FAZAL AZIM AND Another vs TARIQ MAHMOOD AND ANOTHER

ORDER

1. MUHAMMAD AFZAL ZULLAH, J.-Leave to appeal has been sought from the judgment dated 5-2-1982 of the .Peshawar High Court ; whereby a second appeal arising out of an application for the eviction of the petitioners/ tenants which was filed by the respondents/landlord, was allowed.

2. Tariq Mahmood (respondent No. 1) and his mother Mst. Mukhtar Begum (respondent No. 2) claiming to be the landlords of the shop in dispute, sought petitioners' eviction on the ground of personal requirement for the use of respondent No. 1. The plea taken from the petitioners side is that the application for eviction was mala fide; that the respondent No. 1 having vacated a shop adjacent to the shop in dispute, had gone abroad to earn his livelihood. The Rent Controller dismissed the respondents' application. Their first appeal was dismissed on 25-11-1979. In the meanwhile, the relevant Rent Restriction Law was amended. Under the amended law, no second appeal could be filed. The respondents filed a writ petition on 11-2-1980 which was dismissed.

3. However, on a decision in another case that the law regarding second appeal, as it was at the time of the institution of the proceedings, will continue to govern the same, the respondents applied for conversion of the writ petition into a second appeal which was accordingly heard and allowed as such on 5-2-1982. The High Court held that the personal requirement having been established, the learned Courts below had not approached the controversy in proper perspective.

4. The learned counsel for the petitioners has specifically stated that he does not challenge the order of conversion of the writ petition into second appeal (dated 30-3-1980) and further that he would not challenge the assumption made in the High Court that the second appeal in this case was competent. He, however, vehemently argued: that the appeal even if it be treated as having been filed on I 1-2-1980 when the writ petition was filed, was barred by limitation (four days) that the High Court could not have set aside the concurrent findings of fact arrived at by the learned Courts below in second appeal; that Tariq Mahmood respondent was occupying the shop adjacent to the one in dispute at the time of the institution of the application and because it was owned by the respondent, the eviction of the petitioners could not be sought on the ground of personal requirement; and, that the test applied by the High Court in this case in order to see the bona fides of respondent No. 1 namely, that he should return from abroad and occupy the shop within twenty days of the date of the judgment by the High Court, was not within the scope of the Appellate jurisdiction of the High Court.

5. The plea of limitation, it seems from the judgment of the High Court, was not pressed at the time of hearing of the appeal. And in any case, when the writ petition was filed, the question of four days delay would not have been considered as constituting laches for the purposes of dealing with the grievance raised in it. The respondents and their counsel would have then believed bona fide (till - the decision by the High Court in another case) that filing of. a constitutional petition was the only remedy. This must have been realized by petitioners' counsel and it is in these circumstances that the bar of limitation was not pressed in the High Court. A Had- it been pressed, the respondents might have relied upon section 14 of the Limitation Act. They might have succeeded in getting the time spent in filing and pursuing the writ petition excluded under the said provision That being so, we do not attach any importance to the question of limitation raised by the learned counsel.

6. Although there was concurrent findings of fact by the learned Courts below on lack of bona fides regarding personal requirement of respondent No. 1; yet after hearing the learned counsel, we find that there was misreading of evidence in this behalf. The High Court was thus justified in correcting the B error so made by them. The admitted fact that respondent No. I went abroad cannot by itself be considered as showing lack of bona fides. It has been observed in a number of cases that the landlord seeking eviction on the ground of personal requirement would not sit idle for periods of time _ during the pendency of eviction proceedings. If during such a period he employs himself in a gainful occupation, that as a general proposition, would not negate the assertion of bona fide on his part. In this case, the learned Courts below it seems misinterpreted the law, when raising a pre- -sumption in this behalf, against the landlord.

7. The High Court, it appears, in order to satisfy both the parties placed a condition that the respondent should occupy the shop within a specified time in order to show his bona fides. The offer was made from the side of the landlords. No objection could be taken by the petitioners nor did they suffer any grievance in this behalf. If the acceptance of this suggestion made from the respondents side, was in order to satisfy the petitioners' apprehension that respondent No. 1 would not occupy the shop it would certainly operate as a test of respondents' credibility. We would, therefore, not grant leave to appeal to examine this question simply because this controversy, as contended by the learned counsel, is relatable to the provision of appeal in C. P. C.

8. None of the argument raised by the learned. Counsel, has any force. This petition is accordingly dismissed.