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Second Appeal No. 294 of 1976, decided on 25th February, 1982.

‑‑ S. 15 (4), Explanation read with Civil Procedure Code (V of 1908), S. 100‑Concurrent findings of fact ‑ Interference by High Court‑Rent Controller and first Appellate Court giving concurrent findings on issue of personal bona fide use against landlords‑First Appellate Court discussing evidence on record and no material piece of evidence excluded Landlords not showing any misreading or misrepresentation of evidence on record by lower Courts‑Held, finding with regard to 'personal bona fide use, one of fact and concurrent finding of lower Courts in case cannot be interfered with in second appeal.‑[Finding of fact].

Abdul Majid and others v. Khalil Ahmad P L D 1955 F C 38 and Ust. Fatima v. Khuda Bux and others P L D 1959 Lah. 826 rel.

M. Saleem Iqbal and Miss Rashida Masood for Appellants.

Kamal Azfar and Syed Inayat Ali for Respondent.

Date of hearing : 18th February, 1982.

This second appeal is directed against judgment of the VI Additional District Judge, Karachi dated 4th August, 1976 rejecting the appeal of the appellants and upholding the order dated 9th August, 1973 passed by the XVII Civil Judge and Rent Controller, Karachi in Rent Case No. 1173 of 1971 whereby the application of the appellants for ejectment of the respondent from shop on the ground‑floor of building on Sheet No. S. B. 6 Survey No. 35 situated in the Summerset Street/Raja Ghazanfar Ali Road, Saddar, Karachi, was rejected.

It is the case of the appellants that they had migrated from Dacca due to unfortunate circumstances obtaining there, and were in need of suit able accommodation residential and business and therefore they purchased the property alongwith fittings, fixtures, easements and appurtenances etc. The respondent is occupying a shop; on the ground‑floor of the property on monthly rent of Rs. 95 exclusive of all the charges, according to the information conveyed by the vendors. The appellants served notices dated 19th November, 1970 by registered post acknowledgement due on the respondent conveying the information about the purchase of the property from 2nd October, 1970 and that they were consequently entitled to recover the rent of the shop. The respondent was further informed that they required the shop for their personal use particularly that of appellant No. 2 who needed the shop to start his own business therein and therefore, the respondent was asked to hand over vacant possession on or before 15th January, 1971. As the respondent failed to comply with the request and also failed or neglected to tender the rent they filed application for ejectment in the Court of XVII Civil Judge and Rent Controller, Karachi, which was rejected and therefore, they filed Rent Appeal No. 337 of 1973 in the Court of VIth Additional District Judge, Karachi which too was dismissed and hence the second appeal. The second appeal has been filed inter alia on the following main grounds :‑

(1) That the decisions of the Rent Controller and the first appellate Court ere based on misreading of evidence.

(2) That they failed to consider that appellant No. 2 required the premises for his own bona fide use and had no other business premises in Karachi.

(3) That both the lower Courts on the evidence ought to have held that respondent is a defaulter.

Mr. Saleem Iqbal, the learned counsel for the appellants however did not press the ground of default in his arguments and therefore, the only ground which remains to be considered is whether the shop premises were bona fide required for use of Appellant No. 2 and incidentally whether the concurrent findings of the Rent Controller and the first appellate Court of the issue were due to misreading of the evidence on record.

Undoubtedly the finding with regard to personal bona fide use is one of fact.

In Abdul Majid and others v. Khalil Ahmad P L D 1955 F C 38, after referring to the leading authorities of the Privy Council on the subject it was observed that "the High Court has no jurisdiction to entertain a second appeal on the ground of an erroneous finding of facts however gross and inexusable the error may seem to be, unless there is an error in the procedure provided by law, which may possibly have produced an error or defect in the decision of the case on the merits".

In Mst. Fatima v. Khuda Bux and others P.L‑D 1959 Lab.‑826, the competence under section 100 of the Civil Procedure Code viz. how far it is permissible for a Court of Second Appeal to interfere with findings of fact howsoever erroneous or perverse by the first Court of appeal was considered and it was held that if there is no proper evidence in support of a finding by the first Court of appeal, or the evidence is misread or misrepresented, the finding, though one of fact is vitiated and a Court of second appeal is entitled to review it.

Applying the aforementioned tests, it is apparent that the Additional District Judge has discussed the evidence on record. No material piece of evidence has been excluded. No misreading or misrepresentation of e evidence has been shown.

Mr. M. Saleem Iqbal, the learned counsel for the appellants has contended that in the evidence given by the respondent nothing was said about the issue about personal requirement and therefore the plea of the appellants remains unrebutted. However the contention overlooks the burden of proof which rests on the appellant in respect of the issue. The concurrent finding of the Rent Controller and the first appellate Court shows that the burden was not discharged.

It has been pointed out by Mr. Syed Inayat Ali, the learned counsel of the respondent that the very justification for purchase and use of the property is mentioned by the appellants to be political disturbances in Dacca but as observed by the first appellate Court the appellants purchased the property in October, 1970 whereas the disturbances took place somewhere in March, 1971. It is further argued that since the appellants themselves had chosen to cast their case in a particular mould, the other party is entitled to show that the evidence on record militates against the reason for personal requirement.

The learned first appellate Court has also appreciated in detail the evidence given by the appellant No. 2 with regard to the nature of his business which according to him, he has been doing, "verbally on the, road in the Market". It was observed as under :‑

"He has stated that he purchases and sells paper, Ovaltine, Horlicks and Chemicals. Whenever the prices of these goods go up, he sells them. He has also stated that he does not take delivery of goods from the sellers and keeps the goods in their premises and it takes him from 2 days to a month to dispose off the goods and that he does not pay any storage charges to the persons who keep his goods."

The learned first appellate Court therefore, remarked that these assertions "look highly unbelievable."

In any case the details given about the manner of business being carried out by the appellant, as suggested by the learned counsel for the respondent, appears to be in the nature of a commission agent. It is further pointed out that no case of outright purchase of goods has been made out as no documentary evidence for purchase of goods teas been produced.

As already stated no case has been made out of misreading or mis representing of evidence on record by the lower Courts and therefore it is not a case in which the concurrent finding of the lower Courts can be inter fered in a second appeal.

In Jamilur rahman Khan v. Mst. Sara Begum P L D 1981 Kar. 26 a recent decision of this Court it was inter alia held that the question of, landlord's personal bona fide requirement is purely a question of fact and a concurrent finding that premises was required bona fide was not open to review by this Court.

Under the circumstances, I find no substance in the appeal which is dismissed with no order as to costs.

K. M. A. Appeal dismissed.

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