MUHAMMAD MUZAMMAL KHAN, J. --- This .Constitutional petition seeks the orders dated 6.10.2003 and 12.2.2004, passed by the learned Rent Controller and the learned Additional District Judge, Islamabad, to be declared illegal, void and of no legal consequence, whereby the ejectment petition filed by the petitioner was dismissed and his appeal thereagainst failed, respectively.
2. Precisely relevant facts are that the petitioner initially filed a suit for possession through ejectment against respondent No. 1, regarding his shops Nos.3 and 4 pending which, the Islamabad Rent Restriction Ordinance, 2001 was promulgated,. Hence he after withdrawing the suit on 19.9.2001, with permission to file, the ejectment petition under the provisions of Ordinance, 2001, maintained an ejectment petition with the averments that respondent No. 1 is his tenant and respondent No. 2 signed the lease agreement dated 12.12.1998 on behalf of respondent No. 1. It was also narrated in the ejectment petition that his tenant has sub-let a pall of the rented property to respondents Nos.
2 to 4. The petitioner being owner/landlord of the shops Nos.
3 and 4 alongwith the basement and a flat constructed over these two shops in Farrukh Plaza Block No. 27-A, G-9 Markaz,- Islamabad, prayed ejectment of the respondents on four fold grounds of bona fide personal need of the petitioner, having returned from Saudia Arabia, the petitioner wanted to do his personal business, intentional/wilful default in payment of increased rent which was agreed between the parties to be raised at the rate of 10 percent after every two years, sub-letting of the property to respondents Nos. 2 to 4 contrary to the lease agreement and damage/impairing value/utility of the property by effecting unauthorized/illegal alterations, therein. The petitioner served a legal notice on respondent No. 1 on 20.1.2001 which was delivered to him but the property was not vacated, hence the ejectment petition was filed before the learned Rent Controller (respondent No. 5).
3. The respondents Nos. 1 to 4 through their joint written reply contested the ejectment petition by raising certain preliminary objections. Defence of the respondents Nos. 1 to 3 was that the petitioner's attorney, rented out the shops in question to respondent No. 1 where the respondents Nos. 2 and 3 being his real brothers are helping respondent No. 1 in his business. Respondent No. 4 was asserted to be an employee of respondent No.1 and default in payment of rent, bona fide personal need of the petitioner and damage to the property was denied. The learned Rent Controller cognizant of the ejectment petition, out of controversial stances of the parties, framed issues and after recording of evidence of the parties, out of his appraisal of evidence dismissed the ejectment petition vide his order dated 6.10.2003.
4. The petitioner aggrieved of the decision of his ejectment petition by the learned Rent Controller dated 6.10.2003, filed an appeal before the learned Additional District Judge, but remained unsuccessful as the same was dismissed on 12.2.2004. Thereafter, the petitioner filed the instant Constitutional petition for the relief noted above. The respondents Nos. 1 to 3 in response to notice by this Court have appeared through their counsel and respondent No. 4 inspite of his substituted service by citation in the daily newspaper "Jang" did not appear and was proceeded against ex parte vide order dated 22.6.2004. The respondents Nos. 5 to 6 are profroma parties.
5. The learned counsel for the petitioner submitted that though bona fide personal need of the petitioner regarding shops in question, was proved on the file and was admitted by the respondents Nos. 5 and 6 in their orders impugned yet the ejectment of the respondents has been refused mainly on the ground that the petitioner inspite of his requirement of one shop, demanded two shops. It was further contended that the possession of the shop by respondents Nos. 2 to 4 has not been denied by them which -has been attempted to be explained as of brothers and an employee but there is not an iota of evidence on the file to substantiate this defence plea.
