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Writ Petition No.490 of 1985, decided on 21st October, 1986.

‑‑‑S. 13 (3)(ii)‑‑Ejectment of tenant on ground of personal bona fide need‑‑Requirements‑‑Where requirement of business premises by landlord was proved to be bona fide and in good faith for self‑occupation of his sons, all sons of landlord were not required to have appeared before Rent Controller to make statement in support of self‑requirement‑ Business proposed to be set up in premises was not necessarily to have been disclosed in rent application or in evidence.

Abdul Rehman v. Hafiz Muhammad Yaqoob and 2 others 1979 CLC 190; Master Faqir Muhmmad v. Tariq Salim 1981 C L C 759; Muhammad Ibrahim v. Faqir Muhammad 1982 C L C 230; Muhammad Yousaf Khan v. Mst. Chand Bibi and 5 others 1983 C L C 777; Ghulam Ali and 4 others v. Muhammad Shafi and 2 others 1983 C L C 1418; Abdul Aziz and another v. Muhammad Ibrahim P L D 1977 S C 442; Pirzada Rafiq Ahmad v. Ch Abdul Rehman 1980 S C M R 772; Muhammad Sharif and another v . Muhammad Afzal Sohail etc. P L D 1981 S C 246; Irshad Ahmad v . Settlement Authority Punjab 1981 S C M R 758; NLR 1981 U C 96; Bashir Ahmad v. Sarfraz Arshad 1985 SCMR 83 and Sh. Muhammad Azam v. Sh. Gulzar Ahmad and another 1985 SCMR 1615 ref.

‑‑‑S. 13(3)(ii)‑‑Personal bona fide requirement‑‑Proof‑‑Where ejectment of tenant from business premises was sought by landlord on ground of personal bona fide requirement for use of his sons, there was no requirement that sons of landlord though running business in rented premises or doing low‑graded business due to non‑availability of suitable premises, would have no right to ask for vacation of premises as to start their business to better their prospects, simply because it would be little inconvenient to tenant.

‑‑Ss. 13 & 15‑‑Ejectment order‑‑Finding of fact‑‑Appeal against‑ Appellate Court has jurisdiction to reverse finding of fact arrived at by Rent Controller where appeal would lie against facts‑‑Such course, held, should only be adopted upon very clear proof of error, where case depended upon credibility of witnesses whom trial Court had seen and believed.

‑‑‑S.13‑‑Ejectment‑‑Bona fide of landlord‑‑Proof‑‑Unless mala fide of landlord could be established by convincing evidence adduced by tenant in defence, statement of landlord on oath if consistent with averments made by him in rent application and supported by adequate, evidence, held, was entitled to credence and was to be accepted as correct in proof of his bona fides.

Ghulam Mohi‑ud‑Din v. Suba Khan P L D 1977 Lah. 104 and Muhammad Zaman v. Mahboob Elahi P L D 1981 Lah. 609 ref.

‑‑‑S. 13‑‑Bona fides of landlord‑‑Proof‑‑Enhancement of rent‑‑Effect‑‑No material on record available which was worth reliance to show that landlord was in any manner acting mala fide‑‑Mere enhancement of rent in recent past seen in light of rising prices of all conceivable commodities could hardly be a ground to cast doubt on bona fides of landlord.

‑‑‑Art. 199‑‑Failure of Court below to act and follow enunciation of law made by. superior Courts, held, would render decision of Court below to be without lawful authority.‑‑[Precedents].

Shahbaz Khurshid for Petitioner.

Syed Sharif Hussain Bokhary for Respondent.

Date of hearing: 21st October, 1986.

This application under Article 199 of the Constitution is against reversing order dated 30‑12‑1984 of Additional District Judge, Lahore, passed in Miscellaneous. Civil Appeal No.92 of 1984, and has arisen out of a Rent Application.

Petitioner is the landlord of commercial property bearing Survey No.SW‑1‑S‑3. Ganpat Road, New Anarkali, Lahore (hereinafter referred to as shop), of which respondent is the tenant. Shop consists of four big rooms shown in plan Exh. A‑1. Vide Rent Deed dated 31‑3‑1971, shop was taken on lease by the respondent for a period of three years with effect from 1‑8‑1971, on the monthly rental of Rs.1,000. In the events that followed, tenancy period was extended and the monthly rent was gradually enhanced to the present rate of Rs.1,400 per month. Rate of rent as also the tenancy is not in dispute.

As the petitioner required the shop for the use of his sons, he applied to the Rent Controller, Lahore Urban Area, for ejectment of the respondent‑tenant. Ejectment application was filed on 19‑5‑1983. In paragraph 3 of the application it was averred that "petitioner requires the property in dispute in good faith and bona fide‑for his sons' use. The petitioner has five sons. The petitioner or his sorts are not occupying any property suitable for their needs in the same urban area. They have not vacated any such property." Personal requirement, therefore, was the sole ground pressed in aid to seek respondents, eviction from the shop. Ejectment application was resisted. It was pleaded that need expressed was not bona fide and is intended to blackmail the tenant to seek further increase in the monthly rental, which already had been enhanced in the past on several occasions. It was also alleged that the respondent had developed the shop into a respectable business concern and had established good will by huge investment and hard labour. On 20‑6‑1983, Rent Controller settled following issues for determination of the controversy:‑

(1) Whether the petitioner requires the disputed property in good faith for the use of his sons O.P.A.

