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Writ Petition No. 4782 of 1982, decided on 2nd- July; 1983. .

--S. 13(3XaXfi)-Provisional Constitution Order (t of 1981) Art. 9. s Determination of question whether premises required by landlord for , personal rise---Rule that statement of landlord on oath to be given due importance but such statement not to be accepted ignoring Other evidence on record having effect of rebutting claim made or reflecting do bona fides or good faith----Availability or non-availability of other properties and their suitability has to be examined in context of overall evidence and material brought on record-Appellate Court misconstruing rule regarding status of landlord arid ordering eject ment, held, exercised jurisdiction illegally, order suffers from jurisdictional deft anti merits to b- quashed on this ground.

Muhammad Zaman v. Mahloob Elahi h L, D .1981. Lah: 609 ; Syed Ibrahim v. Dr. Mrs.Saleema Firdause P L D 1982 Quetta 49 and dyed Akhtar Hussain v.- rr ali Bahabur and 3 others P L D 1981 Lah. 326 ref.

--.- Art. 9-West Pakistan Urban Rent Restriction Ordinance (VI. of 1959), S 13(3)(a)(0-Constitutional Jurisdiction -Appreciation of evidence, cannot be undert1ken by High Court ire Constitutional jurisdiction-f4d, in exercise of constitutional jurisdiction high Court can neither act as first appellate Court nor can substitute its opinion for one recorded by competent tribunal or authority--[Evidence].

Muhammad Sharif v.. Muhammad Afzal Sohail PID .3981 S C 246 ref.

-- Art. 9.--West Pakistan Urban Rent Restriction Ordinance (VI of 1959), Ss. 13 & 15-Ejectment-Order of ejectment passed by appellate Court by exercising jurisdiction illegally-Order declared without lawful authority-Appeal, held, to be deemed to be pending before appellate Court and ordered to be disposed of afresh in accordance with law.

Ch. Khurshid Ahmad for Petitioner.

M. Ashraf Ealahi for Respondents Nos. 1 to 4.

Date of hearing : 12th June, 1983.

The petitioner in this constitution petition has called into question the order dated 3rd November, 1982 of the learned Additional District Judge whereby the order dated 12th May, 1982 of the learned Rent Controller was reversed and accepting the appeal eviction of the petitioner from the shop in dispute was ordered.

2. Briefly stated the facts of the case are that respondents Nos. 1 to 4 moved a petition for eviction of the petitioner on the sole ground that the shop in question was needed for personal use of Zaheer Muhammad Iqbal, one of the respondents/landlords, as the business in Fans being conducted by him two years ago had failed and the aforesaid Zaheer Muhammad lqbal wanted to conduct other business in the said shop. It was further asserted in the eviction petition that except for the shop in dispute neither Zaheer Muhammad Iqbal nor the other landlords were in possession of any other shop suitable for the business within the municipal limits nor the landlords had vacated any such shop. The petitioner resisted the eviction petition by urging inter alia that the landlords own other properties, viz. property Nos. B-XVI-870 and B-XVI-814 which were either lying vacant or is which business was being still conducted by the said Zaheer Muhammad Iqbal that the purpose of moving the eviction petition was to have the rent of the shop in dispute enhanced and that the shop was neither required in good faith for personal use nor the alleged requirement was bona fide. The learned Rent Controller dismissed the eviction petition vide order dated 12th May, 1982. This order was appealed against and in appeal the plea taken before the learned appellate Court was that the statement of Zaheer Muhammad Iqbal alone was sufficient to establish his personal need as well as bona, fides of the requirement. The learned appellate Court relying on Muhammad Zaman v. Mahboob Elahi (P L. D 1981 Lah. 609) and Syed Ibrahim v. Dr. MRs.Saleema Firdaase (P L D 1982 Quetta 49) observed that it is clear that where a landlord makes a statement on oath that he requires the property for his own personal use it has to be accepted in view of the safeguard provided by law in section 13 (4) of the Ordinance in favour of the tenant. The learned appellate Court then quoting the statement of Zaheer Muhammad Iqbal observed that since his statement has to be given importance, it is, therefore, proved that he requires the shop in dispute bona fide for his own use. With regard to the criticism made on the statements of the witnesses produced by the respondent/landlord the learned Additional District Judge observed that "assuming that the submission of the learned counsel is correct even then it as of no avail to the present petitioner because as observed above the statement of Zaheer Muhammad Iqbal is sufficient to establish his personal requirement'". As regards the two properties the ownership of which was denied by Zaheer Muhammad Iqbal and which were said to be available for conducting business it was observed that shop No. 814 belonged to Abdul Latif (father of Zaheer Muhammad Iqbal) whereas shop No. 870 belonged to Abdul Latif and his brother Muhammad Sharif. With regard to the plea of the learned counsel that the denial of ownership of the aforesaid properties was made to show that the respondents did not possess any other shop and as such reflected mala fides of the respondents/ landlords, the learned appellate Court observed that the shop No. B-XVI-870 was jointly owned property while the other shop B-XVI-814 was the same property which was previously used to carry on the business of manufactur ing Electric Fans and that said property was situated in a street of a Mohallah.

