' AZIZULLAH M. MEMON, J.---Heard Messrs Abdul Aziz Khan and Abdul Qadir Khan for the petitioner and Mr. 'Muhammad Sher Awan for respondent No,3 (a) to (g).
' Predecessor of the private respondent namely Abdullah Naji filed Rent Case No,32/1994 in the Court of VIth Senior Civil Judge/Rent Controller Karachi, South, against the petitioners under section 15-2 (ii), (iii) (b), (iv), (vi), (vii) of Sindh Rented Premises Ordinance, 1979, stating therein that he was owner of the premises known as Byculla Mansion constructed on Plot No,1, 1/2, Serai Quarter SR-6 along with godown bearing Nos. 1, 2, 3, 4, 5, and open space, measuring 49 feet in length and 24 feet in width, whereas petitioners are tenants of the said applicant in respect of godown Nos. 1, 2, 3, 4, and 5 with open space on monthly rent of Rs,1000 since February 1979, without any written tenancy agreement. It was alleged that the tenant/ petitioner committed default in payment of rent for the month of March 1993 till 31st January, 1994, amounting to Rs, 11000 that the petitioner/tenant unauthoriazedly covered the open space with tin sheet and converted the same for his use, and further that he also made unauthorized construction in the said godowns without the written consent of the said applicant and thereby damaged the pillars of the said godowns, and diminished material value and utility thereof by causing serious damages to the same; the Karachi Building Control Authority also issued notices regarding the said status of building structure of the godown.
' The said applicant further contended in the said memo. Of ejectment application that the said godowns are required for the bona fide use and occupation of his son Muhammad Shoaib Naji, who is jobless and has to start his own business and therefore, the tenants/ petitioners are liable to be ejected from the said godowns and he prayed for the ejectment of the said tenant from the same.
' The tenants/petitioners filed their written statement in the said ejectment case denying the allegations/assertions of deceased Abdullah Naji who expired during proceedings of the ejectment case and his legal heirs stand impleaded therein.
' The petitioners stated in their written statement that prior to the present ejectment case, the deceased owner of the godowns had filed ejectment case bearing No,1086/1986 against the petitioners in respect of the same premises on the grounds of (a) Default in payment of rent, (b)
Infringement of terms and conditions of the tenancy, (c) Impairing the material value and utility of the disputed godowns, (d) Causing nuisance to other tenants and. (e) Personal requirement for the use of his said son in good faith.
' The said ejectment application was allowed by the Rent Controller vide order dated 24th March 1988, only on the ground of default in payment of the rent, whereas the other issues framed on the basis of the pleadings of the deceased owner of the godowns were decided against him by the Rent Controller, and deceased landlord did not file any appeal (against the judgment of the Rent Controller) and so also, no cross objections were filed by him in the appeal, which was filed by the petitioners/ tenants against the said ejectment order. The said appeal of the petitioners was dismissed by the judgment dated 17th June 1990, against which the petitioners filed civil petition for leave to appeal before Honourable Supreme Court and the same was granted vide order dated 10th December 1990, thereby converting the said application into civil appeal bearing No,807-K-90, which was heard and was allowed by Honourable Supreme Court vide judgment dated 28th November 1992.
' Review petition filed before Honourable Supreme Court was also dismissed and thereby the findings on all the issues in the previously instituted ejectment case bearing No,1086/86 attained finality and the present ejectment case is hit by the principles of res judicata.
' The tenants further assert that the tenancy agreement was reduced into writing on 5th February, 1974 and again on 8th December, 1979. They denied the allegations of committing default in payment of the rent for the period from 1st March, 1993 to 31st January, 1994, and pleaded that they were depositing rent in the said previously instituted Rent Case No,1086/1986. Further that after the earlier: proceedings concluded before Honourable Supreme Court, the tenants/petitioners remitted amount of Rs,5000 to the landlord vide money order dated 29th March, 1993 as rent for the period from May, 1993 to September, 1993, but the deceased landlord refused to receive the same whereafter the petitioners filed miscellaneous R.C. Bearing No,559/1993 in the Court of Vlth Senior Civil Judge/Rent Controller South Karachi, and with the permission of the Rent Controller, they deposited a sum of Rs,5000 towards rent vide receipt dated 19th April and again deposited sum of Rs,12000 in the said M.R.C. On 21st August, 1993 as rent for the period from October 1993 to September 1994 (in all) in advance and therefore, they did not commit any default in payment of the monthly rent. The tenants/petitioners further denied of having unauthoriazedly covered the open space with the tin sheets; under the orders of the Rent Controller a Commissioner was also appointed who visited the site and submitted such a report before the Rent Controller.
' Further that the deceased landlord had pleaded in the previously decided ejectment case that the disputed godowns were needed for the personal use of his son, which was disallowed by the Rent Controller, and no appeal was preferred by the respondents against the said decision of the Rent Controller that the disputed godowns are not required by Muhammad Shoaib for his personal bona fide use to run his own business therein. They further pleaded that two other shops located in front of the very same building had became vacant but the deceased/applicant leased out the same on receipt of the huge Pagri amounts to other tenants, and thereby it stands proved that godowns were never needed by Muhammad Shoaib (respondent No,3(a)) herein, the said son of the deceased landlord for his personal use.
' On the pleadings of the parties following issues were framed by the Rent Controller:--
(1) Whether this rent case is hit by doctrine of res judicata?
(2) Whether the opponents have impaired the value and utility of premises in question?
(3) Whether the applicant requires that premises for personal bona fide need of his son?
