Find a Lawyer

Civil Appeals Nos. 43 and 44 of 1962, decided on 30th May 1963.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore dated the 31st October 1960, in S. A. O. No. 23 and No. 14 of 1960).

Appeal‑Additional evidence‑Reasons must be stated‑Mere repetition of words of sub‑rule (1) not enough‑Reasons must be factual, leading to inference of necessity of proper determination "Other substantial cause"‑Meaning‑Additional evidence, where there was enough material on record for determination of case, to be "ignored altogether".

S. 15‑Second appeal to High Court‑Governed by Ss. 100 & 101, Civil Procedure Code (V of 1908)‑Concurrent finding of fact (necessity of landlord) arrived at by Controller and District Judge cannot be disturbed in such appeal‑[Abdul Majid v. Khalil Ahmad P L D 1955 F C38 ref.]

Mohammad Ali Senior Advocate Supreme Court (R. A. Jeremey Advocate Supreme Court with him) instructed by Zahir Abbas Attorney for Appellants.

Ghias Muhammad Senior Advocate Supreme Court (Amjad Ali Indrabi Advocate Supreme Court with him) instructed by Muhammad Ashraf Attorney for Respondents.

Dates of hearing: 30th April 1963.

In these two appeals by special leave, the appellants are four persons who are landlords as against Muhammad Ismail, the tenant in the first appeal, and Muhammad Nawab, the tenant in the second appeal. Each case arises out of an application by the landlords for ejectment of the tenant, from a shop occupied by him opening on the well‑known Anarkali Bazar in Lahore City. Lying between the two shops is the entrance to business premises occupied by the landlords themselves, the frontage of this entrance being apparently of the same dimensions as those of the two shops, but there being larger offices within, as well as, it is said for the respondents, a show room. The landlords sought ejectment of each of the two tenants as well as of a third tenant, Shah Din, by means of application filed at the same time, alleging, firstly, default by the tenant in payment of rent over a considerable period, and secondly, a bona fide need by the landlords themselves, their intention being to alter the frontage so as to provide their own shop with a "show room" this allegation being supported by the statement that they had no other equivalent place in Lahore City which could be used as such "show room". In each case, the reply was similar, namely, that the tenant had made an application for assessment of fair rent, that the landlords had been refusing to receive the rent offered to them by the tenant, and the tenant had therefore been obliged to deposit this rent in Court, and finally that the landlords had no other object but to harass the tenant so as to raise the rentals of the shop, and in support of this contention, the following details were added, namely:‑

(i) the landlords owned much other property in Lahore ;

(ii) the landlords had built new shops on a side road offering entrance to their shop, for which they were obtaining high rent ;

(iii) they were only doing wholesale business, supplying goods to permit‑holders, and in the same building they had adjacent premises with plenty of rooms, godowns, offices and show rooms available ; and

(iv) they only did business at their shop from 8 to 12 in the morning.

Proceedings were commenced under the West Pakistan Rent Restriction Ordinance, 1959. A tenant in default as to payment of rent may be ejected, and under section 13, a landlord is entitled to seek ejectment of a tenant from a property when he requires it in good faith for his own use, and is not occupying in the same urban area any other equivalent premises for the purposes of his business, and has not after the commencement of the Ordinance vacated any such other building without sufficient cause. In the course of the evidence led in the case, one of the landlords, Muhammad Riaz, made a statement to the effect that their principals for whom they were main distributors demanded that they should have show‑cases, that the need was great, and that they had no other place which could be converted into a show‑case. There is no question as to their having vacated equivalent premises since the Ordinance came into force.

The landlords are agents for distribution of the products of a considerable number of major companies. There is evidence on the record showing that they serve in this capacity as agents for the Pakistan I Tobacco Company, Messrs Imperial Chemical Industries, Messrs Lever Brothers, the Pakistan Industrial Development Corporation, the Wimco (Matches) Company, as well as such a well‑known proprietary product as Ovaltine, produced by Wander Brothers. In the evidence and in the applications the words "show‑room" and "show‑cases" have been used indiscriminately, but it seems evident that what was meant was that as distributors for these well‑known products, they were required by the manufacturing companies to maintain a window display fronting upon Anarkali street. It is evident that this requirement was a perfectly normal one, and that the display in so thickly populated and so much frequented a commercial centre as Anarkali was, from the commercial angle, a real necessity. Mr. Ghias Muhammad, appearing for the tenants in these cases, doubted this necessity on the basis of some evidence that the landlords had a show‑room within their premises, but it is clear that the display in this show‑room was not visible to persons passing by the shop on Anarkali street and that it cannot be regarded in any sense as a window display of the kind which, as the evidence shows, some of the manufacturing com panies were pressing the landlords to provide.

