 13(4) of the Ordinance, prima facie the initial burden of proof of bona fides is on the landlord. No absolute rule has been laid down that in every case landlord must appear in person in support of his claim because exceptions could always be there when on account of some unavoidable circumstances, it was not possible for the landlord to enter in the witness‑box to support his plea, In some of the cases non‑appearance of the landlord may affect his case adversely particularly when on one hand landlord in eviction application admitted that the rented land subject‑matter of the proceedings was surrounded by agricultural land owned by him and on the other hand his contention was that he intended to establish high standard nursery on the rented land in order to increase his income, therefore, in view of such circumstances he was in a better position to explain as to why he was not occupying the agricultural land instead of dispossessing the tenants who raised construction to run their commercial business. The attorney of the landlord had admitted that he was not selling the agricultural land owned by him, therefore, it he would have appeared in the witness‑box he would have offered an explanation that what were the circumstances under which he was selling his property. Thus for these reasons it was all the more necessary for the landlord to have appeared personally in the witness‑box. There could be legitimate causes and reasons for a suitor to cause for non‑appearance in Court meaning thereby that some reason was required to be offered by the landlord as to why he himself was abstaining from appearing in Court, therefore, in the present case the landlord failed to offer any explanation as to why he did not opt to appear in support of his claim because if he himself had entered into witness‑box he would have given better explanation to substantiate his bona fides in occupying the rented land the subject‑matter of the instant proceedings. The landlord had failed to state on oath about his good faith to occupy the rented land i.e. the subject‑matter of the proceedings and as per requirement of law he failed to establish that except the disputed rented land he could not establish a high standard nursery on the agricultural land which was already in his possession. Thirdly, the tenants had no opportunity to cross‑examine the landlord as to why he was not establishing the nursery on the agricultural land which was situated adjacent to the disputed land and for what reason he was selling his agricultural land instead of establishing his business to increase his income. Initial burden was on landlord to prove his personal bona fide need for establishing high standard nursery but he had failed to discharge the burden. Syed Abdul Rauf v. Abdul Sattar 1998 SCMR 2525; 1972 SCMR 437; 1998 SCMR 2119 and United Bank Limited v. Mrs. Alafia Hussain 1999 SCMR 1796 distinguished. Dr. A.R. Khan v. Muhammad Ishaque 1973 SCMR 437 and S.M. Nooruddin and 9 others v. Saga Printers 1998 SCMR 2119 ref. (b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑ ‑‑‑‑S. 13‑‑‑Bona fide personal need of landlord‑‑‑Principle to ascertain such bona fides. Once the landlord had duly acquitted himself by stating on oath that his requirement is in good faith as understood in law, he should normally be deemed to have discharged his burden, which, thereupon shifts to the tenant to whom it remains initially, to cross‑examine the landlord and, that being done, lead his own evidence in rebuttal. S.M. Nooruddin and 9 others v. Saga Printers 1998 SCMR 2119 ref. (c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑ ‑‑‑‑S. 13‑‑‑Bona fide .personal need of landlord‑‑Requirements for landlord ,to prove his need‑‑‑Principles. As far as the requirement of rented property for personal bona fide need was concerned, it is ought to be proved as a fact through cogent, convincing and trustworthy evidence. Mere a desire of the landlord that he intended to occupy a particular premises, may be residential or non residential or rented land, itself would not be sufficient to accept his claim unless the requirement/need was proved as a matter of fact and the Controller enjoyed full authority to issue directions to the tenants to deliver the possession to the landlord to his satisfaction on the basis of evidence available on record. (d) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑ ‑‑‑‑S. 13‑‑‑Expressions "good faith" and "bona fide" ‑‑‑Interpretation. Mushtaq Ahmad v. Mrs. Mumtaz Zohra Rizvi PLD 1978 Kar. 188 quoted. (e) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑ ‑‑‑‑S. 13‑‑‑Bona fide personal need of landlord or his child‑‑‑Burden of proof‑‑‑Notwithstanding the fact that there is a safeguard available to a tenant in terms of S.13(4), West Pakistan Urban Rent Restriction Ordinance, 1959, initial burden of proof of bona fides is on the landlord. Notwithstanding the fact that there is a safeguard available to a tenant in terms of section 13(4) of the Ordinance, prima facie the initial burden of proof of bona fides is on the landlord. The provisions of subsection (4) of section 13 of the Ordinance have been enacted in favour of a tenant to restore him the possession, if a landlord has failed to prove by his subsequent action that his bona fide requirement as alleged in the ejectment proceedings, has not come true. These provisions do not relieve the landlord of the basic onus on him to prove affirmatively that he does need the premises for his bona fide requirement or for that of his male child. ORDER IFTIKHAR MUHAMMAD CHAUDHARY, J.‑‑By this common order we have proposed to dispose of C.P.L.As.Nos.390‑L/2000 to 397‑L/2000 as in all these matters common impugned order passed by Lahore High Court, Multan Bench dated 22nd December, 1999 has been assailed.