According to him sub-leting of the shop is apparent on the face of the record but a contrary view taken by the respondents Nos. 5 and 6 is not in consonance with the evidence on the file. The learned counsel for the petitioner further elaborated his arguments by saying that respondent No. 1 committed wilful default in payment of agreed monthly rent including the 10 percent increase after 2 years, besides non compliance of orders of the learned Rent Controller under Section 17(9) of the Ordinance, 2001. Illegal change in the structure of the shop without written consent of the petitioner or permission by C.D.A., was made basis for the claim regarding impairment of utility of the property and was graded as damage to the building. According to the learned counsel for the petitioner both the respondents Nos. 5 and 6 .Did not advert to the settled propositions of law at the time of passing of the impugned orders and ignoring binding judgments of the Honourable Supreme Court. He further contended that though both the shops in possession of the respondents were needed by the petitioner for his bona fide personal use of doing his own business there as he is doing no other business after his return from Saudia Arabia yet her daughter who is doing her Bachelor in Medicine, intends to start her Clinic in a part of those shops. The learned counsel for the petitioner in support of his arguments referred to the judgments in the cases of Syed Abdul Rauf v.
Abdul Satter (1998 SCM R 2525), Muhammad Irfan v. Muhammad Zahid Hussain Anjum (2000 SCM R 207), Muhammad Tayyub v. Syed Abdul Habib (2002 SCM R 1320) and Khadim Hussain v. Nasir Ahmad (2003 SCM R 1580).
6. The learned counsel for the respondents Nos. 1 to 3 refuted the arguments, of the petitioner, supported the concurrent orders of respondents Nos. 5 and- 6 and urged that there is very little scope for interference in the concurrent findings of facts given by the Courts of competent jurisdiction, after due appraisal of evidence and the law, and thus, prayed for dismissal of the writ petition. It was also contended on behalf of the respondents Nos. 1 to 3 that respondent No. 1 entered into possession of the shops by paying a considerable amount as "Pagari" and thus, provisions of the Islamabad Rent Restriction Ordinance, 2001 cannot be utilized to the benefits of the landlord. The judgment in the case of Muhammad Hanif v. Mumtaz Ahmad (PLD 1986 Karachi 16) was relied in support of the submission regarding "Pagari". It was also argued that had the need of the petitioner been bona fide, he should have prayed for possession of one shop but he instead prayed for ,ejectment of both the shops, which negatively reflect on his bona fides. The learned counsel for the respondents further elaborated his arguments by saying that the petitioner has not disclosed the business which he intends to start, without showing his experience therein and has not stated that he has funds to do his own business and in these circumstances refusal of ejectment of the respondents, is justified. The learned counsel for the respondents have also denied default in payment of monthly rent and damage to the property or impairment of its utility.
7. I have minutely considered the respective arguments of the learned counsel for the parties and have examined the record appended herewith. Law regarding bona fide personal need of the landlord to occupy the rented premises for his own business or for use of the same by children, is settled by this time. The ejectment of the tenant on the ground of bona fide personal need of the landlord cannot be refused when statement of the landlord on oath, is consistent to his averments in the ejectment petition and other case brought before the Court and remains unshaken during the cross-examination or is otherwise not disproved in rebuttal by the tenant. My this view is based on the judgment of the Honourable Supreme Court in the case of Muhammod Shoaib Alam, v.
Muhammad lqbal (2000 SCJ 306), and National Development Finance Corporation v. Sheikh Nasim-ud-Din, etc. NLR 1997 Civil (SC) 237. Petitioner's statement as AW.1 if scrutinized according to the standards fixed by the Honourable Supreme Court in the above-referred cases, does make out a case of his bona fide personal requirement of occupying the same for doing personal business there. The petitioner had deposed that he is no doubt doing a temporary shop as Export Manager, with M/s. Rathan Products but he simultaneously stated that he will leave the job whenever the shops are vacated by the respondents. The petitioner was subjected to lengthy cross-examination which run into three pages but veracity of his statement could not be shattered. His case in the ejectment petition and his statement as AW.1 are absolutely in the consonance with each other.
