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Writ Petition No-1797 of 1986, decided on 15th March, 1987

---Ss. 15 & 21--Bona fide personal requirement--Landlord requiring premises in dispute for personal use, held, was not required to give measurement of accommodation in his possession--Landlord's failure to state in, ejectment petition that he intended to do retail business of goons which he used to manufacture, was not fatal to his case--Such matters had to be brought on record through evidence.

----Ss. 15 & 21--Bona fide personal requirement--For purposes of eviction of a tenant on ground of bona fide personal need, averments made in ejectment petition supported by landlord's statement on oath constituted sufficient proof of his bona fides.

Muhammad Siddique v. Mistry Muhammad Aslam P L D 1975 Lah.308; Sheikh Khurshid Mahboob Alam v. Muhammad Sharif and others 1984 C L C 938; Meher Elahi v. Muhammad Qamar-ud-Din 1985 C L C 2094 and W.C. MacDonald Registered v. Fred Latimer and others A I R 1929 P C 15 rel.

--Ss. 15 & 21--Ejectment proceedings--Reappraisal of evidence by Appellate Court on question of fact not allowed--Where on question of fact there was a conflict in oral evidence of parties and neither there was a documentary evidence clearly affirming one view or contradicting other, nor there existed sufficient balance of improbability to dispense with trial Court's finding as to truth of oral evidence, Appellate Court, held, should not interfere with findings of trial Court on question on fact.

---Ss. 15 & 21--Constitution of Pakistan (1973), Art.199- Constitutional jurisdiction--Reappraisal of evidence--High Court although could not undertake exercise of reappraisal of evidence in writ jurisdiction, yet if tribunal below passed an order in disregard of material on record or by misreading same, such an order, held, was liable to be struck down.

---Ss. 15 & 21--Constitution of Pakistan (1973), Art.199--Ejectment- Landlord manufacturing transformers in basement of building and requiring premises in dispute for retail selling of his goods with help of his sons--Salient features of evidence produced by landlord with regard to location of basement in his possession, difficulty in accessibility thereto, non-visibility of goods lying therein, not appreciated by Appellate Court below who rejected eviction petition filed by landlord--Judgment of appellate Court below suffering from non-reading of evidence--Order of Appellate Court below was declared to have been made without lawful authority and case was remanded for decision of appeal afresh in accordance with law.

---Ss. 15 & 21--Bona fide Personal requirement--Averment in application that landlord required shop in question to expand his business in association with his sons, held, was enough to satisfy requirement of law--Revelation of further details could only be made through evidence and ejectment petition could not be stuffed with evidence.

Ch. Rafiq Ahmad Bajwa for Petitioner.

Ch. Muhammad Saleem for Respondent No.2.

Date of hearing: 15th March, 1987.

Ahmad Yar Khan, petitioner, sought respondent's eviction from the shop in dispute, which is a part of Property No.S-50-R-20/6-Hall Road, Lahore, inter alia on the ground of bona fide personal need. In the ejectment petition it was averred that the petitioner was in possession of some space in the basement of the same property and required the demised permission in good faith for his own. as well as his son's use as he intended to expand his business in association with his sons. Respondent resisted the ejectment petition. The pleadings of the parties gave rise to the three issues but only issue No.l, which is the subject-matter of this petition, is reproduced below

"Whether the petitioner requires premises in dispute in good faith for his own use, or the use of his son OPP"

The learned Rent Controller answered this issue in favour of the petitioner and ordered the respondent's eviction. But, the learned Additional District Judge, reversed this decision and vide his order dated 16-3-1986, dismissed the ejectment petition. Hence this writ petition.

2. I have heard the learned counsel for the parties and examined the record. The sole argument advanced on behalf of the petitioner is that the evidence has been grossly misread and ignored by the learned Additional District Judge. On the other hand, the learned counsel for the respondent contended that the evidence on the file was properly considered by the appellate authority and that the High Court in exercise of its constitutional jurisdiction cannot embark upon re-appraisal of the evidence.

3. In order to evaluate the contentions of the parties I have gone through the entire evidence. The petitioner examined three witnesses, namely, Nasim Ahmad P.W.1, Zafar Masood Naqvi P.W.2, lqbal Yar Khan P.W.3. The latter is the son of the petitioner. Besides this the petitioner also entered the witness-box. According to the evidence 'examined by him, the shop was let out to the respondent when the petitioner was in service and after his retirement hi; commenced business of manufacturing Transformers in the basement measuring.32.6 x 8.8 ft; the Transformers are disposed of in the market; the petitioner has no sale-point. His evidence further shcws that his two sons, one of whom, is married, work with him. In rebuttal, the respondent produced Tariq Masood R.W.1, Muhammad Gulzar R.W.2, Muhammad Akbar R.W.3, and Namdar Khan R.W.4. The respondent also appeared as his own witness. He as well as his witnesses in examination-in-chief, deposed that the petitioner and his two sons manufactured Transformers, dealt with in wholesale business and thus; demised property was not required by them for self use.