Petitioner produced Wazir, Niaz Muhammad Qureshi, Muhammad Siddique his son, and himself appeared to support his need for the shop. Site plan, copy of ejectment application and rent deed Exhs. P.1 to P.3 were also relied upon. As against this, four witnesses, apart from Khalid Parvez tenant, appeared for the defendant.

Rent Controller examined the evidence, found for the petitioner landlord, held, that need for self‑use as expressed in the rent application was established and vide order dated 12‑6‑1984 tenant was asked to vacate and hand over possession within four months.

Tenant preferred an appeal and succeeded to have set aside eviction order, on 20‑12‑1984, from the Court of learned Additional District Judge, Lahore. Court of Appeal, in disagreement with Rent Controller, held, that personal need was not proved and to arrive at the aforesaid conclusion, Court relied on number of circumstances noted in para. 7 of the impugned order.

Mr. Shahbaz Khurshid, learned counsel for the petitioner, criticised the approach of the appellate Court and contended that the impugned decision had not taken correct and adequate note of the evidence led by the petitioner in support of personal requirement and instead the learned Judge not only misdirected himself in ignoring the important pieces of evidence but also failed to apply the law correctly, in the result whereof, he was led to wholly incorrect conclusion. Learned counsel also argued that in finding against the petitioner, irrelevant considerations were brought to bear on the decision reached. Learned counsel argued that the landlord was neither obliged to disclose the intended business nor was it the requirement of law that all his sons should appear in Court to support the need expressed. As for the enhancement of rent in the past, it was urged that it shall not affect the bona fide, of the petitioner, if the need was independently proved and established, which, in this case, counsel argued, had been adequately proved. Mr. Shahbaz referred to number of decisions of the High Court and the Supreme Court to support his contentions, some of the decisions relied upon are:‑ Abdul Rehman v. Hafiz Muhammad Yaqoob and 2 other 1979 C L C 190; Master Faqir Muhammad v. Tariq Salim 1981 C L C 759; Muhammad Ibrahim v. Faqir Muhammad 1982 C L C 230; Muhammad Yousaf. Khan v. Mst. Chand Bibi and 5 others 1983 CLC 777; G‑hulam Ali and 4 others v. Muhammad Shaft and 2 others 1983 C L C 1418; Abdul Aziz and another v. Muhammad Ibrahim P L D 1977 S C 442; Pirzada Rafiq Ahmad v. Ch. Abdul Rehman 1980 SCM R 772; Muhammad Sharif and another v. Muhammad Afzal Sohail etc. LD 1981 S C 246; Irshad Ahmad v. Settlement Authority Punjab 1981 S C M R 758 and N L R 1981 U C 96. As against this, Mr. Sharif Hussain Bukhari, learned counsel for the respondent, spoke in defence of the impugned order and argued that facts found to be true by the Court of Appeal and conclusions based thereon by it are sacrosanct and cannot be touched in constitutional jurisdiction. Counsel argued that it was within the competence of the Court of Appeal to re‑examine the evidence afresh and come to its own independent conclusions, and in case the Court disagreed with the conclusion of the Rent Controller, it cannot be said to have committed any illegality or acted without jurisdiction, Reliance was placed by him on Muhammad Sharif and another v. Muhammad Afzal Sohail etc. P L D 1981 S C 246; Bashir Ahmad v. Sarfraz Arshad 1985 S C M R 83 and Sh. Muhammad Azam v. Sh. Gulzar Ahmad and another 1985 S C M R 1615.

In the background of the factual controversy as also whether the order impugned was immune from examination and interference in constitutional jurisdiction, I propose to examine the evidence so as to see whether interference by Court of appeal with the order of the Rent Controller proceeded on the correct appreciation of evidence and the principles of law applicable to the rent cases. There is no dispute that petitioner has five grown‑up sons. Their names are Siddique, Ayyub, Rafique, Rashid and Shafique. Two of them, namely, Siddique and Ayyub are conducting their business in a small place (Khokha) about 5 x 6 feet in the part of the same building. Rafique, his other son is in possession of a rented shop against whom ejectment application has already been filed by his landlord. Rashid drove Rickshaw owned by another person. Shafique is mentally retarded and is not doing anything. Wazir Ali, Niaz Muhammad Qureshi P.Ws. both supported the petitioner. Muhammad Siddique, one of the petitioner's sons, also appeared and made supporting statement as to the personal need. Rent Controller preferred the evidence led by petitioner in preference to the defence, evidence, accepted it as correct and relying on it, found that the petitioner required the shop for the use of his sons. A look at this evidence amply demonstrates that it did not suffer from any material discrepancy. Rather it fully supported the averments in the rent application and was totally consistent with it. Defence endeavoured to show that the Khokha in occupation of the petitioner's sons was adequate for their needs and the premises in possession of Muhammad Shafique were also commensurate with his requirement. It was also brought out in defence that the purpose behind the ejectment application was to extract some amount as "pugree" and further increase in the monthly rental.

