2011 YLR 1535 (PLP)

MAZHAR ALAM KHAN MIANKHEL, J.

Through instant writ petition, the landlord/petitioner has impugned order/judgment dated 14-1-2005 of Additional District Judge-VIII, Peshawar whereby appeal of the tenant/respondent against his ejectment order passed by Rent Controller, Peshawar vide his judgment dated 11-7-2003 was accepted and thereby ejectment order of the respondent was set aside.

2. The learned counsel for the petitioner in support of his petition submitted that the appellate Court while determining the question of default, has unlawfully declared that being first default, the same is ignorable when the defendant is ready to deposit the due rent whereas his default on the record was proved. He further submitted that the petitioner had fully proved her case regarding her bona fide requirement of the premises for her personal use but the findings arrived at by the learned Court of appeal were not based on valid and sound reasons having the support of law or evidence on the record. His next contention was that the rented premises being in dilapidated condition, were in good faith required for reconstruction and has fully proved the factum of re-construction by producing the relevant record in this regard. The findings of the appellate Court in this regard once again find no favour from the law of the land and the sane are the result of. misreading and non-reading of the material evidence on record and thus has failed to exercise the jurisdiction vested in him in accordance with law. He placed reliance on Badar and Brothers (Arms and Ammunitions Dealers), Peshawar v. Muhammad Aslam and 2 others (PLD 1977 Peshawar 80), Qamar Din v. Mst. K. Taleh Begum (1980 SCMR 516) and Aziz-ur-Rehman v. Pervaiz Shah and others (1997 SCMR 1819).

3. As against that, the learned counsel for the tenant/respondent submitted that the respondent in view of the provision of section 13(2) of the Ordinance, 1959 cannot be termed as a defaulter as he at the very outset while submitting his replication, admitted his liability and expressed his willingness to pay the same. In reply to the arguments of the learned counsel for the petitioner regarding personal bona fide need of the petitioner, he was of the view that it is impossible for the petitioner who being a lady, to run her own business in the social set up of the locality and claimed that it is just a vague ground. He further submitted that the sane was also not proved on the record. His next contention with regard to the reconstruction was that the petitioner has failed to prove with convincing evidence the status of the shop and approval of the proposed plan of construction during the pendency of this petition was nothing but mere an afterthought. While concluding his submissions, he contended that interference in the findings of facts and reappraisal of evidence is not the job of this Court while exercising a jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan.

4. Record of the case was gone through with the assistance of the learned counsel for the parties and we have considered their submissions carefully.

5. Record of the case would reveal that the instant ejectment petition having about a decade old history was initially allowed by the Rent Controller by declaring the respondent as a defaulter and the issue of bona fide need of the petitioner as well as reconstruction of the rented premises were also decided in favour of the petitioner by the Rent Controller whereas the learned Court of Appeal had totally disagreed with the findings of the learned Rent Controller on all the issues and dismissed the ejectment petition.

6. The findings of the appellate Court were challenged through instant writ petition and this Court vide its judgment dated 2-6-2009 had allowed the petition by setting aside the findings of the appellate Court and thereby restored the findings of the Rent Controller.

7. The respondent then approached the apex Court through Civil Petition No.1240 of 2009 whereby the findings arrived at by this Court were set aside and the case was sent back to this Court for deciding afresh by considering the issue of default, personal bona fide need of the petitioner and reconstruction of the rented premises. Para-2 of the judgment being relevant is reproduced below:-- "Learned counsel for the petitioner stated that the High Court had not dislodged findings of learned Appellate Court recorded in the judgment dated 14-1-2005 whereby on the ground of personal need, she was non-suited for the reason that she never appeared before the Court to stand the test of cross-examination and to state on oath that as a parda observing lady she would conduct her own business and sit in a market which is full of male shop keepers as well as customers but the learned High Court had not discussed these aspects of the case and disposed of issue by stating only that petitioner is educated and jobless lady and her personal appearance as - a witness in ejectment petition was not essential. As far as other finding that whether she can run boutique or not, not a 'single word was stated in this behalf. We are conscious of- the fact that in writ jurisdiction, normally, the factual controversy is not to be discussed but once High Court had decided to enter into the facts, then it was incumbent upon it to have considered whether she can run the business in the environment pointed out by the learned Appellate Court. When we inquired from the learned counsel for the respondents as to whether the finding of the High Court in this behalf are sustainable, he agreed for the remand of the case to the High Court for re-hearing and disposal of the case. Learned counsel for the petitioner also did not raise objection on the remand of the case. We may point out that in the instant case, ejectment of petitioner was claimed on three grounds i.e. default in the payment of rent, reconstruction followed by personal use and occupation. Therefore, we consider it appropriate if all these three issues are discussed by the High Court and then to decide the matter afresh after providing opportunity of hearing to all concerned."

8. As far as the question of default of tenant is concerned, he cannot be termed as a defaulter under the law as he at the very outset has categorically admitted his liability and willingness to pay the same. So, in this view of the matter, the findings of the appellate Court need no interference.

