Mst. TOHEED KHANAM vs MUHAMMAD SHAMSHAD

ORDER

1. ' MUHAMMAD HALEEM, J.--This appeal by special leave arises out of the High Court of Sind dated 5th of September, 1977, dismissing Second Appeal No, 82 of 1975).

2. ' Under a lease dated 12th of February, 1962, the appellant let out shop No, D-64/872, situate on Court Road, Hyderabad, to the respondent at a monthly rental of Rs, 65 for a period of two years and, thereafter, the shop was extended and, some improvements were made which led to the increase of rent to Rs, 95 p.m. The period of the lease was not extended but the respondent continued to occupy the shop as a tenant. In 1967, the appellant applied for his ejectment on the ground of personal need and default. It was dismissed by the Rent Controller on 2nd of September 1969, and an appeal against it also failed as it was rejected on 25th of Fehruary 1970. On 3rd of March, 1973, the appellant again filed an ejectment application on the ground that she needed it for her personal use as she wanted to run a business in the shop through her major son considering the meager income of her husband and the large family he had to support. The respondent resisted the application on the ground that her requirement was not bona fide as she had been demanding higher rent and further that it was barred by the rule of res judicata as enacted in section 14 of the West Pakistan Urban Rent Restriction Ordinance, 1959. In the context of the pleas, the Rent Controller struck the following two issues :---

(a) Whether the application was barred by the principle of res judicata? And

(b) Whether the applicant needs the shop for her and her son's personal bona fide use?

3. ' On the first issue the Rent Controller held that the second ejectment application was on the same grounds as the previous one which was dismissed and therefore, it was hit by the rule of res judicata. On the second issue the Rent Controller did not give any finding on merits but dismissed the application by order dated 31st of January, 1974. In first appeal the appellate Court held the evidence on record was not sufficient to entitle the appellant to get possession of the shop. It further held that the enhancement of the rent to Rs, 95 also militated against the bona fides of the appellant in seeking the ejectment of the respondent on the ground of the requirement of the shop for her peronal use. Lastly, it held that the application was further hit by the rule of res judicata. In second appeal the High Court did not agree with the Rent Controller and the first appellate Court that the second ejectment application was barred by res judicata but upheld the other ground namely that the appellant did not bona fide require the premises for her personal use.

4. ' Leave to appeal was granted to examine this question in the light of the evidence produced by the parties. The appellant, in support of the plea, examined her husband, Islam Ahmad, and her son, Ahtramuddin. Islam Ahmad, in his deposition, stated that his salary. Was Rs, 335 p. m. And that out of this income he had to support his large family consisting of his wife, the appellant, three sons and three daughters. Out of them one son and two daughters were major and that his major son, Ahtramuddin, was jobless and he wanted him to do some business for supplementing his meagre income. He also stated that he had money to start a small business. In cross-examination he stated . That he had Rs, 3,900 lying to his credit in the G. P. Fund which he could draw for starting the business in the shop; and that his on had no experience of business. He also stated that he had no particular business in mind but had ideas about what business he should start with. There was no cross-examination on the point of his income or the reason which he had assigned for doing the business. Ahtramuddin stated that he was jobless;, and that he wanted to run some business in the shop as there was no other source of income. As to his financial condition, he stated that the appellant had 5 Tolas of gold ornaments; and that his father could get an advance from his G. P.

5. Fund. He further stated that he intended to sell chappals in his shop. In cross-examination he admitted that he had no experience of business but as his uncle was manufacturing chappcds, he could get them from him and sell them in the shop.

6. ' The respondent examined himself in evidence and denied that the appellant in good faith needed the shop for her personal use. The other facts in his evidence related to the earlier application having been rejected on the same ground and the attempts made to enhance the rent.

7. ' The first appellate Court, after recalling the evidence, did riot further proceed to appraise it but held it insufficient to establish the plea of bona fide personal use principally on the 'observation made in the case of Mst. Almas Begum v. Haft Pir Bakhsh (1). This approach to the evidence on record was unsatisfactory as on the facts stated in the evidence led on behalf of the appellant a finding had to be given qua the bona fide requirement of the shop by the appellant. There was no dispute that the husband of the appellant. Had no other income except his meagre salary which was insufficient to maintain a large family. Equally, it was also brought on the record that the husband of the appellant was in a position to draw from his Provident Fund a loan sufficient to start a small business like the one stated by his son. There was also no reason to discredit the assertion of the son that his mother had 5 Tolas of gold ornaments which could also provide some financial assistance in starting the business. To ignore these considerations which were unrebutted on the record was to misread the evidence. Again the High Court fell into an error when it placed undue reliance on the fact that the nature of the business was not stated in the application and we are surprised to note that the High Court has held that the first appellate Court had, on a prope assessm ent of the evidence, reached the conclusion that the requirement "was not genuine" although this exercise was not done by that Coda; A apart from giving credit to the improper motive in filing the application which consideration also prevailed with the High Court. There is no objective assessm ent of the evidence produced on behalf of the appellant even by the High Court and it felt content in holing that no attempt was made to show that the first appellate Court had "in any manner misread the evidence on record or that his conclusions were wrong. In this connection we would refer to the opinion of 1. Mahmood, J., in Hassan Khan v. Munawar Begum (2) which we have, recently approved in another case which correctly lays down the mode of assessing the bona fide requirement of the landlord. The considerations which have emerged from the evidence fall squarely within the purview of the opinion so expressed by L Mahmood, J. Further, neither the First Appellate Court nor the High Court has held the evidence of the appellant's witnesses to,4 be false or in any way lacking in any essential respect for establishing (11 PLD 1964 Pesh. 278 (2) PLD 1976 Kar. 832 ' the plea; and as to how the evidence was insufficient we are unable to gather from the finding of the first appellate Court. The reliance on the Peshawar case was inapt as in that case, after the assessm ent of the evidence it was held that the landord had merely expressed his desire to have the premise for the use of his children which is not the case here for substantial reconsiderations have been stated for acquiring the shop for her jobless son.

8. ' The High Court further held that the non-payment of property tax, attempts to enhance the rent and the filing of the earlier eviction application which was dismissed, were circumstances which eroded the plea that the show was required in good faith for the use of her son. These considerations, by themselves, do not prove the improper motive if otherwise the evidence is not held to be unworthy of credit. Lastly, the High Court has failed to give due effect to section 13 (4) of the Ordinance which provides a safeguard to the tenant in case the landlord fails to occupy the shop for business in which case the tenant can obtain possession as provided therein. It is true that independently of this provision, the Rent Controller has to satisfy himself that the requirement of clause (a) of section 13(3) (ii) is fulfilled; and if upon the evidence he is so satisfied then there can hardly be any room for denying the relief to the landlord; and in case of any lapse on his part, section 13(4) can be pressed into service.

9. For the foregoing reasons this Appeal is allowed and the orders of the Courts below are set aside with the result that the application for ejectment succeeds. However, we would grant four months time to the respondent to vacate the shop subject to the payment of rent. There will be no order as to costs.