(4) Whether the opponents committed wilful default in payment of rent due from them w.f. 1-3- 1993 to 31-1-1994?
(5) What should the order be?
' Parties produced their respective evidence in support of their pleadings, whereafter the learned Rent Controller decided the other issues against the applicant, while issue of need of the disputed godowns for personal bona fide use of son of the deceased-landlord was decided in his favour, and ejectment application was allowed by the Rent Controller, accordingly.
' The tenants/ petitioners preferred the appeal bearing No,624/1999 in this Court against the said ejectment order, and due to the amendment in the relevant provisions of Sindh Rented Premises Ordinance, 1979, the said appeal was sent to the District Court; ultimately it was heard by IIIrd Additional District Judge, South Karachi, (having been given F.R.A. No, 133/2001), vide judgment dated 14th May, 2002, the said appeal was dismissed.
' The relevant observations recorded by the Appellate Court are as under:-- "11. As mentioned above, out of the five issues framed by the learned Rent Controller, Issues Nos.1, 2 & 4 were answered in Negative, whereas Issue No,3 was answered in Affirmative and under Issue No,5 the learned Rent Controller allowed the ejectment application on the ground that the respondent/ applicant was able to prove/ establish the requirement of case premises for the personal bona fide use and occupation of his son.
12. Perusal of the R & P reveals that the ejectment of the appellant/ opponent was sought by the respondent/applicant on three grounds i.e, impaired the value and utility of demises premises, requirement of demised premises for personal bona fide use of the sons of respondent/applicant and wilful default in payment of rent, out of which the pleas of respondent/applicant in respect of impaired the vte and utility of the demised premises and wilful default were declined, whereas the application was allowed on the sole ground of requirement for personal bona fide use. That sole ground has not been impugned before this Court. The learned advocate appearing on behalf of the respondent has mainly argued the matter on the point of res judicata and has contended that the said plea was taken by the appellant in earlier Rent Case No,1086/86 but the same was disallowed; hence on the basis of said plea which was already decided by the competent Court the ejectment is not warranted by law. I have gone through the judgment passed in Rent Case No, 1086/ 86 which reveals that the issue in question was not decided on merits but the relief to the applicant, for the personal bona fide use was declined on technicalities that the respondent had failed to disclose the business that he wants to start in the demised premises, so also the person for whom the demised premises was required not examined. In the second rent proceedings it has been pleaded that said son of the applicant is still jobless and desirous to start the business in subject tenement. The ground of personal need is ever recurring. Requirement for personal need may not have arisen formerly but may arise subsequently. The round of first litigation upto Honourable Supreme Court was completed on 28-11-1992, whereas second rent proceedings was filed on 12-1-1994. Although it related also to the some period of few months, which was the subject matter of the first application yet the additional period from November, 1992 upto the filing of the second application for eviction furnished an independent cause of action. The second application would in any case not barred as has been held in 1985 SCMR 24. In my view, the principle of res judicata is attracted only when the matter is finally decided on merits.
13. I have gone through the findings of the learned trial Court on the point of personal bona fide use and I am of the view that the learned Rent Controller has elaborately discussed this important issue and the findings of the learned Rent Controller are based on sound reasoning and calls for no interference by this Court. The case law cited by the learned counsel for the appellant are distinguishable on facts of the case in hand and in my view the same will not come for the rescue of the appellant. On the contrary the case law cited by the learned counsel for the respondent are very much applicable.
14. In view of the above, I see no force in the appeal in hand, which is hereby dismissed but with no order as to costs. The appellant is directed to hand over vacant and peaceful possession of the tenement in question to the respondent within 30 days from today.
' Hence the tenants/petitioners have filed this constitutional petition against the said order/judgment passed by the two Courts below.
' Learned counsel for the petitioners/ tenants argued that the findings recorded by the Appellate Court are contrary to law and principle of equity, in as much as it was not properly appreciated that fresh ejectment .Application, filed after dismissal of earlier one, on the ground of personal bona fide need of son of the deceased landlord, was barred by principle of res judicata, for the reason that plea of personal bona fide need of the disputed premises having earlier been agitated, heard on merits and rejected, no appeal/cross objections were filed against such decision, and details of the fresh circumstances, since the judgment finally passed by Honourable Supreme Court in the earlier ejectment application, till the date of filing of the fresh one, having not been disclosed in the second rent application, the presumption of law is to be drawn that circumstances then prevailing (during the proceedings of the earlier ejectment application) continued to exist exactly the same till filing of the second ejectment application and that (the circumstances having remained the same) the respondent had no cause of action to file fresh ejectment application against the petitioner/ tenants on the ground of personal need of Muhammad Shoaib. It is further argued that petitioners are tenants in the disputed premises since more than 23 years, doing business therein by investing huge amounts, inclusive payment of huge amount of Pagri, and also for change of rent receipt in their favour, paid to the deceased landlord, the respondents stand debarred from ejecting the petitioners from the said premises; further that two shops situated in front portion of the building, wherein the disputed premises is located fell vacant which could have been utilized for the personal need of respondent Muhammad Shoaib, but even then the same were not availed for the said purpose; the presumption of law is to be drawn that he had neither any need to have disputed premises for his personal use nor have any intention to carry on any business of any nature.