Temporary job by the landlord, waiting vacation of the shops needed by him, in order to meet both ends of life, is neither illegal nor it negatively reflects on his personal requirement. He did produce his termination letter. Ex.A/2, though during his statement in rebuttal yet the same lends support to his stance already taken by him. The learned Additional District Judge has admitted in his judgment that requirement of the petitioner to start business in any of the two shops might have been genuine, had he claimed only one shop from the respondents. This finding to non-suit the petitioner was not only presumptive but was also insufficient as it is for the landlord to determine suitability of space for his business. Was informed by the learned counsel for the parties that area of each of the two shops is 9'x18' which jointly does not make a big space. The above-referred findings of the Appellate Court may have justified eviction of one of the shops but are simply erroneous for non- suiting the petitioner in view of his consistent case, as discussed above. To my mind, once bona fide personal need is proved by the landlord, there remains hardly any room for the Rent Controller to exercise discretion in favour of the tenant. In the alike circumstances this Court refused to concur with the discretion exercised by the Rent Controller in refusing the ejectment, in the case of Muhammad Ramzan v. Mian Muhammad Shahbaz Ranjha (NLR 1997 Civil Lahore 706). Failure of landlord to give details of the business to be started in the shops needed by him, his experience in the business and disclosure of funds in this behalf were neither relevant factors nor these furnished a concrete basis for his exclusion to utilize his own property. Similarly plea of the petitioner of utilization of a part of the shops by his daughter who is doing her M.B.B.S. May be an additional ground for eviction of the respondents, but it too, did not negate his bona fide personal need. All these matters, besides protection given to the tenant by Section 17(6) of the Ordinance, 2001, to move for reoccupation of the rented premises in case landlord fails to occupy it for his use, escaped notice of the Courts below and were not erroneously considered at the time of deciding lis before them, hence instead of undertaking this exercise in the Constitutional jurisdiction, myself, I feel it appropriate in order to provide the parties an opportunity of having scrutiny by this Court again, that the matter be sent back for fresh decision. Since the case has to be decided on the basis of evidence available on the file, it is in the interest of both the par ties that the case may be sent to Appellate Court.
8. Besides above failure of both the respondents Nos. 5 and 6, they have also ignored stand of the respondents Nos. 1 to 4 in their written reply that respondents Nos. 2 and 3 are working with respondent No. 1 as his brothers so the agreement dated 12.12.1998 if executed by respondent No. 2 who is also in possession of the shop could not have been excluded from consideration. Likewise, original structure of the building has undeniably been changed by the respondents by removing the intervening wall of the two shops, without permission from C.D.A. Or-the petitioner. The question whether such activity diminished the value or utility of the property, also remained thirsty of decision. As -regards sub-letting of any of any part of the rented shops, there is not an iota of evidence on the file to show that respondent No. 4 was doing business in the shops in question as an employee of respondent No. 1. The tenant is a son of big landlord and owns shops in the area of G-11, Islamabad as admitted by him while appearing as RW.1. The petitioner who has been deprived of utilization of his shops, is not owner of any other commercial property in the same urban area.
These matters should have also been considered by the respondent 6, at the time of his decision.
Before parting with the judgment, I must observe that the judgment in the case of Muhammad Hanif (supra) is based on provisions in the Sindh Urban Rent Premises Laws whereas there is no such provision in Ordinance of 2001 governing "Pagrri" hence any thing paid by the tenant for his advantage, cannot be used against the interest of the landlord.
9. For what has been discussed above, I have no hesitation to hold that the findings of respondent 6 in support of his impugned judgment dated 12.2.2004 are not in accordance with law and the evidence on the file, thus, the same being void is declared as prayed, by accepting the instant petition, with the result that the appeal of the petitioner filed before respondent No. 6 shall be deemed to be pending and shall be decided afresh in accordance with law without being influenced by any observation in this judgment which are only of tentative nature. The parties are directed to appear before the learned Additional District Judge, Islamabad, on 8.10.2004. There will be no order as to costs. .