Sheikh MUHAMMAD FEROZE Versus Sheikh ALLAH LOK

ALI AKBAR QURESHI, J .--- This second appeal assails the validity of orders, dated 26-10-2007 through which the learned Additional District Judge, Lahore dismissed appellant's appeal impugning the legality of order, dated 4-1-2006 of the learned Rent Controller allowing the ejectment petition filed by the respondent/ landlord.

2. The respondent/landlord filed an ejectment petition under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959 soliciting appellant's eviction from demised property on the ground that appellant/tenant sublet the entire shop including its basement without the prior consent of the respondent/landlord. The appellant/ tenant has damaged the property and such acts are likely to impair the value or utility of the property. That demise property is required by respondent/landlord for his personal use and also prayed for the award of compensation with reference to damage caused by the appellant/tenant.

3. In addition thereto, it was also maintained in the ejectment petition that in fact two rent agreements were executed between the parties, one for the shop and other for basement. The ejectment petition was seriously contested by the appellant on legal as well as on factual side. The appellant/tenant while filing the written reply to the ejectment petition, inter alia the other grounds mainly challenged the maintainability of the ejectment petition on the ground that since two separate rent deeds were executed, one for the shop and other for the basement, hence, simultaneous eviction through one ejectment petition against the residential and non-residential building was not maintainable. Controverting all the averments reiterated in the ejectment petition maintained that the property in question is not required by the respondent in good faith for his personal use and occupation and added that appellant did not sublet the rented property and did not cause any damage as alleged by the respondent/landlord.

4. The Rent Controller, out of the pleadings of the parties, proceeded to frame as many as four issues and recorded evidence of both the parties thereon and hearing the arguments on behalf of both the parties allowed the ejectment petition. Being aggrieved thereof, appellant preferred the first appeal and an Additional District Judge dismissed the same upholding the ejectment order passed by the learned Rent Controller, hence this second appeal.

5. Learned counsel for the appellant contended that the orders impugned are unsustainable being contrary to the record and the evidence available on the file; that the findings of both the learned Courts below on Issue No.3-A are erroneous and totally contrary to the law as also the principle of law laid down by the Honourable Supreme Court of Pakistan as well as this Court. It was strenuously argued that admittedly two rent deeds were executed, one for shop (non-residential purpose) and the other for basement (residential purposes) and simultaneously ejectment petition for the eviction of the appellant from both the properties was unwarranted by law, which crucial aspect of the matter was not adverted to and was ignored by the learned Courts below while recording the findings on this crucial and vital issue. It was next asserted that both the learned Courts below and especially the 1st Appellate Court did not record issue-wise findings by not appreciating and evaluating the material available, and thus, findings of both the Courts below are result of misreading and non-reading of evidence. Next contends that the respondent/landlord did not substantiate the factum of his bona fide personal need qua the demise property through tangible and independent evidence, yet both the learned Courts below abdicated their lawful authority and have failed to take the cognizance of this particular aspect of the case. The learned counsel for the appellant also referred the evidence and especially the rent note executed between the parties. From the oral as well as the documentary evidence, the learned counsel tried to prove that in any case, it is established on record that two separate rent deeds executed inter se the parties clearly demonstrates the mode and manner in which the rented property was to be used. In this context, the learned counsel referred Exh.A./1 and Exh.A./2 (rent notes dated 22-1-1976). To supplement his contentions, the learned counsel relies on Manochar v. Mst. Sarwar Sultana and another 1989 CLC 2417, Syed Amjad Ali Shah v. Iqbal Ahmad Farooqi and others PLD 1985 SC 242, Dr. Shaukat Bokhari v. Shabih Fatima 1986 MLD 1803, Allies Book Corporation through L.Rs. v. Sultan Ahmad and others 2006 SCMR 152, Latif Ahmad v. Mst. Farrukh Sultana 1996 SCMR 1233, Mrs. Shahnoor Fazal v. Ghulam Akbar Mangi 1987 SCMR 2051, Habib-ur-Rehman v. Faqir Muhammad PLD 1983 Lah. 425, Abdul Majid v. Anwar Ali 1983 CLC 2511 and Fida Hussain v. Noor Muhammad Bana 1985 CLC 3014.

6. Conversely, the learned counsel for the respondent/landlord supported the orders of both the Courts below. As regards maintainability of the one consolidated ejectment petition with reference to both residential and non-residential building, it was canvassed that ejectment petition in such-like cases is quite competent and legally maintainable, and the learned Courts below rightly and justifiably accepted the version of the respondent/landlord by directing appellant's eviction from the rented properties. In support of his contentions, learned counsel has placed reliance on Muhammad Hussain and others v. Muhammad Shafi 1991 CLC 303 and Muhammad Ayub v. Sh. Zafrullah 1999 UC 553. Further contends that the respondent/landlord has successfully proved his bona fide personal need through credible and confidence-inspiring evidence whereas the appellant/tenant failed to rebut or shake the contentions raised on behalf of respondent/landlord. It was strenuously argued that respondent/landlord successfully proved the issues regarding subletting, damage to the property and compensation so the concurrent and consistent findings recorded by the learned Courts below on both legal and factual plane hardly calls for any interference by this Court dealing with the instant S.A.O.