' Learned counsel for the petitioner tenants cited the following case law to argue that where the landlord owns numerous shops in the building and during pendency of proceedings got vacated some shops which were let out to other tenants, and no material having been placed on the record of the case to prove that such shops (got vacated) were not suitable for the use of the landlord, such a landlord is to be taken to have failed to prove his bona fide, personal need for the premises involved in the ejectment case:--
(1) Abid Masood and others v. Dilshad Khan (1995 SCMR 146)
(2) Haroon Kassam and another v. Azam Suleman Madha (PLD 1990 SC 394)
(3) Muhammad Yousaf and another v. M. Ibrahim Khandwani (PLD 1991 Karachi 226)
(4) Shahid Nadim and others v. Muhammad Shafi (2000 SCMR 542)
(5) Muhammad Inayat v. Saleh Muhammad (2001 SCMR 599)
(6) Mst. Zohra Bibi v. Additional District Judge and others (1990 SCMR 1243)
(7) Mst. Anwari Begum v. Noor Hassan (1984 CLC 265)
' Learned counsel cited Muhammad Sanaullah v. Mehran Feed Industries Ltd. And other (1994 CLC 2141) Karachi (2) Pir Bakhsh and others v. Chairman Allotment Committee and others (PLD 1987 SC 145) (3) Muhammad Tufail v. Atta Shabir and others etc. (PLD 1977 SC 220) (4) Ch. Rehmat Ali and others v. Custodian Evacuee Property Lahore and others (PLD 1966 (W.P.) Kar. 31 (5) Muhammad Sulleman and another v. Settlement Authorities and others (1969 SCMR 163) (6) Abdul Majeed and another v. Muhammad Riaz Hashim and another (1968 SCMR 816) (7) P.I.A. Corporation v. Mst.
Safooran Khanam (1981 CLC 1636 Lah) to argue that where the attempt to seek eviction of tenant from the premises at the hands of the landlord for his own use was not accepted in earlier round of litigation, and the findings recorded in such earlier round of litigation having attained finality, filing of subsequent ejectment application on the same ground, coupled with the material available on the record of the second case being indicative of the fact that subsequent ejectment application was filed in the Court with unclean hands, it is to be held that good faith and bona fides urged by the landlord are not proved.
' In reply, learned counsel for the respondent/owners argued that the judgment passed in the earlier round of litigation in between the parties, pertaining to the very same godowns, are indicative of the fact that the Rent Controller had dismissed the plea of the deceased father of respondent Muhammad Shoaib to eject the petitioners from the disputed godowns only for the reasons that neither respondent Muhammad Shoaib was examined in the earlier ejectment application to say that he needed the godowns for his personal bona fide use, nor nature of the business to be carried out by him was stated therein, (and therefore, the plea to that effect was rejected by the Rent Controller), whereas the said earlier ejectment application was allowed by him on the remaining grounds, and the appellate Court also upheld the order of ejectment passed by the Rent Controller (on the remaining grounds), but before the Honourable Supreme Court the ejectment application was dismissed; it is further argued by the learned counsel for the respondents/landlords that presently respondent Muhammad Shoaib has examined himself before the Rent Controller deposing that he intends to run his own business in the disputed godowns, and for such a purpose the same are needed for his personal bone fide use. Learned counsel has further argued that respondent Muhammad Shoaib has now inherited the disputed godowns (being one of co-sharers, on the death of his father Abdullah Naji, who expired during the proceedings of"the second ejectment application, while pending before the Rent Controller) and that Muhammad Shoaib was not challenged in the cross examination by learned counsel for the tenants/petitioners on the plea that the disputed godowns are needed by him for running his own business; learned counsel referred to the above cross- examination available at page 1S3 which* reads as under :-- ' "I know little English. I signed affidavit in evidence before Oath Commissioner. It is correct that we also filed a rent case No, 1086/88 against the same opponent. Vol says that on the ground of default. It is incorrect that in previous case also taken same grounds in this case. I produce certified copy of previous rent case produced as (Exh.A/2) it is correct that previous rent case No, 1086/88 was dismissed. "
' Learned counsel further argued that it is a settled principle of law that whenever a witness asserts some facts in his examination-in-chief but not challenged in his cross-examination, then it is to be presumed that the assertions made by such a witness in his examination-in-chief stand admitted and accepted by the other party; and further that the case can be decided in favour of the party whose examination-inchief was not challenged in the cross- examination.
' Learned counsel cited ' Messrs Eveready Pictures Ltd. v. Chaman Begum (PLD 1982 Karachi 770); wherein relevant observations appear as under :-- ' "In his statement before the Court the respondent's attorney categorically stated that thepremises in occupation of appellant was situated in commercial area and there are shops all around this premises but the appellant are using the same as a Garrage. The Rent Controller who inspected the suit premises also found that the premises was situated in an area which was predominantly a commercial area. No question was put to the witness in cross- examination to show that the premises was a residential premises. The landlady's husband also appeared in the witness-box and fully supported the statement made by respondent's attorney with regard to personal and bona fide requirement of landlady's son Ilyas. He further stated that he owned a shop in the same building on the ground floor which is at the back of the premises occupied by the appellant. The above evidence sufficiently establishes the requirement of landlady for her son Ilyas. The contention of learned counsel that the Rent Controller should have drawn an inference from the evidence on record that landlady's son must be doing business some where and could not remain jobless from 1968 to 1978 has no substance. The landlady's son Muhammad Ilyas for whose benefit the premises was required by the respondent appeared as attorney of the landlady in witness- box but no such suggestion was given to him in cross-examination that he was doing business elsewhere. The appellant also did not produce any evidence in rebuttal. In these circumstances, the inference now sought to be drawn by the learned counsel for the appellant from the evidence is only conjectural in nature. The learned counsel for the appellant also contended that the respondent had failed to lead any evidence to establish the bona fide inasmuch as it was not shown in evidence from where the finance will be made available to her son. The learned counsel specifically referred to an answer given by Muhammad Ilyas in cross-examination to a question put to him by the appellant's counsel. It is true that landlady's son Muhammad Ilyas in his cross- examination stated that he had no money of his own but he further stated that my mother and father would provide money for me. No further suggestion made to him that his mother was not in a position to provide the finance. Similarly when father of Muhammad Ilyas appeared in evidence he was also not asked in cross-examination that he was not in a position to provide financial assistance to his son. Besides, this fact alone is not sufficient to hold that the application on the ground of personal requirement lacked bona fide. It has been held in the case of Hassan Khan v.
