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Second Appeal from Order No. 55 of 1977, decided on 30th, November, 1982.

‑‑‑‑ S. 13‑Reconstruction‑Personal requirement‑Landlord entitled to pick and choose any one of his premises for his personal use‑Con tention that landlord should have got vacated some other premises Not valid‑Nor necessary for landlord to produce evidence of avail ability of funds for reconstruction unless specific plea taken by tenant.

Muhammad Ismail v. Mian Muhammad Amanullah 1971 S C M R 323 ; Haji Majeed v. Haji Imamuddin 1981 C L C 1091 and Habibullah Khan v. Maqbool Ahmad 1981 C L C 761 ref.

‑‑ Ss. 13 & 15‑Personal requirement‑Landlords not required to mention in their application as to who would do business and what sort of it, nor they required to give source of capital, experience etc.

Badruddin Hassan Farooqui v. Manghi Industrial Home P L b 1976 Kar. 610 and Punjab Hardware & Machine Tools v. Wazir Ali P L D 1976 Kar. 233 ref.

‑‑S. 13‑Bona fide personal requirement‑Question of fact‑Courts below concurrently holding respondents requiring property for their personal use and such requirement being bona fide‑Such finding, held, a finding of fact and cannot be set aside unless material misreading of evidence shown or some evidence shown to be omitted from considera tion.‑[Question of fact].

Pakistan International Airlines Corporation v. Mst. Safooran Khanam 1981 C L C 1636 ; Muhammad Asif v. Khurshid Begum 1981 C L C 562 ; Malik Muhammad Saleem v. Ruqqia Begum 1978 S C M R 348 ; Nek Muhammad v. Muhammad Shafi N L R 1979 Civil 355 ; Khalique Ahmad v. Abdul Ghani P L D 1973 S C 214 ; Alif Din v. Khadim Hussain 1980 S C M R 767 ; Nazir Ahmad v. Riazul Haq 1980 S C M R 931 and Mst. Toheed Khanum v. Muhammad Shamshad 1980 S C M R 593 (596) ref.

Murad Ali for Appellant.

Bashir Ahmed Ansari for Respondents.

Date of hearing : 21st November, 1982.

The appellants assail the order dated 24th January, 1977, of the learned Additional District Judge, Rawalpindi, by which their appeal was rejected and the order of ejectment, passed by the Kept Controller aq 1st Qct9berr 1976, upheld.

2. Briefly, the facts of this case are that the appellants occupied property K‑584, Murree Road, Rawalpindi, measuring about 4 kanals as tenants under the respondents. It was then a vacant piece of land whereon they installed saw machine and certain other structures at their own cost. On 19th June, 1972, the respondents applied for their ejectment on the ground that they needed the property for their personal use. The appellants resisted the application on which the parties led evidence. Ultimately, both the Courts decided against the appellants and directed them to hand over vacant posses sion to the respondents.

3. It is contended by the learned counsel that the two Courts below erred in inferring from the facts on record that the property in question was needed by the respondents bona fide for their personal use. It is further stated that even the evidence has been misread. Reference is made to the statement of P. W. 1 and P. W. 2 who stated that they own some other land at the back of the land in dispute also. It is specifically pleaded that though the evidence of the respondents showed that they had no capital, no experience and no plans, yet the Courts below held in their favour. Reliance is also placed on Muhammad Ismail v. Mian Muhammad Amanullah (1971 S C M. R 323).

4. The learned counsel for the respondents controverted the contentions of the appellants and stated that P. W. 2 specifically stated in his cross examination that they wanted to carry on timber business in the property. As. for owning other property and financial provisions, he relied on Haji Majeed v. Haji Imamuddin (1981 C L C 1091) and Habibullah Khan v. Maqbool Ahmad (1981 C L C 761). It was held in Haji Mojeed's case that the landlord is entitled to choose or pick any one of his shops for his personal use and the contention that the landlord should have got vacated some other shop is not valid. It was further held that it is not necessary for the landlord to produce voluntarily, the evidence of availability of funds unless a specific plea is taken by the tenant in his statement. A learned single . Judge of the Sind High Court in Habibullah Khan's case also held that the question of availability of funds and resources of the landlord who wants to reconstruct the premises have no bearing and effect on bona fides and good faith of the landlord. The con tentions thus have no force.

