SAKHA ULLAH- Versus MST. TAHIR ALMAS ALIAS TAHIRA SHABBIR

The brief facts out of which the present second appeal arises are that respondent No.1 filed ejectment petition qua Shop No.9‑A, 58‑Shadman Colony, Lahore before the Rent Controller, Lahore on the following grounds:‑‑

(i) The shop in question is required in good faith by respondent No.1 for the use and occupation of her son.

(ii) The appellant had sublet the Khokha to any other person without prior permission of respondent No.1.

(iii) Wilful default in the payment of rent.

The appellant filed written statement/reply of the petition, controverted the allegations levelled in the plaint. Out of the pleadings of the parties the learned Rent Controller framed the following issues:‑‑

(1) Whether the respondent is a wilful defaulter in the payment of rent? OPA

(2) Whether the premises in question are required in good faith by the petitioner, for the use and occupation for her son Ghulam Mehdi? OPA

(3) Whether the respondents have sublet the Khokha concerned with the shop in question to any other person without prior permission of the petitioner? OPA

(4) Relief.

The learned Rent Controller dismissed the ejectment petition vide order, dated 26‑11‑1998. The respondents being aggrieved filed appeal before the Additional District Judge, Lahore who accepted, the same vide impugned order, dated 26‑6‑1999, hence the present appeal.

2. The learned counsel of the appellant submits that orders of both the Tribunals are at variance. He further submits that first appellate Court reversed the finding of the learned Rent Controller without adverting to the reasoning of the learned Rent Controller. He further submits that the learned Rent Controller dismissed the ejectment petition after deciding all the issues against the respondents with reference to evidence available on the record but the first appellate Court wrongly and illegally reversed the findings on issue No.2. He submits that first appellate Court passed the impugned order by misreading and non‑reading of the evidence on record. He further submits that respondent No.1 concealed the material facts of vacancy of adjacent Shop No.9 in the ejectment petition. He further submits that respondents failed to prove bona fide in her ejectment petition and evidence. The evidence produced by the respondents is self‑contradictory and this fact was not considered by the first appellate Court. He further submits that adjacent Shop No.9 was vacant according to the evidence of the respondents which was not utilized for the business of her son. He further submits that adjacent shop was twice rented out by the respondents. This fact was not considered by the first appellate Court in true perspective. He further submits that bona fide requirement of the landlord/respondent No.1 is to be seen in the context of the case in which the controversy has arisen. He further submits that the plea of the landlord that he required the shop in question had got to be proved by her through cogent and reliable evidence but the respondents failed to establish bona fide personal need as the principle laid down by the Superior Courts. In support of his contentions he relied upon Gulla Jan v. Ghulam Habib and others 1993 CLC 1149; Syed Anisur Rehman v. Mst. Saira Bi PLD 1985 Kar. 714, Muhammad Saleem Khan v. Zameer Ahmad Khokhar 1997 CLC 1531. He further submits that mere desire of the landlord that he intended to occupy a particular premises would not be sufficient to accept his claim unless the requirement/need was proved as a matter of fact on the basis of the evidence adduced by the parties. The respondents failed to prove the bona fide qua the shop in question. In support of his contention he relied upon the following judgments: ‑‑

Sardar Nabil Wali v. The Additional District Judge/Appellate Authority, Sahiwal PLD 2000 SC 829, Muhammad Shafique v. Shahid Naveed and 5 others 1999 CLC 1273, Dilshad Khan v. Zahid Masood and 6 others 1994 CLC 531 and Adam Jee v. Haji Ghulam Ali 1986 CLC 2376.