Mrs. Munawar Begum PLD 1976 Kar. 832 that in view of the safeguard contained in section 13(4) of the Ordinance, the assertion of claim on oath by a landlord that he required the premises for his personal use shall be accepted by the Controller as bona fide, if such claim, or assertion, although by itself may be insufficient, yet is consistent with his averments in the application and is not shaken in cross-examination or disproved in rebuttal. The above observations in Hassan Khan's case were specifically approved by the Supreme Court in the case of Mst. Tauheed Khanam v.
Muhammad Shamshad 1980 SCMR 593. The evidence of the landlord in the case before me fulfilled the standard laid down in the above case and after going through it. I am satisfied that Rent Controller rightly granted ejectment of appellant on this ground also.
' As a result of above discussion this appeal is dismissed but there will be no order as to costs. The appellant is allowed four months time to vacate the premises.
' Learned counsel for the respondents cited Mst. Toheed Khanam v. Muhammad Shamshad (1980 SCMR 593), wherein Honourable Supreme Court was pleased to record observations to the effect as under:-- ' "The first appellate Court, after recalling the evidence, did not further proceed to appraise it but held it insufficient to establish the plea of bona fide personal use principally on the observation made in the case of Mst. Almas Begum v. Haji Pir Baldish PLD 1964 Pesh.
278. This approach to the evidence on record was unsatisfactory as on the facts stated in the evidence led on behalf of the appellants a finding had to be given qua the bona fide requirement of the shop by the appellant. There was no dispute that the husband of the appellant had no other income except his meagre salary which was insufficient to maintain a large family. Equally, it was also brought on the record that the husband of the appellant was in position to draw from his Provident Fund a loan sufficient to start a small business like the one stated by his son. There was also no reason to discredit the assertion of the son that his mother had 5 Tolas of gold ornaments which could also provide some financial assistance in starting the business. To ignore these considerations which were unrebutted on the record was to misread the evidence. Again the High Court fell into an error when it placed undue reliance on the fact that the nature of the business was not stated in the application and we are surprised to note that the High Court has held that the first appellate Court had, on a proper assessment of the evidence, reached the conclusion that the requirement "was not genuine" although this exercise was not done by that Court; apart from giving credit to the improper motive in filing the application which consideration also prevailed with the High Court. There is no objective assessnient of the evidence produced on behalf of the appellant even by the High Court and it felt content in holding that no attempt was made to show that the first appellate Court had "in any manner misread the evidence on record or that his conclusions were wrong. In this connection we would refer to the opinion of I. Mahmood. J., in Hassan Khan v. Munawar Begum PLD 1976 Kar. 832 which we have recently approved in another case which correctly lays down the mode of assessing the bona fide requirement of the landlord.
The considerations which have emerged from the evidence fall squarely within the purview of the opinion so expressed by I. Mahmood, J. Further, neither the First Appellate Court nor the High Court has held the evidence of the appellant's witnesses to be false or in any way lacking in any essential respect for establishing the plea; and as to how the evidence as insufficient we are unable to gather from the finding of the first appellate Court. The reliance on the Peshawar case was inapt as in that case, after the assessm ent of the evidence it was held that the landlord had merely expressed his desire to have the premises for the use of his children which is not the case here for substantial reconsiderations have been stated for acquiring the shop for her jobless son.
' The High Court further held that the non-payment of property tax, attempts to enhance the rent and the filing of the earlier eviction application which was dismissed, were circumstances which eroded the plea that the shop was required in good faith for the use of her son. These considerations, by themselves do not prove the improper motive if otherwise the evidence is not held to be unworthy of credit. Lastly, the High Court has failed to give due effect to section 13(4) of the Ordinance which provides a safeguard to the tenant in case the landlord fails to occupy the shop for business in which case the tenant can obtain possession as provided therein. It is true that independently of this provision, the Rent Controller has to satisfy himself that the requirement of clause (a) of section 13(3)(ii) is fulfilled; and if upon the evidence he is so satisfied then there can hardly be any room for denying the relief to the landlord; and in case of any lapse on his part, section 13 (4) can be pressed into service.
' For the foregoing reasons this appeal is allowed and the orders of the Courts below are set aside with the result that the application for ejectment succeeds. However, we would grant four months time to the respondent to vacate the shop subject to the payment of rent. There will be no order as to costs."