2. Succinctly facts of the case as stated are that petitioner instituted separate eviction applications under section 13 of the Punjab Urban Rent Restriction Ordinance VI of 1959 (hereinafter referred to as the 'Ordinance') against private respondent, seeking their eviction from the rented land possessed by them on which they have constructed at their own cost buildings to run their business, for his personal bona fide use and occupation as in good faith he intends to establish a high standard Nursery to increase means of his income. It may be noted that in the applications it was stated that disputed rented land is surrounded by the agricultural property owned by the petitioner.

3. Eviction applications were contested by the private respondents and learned Controller accepted his request against three tenants whose cases are covered by C.P.L.As. Nos.390‑L, 392‑L and 393‑L/2000 vide judgment dated 14th December, 1993 whereas eviction applications .against the remaining tenants were rejected vide orders dated 28th February, 1993 respectively. Accordingly the tenants against whom Controller passed adverse orders preferred appeals which came up for hearing before Additional District Judge, Sahiwal. Simultaneously, petitioner also preferred appeals against the orders in which directions we're not made by the Controller to the tenants for handing over the possession. All the matters came up for hearing before the Appellate Court who granted relief to the tenants against whom the orders of Rent Controller and was operating as their appeals were accepted vide order dated 7th June, 1994. Similarly appeals submitted by the petitioner against the order of Controller rejecting his eviction applications were decided against him ‑as all the eviction applications filed by petitioner were rejected ultimately. Therefore, he preferred Writ Petitions before Lahore High Court Multan Bench which have been dismissed vide impugned order.

4. Learned counsel contended that petitioner has been non‑suited principally on two counts: (i) Petitioner did not appear in person to support his claim; (ii) petitioner has failed to establish bona fide to establish high standard nursery on the rented land, the subject‑matter of the proceedings because he had agricultural land surrounding the rented land, therefore, if he desires he can establish the nursery on that land instead of dispossessing the respondents from their business.

5. In support of his contention concerning non‑appearance of the petitioner in the witness‑box he relied upon the case, of Syed Abdul Rauf v. Abdul Sattar 1998 SCMR 2525, to further elaborate that non‑appearance of the landlord in support of eviction application will not adversely reflect on his bona fide to claim ejectrnent of the tenants for his personal use and occupation. This Court in this judgment observed as under:‑‑ "

6. The issue on the question of default in payment of rent by the appellant was decided against the respondent, therefore, we need not dilate upon it and the only question for consideration in this appeal is that fact of non‑appearance of the respondent in the witness‑box and having got himself examined through an attorney. We have considered the above question in the light of the case‑law cited by the learned counsel for the appellant. We are of the view that every case is to be decided keeping in view its peculiar facts and circumstances and no hard and fast rule can be laid down. There can be legitimate causes and reasons for a suitor to cause for non appearance in Court. Mental or physical disability as well as the case of a female would stand on a different footing. The Courts are meant for the citizens from where they seek justice and, therefore, to put a clog or non‑suit them on account of non‑appearance even in genuine cases without any valid and cogent reasons would be a dangerous proposition for administering justice with even hands, between the parties. In our opinion, it will not be in the interest of justice to lay down that in every case where a party does not appear or arranges his appearance through attorney, an adverse inference should be drawn against him. Such a rule if laid down, would result into great hardship in cases where the parties, for instance, reside abroad, who will have to sue and defend themselves through their attorney.

