MUHAMMAD SHOAIB ALAM and others vs MUHAMMAD IQBAL

ORDER

' RANA BHAGWAN DAS, J.---Leave to appeal is sought in the aforesaid three identical petitions from the judgment, dated 22-1-2000 rendered by learned Judge in Chambers of the Lahore High Court accepting second appeal against orders passed by the learned Rent Controller as well as the appellate authority whereby he upset the findings by the two tribunals below and allowed ejectment petitions against each of the respondents.

2. Respondent filed three separate ejectment petitions relating to three different shops in their occupation situated in the same building on the ground of default in payment of rent and personal requirement of the shops for the use and occupation of his son Nauman. In the written statements filed relationship of landlord and tenant was not disputed but default in payment of rent and ground of personal requirement were seriously controverted.

3. On the pleading of the parties following issues were framed:--"(1) Whether the petition is based on mala fide intention ? OPR.

(2) Whether the petition has been filed to harass the respondent ? OPR.

(3) Whether the petitioner is estopped by his words and conduct to file the petition? OPR.

(4) Whether the respondent is defaulter, if so, its effect? OPA.

(5) Whether the petitioner is bona fide in personal need of suit property? OPA.

(6) Order/ Relief?"

4. Both the parties adduced evidence. On assessment of the relevant evidence, learned Rent Controller dismissed the eviction petitions. In Civil Appeals before the District Judge, Chakwal, findings recorded by the learned Rent Controller were affirmed which have been disturbed in second appeals by the High Court giving rise to the present petitions.

5. Before the learned High Court respondent did not impugn the findings on the question of default and confined his case to the bona fide requirement of the tenanted premises in good faith for rehabilitating his son Nauman. On minute scrutiny and careful re-evaluation of the evidence learned High Court held as under:-- "Ordinarily the concurrent findings of facts recorded by the Courts below should not be interfered in second appeal, but in cases where the Courts have not properly read the evidence on record and have misapplied the law, such findings can be upset. In the instant cases, as has been stated above, the appellant while appearing as A. W.1, has given the specific need of his son, nature of the business, the extent of the premises which are required, and also deposed that in one shop, the business of shoes cannot be properly conducted and for that purpose, larger area is needed. No effective cross-examination has been made to this statement. R. W.1, only stated that Nauman is helping the appellant in his business of furniture. However, other particulars testified by A.W.1, have not been controverted. No evidence worth the name has been adduced by the respondent which could militate against the bona fide requirement of appellant and to show that the petition is tainted with mala fide or with dishonesty of purpose. The findings of the Appellate Court that Nauman has not appeared in the witness-box and solitary statement of the appellant cannot be deemed sufficient to discharge the onus, on the question of personal requirement is against the law, declared in 1981 SCM R 844. The appellant has himself appeared in the instant case, who was subjected to cross-examination, thus, it was not necessary for him to have examined his son. In law, the person who is most relevant to prove the personal requirement is a landlord himself, and none else can effectively testify to this fact except him, therefore, it is his statement which is of immense importance and significance, which as stated above, has gone unchallenged in cross- examination on the particulars, given by the appellant, in the examination-in-chief."

6. We have heard learned counsel for the petitioners at great length and examined the evidence of the respondent in juxtaposition to the statement of the petitioner Muhammad Shoaib Alam who does not appear to have effectively controverted the version of the respondent on the issue of bona fide personal requirement. The respondent had pleaded this circumstance in the eviction petition in sufficient details and consistently testified the reasons requiring him to seek ejectment of the petitioners.

7. The sole argument raised on behalf of the petitioners that this ground was interpolated in the original eviction petition was found to be ill-founded by the learned High Court and we see no cogent and sound reason to disagree with the view taken which does not suffer from any inherent legal infirmity. Evidently both the Courts below suffered from misconception of law by being influenced by the circumstance that the respondent himself having established his furniture business and being assisted by his son Nauman did not really require the shops for the use and occupation of his son. Learned Rent Controller also wrongly proceeded on the assumption that the para relating to their ground of personal requirement of the respondent's son was interpolated after filing of the ejectment petition without any justifiable circumstance. This aspect of the case was not adverted to by the first appellate forum with the legitimate inference that the appellate authority did not find any fault with the ground urged for eviction on this score.

8. Learned counsel lastly urged that the learned High Court acted illegally in setting aside the findings of fact recorded by two Courts below in violation of the provisions of section 100 of Code of Civil Procedure. We may observe that ordinarily concurrent findings of fact recorded by two Courts below are not disturbed by High Court in second appeal but such findings can always be disturbed and reversed on the ground that the decision was based on misreading of evidence or that it was a result of perverse appreciation of evidence or that the conclusions were drawn after ignoring vital piece of evidence on record. It may be observed that learned High Court was fully conscious of such limitations and has, therefore, discussed the evidence adduced by the parties at length and come to the conclusion that the Courts below had not taken into account evidence of the respondent in its proper and true context and in the light of criteria laid down by the superior Court.

Learned High Court rightly observed that this was a case of misreading and non-reading of evidence particularly in S.A.O. No,32 of 1999 and S.A.O. No,33 of 1999 in which petitioners Nisar Hussain and Muhammad Pervaiz Akhtar were the tenants but they did not appear in witness-box to controvert the case of the respondent. A reference was made to Irshad Hassan v. Ijaz Hussain (PLD 1994 SC 326) but the judgment is hardly attracted in the peculiar circumstances of the case in hand and is distinguishable on facts.

9. The law on the subject has been set at rest by this Court in Saira Bai v. Anisur Rahman (1989 SCM R 1366) which was followed inter alia in Juma Sher v. Sabz Ali (1997 SCM R 1062). Furthermore, it was held in Agaria Amir Ali v. Abdul Majid (1993 SCM R 67) that where finding of High Court was very much consistent with the evidence on record and also in accord with the principles of law, no interference was warranted with such finding. In F.K. Irani & Co. v. Begum Feroze (1996. SCMR 1178) it was held that statement of landlord on oath if consistent with the application for ejectment and not shaken in cross-examination or disproved in rebuttal is sufficient to prove that requirement of landlord was bona fide.

10. For the aforesaid facts and reasons all the three petitions are without any merit and substance.

These are accordingly dismissed and leave to appeal is refused.