' Learned counsel further cited Muhammad Yasin v. Shabbir Ahmad (1985 CLC 2111 Karachi), wherein Honourable Mr. Justice Sajjad Ali Shah (as his lordship then was) recorded following observations at page 2111:- ' "Mr. Maroof Ali Khan learned counsel for the tenant has argued before me that in fact there is no legal evidence produced by the landlord in support of issue on which positive finding has. Been given by the learned Rent Controller. According to him landlord has failed in his duty to produce any evidence in support of this issue. It is submitted by the learned counsel that in the application for ejectment, in paragraph landlord has stated in one single sentence that the tenant without consent of applicant has converted a residential Quarter/ House into commercial one. This allegation is denied in written statement in paragraph 6. It is further submitted by Mr. Maroof Ali Khan that in the evidence landlord in his affidavit produced before the trial Court has again in para.6 reiterated the assertion in almost the same words. It is submitted by Mr. Maroof Ali Khan in this context that this is the only evidence produced by the landlord and the assertion made by him in the application for ejectment is neither elaborated further nor any details are given as to how the tenant has converted the premises in question from residential into commercial, hence this evidence produced by the landlord is utterly insufficient and inadequate to convince the Court that landlord has proved the issue. It is further submitted that the allegation as made by the landlord that premises were converted is denied in the written statement and further is denied again by the tenant in his affidavit of evidence. Further it is submitted that a suggestive question was put to tenant in the cross-examination that he prepared medicines in the demised premises which suggestion has been denied by the tenant. The gist of the argument of Mr. Maroof Ali Khan is that landlord should have elaborated this assertion in detail and should have given or produced further and satisfactory evidence in support of the allegation and only then the Rent Controller could give the finding that the landlord was able to discharge his burden and issue has been proved.
' On the other hand argument put forward by Mr. Abdul Majeed Khan Advocate for the landlord has submitted that allegation is made by the landlord in clear cut terms in the application for ejectment which is understandable that the tenant has converted residential accommodation, let out to him, into commercial one and although in the written statement this allegation is denied by the tenant but when landlord filed his affidavit in evidence, no cross- examination was made by the tenant with regard to the assertion made by the landlord that the demised premises were converted by the tenant from residential to commercial without consent of the landlord. Absence of cross- examination on this point clearly shows that assertion made by the landlord is not called in question by the tenant. In support of this view reliance is placed by the learned counsel on Qasim and others v. State PLD 1967 Kar.
233. Although this was a criminal case but the principle laid down in the reported case is that under sections 137 ' and 138 of the Evidence Act if there is no cross- examination on the fact deposed in the Examination-in-Chief, the presumption is that evidence is deemed to have been accepted by the party against whom it was given. The reliance is also placed on another case Muhammad Mujibur Rehman Siddiqui v. Abdul Bari and 3 others PLD 1981 Kar. 537 in which the principle stated in the above-mentioned case is reiterated. This being the correct legal position, I find no reason to interfere with the impugned order of ejectment and in consequence the appeal is dismissed with no order as to costs. Appellant is directed to hand over vacant possession to the landlord within three months on the condition that the tenant will pay rent for the period to the landlord. "
' Learned counsel for the respondent further cited Haji Abdullah Jan v. Anwar Khan (PLD 2000 SC 787), wherein Honourable Supreme Court was pleased to record following observation at page 790:- "8. Section 14 of the Ordinance read as under:- "14. The Controller shall summarily reject any application under subsection (2) or under subsection
(3) of section 13 which raises substantially the same issues as have been finally decided in a former proceeding under this Ordinance.
9. Section 13 of the Ordinance enumerates the grounds of which eviction of a tenant can be ordered. It includes the ground for own use by the landlord or for the use of his children in good faith. According to section 14 (ibid) the Controller shall summarily reject any application for eviction which raises substantially the same issues as have been finally decided in a former proceeding under the Ordinance. In fact, it lays down the principle of res judicata. It is noted that said section would not be attracted if the circumstances are changed. Whether the circumstances are changed or not it would depend upon the facts of each case. As pointed out above, earlier application was filed in July, 1990 and till 1995 a period of 5 years has passed when second application was instituted with the allegation that the property was partitioned. Under the circumstances second eviction application of the appellant was maintainable.
10. Adverting to the leave granting order, it is noted that learned High Court with reference to section 13(3)(ii)(l) of the Ordinance observed that plain reading of above provisions indicated that except landlord or his children no one else including co-owners, brother of landlord were competent to invoke the jurisdiction of Controller for ejectment of tenant, unless they themselves had not attained status of landlord. For above, the reliance was placed on a decision of this Court reported as Abdul Salam Akhtar v. Dr. Najam Parvez 1976 SC MR 52. This case was under West Pakistan Urban Rent Restriction Ordinance, 1959 and the scope of words of "own occupation" was considered. It was held that above words were to be interpreted in restricted manner so as to be confined to the personal requirement of individual landlord alone. It was held that the personal need of the landlord was there in addition to the need of his brother.
11. We are of the view that above case is not attracted to the circumstances of this case* as here the precise question is if one of the co-owners could file eviction application or not. Above point was considered by this Court in the case reported as Khalique Ahmed v. Abdul Gani and another PLD 1973 SC 214, It was laid down in the said case, which was instituted under West Pakistan Urban Rent Restriction Ordinance, that suit for ejectment by one coowner without joining other coowner was competent. Following above dictum we hold that eviction application can be filed by a co- owner without joining other co-owners as co-owner is a landlord within the scope of definition of "landlord" appearing in clause (c) of section 2 of the Ordinance.
12. Coming to the merits of the case, it is noted that nothing concrete has been brought on record to show that the property was actually partitioned among the co-owners nor even portions to be owned by the co-owners, are shown. The evidence was insufficient to justify eviction of the respondent on the ground of alleged bona fide personal use. Although a plea was taken that building was to be reconstructed having two shops and a restaurant in the portion in possession of the respondent but substantial evidence to that effect was missing.
