SHAHZADA AYYAZ Versus ZAINAB BIBI

ABDUR REHMAN KHAN, J.--- -Respondent/landlady filed an application under the Rent laws for eviction of the appellant/tenant from the disputed shop on the grounds:--

(i) That she required the shop in question for the business of her son Abdur Rashid;

(ii) that the respondent has failed to pay rent from December, 1991, in accordance with law; and

(iii) that respondent is troublesome and is a source of nuisance.

These allegations were refuted in the written statement submitted by the respondent and after referring to the earlier litigation between the parties the filing of the application was termed as mala fide.

2. The learned Rent Controller by order, dated 21-1-1993, held that personal need could not be proved and mainly decided the application on this 'ground. The learned Appellate Court did not agree with the order of the Rent Controller and, accordingly, by judgment, dated 3-2-1994, while accepting the appeal moved by the respondent, ordered the ejectment of the appellant. By the impugned judgment delivered on 16-5-1994, the learned Single Judge in the High Court affirmed the judgment of the Appellate Court.

3. Leave to appeal was granted to consider the following points:--

"On examination of the evidence on record, we find that the landlady owns 12 shops out of which four were lying vacant when she filed application for ejectment of the petitioner from the shop, before the Rent Controller. In this view of the matter, leave to appeal is granted to consider whether or not the petitioner could have been ejected from the shop on the ground of personal bona fide need and to examine whether the case-law laid down by the superior Courts in this regard has been followed properly."

4. Learned counsel for the appellant argued that High Court has erred in dismissing the second appeal in limine as the Appellate and Trial Court had differed in their conclusion and as such the High Court was required to have gone deeply in the matter after admitting the appeal to full hearing. He referred to "Madan Gopal and 4 others v. Maran Bepari and 3 others" (PLD 1969 SC 617) to support his point. The perusal of the said judgment reveals that it proceeds on entirely distinct facts and is not relevant for the proposition advanced by the learned counsel. It lays down that:--

"If the finding of fact reached by the First Appellate Court is at variance with that of the trial Court, the former will ordinarily prevail, although it would not possess the same value or sanctity as a concurrent finding. Such a finding by the Lower Appellate Court will be immune from interference in second appeal only if it is found to be substantiated by evidence on the record and is supported by logical reasoning, duly taking note of the reasons adduced by the first Court which have been disfavoured in the contrary finding. The finding being at variance with that of the trial Judge, the two will naturally come in for comparison for their comparative merits in the light of the facts of the case and the reasons on which the two different findings have respectively proceeded. If the finding of the First Appellate Court cannot be supported on the evidence on record or if it has failed to take into account a material piece of evidence or if it does not reveal a logical basis for differing from the finding of the trial Court, or is otherwise found to be arbitrary or capricious, it will have to be rejected in second appeal."

5. It has nowhere been held in that judgment that the second appeal cannot be dismissed by the High Court in limine even if the High Court after assessment of the evidence on record prefers the decision of the Appellate Court over that of the trial Court. The learned counsel then referred extensively to the various documents on record to substantiate that earlier petition of the landlady on the same ground had been dismissed which proved that the present ejectment petition was based on mala fide. In this context it was pointed out that several shops owned by the respondent had fallen vacant before after filing the present petition which could be occupied by the respondent for the business of her son. He referred to certain judgment of the High Court and this Court to support his view-point. The attention of the learned counsel was drawn to the following para in the impugned judgment:--

"Undeniably, during the pendency of the ejectment application before the learned Rent Controller, number of shops in the market, where the disputed shop is located, were lying vacant. The shop in question is located on the front of the market. Before the learned Rent Controller an offer was made that the appellant may vacate the shop in question and have two other shops in the same market for running his business. He refused to accept it. During the course of hearing of this appeal again an offer was made by Mr. Muhammad Ghani, Advocate, for the respondent, that the respondent was prepared to offer two shops to the appellant in the same market if he surrendered the shop in dispute. The same was turned down on behalf of the appellant and the reason advanced in this behalf was that the appellant had earned goodwill in establishing his business in the disputed shop and he would be put to serious loss in case he shifted his business to the offered shops.

Abdul Majid, A.W.1, son of the respondent-landlady, appeared as her special attorney and deposed:--

The suitability of the shop in question for the personal use of Abdur Rashid, as deposed by Abdul Majid, was not questioned in cross-examination. The bona fides of the respondent stand established on record, in that she had repeatedly offered to the appellant two shops at the same rate of rent, subject to his vacating the disputed shop. He cannot insist, in the circumstances of this case to stick to the disputed shop, and thus, deny the prerogative of choice one of the shops in the market for personal need as available under the law, for the respondent-landlady. In my view, the respondent-landlady has sufficiently deposed about the suitability of the shop in question for the personal need of her son."

He was then asked, whether he is in a position to controvert the factual aspect indicated in the said para. He was not in a position to refute the correctness of the allegations as are appearing in the above para. However, he asserted that it is not prerogative of the landlady to insist for occupation of a specific shop and that her insistence in this respect would be judged keeping m view the equitable consideration. It has been laid down in numerous cases that the choice to occupy a particular shop cannot be denied provided the landlord proves that he had no other shop suitable for his business and that the shop in question would suit his requirement and which he requires in good faith for his own occupation. If the tenant is unable to prove occupation of any other shop by the landlord sufficient for his requirement. then he cannot be allowed to say that the landlord should occupy another shop than the one in his possession.

6. It was next stressed that the landlady had not appeared in Court to prove her stand, therefore, no ejectment order could be passed in her favour. Syed Abdul Rauf v. Abdul Sattar (1997 SCMR 1169), Mahmood Khan v. Nasima Khatoon (1982 CLC 1807) and Shaikh Shafaul Haque v. Qaiser Shaikoh Jafri (1982 CLC 722) were relied on for these submissions. In PLD 1997 SC 1169, leave was granted to consider the effect of non-appearance of the landlord in support of his claim of personal need as there was nothing on record to prove "that he was handicapped" and not in a position to appear in the witness-box. Similarly, the facts in the other two cases are distinct and, therefore, the rule laid down therein would not apply. However, in the present case Abdur Rashid for whom the shop was required, appeared in Court to prove his need for occupation of shop; and another son of the landlady Abdul Majid, also appeared as her attorney in support of the application. It was in the end submitted that Rs.60,000 had been received from the appellant by the respondent as security but there is no mention of it in the impugned judgment. This point about the receipt of Rs.60,000 was neither denied nor any reason was shown for withholding this amount.

7. We find no substance in the appeal and. accordingly, dismiss it with no order as to costs. We, however, direct the respondent to return Rs.60,000 received by her as security in respect of the disputed shop. We allow six months' time from today to the. appellant to vacate the disputed shop.

M. B. A./S-161/S Appeal dismissed.