5. The learned counsel for the appellants further contended that the respondents did not bona fide want the property for their personal use. The respondents rely on Pakistan International Airlines Corporation v. Mst. Safooran Khanam (1981 C L C 1636) in which the Court observed that the question whether the landlord requires certain premises bona fide, is a question of fact and the High Court does not normally interfere with the concurrent findings of the Courts below. Again a learned single Judge of this Court in Muhammad Asif v. Khurshid Begum (1981 C L C 562) held that the bona fide personal need of a landlord in an ejectment case was a question of fact and the High Court normally does not interfere with the same. The Supreme Court also in Malik Muhammad Saleem v. Ruqqia Begum (1978 S C M R 348) did .not disturb the concurrent findings of fact by the Courts below with regard to the bona fide requirements for personal use by the landlord.

6. The learned counsel for the appellants further contended that as all the respondents could not carry on a business, the application was not maintainable. This plea was not given weight in Nek Muhammad v. Muhammad Shafi (N L R 1979 Civil 355) where it was held that ejectment can be prayed for by all the land lords, though only one of them required the premises. Similarly, in Khalique Ahmad v. Abdul Ghani (P L D 1973 S C 214) the learned Judges ruled that any one of the land lords could make an application for ejectment.

7. The learned counsel then submitted that as the respondents did not mention in their application as to who would do the business and what sort of it and also did not give the source of capital, the experience etc., the Courts below should have dismissed the application. The plea, however, has no merit. In Badruddin Hassan Farooqi v. Manghi Industrial Home (P L D 1976 Kar. 610) it was held that a landlord who takes a plea of personal bona fide requirement is not necessarily required to put in his application all the ingredients which constitute his personal bona fide requirement, as they are a matter of proof. In Punjab Hardware and Machine Tools v. Wazir Ali (P L D 1976 Kar. 233) it was held that landlord is not required to specifically plead all ingredients of the section in his application, while claiming his property on the ground of personal bona fide need and that he is entitled to choose any premises out of his tenanted premises, as it is his prerogative which cannot be denied to him. Further, it was held that concurrent finding on a question of fact, by the two Courts below, cannot be agitated in second appeal.

8. In this case also both the Courts below have concurrently held that the respondents do require the property for their personal use, and that the requirement is bona fide. This is a finding of fact and cannot be set aside unless it was shown that there is any material misreading of evidence or some evidence has been omitted from consideration. No interference is, therefore, warranted in such a case. Reference be made to the cases of Alif Din v. Khadim Hussain (1980 S C M R 767) and Nazir Ahmad v. Riazul Haq (1980 S C M R 931).

9. I may also refer to some observations of the Supreme Court in the case of Mst. Toheed Khanum v. Muhammad Shamshad (1980 S C M R 593) which are as under :‑‑

" ..Lastly, the High Court has failed to give due effect to section 13(1) of the Ordinance which provides a safeguard to the tenant in case the landlord fails to occupy the shop for business in which case the tenant can obtain possession as provided therein. It is true that in dependently of this provision, the Rent Controller has to satisfy himself that the requirement of clause (a) of section 13(3) (ii) is fulfilled ; and if upon the evidence he is so satisfied then there can hardly be any room for denying the relief to the landlord; and in case of any lapse on his part, section 13(4) can be pressed into service."

10. Thus looked at from any angle, the appellants have no case except that they have been able to keep possession of the property with them for five years in pursuance to this appeal. In the circumstances this appeal is dismissed with costs.

S. A. H. Appeal dismissed.

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