14. Under the circumstances, we do not find any merit in this appeal and the same is dismissed.
However, after private settlement/ partition of said property the appellant or any other co-owner or all of the, may, if so advised, file fresh eviction application against the respondent clearly stating his/their requirements for bona fide personal use. It goes without saying that, if so is done, the fresh eviction application by Rent Controller would be decided on its merits."
' Learned counsel further, cited Haroon Kassam and another v. Azam Suleman Madha (PLD 1990 SC 394), wherein following observations were recorded at page 396):- "3. We heard the learned counsel and have gone through the two decisions of the Rent Controller and the learned High Court and have also carefully examined evidence of the parties brought on the record. At die very outset, it was conceded, rather frankly, by the learned counsel for the appellant that the case in hand was governed by the provisions contained in section 15 of the Sindh Rented Premises Ordinance 1979, upon the repeal of the former Rent Restriction Ordinance, 1959 on and from 21-11-1979. The provisions contained in clause (vii) of subsection (2) of section 15 of the Sindh Rented Premises Ordinance, 1979 reads as follows"- ' The Landlord requires the premises in good faith for his own occupation or use or for the occupation or use of his spouse or any of his children."
' In order to highlight the distinction in the language and phraseology used in the above-quoted section, the parallel provision contained in section 13(3)(a)(i) of the repealed Ordinance, is also reproduced hereunder:~ ' "A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession-
(i) in the case of a residential building, if-
(a) he requires it in good faith for his own occupation or for the occupation of any of his children;
(b) he is not occupying another residential building, suitable for his needs at the time, in the same urban area in which such building is situated; and
(c) he has not vacated such a building without sufficient cause after the commencement of this Ordinance in the said urban area."
' A bare reading of the two sections will make it clear that the provision of eviction in the present Ordinance, where the premises are required by the landlord for his use, is different and less cumbersome in comparison to what was contained in the repealed Ordinance inasmuch as, the landlord is not called upon to show that: ~
(a) he is not occupying another residential building, suitable for his needs at the time, in the same urban area in which such building is situated; and
(b) he has not vacated such a building without sufficient cause after the commencement of the Ordinance namely West Pakistan Urban Rent Restriction Ordinance, 1959 (in the said urban area).
' In the present law, therefore, all that is required by the landlord is to prove that the premises are required by him, "in good faith for his own occupation or use or for the occupation or use of his spouse or any of his children." The intention of the legislature in bringing about this change is meaningful and is to be given effect accordingly.
4. Now coming to the facts of the case, the respondent/landlord in his application through his attorney, had stated that he was resident of Burma and due to the political change in the country and complete nationalization of property and business establishments owned by persons of indo- Pakistan region, he and his family were forced to return to Pakistan and first having gone to Chittagong, had decided to settle down permanently in Karachi. In the circumstances, the disputed premises were required by the respondent for his bona fide use. By the time the evidence came to be recorded in the case, it was stated by Moosa Suleman, the respondent's attorney that the family of the respondent was in Karachi and residing with him. The respondent was stated to have five children. In the written statement, para. 4 of the respondent's application, which contained the statement that the disputed premises were required by the respondent, was denied "for want of knowledge". It was, however, alleged that the respondent or his attorney with ulterior and mala fide motive, prior to the institution of the application, had got vacated several residential premises in several building and re-let them to other tenants for valuable consideration. Had the need of the respondent, according to the appellant, been genuine, such premises should not have been rented out to others. The learned counsel for the appellant invited our attention to the cross- examination of Moosa Suleman wherein he had admitted that the respondent was the owner of another building known as Pak Mansion consisting of 50 to 60 tenements situated in Karachi which had been sold 2 or 3 months back. It was also admitted by this witness that after filing of application about 20 tenements had fallen vacant in the Pak Mansion and were let out on Pagri and were not occupied by the landlord. In reexamination, it was denied that the 20 tenements were let out by this witness, but he had only changed the receipts in the names of the new tenants and vacant possession of the said 20 tenements was not delivered to him. The respondent's wife Mst.
Memoona had also stepped into the witness-box and was cross-examined. She stated that the disputed premises were required for the respondent and their family comprising of five children.
She had also denied the suggestion that the respondent had any intention of selling away the disputed property. Much emphasis was laid by the learned counsel for the appellant on the alleged fact with regard to the respondent having let out flats to various persons in the other building known as Pak Mansion. Had the legal requirement, as contained in the repealed Ordinance not undergone any change as discussed above, the argument of the learned counsel would certainly have some merit calling for close examination of the evidence on record. The sole question, therefore, for consideration in this case is whether the disputed premises are required bona fide by the respondent. In this connection, there is the statement of the respondent's attorney and also that of his wife, who had courage to go into the witness-box in spite of the fact that the respondent's brother and attorney had filed his affidavit in evidence and was cross- examined at length. It was pointed out by the learned counsel for the respondent that the other building known as Pak Mansion was situated in densely populated area of Burns Road and not suitable for the purpose of residence of the respondent and his family. The disputed premises, on the other hand, is situated in the residential area of Jamshed Quarters and eminently suitable for the purpose of residence. As discussed above, the appellant had failed to deny that the requirement of the respondent was not bona fide. The question, therefore, falls within the short campus of the argument that the respondent should have instead gone and occupied any one of the flats in Pak Mansion as and when the same (if at all) became available for occupation to him. We need not discuss here as to whether in the course of change of tenancies, a landlord is deemed to have been put in possession of the premises, even for a fraction of a minute, when the landlord, at the request of the outgoing tenant becomes a willing party to the change of tenancy by issuing a fresh receipt to the new tenant, which is a common practice to be taken judicial notice of in Karachi. It is by now the settled law that if the landlord possesses more than one house in the same urban area the choice, as to the house in which he would like to live in, is surely a matter within his prerogative and discretion and the law does not give either to the tenant or the Rent Controller the power to determine where the landlord should personally reside (Sabu Mai v. Kika Ram alias Heman Das, 1973 SCMR 185). Earlier in the case of Nooruddin and others v. Asghar Ali and others (1968 SCMR 1087) a somewhat similar situation was noted inasmuch as another flat in the same building had fallen vacant, which the landlords had let out to another tenant and failed to utilize it for themselves. In the circumstances, it was held that the question as to which portion of the building would suit the landlords better must be left to their discretion and there was nothing unreasonable in the landlords insisting that a particular portion of the building should be made, available to them. This view has consistently been followed by us as pointed out by the learned counsel for the respondent, the latest authority being the one reported as Sardar Khan v. Riaz Ahmad and others (1986 SCMR 1981).
