' The appellant, Ghulam Farooq approached the learned Rent Controller, Charsadda for the eviction of the respondent, Fazal Ghani, from the shop, bearing No, 373/2, situated in Bazar Adda, Tehsil Charsadda on three grounds :-
(i) Default in payment of rent for the period between July, 1977 and the date of institution of the application i,e, 15th, October, 1977.
(ii) The need of the shop for personal use, and (ill) The injurious use of the property by the tenant.
' This application was resisted by the tenant on the ground that there was no default in payment of rent and that the property was not put into any such use as may be injurious to it and lastly that the petitioner was not in need of the shop as he had other property and he was running a shop of his son own at Peshawar, in which he was doing wholesale business. This application was accepted by the learned Rent Controller on 5th April, 1978 by holding that the need of the shop for the personal use of the petitioner was established. As regards the other issues the application was dismissed as the default was not proved and the question of injurious use by the respondent was not pressed. An appeal was taken to the Additional District Judge, Peshawar against the said judgment by the respondent, which was accepted on 6th June, 1978 by the reversal of the finding of the lower Court on the need of the petitioner for personal use of the property in question. This is a Second appeal on behalf of the landlord against the aforesaid judgment of the appellate authority.
2. Simultaneously with these proceedings, the appellant initiated ejectment proceedings on the same grounds against one Afzal Khan, the tenant in the other shop which is adjacent to the shop in dispute in these proceedings. The learned Rent Controller accepted that application also and ordered the ejectment of the tenant by a separate order. 'The present respondent as well as the above-named tenant took separate appeals to the appellate authority before whom the appeal of Afzal Khan failed on 31st May, 1978, but the landlord appellant was not so fortunate in the other appeal which as stated above resulted in the reversal of the finding of the Rent Controller on the requirement of the appellant for personal use of the suit shop. The appellant has appended a certified copy of the judgment in the Afzal's appeal, being Rent Appeal No, 7/RC to the Memorandum of this appeal in order to show that on the same facts, the same learned Additional District Judge delivered divergent judgments and while holding in one the shop was required for the personal need of the landlord, gave contrary findings to that in the second appeal.
3. A preliminary objection has been taken by the learned counsel for the respondent to the maintainability of this appeal on the ground that the finding of the learned lower appellate Court on the issue of the need of the appellant of the shop was a finding of fact, which according to the learned counsel is not amenable to the second appeal, which by virtue of explanation given to subsection (4) of section 15 of the West Pakistan Rent Restriction Ordinance, 1959, as it existed at the time of the institution of this appeal, is to be heard as an appeal under section 100 of the Code of Civil Procedure.
4. To meet this objection, the learned counsel for the appellant has laid great stress on the two above-quoted divergent decisions of the same Court in order to show that the findings of the learned lower appellate Court in the instant case was arbitrary and capricious. As every case has to be judged on its own merits on the basis of the evidence brought on its record, a comparison of the two judgments would not be warranted. The evidence led in Afzal's case is not before us. The presumption therefore would be that the conclusion reached at by the learned appellate authority in that case was in appreciation of the evidence on that record. While deciding the appeal in the present case, it was perfectly legible for the Court below to base his findings on the evidence on record before him irregard of what was earlier held by him on the basis of the material available in that case. Such a divergent finding as given in favour of the respondent in this case could, therefore, on this ground alone not be held as arbitrary or capricious.
5. Now coming to the preliminary objection, an appeal under subsection (4) of section 15 of the Ordinance as earlier said has to be heard as an appeal under section 100 of the Code of Civil Procedure. It is now well settled law that a finding of fact cannot be disturbed in second appeal unless it is based on the misreading of evidence or there is an error in the procedure provided by law. Federal Court of Pakistan in Abdul Majid v. Khalil Ahmad (1) examined the jurisdiction under sections 100 and 101 of the Code of Civil Procedure, of the High Court in hearing the second appeal, Mr. Justice Muhammad Munir, C. J. While delivering judgment on behalf of the Bench stated law as under :- ' 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 that fact, and such error has never been held to be an error of law justifying interference in second appeal. I had the occasion to examine this question recently in the Lahore High Court in Nadir Shah v. Lal Shah and others where referring to the leading authorities of the Privy Council on this subject I held that the High Court has no jurisdiction (1) PLD 1955 FC 38 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 possibly have produced an error or defect in the decision of the case on the merits. I adhere to that opinion which was based on the Privy Council decisions in Durga Chowdhrani v. Jewahir Singh Chowdhri and Wall Muhammad v. Muhammad Bakhsh-which lay down this proposition in clear and unmistakable terms. It is not suggested that there was in the present case any "error in the procedure provided by law", nor that there is any rule of law prescribing the manner in which evidence in such cases has to be judged which was contravened by the Court of First Appeal which is the final judge of facts."
' The Supreme Court of Pakistan relying on the above-quoted decision of its predecessor Court in the case Fateh Muhammad v. Muhammad Ismail (1) arising out of an appeal under section 15 (4) of the West Pakistan Urban Rent Restriction. Ordinance, 1959, wherein a learned Single Judge of the High Court on taking additional evidence had upset the finding of fact reached at by the Rent Controller and the District Judge, held :- "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 Code of Civil Procedure and consequently his order cannot be maintained."