7. Adverting to the circumstances of, this case, we have gone through the power of attorney executed by the respondent landlord in favour of his brother Abdul Manan and the statement recorded by him on behalf of the respondent. He deposed about the bona fide personal use of the respondent. He was cross‑examined at length, but no question was put by the appellant with regard to any circumstance on account of which the power of attorney had been executed. Nothing was elicited as to the exact nature of the domestic problems of affairs which precluded the respondent from entering the witness‑box. The respondent landlord constituted his real brother Abdul Manan as his attorney who is well‑versed with the circumstances of the family and is not a stranger and in our view he satisfactorily deposed about the bona fide personal use of his brother.

6. As far as the second argument put forth by petitioner's counsel is concerned, to elaborate the same he argued that it is the prerogative of the landlord‑to select/choose any property owned by him to establish his business and the tenants cannot be allowed to control this right of the landlord by dictating him that he should not ask for ejectment of property which is in their possession. To strengthen his argument he made reference to 1972 " SCMR 437. 1998 SCX4R 2119 and 1999 SCMR 1796. Keeping in view the background of the case in hand the judgments relied upon by the learned counsel are distinguishable. As in the case of Dr. A.R. Khan v. Muhammad, Ishaque 1973 SCMR‑ 437 the High Court reversed the finding of the Appellate Court noticing that they were purely based on conjectural grounds as a result whereof the finding of the Controller directing ejectment of the tenant was. restored and this Court confirmed the judgment of the High Court. As far as instant cases are concerned there is no finding based on conjectural grounds because the learned Additional District Judge as well as the High Court was of the opinion that the petitioner failed to prove his bona fide to establish high standard nursery on two counts, firstly he is already in possession of the agricultural land and secondly as per the stand taken by the attorney of the petitioner he is selling his agricultural property. Therefore, both the factors were found to have reflected on the bona fides of the petitioner. As far as the judgment in the case of S.M. Nooruddin and 9 others v. Saga Printers 1998 SCMR 2119 is concerned, this Court has enunciated following principle to ascertain the bona fides of a landlord to ask for ejectment of the tenant:‑ "Once the landlord had duly acquitted himself by stating on oath that his requirement is in good faith as understood in law, he, should normally be deemed to have discharged his burden, which, thereupon shifts to the tenant to whom it remains initially, to cross examine the landlord and, that being done, lead his own evidence in rebuttal. " Applying the above test on the facts of instant cases first of all, without any reservations, we have to hold that the landlord has failed to state on oath about his good faithness to occupy the rented land i.e. the subject matter of the proceedings and as per requirement of law he failed to establish that , except the disputed rented land he cannot establish a high standard D nursery on the agricultural land which is already in his possession. Thirdly, the respondents had no opportunity to cross‑examine the petitioner as to why he is not establishing the nursery on the agricultural land which is situated, adjacent to the disputed land and for what reason he is selling his agricultural land instead of establishing his business to increase his income. It may be noted that as far as the requirement of rented land for personal bona fide is concerned, it is ought to be proved as a fact through cogent, convincing and trustworthy evidence. Mere a desire of the landlord that he intends to occupy a particular premises, may be residential or non‑residential or rented land, itself would not be sufficient to accept his claim unless the requirement/need is proved as a matter of fact and the Controller enjoys full authority to issue directions to the tenants to deliver the possession to the landlord to his satisfaction on the basis of evidence available on record. In case of Mushtaq Ahmed v. Mrs. Mumtaz Zohra Rizvi PLD 1978 Karachi 188 words 'good faith and bona fide' were interpreted elaborately. For sake of benefit relevant para. is reproduced hereinlielow:‑‑ "