' The learned Judge in the High Court had, therefore, rightly reversed the finding of the Rent Controller and directed the eviction of the appellant on the finding that the respondent had successfully proved that the premises were bona fide required by him.
5. As a result of the above discussion, we find no merit in this appeal which is dismissed with no order as to costs. However, by consent of the learned counsel for the respondent, four months time is allowed to the appellant to vacate the disputed premises and deliver possession on a clear undertaking that this will be done withdut recourse to execution proceedings and on payment of rent on usual terms for the period. "
' Learned counsel for the respondents further cited Mst. Saira Bai v. Syed Anisur Rahman (1989 SCMR 1366), wherein following observations were recorded at page 1368:- "6. We have heard Mr. Mubarak Hussain Siddiqui, Advocate for the appellant and Mr, Shahinshah Hussain Advocate for the respondent. We have also gone through the order of the Controller, the impugned judgment and the record.
7. The appellant made an application under section 15 of the Ordinance. Under this provision the Controller has to make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in the order if he is satisfied that the landlord requires the premises in good faith-for his occupation and use or for the occupation and use of his spouse or any of his children. Therefore, the only condition to be satisfied by a landlord is that he requires the premises in good faith. Good faith has not been defined in the Ordinance but it has been defined in section 2, subsection (27) of the West Pakistan General Clauses Act, 1956, as follows:-- ' "A thing shall be deemed to be done in 'good faith' where it is in fact done honestly, whether it is done negligently or not"
8. Therefore, we have to examine whether the appellant had made the application honestly. The appellant in her applications stated that she required the shop for use and occupation of her son which use is covered by the provision. Her son Khozaim Hussain, in his deposition, has stated that his mother has four sons, out of them two are studying while the remaining two are married and have got children and that he was one of her married sons, and that he has completed his studies and wants to start his independent business and intends to settle independently from his father.
The appellant has deposed that she has funds and could provide rupees one lac to her son to carry on the business. No evidence was led to controvert these facts, and, therefore, it cannot be said that the requirement of the shop for the use of the son of the appellant is not honest. In section 15 of the Ordinance the word 'reasonably' has not been used with the phrase 'good faith' as used in section 13 of the Punjab Urban Rent Restriction Ordinance, 1959, yet in its meaning, if it is implied, we find that the appellant requires the shop reasonably and in good faith. The son is grown up, educated, married, without work, in other words unemployed. Enough fund is also available with his mother. These are good reasons to prove the bona fide requirement of the shop for use and occupation of the son.
9. It was, however, argued by Mr. Shahinshah Hussain Advocate for the respondent that son of the appellant is a double graduate and has obtained a degree in law and therefore, he should practice and not carry on business, but in such a case the choice is of the appellant or her son and not of the respondent. If such a proposition is accepted, it would be against the incident of ownership of property and such a clog cannot be read in law unless it is so provided therein.
10. It was next argued, as it was argued before the Controller and the High Court, by the learned counsel for the respondent that the appellant, in her application, has not stated the nature of the business for which the shop is required and in her deposition, she expressed her Unawareness as to the nature of business which her son would carry on. However, her son, in his deposition, has stated that he would do paints business in the shop. Regarding the non-mentioning the nature of the business in application it may be observed that an applicant has to state in his application, the material facts i.e, facts which constitute cause of action. In a case of present nature the applicant has to state those facts which prima facie show that the requirement is according to law, and is made in good faith. This has been so stated in the application. It is not essential as it is not part of the cause of action to state the nature of business which the applicant intends to carry on. Take a case where the applicant states in the application that she requires the shop for her son for carrying on a particular business but later on pending hearing of the application or after eviction of the tenant, the applicant thinks that the business can no more suitably and profitably be carried on in the shop, the question might arise; could he change the nature of business or not? The choice of doing a particular business also depends on many other factors such as the nature of the locality or the nature of business being carried on in other shops in the neighborhood. It also depends on the flow of customers and class of people residing in the area. Therefore, if there *is any change in circumstances, the nature of business could also be changed. Accordingly, the answer would be that the applicant could change the nature of business with the change of circumstances because in law no restraint or bar is provided. Therefore, the mentioning of the nature of business was not a material fact or so essential that without it the application must fail. In any case, there is authority of this Court in the case of Mst. Toheed Khanum v. Muhammad Shamshad (1980 SCMR 593) wherein a similar point was raised and it was observed as follows: "Again the High Court fell into an error when it placed undue reliance on the fact that the nature of the business was not stated in the application."