9. The next point of controversy between the parties was requirement of the shop in good faith for reconstruction. Old construction and poor condition of the shop has been admitted by the respondent himself who has stated that he used to repair the shop time and again (who is admittedly in possession of the same since November, 1979 i.e. more than thirty years). Petitioner raised the plea of reconstruction on the strength of a notice Exh.P.W.1/3 issued by Municipal Corporation, Peshawar for demolition of the shop being dilapidated and old one. The attorney of the petitioner categorically asserted this very fact in his statement. The respondent even failed to cross-examine him on this point. Though .the approval of reconstruction and approved plan was not annexed with the ejectment petition but the same were produced during the proceedings. Production of such record during the proceedings cannot be held to be a ground for denial of her right to reconstruct or improve her property. As no one can be deprived of enjoying his property by making improvements in the same. The respondent also failed to rebut this part of the evidence. So, the findings on the point by the appellate Court are not based on sound reasons. Reliance in this regard amongst many others can be placed on Aziz-ur-Rehman v. Pervaiz Shah and others (1997 SCMR 1819), Qamar Din v. Mst. K. Taleh Begum (1980 SCMR 516). The relevant portion of Qamar Din's case reads as under:-- "In the instant case a plea based 'on clause (vi) of subsection (2) of section 13 had admittedly been raised in the application but the sanction for reconstruction had not been obtained at the time of making the application. The plea having been raised by the respondent was sufficient to make his application maintainable. Admittedly, the necessary sanction had been obtained during the pendency of the application and brought on record in the respondent's evidence before the Rent Controller and formed the basis of his decision. In the absence of the Code of Civil Procedure being applicable to proceedings under the Rent Restriction Ordinance except to the extent mentioned in section 16 thereof, it cannot be said nor indeed it appears to be so that any prejudice has been caused to the petitioner. Once a plea of the kind in question had been raised in the ejectment application. The tenant, petitioner herein, had adequate notice of it. On this score also the petition would be in order. The acceptance of the plea, however, rested on the respondent establishing the factum of the sanction having been obtained. If he, indeed, has adduced evidence of it, there is no reason for the petitioner to grumble." Quite apart from this, the law has also safeguarded the right of a tenant under section 13 (5-B) of the Ordinance, 1959 against a landlord who has acted with mala fide. The tenant can apply to the Rent Controller for an order directing that he be put in possession.

10. Now comes the question of personal bona fide need of the petitioner. The petitioner is a lady and one of the ground for ejectment of respondent is her personal bona fide need to run her own 'Boutique'. The appellate Court has dealt with the issue in the following words:-- "As for as the personal need is concerned the petitioner/landlady has never appeared before the Court to stand the test of cross examination and it is strange how such a parda observing lady would sit in the shop and conduct her own business which is full of male shop keepers as well as customers. In this respect authorities of the honourable Superior Courts were produced which are 1999 ACC, page 217, 1998 CLC page 1825 and 1995 PLD Lahore page

469. The facts of the authorities are not identical to the facts of the instant case as in the authorities personal bona fide need of parda observing lady as well as her children was mentioned which is not the case in hand." The reasons given by the appellate Court regarding business of the petitioner appears to be presumptive, hypothetical and conjectural and even not sufficient. There is nothing on the record in this regard suggesting that the petitioner would not be able to run her own business merely because there are other male shopkeepers and customers. The petitioner after the remand had also provided a list of different shops in the area through a civil misc. which has gone unrebutted. The same would reveal that the bazar in question i.e. Shaheen Bazar is a ladies shopping area and just opposite to it, across the road, is `Meena Bazar'. In both the said bazars, many shops are run by the ladies as 'boutiques', beauty parlours, cosmetics etc. The findings of the appellate Court are not based on sound reasons and a landlord cannot be refused possession of the rented premises on such flimsy reasons when otherwise she has proved genuineness of her requirement in good faith. The petitioner has proved on the record that the business she wants to run is suitable with all its probabilities in the locality. According to law, statement of landlord on oath, if consistent with the application for ejectment if not shaken in cross-examination is sufficient to establish the bona fide requirement of the landlord. The august Supreme Court of Pakistan in the case of Igbal Book Depot and others v. Khatib Ahmad and 6 others (PLD 2001 Supreme Court 1197) has held as under: "Where the statement on oath was quite consistent with his averment made in the ejectment application and the same had neither been shaken or .anything had been brought in, evidence to contradict the statement, such statement on oath would be considered sufficient for acceptance of the ejectment application

Conclusion drawn by High Court being unexceptionable did not call for interference." If after vacation of the suit premises by the respondent, the petitioner fails to start her own business, then also the rights of the respondent are very much protected under section 13(4) of the Ordinance, 1959 and he can be put into possession. So, the findings of the appellate Court are not based on the evidence available on the record. Appearance through attorney again would not be a justification for an adverse inference. August Supreme Court of Pakistan in the case of Syed Abdul Rauf v. Abdul Sattar (1998 SCMR 2525) has held as under:

"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 patty 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." We have no hesitation to 'hold that the evidence and the law on the subject has not been appreciated in its true legal perspective. The finding of the appellate Court on the issue is, thus not maintainable, hence set aside.

11. So, in this view of the matter, instant writ petition is allowed, findings of the appellate Court are hereby set aside and that of the Rent Controller are restored. H.B.T./117/P Petition allowed.