Muhammad Riaz's statement regarding the necessity is sup ported by three letters, two from the Pakistan Tobacco Company, Exh. P. 1, dated the 23rd October 1959, and Exh. P. 3, dated the 4th March 1959, and one from Lever Brothers, Exh. P. 2, dated the 19th October 1959. The proceedings were commenced by the landlords on the 3rd April 1959. In the letter, Exh. P. 3, which is of earlier date, there is mention of a requirement by the Pakistan Tobacco Company, that the dealer should finalize their arrangements for the re‑decoration of their premises at the latest by Friday, the 6th March and the evidence is that it was with reference to this that the subsequent letter, Exh. P. 1, of the 23rd October 1959, was written in which the distributors were desired to improve the appearance of their premises both internally and from outside, and it was suggested that they should arrange for "fairly large show‑windows for the display of our products, in the front portion of your shop, facing Anarkali Road". A similar demand was made by Lever Brothers in their letter Exh. P. 2, complaining of the unsatisfactory display of their products in the distributors' shop, mainly because the front of the shop was not facing the street and asking them to make "arrangements to take possession of the two shops, one on each side of your front door, and convert them into show‑windows for displaying our products". A point of dispute in the case was whether the letters, Exh. P. 1, and Exh. P. 2, both being of dates subsequent to the commencement of the proceedings were not procured for the purpose of the proceedings and it was to clear this matter that at the appellate stage of the case the letter, Exh. P. 3, was proved in evidence.

The tenants led but little evidence before the Senior Civil Judge acting as Rent Controller. Their witnesses attempted to prove (1) that there had been offers of payment of rent, (2) the valuation placed upon the shops in the Municipal Registers, and (3) that another tenant of the same landlords had been harassed so as to raise his rent. The Rent Controller framed two issues, firstly, as to the bona fide nature of the requirement and, secondly, as to the non‑payment of rent by the tenants. He found that the applicants actually stood in need of the shops in question for putting up show‑cases. The evidence of Muhammad Riaz as to the need for convertion of the shops into show‑cases and as to the demand by letter for such conversion by their principals, namely, the Pakistan Tobacco Company and Lever Brothers were mentioned, and after discussion of these letters, and mention of Muhammad Riaz's statement (1) that the landlords had no other premises which could thus be converted into show‑windows in front of their shop, and (2) if they failed to do so, their agencies were liable to be withdrawn, the Rent Controller went on to observe at the end of his order that the actual need was abundantly clear from the two letters produced by the landlords, namely, Exh. P. 1, and Exh. P. 2. In view of this finding, he did not feel compelled to decide the question of non‑payment of rent. The tenants went up in appeal before the District Judge, and obtained an order for production of further evidence. Before the Rent Controller, the evidence for the tenants had been closed for negligence in production of witnesses as well as on the ground that the evidence of the further witnesses whom they wished to produce was irrelevant. In consequence of the order made by the District Judge, four witnesses were examined for the tenants and two for the landlords. It is noteworthy that only one of the witnesses who appearep for the tenants was himself a tenant in the case, namely, Shah Din whose case is not before us. The other three were not connected with the dispute. One of them said that he was told by Muhammad Riaz that he could have one of the shops in question which were being got vacated at Rs. 150. Another said that the present rent was only Rs. 20, but the landlords wished to raise it to Rs. 150. The third said that the petitioners did all their business from an entrance on a side road known as Naqi Road. Shah Din said that three years earlier, he and the other tenants had been called by the landlords and told that the rents would be raised, otherwise they would be ejected. He added that the landlords did all their business from their shop through the Naqi Road entrance, and that the Anarkali entrance was used only for four hours in the morning; that they only did wholesale business and had no need for show‑windows, and that he had applied in August 1949, for determination of the fair rent. In rebuttal, one A. D. Salim appeared for the landlords and said that they had been reminded several 'times by their principals to provide window display. Muhammad Riaz appeared again and denied having made any demand for enhancement of rent. It appears he was not asked to deny the evidence of Abdul Majid regarding the offer to him of one of the shops at Rs. 150, but this was not material, as it did not go to the root of the matter.