9. Subsection (3), clause (a) of section 13 of the Ordinance lays down that a landlord may apply to the Controller for an order directing the tenant to put the landlord in possession in the case of residential building, inter alia, if he requires it in good faith for his own occupation or for the occupation of any of his children. Clause (b) of this subsection, then lays down that the Controller shall, if he is satisfied that the claim of the landlord is bona fide, make an order directing the tenant to put the landlord in possession in the building. Accordingly, the jurisdiction of the Controller to order eviction on this ground is depended on his satisfaction that the claim of the landlord is bona fide and his requirement is in 'good I faith'. The term 'good faith' has not been defined in the Ordinance r but it has been defined in section 2(27) of the West Pakistan General Clauses Act, 1956 as follows:‑‑ 'A thing shall be deemed to be done in 'good faith' where it is in fact done honestly, whether it is done negligently or not.' This definition of the expression 'good faith' necessarily, therefore, implies that the demand for possession of the rented premises must be honestly made. Honesty is a state of mind and is therefore, a psychological fact capable of proof or disproof only by evidence or conduct. The word 'bona fide in the context of the provision in question would also appear to mean the same as 'good faith'. Mala fides, conversely means 'in bad faith'. It has been held that action taken for collateral purposes not authorized by the law under which the action is taken or action taken in fraud of the land are mala fide. It is necessary, therefore, for a person alleging that an action has been taken mala fide to show that the, person responsible for taking the action has been motivated by any one of the considerations mentioned above PLD 1974 SC

151. In actual practice a landlord would be deemed to have satisfied the aforesaid conditions by leading evidence of the reasonableness of his needs and if he succeeds in doing so, the onus would shift to the tenant to prove facts which militate against the existence of good faith or which positively establish the dishonesty of purpose on the part of the landlord to claim possession of the premises on the ground of personal need. If therefore, the circumstances brought on record are capable of being consistently with an honest claim for possession to satisfy personal need, they will in no way be construed to have discharged the onus of the tenant referred to above." As we have observed while discussing the proposition hereinabove that the Controller in the eviction application against the respondents whose cases are covered by C:P.L.As. 391‑L of 2000 and from 397‑L/2000 to 397‑L/2000 has held that there is no bona fide in the claim of the petitioner, therefore, eviction applications submitted by him were rejected. In these cases the findings were upheld by the first Appellate Court as well as learned High Court, during hearing of Writ Petitions. Although in the eviction applications which are covered by C.P.L.As.390‑L/2000, 392‑L/2000 and ;. 393‑L/2000 relief as prayed for was granted to petitioner but the finding in his favour was reversed by first Appellate Court on accepting the appeals of the tenants and the findings of the first Appellate Court were affirmed by the ' High Court. Thus in view of consistent adverse finding against the petitioner we are of the opinion that the petitioner has failed to prove his case at the . touchstone of principle laid down by this Court in the case of S.M. , Nooruddin and 9 others (supra). Therefore, this judgment as well is of no help to him. As far as judgment in the case of United Bank Limited v. Mrs:. Alafia Hussain 1999 SCMR 1796 is concerned it has also not promoted the case of the petitioner because as per, its ratio the initial burden is on petitioner to prove his personal bona fide need for establishing high standard nursery but in our opinion the petitioner has failed to discharge the burden for the reasons which have been explicitly explained above. Learned counsel lastly contended that petitioner's bona fide can be tested by pressing into service. the provisions of section 13(4) of the Ordinance according to which a safeguard is provided to the respondent/tenant that if the petitioner failed to establish high standard nursery then in that case they would be entitled for reinduction. In our opinion this argument carries no weight because, nothwithstanding the fact that whether there is a safeguard available to a tenant in terms of section 13(4) of the Ordinance, but prima facie the initial burden of proof of bona fides is on the, landlord as it has been held in the case of Dr. A.R. Khan (supra). Relevant para. from this case is reproduced as under: "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 the possession, if an landlord has failed to prove by his subsequent action that his bona fide requirement as alleged in the ejectment proceedings, has j 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. " In view of above discussion we are not inclined to take exception to the impugned judgment. Consequently petitions fail as such leave is refused. M.B.A./N-10/S Petition dismissed.