3. Learned counsel has assailed these findings by arguing that

(i) the view of the learned Additional District Judge that the state ment of the landlord is alone sufficient to establish the bona fides of the alleged personal requirement and has to be accepted in view of the safeguard provided by law in section 13(4) of the Ordinance is based on misreading of the two judgments referred to in the im pugned judgment

(ii) the learned Additional District Judge while reversing the finding on the question of personal need has not at all adverted to the consi derations which prevailed with the learned Rent Controller while holding that the respondents did not require the shop in dispute bona fide and in good faith ;

(iii) that the impuged order is illegal as eviction has been ordered with out determining the question whether the respondent had established on record the essential requirements prescribed by section 13(3) (a) (ii) of the Ordinance. Elaborating this submission it was argued that evidence on record on the point that other shops were in occupation of the respondents was completely ignored.

4. In reply learned counsel for the respondent argued that the petition is liable to be dismissed on account of the fact that false representation was made by the learned counsel for the petitioner for having the petition admitted to hearing. In support of this assertion, he referred to the following part of the admission order " It is further submitted that this was not the position obtaining in the present case as statement of Zaheer Muhammad Iqbal was contradict ed by his own witness Arshad Mahmood by deposing that he is still carrying on the business of manufacturing spare parts."

It was pointed out that Arshad Mahmood was a witness produced by the petitioner and not by the respondent. Learned counsel on the above premises argued that the petition would not have been admitted had this false representation not been made. Learned counsel argued that this Court should take very serious notice of the false representation made, dismiss the petition and order prosecution of the petitioner and initiate disciplinary action against the learned counsel for the petitioner as he according to him violated the canon of professional conduct and attequate. He further argued that statement of the landlord on oath that he required the premises for his personal use is sufficient to prove his bona ides and as such the learn ed appellate Court was justified in relying on the statement of Zaheer Muhammad Iqbal for ordering eviction. Reliance was placed on Syed Akhtar Hussain v. Walt Bahadur and 3 others (P L D 1981, hah. 320). Next it was argued that in exercise of constitutional jurisdiction this Court cannot act as a Court of appeal and that there being no violation of either any provision of law or any principle of law enunciated by the Superior Courts, the petition merits to be dismissed. In support of this plea reliance was placed on Muhammad Sharif v. Muhammad Afzal Sohail (P LID M S C 246).

5. Before dealing with the :respective contentions of the parties on merits, it is appropriate to deal with the argument of the learned counsel for the respondent that the petition is liable to be dismissed on account of the above-noted alleged false representation. The reply made by the learned counsel for the petitioner in this respect was that the mention of the name of Arahad Mahmood in the admission order as a witness for the respondent ap pears to be due to some inadvertent mistake as otherwise no such representation could possibly be made in view of the fact that copies of statements of all the witnesses including that of Arahad Mahmood were available on record. It was further submitted that by such a mention of the said name it cannot be urged that any false representation was made or that the conduct of the petitioner or the counsel was in any way objectionable.,' He added that while arguing the shatter at admission stage the name of "Arshad Mahmood might have been uttered during the arguments inadvertently. There is much force in the plea that the name of Afahad Mahmood Appears to have been mentioned in the admission order inadvertently as, the learned counsel for the respondents himself while addressing the arguments at one stage named Arshad Mahmood as one-of-the witnesses of the respondents. This mistake so committed by the learned counsel hi, revealed the shallowness of his sub mission and was indicative of inadveent mistake committed by the learned counsel while addressing arguments. Learned counsel for the respondents in view of the mistake committed by himself had nothing else to urge in support of the , said plea and the same being without any merit is hereby repelled.