The District Judge upheld the Rent Controller's order, except that relying on Exh. P. 2, the letter sent by the Lever Brothers he came to the curious conclusion that two of the three shops would suffice for the window display required of the distributors. (In fact, Messrs Lever Brothers had demanded two of the shops for the display of their own products, and this was by no means a good ground for holding that two shops out of the three demanded would suffice for the entire display necessary in relation to all of the landlords' agencies). Accordingly, the District Judge dismissed the case as against Shah Din, whose shop did not adjoin the entrance to the applicants' shop. It is to be noted carefully that both the Rent Controller as well as the District Judge expressly mentioned that the letters, Exh. P.1 and. Exh. P.2, were of dates subsequent to the commencement of the ejectment proceedings, and both were satisfied that these letters could be relied upon in support of the evidence of Muhammad Riaz regarding the actual commercial necessity for converting the three shops in question into display windows for the products which they distributed. Under the West Pakistan Rent Restriction Ordinance a second appeal lies to the High Court, which is subject to the terms of section 100, Civil Procedure Code and to the other provisions respecting appeals contained in that Code and in the First Schedule thereto. Section 100 of the Civil Procedure Code is to be read with section 101, which provides that "no second appeal shall lie except on the grounds mentioned in section 100". Section 100 provides that an appeal shall lie to the High Court from an appellate decree of a Court subordinate to the High Court on any one of three grounds, namely:‑

(a) the decision being contrary to law or to some usage having the force of law ;

(b) the decision having failed to determine some material issue of law or usage having the force of law; or

(c) a substantial error or defect in the procedure provided in the Code or by any other law for the time being in force, which may have produced error or defect in the decision of the case upon the merits.

The terms of these sections were examined by the Federal Court of Pakistan in the case, Abdul Majid v. Khalil Ahmad ((1954) 2 F C R 136=P L D 1958 F C 38). It was held in that case that under section 100, C. P. C. the High Court had no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however gross and inexcusable the error may seem to be, unless there is an error in the procedure provided by law, which may have produced an error or defect in the decision of the case on the merits. In the case before the Federal Court, the High Court had come to the conclusion that the Court below had approached the evidence from a wrong point of view and it was held that "a fallacy in appraising the evidence as to a fact unless it amounts to a material mistaken assumption, is merely an error in coming to a finding as to facts and such error has never been held to be an error of law justifying interference in second appeal". There were concurrent findings of fact by the two Courts below the High Court and it was held by the Federal Court that the High Court had no jurisdiction to entertain a second appeal on the ground stated above, and that it exceeded its functions in inter fering with these findings.

In the present case, when the matter came before the High Court, the learned Judge suo motu made an order directing that further evidence should be led on the question of the necessity of the landlords. The order reads as follows:

It also appears necessary to take some evidence on the question of the necessity of the respondents with regard to the shops in dispute".

Muhammad Fayyaz, one of the landlords, who was present in Court, was examined forthwith, and Muhammad Riaz, who had already been examined twice, was next, examined, his state ment being concluded on an adjourned date, On that date, an employee of the Pakistan Tobacco Company, who happened to be in Court, was examined, and on an adjourned date, a Mr. Hussain Mehdi, also an employee of the same Company, was examined, apparently as a "Court" witness, for the landlords had expressly declined to lead his evidence, for reasons which were not disclosed. In the result, the concurrent findings of the Courts below on the point of necessity were reversed.