4. The learned Rent Controller, after persual of the material on the record, held that the evidence produced by the petitioner fully established that he required the shop for personal use and for expansion of his business. He was of the view that the respondent's witnesses too directly or indirectly conceded that the petitioner needed the shop for running the retail business, which coincided with the stand taken up by the latter.

5. In the opinion of the learned Additional District Judge, the basement in possession of the petitioner comprised a big shop, located on Hall Road; Lahore; but in the ejectment petition he described it as "some space" without disclosing its measurement which amounted to suppression of facts. He also maintained that the fact that the petitioner's son would sell Transformers in retail, was not mentioned in the ejectment petition and that he introduced this aspect of the case through his evidence. The learned Additional District Judge, found out discrepancies in the statement of the petitioner and that of his son and further -discovered some loopholes in the deposition of the witnesses examined by the petitioner. It is in the statement of R.W. 4 that the petitioner and-his son needed the shop in case trey embarked upon the sale-business. This witness further stated that the petitioner's sons were grown- up and fit to run' the business. The learned Additional District Judge considered the statement of P.W.4 alongwith the deposition of the respondent and came to the conclusion:

" The cumulative reading of the statements made by-R.W.4 and the appellant conveys the idea that there is no intention on the part of the respondent to carry on this business in retail and that the plea has been set up merely to seek ejectment .... "

6. There is much force in the submissions of the learned counsel for the petitioner. The petitioner was not required to give in the ejectment petition the measurements of the basement in his possession. The learned Additional District Judge, fell in the error to treat this omission as a suppression of fact. In fact his view in this behalf is in conflict with the law laid down by the superior Court on the subject. Likewise, the petitioner's failure to state in the ejectment petition that he intended to do retail business in Transformers manufactured by him, is not fatal to his case. All those matters had to be brought on the record through evidence which he did. In the ejectment petition, it was clearly averred that the petitioner wanted 8

to expand his business in association with his sons and thus, required shop in question for his own use. This much disclosure is enough to satisfy the requirement of law. Revelation of further details could only be made through evidence and ejectment petition could not have been stuffed with evidence.

7. The law is now well-settled that for the purposes of eviction of a tenant on the ground of bona fide personal need, the averments made in the ejectment petition supported by landlord's statement on C oath, constituted sufficient proof of his bona fide. A reference in this connection may be made to Muhammad Siddique-v. Mistry Muhammad Aslam P L D 1975 Lah.. 308; Sheikh Khurshid Mahboob Alam v. Muhammad Sharif and others 1984 C L C 938 and Meher Elahi v. Muhammad Qamar-ud-Din 1985 C L C 2094. The broad principle laid down by the Privy Council in W.C. MacDonald, Registered v. Fred LaOmer and others A I R 1929 Privy Council 15; for reappraisal of evidence by the appellate Court is that where there is a direct conflict in oral evidence of the parties and neither there is documentary evidence, clearly affirming one view or contradicting the other, nor there is sufficient balance of improbability to displace the trial Court's finding as to the truth of the oral evidence, the appellate Court should not interfere with the findings of the trial Judge on the question of fact. However, in the instant case, the impugned judgment, conveys an impression that the learned Additional District Judge laboured hard to find out discrepancies in the petitioners evidence. It is really an unsatisfactory method of evaluation of evidence by the appellate Court.

8. It is evident from the statement of P.W. that the petitioner is not the supplier of goods (against the orders placed on him) but he has to put in -efforts to sell the same in the market. P.W.2 clearly deposed that the-petitioner is faced with the difficulty in the sale of his products. It is in the statement of the petitioner's son (P. W.3) that:-

R.W.2 admitted that the goods lying in the basement are not visible to the customers. I entirely agree with the learned counsel for the petitioner that statement of this witness as well as P. W.4 and the portion of the statement of R.W.3, reproduced in the impugned judgment have been grossly misread by the learned Additional District Judge. The statement of R.W.3 had to be evaluated independently. But, the learned Additional District Judge, punctuated it with the version given by the respondent., On the other hand, the salient features of the petitioners evidence regarding location of the basement, difficulty in accessibility thereto, non-visibility of the goods lying therein have been ignored. The impugned judgment suffers from non-reading and misreading of evidence and has also been passed in disregard of the judicial pronouncements of the superior Courts. It is, thus, liable to be removed through judicial review. It is correct that the High Court cannot undertake the exercise of re-appraisal of evidence in writ jurisdiction, but there should be no doubt that if a Tribunal below passes an order in disregard of the material on the fill by misreading the same, such an order is liable to be struck under Article 199 of the Constitution.

9. For the foregoing reasons this writ petition is accepted and the impugned order declared to have been made without lawful authority. Consequently, the respondent's appeal shall be treated as G pending. The case is sent back to the learned District Judge, who shall decide the respondent's appeal afresh, in accordance with law. The parties are left to bear their own costs.

M.Y.H./A-141/L Petition accepted.

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