He further submits that respondent No.1 sent a notice Exh.R/3 on 20‑12‑1990, which reveals that respondents required the premises to increase her income by establishing business such‑like knitting, tutor and sewing machine tutor in the shop in question. This fact was not mentioned by her in the ejectment petition filed by the respondent No.1 against the appellant as is evident from the contents of the ejectment, that respondent No.1 filed ejectment petition for personal need to establish business of her son in the shop in question. He further submits that respondent No.2 got vacated two shops from other tenants and sold the same through registered sale‑deeds as is evident from Annexures "R.1." and "R.2". This fact was not mentioned by her in the ejectment petition. The appellant's predecessor‑in‑interest got the possession of the shop in question on rent by the predecessor‑in‑interest of the respondent No.1 on 1‑4‑1973 initially on rent of Rs.500. The appellant increased the same gradually in due course of time and now the appellant is paying rent Rs.3,125‑ per month to the respondents. The appellant has established his business in the shop in question in the market. He summed up his arguments that order of the first appellant Court is result of misreading and non‑reading of the record. The first appellate Court decided the case against the appellant in violation of the principle laid down by the superior Courts and respondent No.1 concealed the material facts in her ejectment petition and evidence adduced by her. In support of his contentions he relied on Mst. Hajiyani Ayesha Bai v. Zahid Hussain 1999 MLD 2761.

3. The learned counsel of the respondents submits that respondent No.1 filed and ejectment petition without concealing any material facts in the ejectment petition and her evidence. The Exh.R/3 notice pertains to 20‑12‑1990 whereas the ejectment petition was filed by her before the Rent Controller on 23‑11‑1996. The respondent is very fair. She did not file ejectment petition on the ground mentioned in the notice dated 20‑12‑1990. He further submits that two shops were sold by the respondents under compulsion for utilizing the sale price to the marriage of her two daughters, therefore, question of concealment of facts does not arise. He further submits that respondents proved through cogent evidence on record bona fide personal need for the shop in question. Even this fact as not denied by R.W.2 in cross‑examination. He further submits that R.W.1 was tenant of respondents and the respondents got vacated the shop from him, therefore, he is interested witness. He further submits that respondents proved their personal need by producing sufficient evidence on record and the first appellate Court reversed the finding of the Rent Controller after proper appreciation of evidence. He further submits that this Court has no jurisdiction in second appeal to disturb the finding of fact of first appellate Court as the learned counsel of the appellant failed to point out any material irregularity or illegality committed by the first appellate Court. He further submits that appellant's counsel failed to point out. any piece of evidence which was misread by the first appellate Court. He further submits that on all material points appellant did not cross‑examine the witnesses of the respondents, therefore, to that extent their statements are admitted as admission of the appellant. He further submits that it is the prerogative of the landlord to select a suitability of shop for the business of her son and the appellant has no right to suggest that landlord should select other property for the business of her son. In support of his contentions he relied upon the following judgments.

Messrs F.K. Irani & Company v. Begum Feroz 1996 SCMR 1178, Malik Muhammad Ramzan v. Messrs General Iron Stores and another 1995 SCMR 1125, Sh. Muhammad Jamil v. Government of Pakistan through Secretary Ministry of Finance, Islamabad and 2 others 1998 MLD 1049, Sajjad Ahmad v. Muhammad Younas 1994 MLD 1244, United Bank Ltd. and another v. Abdul Wahab Khan 1983 CLC 824, Sardar Khan v. Riaz Ahmad and another x1y86 SCMR 1981 and Qamar‑ud‑Din through his Legal Heirs v. Hakim Mehmood Khan 1988 SCMR 819.

He further submits that appellant's rights are well‑protected under section 13(4) of West Pakistan Rent Restriction Ordinance, 1959.

The learned counsel of the appellant in rebuttal submits that witnesses of the respondents are at variance with each other as one witness admitted that shops were sold for the marriage of daughter whereas other witness admitted that shops were sold for the marriage of her son. He further submits that material facts were concealed by the respondents.

4. I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record myself. It is better and appropriate to reproduce the operative part of the impugned order of the first appellate Court to resolve the controversy between the parties:‑‑

"13. From the above it emerges that while the appellant is seeking eviction from the disputed property a shop adjacent to the disputed property, is lying vacant. The consideration which weighed with the learned Rent Controller in non‑suiting the appellant on the ground of personal bona fide need as well was that another shop of the appellant is lying vacant and the appellant had failed to show that the said vacant shop is of lesser utility as compared to the disputed property. The learned Rent Controller was also swayed by the fact that the appellant had earlier sold a shop. I express my inability to persuade myself to subscribe to the view of the Rent Controller. To attain clarity it may be mentioned that it is in the evidence of A.W.1, AW.2, A.W.3 and AWA that the shop lying vacant is smaller in size and its face is not towards market. As against this the disputed property is larger in size and is a corner shop. Viewed in such a perspective the aforesaid vacant shop cannot be regarded as suitable for the bona fide need of the son of the appellant. As against this the disputed property is suitable for the need of the appellant.