In the judgment, the learned Judge explained that he had received further evidence because he was "of opinion that it was necessary for the proper determination of the case". This is not quite the language used in sub‑rule (1) of rule 27 of Order XLI of the Code, and it is necessary to note that rule 27, in sub rule (2) lays down that whenever additional evidence is allowed to be produced by an appellate Court, "the Court shall record the reasons for its admission". It is clear that more is required under this sub‑rule than mere repetition of the provisions in sub‑rule (1); the reasons would be expected to be factual, leading to an inference of necessity for proper determination. Moreover, in the present case, further evidence could only have been allowed if the appellate Court had required "any witness to be examined to enable it to pronounce judgment or for any other substantial cause". [Sub‑rule (1)]. On a review of the entire case, we are unable to see that the learned Single Judge in the High Court need have felt any obstacle in the way of his pronouncing judgment in the case upon the record as it had come to him. The "substantial cause" for allowing fresh evidence would therefore seem to be mere necessity "for proper deter mination of the case", but as mentioned above, it was the duty of the learned Single Judge then to have stated expressly his reasons for the view that additional evidence was not necessary for such proper determination. No reasons were stated, and it must be stated, with respect, that, on the record, a determination of the case, in relation to the pleadings, and the issues framed was patently possible. The parties had already enjoyed two opportunities of placing their evidence before the Court, and there was, in our opinion, ample evidence on which the issues could be satisfactorily and definitively resolved.

As has been mentioned, the learned Judge reversed the findings of the Courts below on the point of necessity and he did so on a single ground, viz., that the possibility that the letters sent by the manufacturing Companies to the landlords in 1959, "were manipulated cannot be brushed aside". By a process of reasoning which we have not been able to follow, the learned Judge came to the conclusion that the letter, Exh. F. 1, issued by the Pakistan Tobacco Company had no reference to anything said in the letter, Exh. P. 3. With respect, it should be pointed out that the relevant passage in Exh. P. 3 mentioned "re‑deco ration" of the premises, and the heading of the letter, Exh. P. 1 is again "re‑decoration of premises". That, in our opinion, is by itself sufficient to establish the connection. The learned Judge appears to have thought that the last paragraph of letter, Exh. P. 3, required that the distributors should complete the re‑decoration of their premises within two days, but this is clearly based upon misreading of the letter, for what was required was that they should finalize their arrangements for re‑decorating the premises within two days, which indicates a desire that the steps to be taken for the purpose of eventual re‑decoration should be finalised, that is to say, settled in advance within two days. Obviously, the firm were not going to allow any further dilly dallying on that subject, but it is clearly impossible to conclude that they demanded that all the re‑decorations should be carried out within two days. In his discussion on this part of the case, the learned Single Judge has not given sufficient importance to the fact that both the Rent Controller as well as the District Judge had placed in the forefront of their minds the fact that the letters, Exh. P. 1 and Exh. P. 2 were written during the pendency of the proceedings, nor has he referred at all to the evidence of Muhammad Riaz regarding the necessity. In part the omission may be due to the fact that in the judgments of the Courts below, the matter had been dealt with as if it were concluded by the letters, but indeed those letters were merely produced as corroboratory evidence supporting the statement of Muhammad Riaz as to the necessity, and to ignore the statement of Muhammad Riaz and to decide the case upon a mere evaluation of the letters in their verbal and other aspects is clearly to draw the decision of the case into a false and irrelevant region. The learned Single Judge relied to some extent upon evidence given by some of the witnesses whom he had examined for the first time, but in our view, no case had been made out for admission of additional evidence in the second appeal, and consequently such evidence as was examined in the High Court should be ignored altogether. When that is done, the position that remains is that, upon the same evidence as that examined by the Rent Controller and the District Judge, who expressly mentioned an infirmity affecting the value to be attached to the letters produced in the case, had concluded as a fact that the necessity had been established, the learned Single Judge has, upon his own view of the matter come to the contrary conclusion. There was here no suggestion that the subordinate Courts had committed any error of procedure as provided by law, or even that they had approached the question for decision from a fallacious point of view. What the learned Single Judge did in this case is what is expressly forbidden by the provisions of section 100 of the Civil Procedure Code and consequently his order cannot be maintained.

The appeals are accordingly allowed and setting aside the orders made by the learned single Judge, we restore the orders made in these cases by the District judge, that having regard to the nature of the cases, we direct that the parties should bear their own costs throughout.

A. H. Appeals allowed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.