7. I have heard the learned counsel for the parties and perused the record.

8. The entire focus of the learned counsel for the appellant was on the question and scope of the maintainability of consolidated ejectment petition with regard to residential as well as non-residential building in presence of two distinct and separate rent deeds and the judgments of this Court. For resolution of the prevalent controversy, a glance over the pleadings and evidence of the appellant/tenant tendered during the proceedings before the learned trial Court would be inevitable. A careful examination of written reply by the appellant by replying to para.2 of the ejectment petition, the appellant has stated in para.2(b) is incorrect, hence denied. The petitioner has concealed the material facts from the learned Court and has not approached the learned Court with clean hands. The basement of the property is residential in character and the same was rented out for residential as well as business purpose".

9. The witnesses of appellant/tenant and he himself while submitting his affidavits in the shape of examination-in-chief candidly admitted the commercial use of the basement. For ready reference, the same is reproduced as under:-

10. Other witnesses appearing on behalf of the appellant/tenant, namely Muhammad Yasin son of Ghulam Hussain and R.W.4 namely Mursaleen Dar son of Haji Inayat, both in their examination-in-chief categorically deposed in line with the appellant tenant. Admission of the contents of Exh.A.1 and Exh.A./2 (rent deeds) by both the parties sufficiently falsify the argument raised by the appellant. Exh.P.2. (rent deed), it is regarding the basement, wherein it has clearly been mentioned by the appellant that the appellant will use the basement for residential as well as commercial purposes. The relevant part is reproduced as under:

11. On careful examination of the above referred record and particularly perusal of evidence adduced by the appellant, there is no room for any doubt or dispute and cavil with the proposition that the appellant from the day one has been using the basement for commercial purposes, and evidently the contention of the learned counsel for the appellant as to the maintainability of the ejectment petition is totally preposterous having no nexus and access to the judgments being referred to by the learned counsel on his behalf.

12. As regards personal bona fide need, from the record and facts of the case, respondent/landlord has successfully proved by adducing sufficient evidence, whereas, instead of rebutting the stance of the respondent/landlord, the learned counsel for the appellant/tenant kept on harping on the same string that the respondent/landlord had other vacant shops as well in the same vicinity. This particular proposition already stands settled by the Honourable Supreme Court of Pakistan in plethora of judgments that the landlord is only required to prove his requirement of personal use and secondly it is the sweet will and choice of the landlord to select or choose any of his properties for this purpose. The appellant in his evidence has failed to prove the mala fide of the respondent/landlord to file the ejectment petition on the ground of personal need by citing any material incident or evidence. Mere alleging of mala fides can hardly be taken into consideration and element of mala fides has to be proved through tangible evidence or such acts of the person, whereas in the instant case, no such effort was made by the appellant and simple reiteration of the plea of mala fide in written reply has to be repelled unless and until the same is proved through unimpeachable evidence.

13. The learned counsel for the appellant in the course of his arguments also submitted that the respondent is asking for the eviction of the demise property particularly the basement which has been rented out for the non-residential purpose, but without taking the prior permission from the Rent Controller under section 11 of the Urban Rent Restriction Ordinance, 1959. In this regard, it is sufficient to refer to the above quoted extract from the written reply as well as the evidence produced by the appellant, wherein the appellant himself admitted the commercial use of the basement from the day it was rented out to him. Such-like fallacious objections are always taken by the tenant so as to prolong the litigation which must be discouraged by the Courts of law to ensure safe dispensation of justice to minimize the agonies and miseries of the litigants.

14. The nutshell of the above discussion is that the respondent/landlord has successfully proved his case and even otherwise, the learned counsel for the appellant has failed to point out any jurisdictional defect, legal infirmity, material irregularity, misreading and non-reading of evidence by the learned Courts below while concurrently, unambiguously and conclusively determining the crucial issues objectively with judicial application of law and mind. As regards interference with the concurrent findings of fact recorded by the Courts below, this Court stands enlightened and guided by the law laid down by the apex Court in the cases repotted as Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291, Abdul Qayyum through Legal Heirs v. Mushk-e-Alam and another 2001 SCMR 798 and Abdul Mateen and others v. Mst. Mustakhia 2006 SCMR 50 has observed that even the findings concurrently recorded by the learned Courts below on fact are erroneous, should not be interfered with unless those are result of jurisdictional defect, legal infirmity, material irregularity, misreading and non-reading of evidence.

15. Resultantly, this second appeal fails and being devoid of any merit is dismissed with no order as to costs.

16. Admittedly, the appellant/tenant is running his business in the demise property since last many years, thus, to ensure safe administration of justice, the appellant/tenant is directed to hand over the vacant possession of the demise property to the respondent/landlord within sixty days from today, of course, without having resort to the execution proceedings. It is made clear that during this period, the agreed rent between the parties shall be paid regularly by the appellant/ tenant to respondent/landlord.

17. Requisitioned record be transmitted to the trial Court immediately.

M.H./M-334/L Second appeal dismissed.