14. Here it may be mentioned that the son of the appellant intends to start cloth business in the disputed property. He has already received training in this profession from his father who is running cloth shop. Added to this is the fact that as deposed by A.W.1 in the proximity of disputed property there is a cloth market. As such this circumstance works to make bona fide need of the son of the appellant from poignant.

15. However, much stress has been laid on Exh. R.I which tends to show that earlier a shop was sold by the appellant. A.W.4 husband as well as general attorney of the appellant has conceded this fact in his evidence. But he explained that the said shop was sold to meet express of marriage of his daughter. In our milieu sale of shop by landlord to meet expenses of marriage of his daughter should not be grudged or groused by a tenant who is in occupation of neighbouring shop. Not only this admittedly the age of son of the appellant for whose bona fide need the disputed property is sought to be evicted is 19 years. As such at the time of sale of the shop by the appellant the need of the son of the appellant was not in existence. As such the said sale cannot militate against bona fide need of the son of the appellant.

16. The long and short of the matter is that the appellant had succeeded in proving that the disputed shop being suitable for the bona fide need of her young and business able age son Ghulam Mehdi AW.3 as needed by her in good faith. Unfortunately the learned Rent did not advert to this aspect of the matter in its true and proper perspective and as such fell in error in returning negative finding on the issue of personal bona fide need. As such this finding of leered Rent Controller being lacunic and infirm is not sustainable in law and is reversed accordingly "

The aforesaid operative parts of the order of the first appellate Court reveal that first appellate Court passed the order after proper appreciation of evidence. This Court could not interfere in finding of fact arrived by the first appellate Court in 2nd appeal unless and until the first appellate Court misread or non‑read the record. In arriving to this conclusion I am fortified by Nazir Ahmad's case NLR 1980 SCJ 54. It is pertinent to mention her that the respondent No. 1's son in his evidence clearly stated that he required the premises for his personal and bona fide need and that he is presently working with his father in his shop. He and his father attorney of respondent No. 1 were subjected to a very lengthy cross‑examination by the counsel for the appellant but their evidence could not be shaken. It is also settled principle of law that even the sole testimony of the landlord is sufficient to establish the personal and bona fide requirement of landlord. In the present case the statements by respondent No.1's son P.W.3 and his father P.W.4 being attorney of respondent No.1 on oath were quite consistent with averments made in the ejectment petition and neither these statements were shaken nor anything was brought in evidence to .contract their statements. It is admitted fact that respondent No‑1 owned Shop No.9 which is adjacent to her Shop No. 9 in question. This fact was not mentioned in the ejectment petition by her. It is also admitted fact that she did not mention that she had got vacated her two shops which were subsequently had been sold by her. Learned Rent Controller basically decided issued No.2 in favour of appellant on account of this conduct of respondent No.1 whereas first appellate Court decided otherwise after proper appreciation of evidence as the respondent had mentioned these facts in their evidence. In this view of the matter the concealment of these facts in the ejectment petition was not material coupled with the fact that respondents explained in their evidence that two shops were sold by her under compulsion for the purpose to marriage her two daughters. R.W.2 admitted in cross‑examination as follows:‑‑

A.W.3 stated in the examination‑in‑chief as follows:‑‑

It is admitted fact that A.W.3 was not cross‑examined by the appellant about the aforesaid assertion. It is settled proposition of law that if a specific assertion made by the witness material to the controversy of the case is not challenged in cross‑examination by putting contrary suggestions then the same is to be given full credits and shall accept as true unless displayed by reliable cogent and clear evidence as per pronouncement of the Honourable Supreme Court in Noor Jehan Begum's case 1991 SCMR 2300. Reliance is also placed in case of Luqman reported in 1985 CLC 2327 but the question arises whether that portion of the examination‑in‑chief of P.W.3 is material to come to the conclusion that the respondent does not require the shop to good faith for personal need for establishing business of her son or not. The question of personal need is considered in the reported case of Abdul Ghafoor v. Abdul Qadir 1986 MLD 1636 and observed as under:‑‑

"That the balance of authority is that the statement of the landlord showing personal need should prima facie be a good ground for ejectment of the tenant unless the tenant succeeds in creating doubts in the story of personal need either by cross‑examining the landlord or by producing evidence to rebuttal. As owner of the property it is the right of the landlord to use its property in the manner he chooses."