' It has been argued on behalf of the appellant that in the present case the finding of fact was not concurrent by the two Courts below, but was the reversal of the finding of the original Court by the appellate authority and, therefore, it would be amenable to the jurisdiction of this Court under section 15 (4) of the Ordinance. I find no substance in this contention as a finding of fact no matter whether arrived at concurrently by both the Courts below or solely by the first appellate Court on which is the final Court on facts, on the appreciation of the evidence becomes final and unless it can be shown that it was perverse or based on misreading of evidence or there was an error in the procedure provided by law which has produced an error or defect in the decision of the case on merits, it cannot be upset in the exercise of jurisdiction under section 15 (4) of the Ordinance.
' The learned counsel for the appellant could not point out any such defect as mentioned above in the judgment under appeal.
6. Nevertheless, the findings of the learned lower Appellate Court can be assailed on the ground that the said learned Court has misapplied law on the facts brought in evidence before him. In this connection, it can be urged that in the present case the claim of the appellant of the need of the shop for his personal use was refuted in the written statement on the ground that he was running a wholesale shop at Peshawar. The (1) PLD 1963 SC 466 appellant to meet this objection had contended that he was serving as an employee in that shop which was originally owned by a brother of his father-in In-law. On the death of his employer the shop was now inherited by the sons of the deceased, who desire to terminate his services. To prove this contention the father-in- law of the appellant has come into witness-box and supported the same. As far as the question of shop at Peshawar being in possession of the appellant is concerned, it has no relevancy with the present matter, in view of the law on the subject contained in clause (b) of item (ii) of subsection
(3) of section 13 of the Ordinance. By this provision of law a bar has been placed on the landlord against obtaining property by ejectment of the tenant for the purpose of personal use when he is in occupation of another shop in the same urban area in which such building is situate and is suitable for his need at the time. Now admittedly this other shop of the appellant whether as an owner of the business or as an employee of another person, is situate in the urban area of Peshawar, whereas the shop in suit is situate in Parang, which is definitely a different urban area.
This objection would have been available to the respondent in case the other shop alleged to be in possession of the appellant had also been situate in Parang. In view of the above proposition of law the following part of the judgment of the learned Additional District Judge is certainly exceptionable :- "It is also clear from the record that landlord is running his own business in Peshawar but stated before the trial Court that he has been turned out of the service by the owners in Peshawar, but in support he did not produce any disinterested person from Peshawar or the owners where he is serving or running the business. Instead he produced only his father-in-law. Being very close relative of the landlord and in the light of law cited by the learned counsel I am not inclined to accept the contention of the landlord. On the other hand I agree with the counsel for the appellant that the appellant/tenant has produced reliable and disinterested persons in rebuttal. I therefore hold that the decision of the learned Rent Controller on issue No, 2 is not just and I do not agree to it."
' The conclusion arrived at by the above-mentioned reasoning, is certainly against the law on the subject, but that was not the only reason which prevailed with the learned lower appellate Court in the rejection of the plea of the personal need of the appellant. The finding on this issue of the learned Rent Controller was reversed by the appellate Court also for the reason that he has got adjacent shop vacated by the tenant.
7. Now, the existing position at the time, in view of the above-stated facts is that the appellant has got another shop vacated in the same urban area for his personal use. The question would, therefore, be whether this application is still maintainable in view of the proviso attached to subsection (3) of section 13. The said proviso is as follows "Provided further that where the landlord had obtained possession of a residential, scheduled or non-residential building or rented land under the provisions of sub-paragraph (i) or subparagraph
(ii) he shall not be entitled to apply again under the said sub-paragraphs for the possession of any other building of the same class or rented land unless such residential, scheduled or non- residential building or land is no longer suitable for his needs at the time."
' The plain reading of the above proviso would show that a subsequent application after obtaining the possession of building, or rented land under the provisions of sub-paragraph (i) or sub- paragraph (ii) of the main section is barred, but what would be the position when the two applications for the vacation of the properties from two different tenants are moved simultaneously as was done by the appellant in the present case. During the pendency of one appeal before the learned Additional District Judge the second was decided in favour of the appellant and in the result thereof the landlord has got one of the shops vacated in the same urban area for his personal use. Would this application also fall within the mischief of the proviso under discussion?
8. As far as the letter of law is concerned the proviso bars the subsequent institution of an application after the landlord has got any shop vacated in the same urban area and not that which was moved before any such vacation, but the purpose behind the incorporation of this proviso was that a landlord after getting one shop vacated for his personal use should not be allowed to disturb the possession of another tenant on the same ground. It could not be denied that an appeal is a continuation of the same original matter. As the application for the ejectment of respondent is, by virtue of this appeal, still under adjudication, the prevalent position is that this application in its all intents and purposes is equivalent to a subsequent application for ejectment.
By keeping in view the spirit of law, I am constrained to hold that the instant application did not remain maintainable after the landlord succeeded in obtaining possession of the adjacent shop from the tenant under the said parallel proceedings. The bar contained in the above-quoted proviso to a subsequent application, therefore, would still be available to render this application incompetent and having become infructuous.
9. In this view of the matter, no further discussion on the finding of the learned lower appellate Court on the question of the personal need of the appellant of the shop in suit would be required, as such need has already fulfilled. The learned counsel for the appellant has lastly contended that for subsequent application becoming infructuous it is necessary that the shop got vacated by the landlord for personal use under section 13(4)(ii) should be suitable for his needs at the time.
10. In repelling this contention, suffice it to say that no material has been brought on the file to show what was the need of the appellant and whether that can be fulfilled by obtaining the possession of the other shop. In much state of the record, this point at this stage is not available to the appellant.
11. In view of the above discussion I find this appeal without any substance. The appeal is, therefore, dismissed. However, in view of the peculiar circumstances of the case, the parties are left to bear their own costs.