After examination of the record and the submissions of the counsel in the light of the precedent case‑law relied upon by him, I find that this petition is bound to succeed and the impugned order cannot be maintained. Petitioner, who was owner of the shop, in a very frank and straightforward manner placed his need before the Court. His statement was in consonance with the averments in the Rent application and was amply supported by two witnesses and his son. It is neither the requirement of law that all the sons should have appeared before the Court to make statement in support of self‑requirement nor is it the compulsion of law that the proposed business to be set up should have been disclosed in the Rent Application or in evidence. It was not denied that two of the petitioner sons were squeezed in a small place for their business and were earning their livelihood. It was not effectively rebutted that one of the petitioner's sons was driving a Rickshaw and the other was in possession of rented shop. Copy of ejectment application filed against Muhammad Rafiq Exh. A.2 supports the statement that he was being proceeded against for ejectment. Parties are agreed that the aforesaid Rent application has not so far been disposed of. In such circumstances, to my mind, the landlord had by overwhelming evidence proved that the shop was bona fide and in good faith required by him for self‑occupation of his sons. It is not the intention of the Rent law that though the petitioner's sons be confined in a small Khokha for their business, another son running business in a rented shop and the fourth a Rickshaw‑driver, yet they have no right to ask for vacation of the shop as to start their business to better their prospects, for it would be a little inconvenient to the tenant. Petitioner was not guilty of suppression of facts. All that was required was faithfully disclosed in evidence, and nothing was withheld from the Court. No one doubts that where an appeal on facts lies, it is within the jurisdiction of an appellate Court to reverse a finding of fact; but it is well‑established that such a course is only to be adopted upon a very clear proof of error, where case depends upon the credibility of witnesses whom the trial Judge has seen and believed. I am fully alive and conscious of the scope for interference available to this Court in constitutional jurisdiction. However, the reasons, which weighed and influenced the appellate Court to reverse the decision of the Rent Controller, to my mind, are not the valid grounds for determining the bona fide need of, the petitioner's, requirements. The evidence has been misread and the law also not correctly applied to the facts of the case. Unless mala fide could be established by convincing evidence adduced by defence, statement of the landlord on oath consistent as it was with the averments in the Rent application and supported by adequate evidence, in the presence of ample safeguard in the Rent Ordinance, was entitled to credence and was to be accepted as correct. There was no material, worth reliance, to show that the landlord was in any manner acting mala fide. Mere enhancement of rent in the recent past seen in the light of rising prices of all conceivable commodities was hardly a ground to cast doubt on the bona fides of the landlord. It may also not be E without interest to observe that course of hearing of the writ petition, I Mr. Shahbaz Khurshid to alleviate the apprehensions of the respondent stated that the petitioner was prepared to give any undertaking acceptable to this Court that in case shop was vacated, it would not be re‑let. It may also be of some interest that Mr. Sharif Hussain Bukhari expressed readiness on behalf of the respondent‑tenant to vacate three hind rooms and surrender their possession to the petitioner for the use of his sons in case a room on the front was allowed to be retained.

Offers made by the learned counsel were, however, not acceptable to either party. It has been observed by this Court in Fazal Elahi v. Malik Faiz etc. Writ Petition No. 636 of 1984 that:‑

"It is now well‑settled that the landlord's statement, before the Rent Controller, marching with the contents of the ejectment petition is a material piece of evidence for the decision of the issue as to whether or not he needs the demised property in good faith. This view finds support from Ghulam Mohi‑ud‑Din v. Suba Khan P L D 1977 Lah. 104 and Muhammad Zaman v. Mahboob Elahi P L D 1981 Lah. 609."

Failure of the Court to act and follow the enunciation of law made by the superior Court renders the decision to be without lawful authority. In the case on hand, learned Additional District Judge committed a similar error when he proceeded on wholly irrelevant consideration to find against the tenant. All the petitioner's witnesses are agreed as to the vital facts necessary to establish personal need. I must confess, with respects, that I am unable to endorse his view.

For the foregoing reasons this petition is accepted, impugned order is set aside and declared to have been made without lawful authority and is of no legal effect. Result is that the order of Rent Controller directing ejectment shall revive and take its course. However, looking to the scarcity of commercial accommodation as also the difficulty to make alternate arrangements, I have decided to allow four months time to respondent‑tenant to vacate and hand‑over the possession to the petitioner. The concession, however, shall not affect his right to agitate against the order before the Supreme Court of Pakistan. No order as to costs.

H. B. T./712/L Petition accepted.

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