The Honourable Supreme Court had also considered this proposition of law in case Qamar‑ud‑Din's case 1988 SCMR 819 and observed as under:‑‑

"Wherein subject shop was required for personal bona fide use of the landlord and his son. In the said case also the landlord had stated want to run a general store in the disputed shop to earn my livelihood. I have two grown sons also. I want to engage one of my sons in the business. Statement was not challenged in the cross- examination not rebutted by any evidence produced by the respondents as such. Appeal was allowed. "

Honourable Supreme Court has also considered this aspect of the case S.M. Noor‑ud‑Din's case 1998 SCMR 2119 and observed as follows:‑‑

"Once the landlord has duly acquitted himself by stating on oath that this 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 for whom it remains initially, to cross‑examine the landlord and, that being done, lead his own evidence in rebuttal. "

The Honourable Supreme Court came to the conclusion while deciding Jehangir Rustam Kaka's case 1992 SCMR 1296 and laid down the following principle:‑‑

"In the impugned judgment while discussing the evidence on the question of proof of bona fide requirement reliance is placed on the case of Hassan Khan v. M.S. Munawar Begum reported in PLD 1976 Karachi 832 which view was subsequently, confirmed in case of M.S. Taheed Khanum v. Muhammad Shamshad reported in 1980 SCMR 593."

Rule laid down in the case mentioned above is that on the issue of personal need, assertion or claim of landlord if consistent with his averments in his application and not shaken the cross‑examination or disproved in rebuttal is sufficient to prove that need is bona fide. Ratio of the abovementioned case is the principle which is now time‑honoured. It is for the landlord to establish his bona fide need and assign reasons for such need. If need of the landlord is mentioned in the application and duly established through evidence, for which the landlord must enter in the witness‑box and depose on oath about the personal bona fide need and assign reasons for such need, the Court would normally not question such need as was held by the Honourable Supreme Court in the aforesaid case of Jehangir Rustam Kakalia's case. The aforesaid proposition of law is also supported by the judgments of the Honourable Supreme Court in National Development Finance Corporation's case PLD 1997 SC 564 and Sardar Khan's case 1986 SCMR 1981. Para. 4 of the plaint and ground (b) clearly reveal that the shop in question was needed for personal business of appellant's son namely Ghulam Mehdi which was duly supported by the statements of respondent No.1's attorney and her son. They are consistent in their statements. Respondent failed to shake their statements even in cross‑examination. Statements of the respondent's attorney and her son are also corroborated by the statements of P.W.1 and P.W.2, whereas respondent failed to produce any independent evidence to show that the said son was employed or was running, any independent business to earn his livelihood. Respondent also failed to prove any mala fide in filing of ejectment petition. Considering the evidence produced by the parties, it reveals to me that the respondent had sufficiently established the requirement of the premises for the personal bona fide use of her son. The judgments cited by the learned counsel for the appellant are distinguished on facts and law. It is settled principle of law that each and every case is to be decided on its peculiar circumstances and facts.

In‑view of what has been discussed above, this appeal has no merit and the same is dismissed. However, since the appellant is running his business in the premises since long, I allow him one year time to vacate to premises subject to the condition that appellant deposits all rent due and also future rent for one year in advance in Court as the principle laid down by the Honourable Supreme Court in Mrs. Yasmeen Riaz's case 1999 SCMR 832 and in C.As. Nos. 1627 to 1652 decided on 4‑1‑2001 Al‑Karim (Pvt.) v. East and West Insurance Company Ltd. and hand over a vacant possession of the shop in question to the respondents on 29‑3‑2002.

H.B.T./S‑212/L Appeal dismissed.