6. On merits the point to be considered is whether the impugned order suffers from any jurisdictional defect or whether the impugned judg ment is violative of any prevision of Rent Restriction Ordinance or is con trary to the law laid down by the Superior Courts. Learned appellate Court quoting Lahore and Quetta cases (supra) recorded the conclusion that the statement of the landlord on the question of bona fide personal use has to be accepted in view of safeguard provided by law under section 13(4) and that assuming that the submission of the learned counsel that the witness produced by-the landlord have: contradicted him on the said question is taken to be correct even then the statement of the landlord is sufficient to' establish personal' requirement. The view which was formed by the learned Additional District Judge, however, does not flow, from two precedents noted by him.

In the Lahore-case of Muhammad Zaman it was observed. Inter alia as under

"By my above observation it should not be taken that the landlord has just to make. a bald assertion only about his requirement. What I mean is that if the statement of the landlord is confidence inspiring and there is no other material available on record to detract from its veracity then such a statement of the landlord should be given the all important weight and not treated as the statement of an interested person."

Again in Quetta case of Syed Ibrahim it was observed as under

"As to the first contention, it may be stated that even if the evidence of these two witnesses was excluded from consideration, we would still be having the statements of the respondent's husband and her attorney ; and the credibility of both of them, goes unassailed. They have categorically stated that the shop was required for establishing private practice by the respondent. These statements, though suffi cient by themselves to establish the respondent's case, if further read with the statement of first two witnesses, which at least has corrobora tive value,- the unescapable conclusion would be that the respondent's need has been established without any iota of .doubt, particularly when such evidence has not been rebutted in the least by the appel lants' evidence. This factum when examined with the legal position providing sufficient safeguard to the tenant against in genuine moves and extending up td conviction of the landlord besides putting: the tenant back in the possession. the respondent's claim is further strengthened."

Even in the Lahore case of Syed Akhtar Hussain (supra) relied upon by the learned counsel for the respondent the learned Judge quoted the observations made in the case of Haji Ghulam Muhammad v. Abdul Qadir (P L D 1975 Lah. 200) as under: -

" One of the material items of evidence for consideration, of course, would be the statement on oath of the landlord himself and that un less he makes a statement in this behalf asserting his requirement it would not be possible to visualise from circumstances alone that he had a bona fide personal need."'

In this very case the learned Judge," quoted the observations of Mahmud, J, made in Hasson Khan v. Munawar Begum.- These observations read "The effect is that the assertion or claim on oath by the landlord that he required the premises for his personal use, should be accepted by the Rent Controller as bona fade, if such claim or asser tion, although by itself, may be insufficient yet is consistent with his averments in the application and is not shaken in cross-examination or disproved in rebuttal." . . .

Thus reading the judgment in the case of ,Syed Akhtar Hussain as a whale it cannot be said that the learned Judge had laid down that irrespec tive of the evidence brought on record to the contrary, the lpse dixit of the landlord is to be accepted on the question of his bona fide requirement: The rule which has been laid down is that the statement o landlord on oath is to tie given due .importance but that does not mean that the same has to be accepted ignoring other evidence on record which might have the effect of rebutting the claim anode or which reflects on, the bona fides or good faith.. Moreover, the. availability on non-availability of the other properties, viz. property Nos. B-XVI-314 and No. B-XVI-870 as well as their suitability has to be examined in the context of overall. evidence and material brought on record. The failure to do this renders the impugned order illegal.

The learned appellate Court by misconstruing the rule laid down the aforenoted precedents exercised the jurisdiction illegally and as such then impugned order suffers from jurisdictional defect and the same merits t boo quashed on this ground atone.

8. Before parting with the judgment I may add that the learned counsels for the respondent also took me through the evidence in order to show that even on the basis of the evidence produced, the order of ejectment merits to, be upheld. I am afraid in exercise of constitutional jurisdiction I cannot undertake the exercise which was to be undertaken by the appellate Co The failure to exercise jurisdiction in accordance with law cannot be brushed aside. Again in exercise of constitution4.t jurisdiction .1 can neither act as' first appellate Court nor can I substitute my opinion for the one recorded by, the competent tribunal or authority.

9. The upshot of the above discussion is that the impugned order in hereby declared to have been passed without lawful authority and hence is of no legal effect. Resultantly the appeal filed by the respondent shall be deemed to be still pending and shall be disposed of by the learned appellate Court afresh in accordance with law. In. the circumstances of the case there shall be no order as to costs,

M. Y. H. Petition accepted.

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