' Further, as mentioned hereinbefore, it was unambiguously stated by the applicant that she requires the shop, in good faith, for use and occupation of her son, and her son, in his deposition, has in clear terms, stated that he would carry on the business of paints in the shop. Therefore, this objection has no force and ought not have been given any weight by the High Court.
11. It was further urged that the application was mala fide because the appellant wanted the respondent to increase the rent but on his refusal to do so, she filed the eviction application. This submission has been dealt with by the Controller as well as by the High Court adequately and not accepted. Nonetheless, demand of higher rent does not, by itself cast any doubt on personal requirement if the factum of the requirement of the possession, in good faith, is otherwise proved and section 9 of the Ordinance itself provides increase in rent in the following terms: "9. Limit of fair rent.-(1) Where the fair rent of any premises has been fixed no further increase thereof shall be effected unless a period of three years has elapsed from the date of such fixation or commencement of this Ordinance whichever is later.
(2) The increase in rent shall not, in any case exceed ten per cent per annum on the existing rent."
' In the case of Badruddin Hassan Farooqui v. Manghi Industrial Home (PLD 1976 Kar. 620) it was observed by a learned Judge of the Sind & Baluchistan High Court at page 622 as follows: ' "But in any case a demand of higher rent by itself does not cast any doubts about the personal bona fide requirements if the factum of bona fide requirements is independently proved. "
' This is correct view of the law.
12. For all these reasons, we allow this appeal; set aside the judgment of the High Court and restore the order of the Controller. The respondent is doing business in the shop. We, therefore, allow him four months more time to hand over vacant possession of the shop to the appellant. "
' As stated, above the earlier ejectment application, as far as the ground of personal use of the disputed godowns, was dismissed for the reasons that the respondent Muhammad,, Shoaib had not examined himself therein to assert that he intended to run the business of his own, and needed the disputed godowns for such a purpose, and further that the nature of the business was also not stated in the same; whereas in the present case, the respondent No, 1 has examined himself and has stated in clear terms that he intends to run the business of his own in the disputed godowns and needs the same for his personal bona fide use.
' The fact that earlier ejectment application stands dismissed would not come in the way of the respondent No, 1/landlord to file the fresh one on the ground of personal bona fide use as per the above quoted case law.
' The facts and circumstances of the earlier decided ejectment application are not identical to the present one for the simple reason that the earlier one was not dismissed on the merits. The present ejectment application against the petitioners/tenants is not found hit by the principles of res judicata.
' Learned counsel for the petitioners particularly referred to the following observations of Honourable Supreme Court recorded in Allies Book Corporation v. Sultan Ahmed and others (2006 SCMR 152) appear at page 158:- "
10. From perusal of the orders of the Rent Controller and the Appellate Court it cannot be said that they committed illegality and/or irregularity in dismissing the ejectment application on the aforesaid three grounds. There is no doubt that in the fresh affidavit respondent Sultan Ahmed did not mention a single word about the bona fide personal requirement of respondent Mansoor Ahmed in respect of the demised shops and confined himself to solely to the ground of subletting.
The issue of bona fide personal requirement was mentioned in the ejectment application as well as the original affidavit in-evidence of respondent Sultan Ahmed but omission thereof in evidence would suggest that perhaps the requirement for personal use had ceased to exist. It may be pointed out that Mansoor Ahmed in his fresh affidavit-inevidence reiterated that the demised premises was required by him for his personal bona fide use for establishing his business of optician but in view of omission on the part of Sultan Ahmed to mention so contradictory and/or conflicting.
11. The contention that a shop on the first floor is still in occupation of the respondents and that shop No,6 on the ground floor had fallen vacant but instead of being occupied by respondent Mansoor Ahmed for establishing his business was rented out completely negated the bona Tides of the respondent and demonstrated that the demised premises was not required by the respondents for bona tide personal requirement and use by respondent No, 3 but the petitioners were sought to be evicted with some ulterior motive cannot be lightly discarded or ignored.
Respondents Sultan Ahmed and Mansoor Ahmed neither in their original affidavits nor in the fresh affidavits-in- evidence stated that the shop on the first floor would not be suitable for establishing business of optician notwithstanding the fact that some opticians were doing their business in shops situated on first floor. With regard to shop No,6 on the ground floor not a single word was mentioned of the same having fallen vacant and subsequently let out. The respondents thus, had made concealment of fact which was very material in establishing good faith and bona fide of the respondents in respect of the personal requirement of the demised shops.
12. With regard to the contention that the High Court in exercise of constitutional jurisdiction would not be competent to set aside the concurrent findings of the forums below and substitute the same with its own findings, Mian Mushtaq Ahmad submitted that the contention advanced by Mr. Neel Keshav was without any substance as it was not supported by the pronouncements of this Court in large number of cases wherein this Court categorically held that where the finding suffered from illegality, infirmity, misreading and nonreading of evidence on record, misconstruing the evidence or based on extraneous material then the High Court would be justified in setting aside such concurrent findings of the forums below and to substitute the same by its own findings.
From the above discussion it can safely be deduced firstly, that a special forum or Tribunal proceeding with a case under a special statute is legally bound to decide the case rightly and in accordance with law and it has no arbitrary or fanciful discretion to decide the case wrongly in view of the pronouncement of this Court in case of Utility Stores Corporation Pakistan Ltd v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447 and secondly, that the High Court is possessed of power in exercise of its constitutional jurisdiction to substitute the findings of the forums below with its own findings as per the pronouncements made by this Court in the cases of Muhammad Sadiq v. Punjab Labour Court No,l, Lahore and another PLD 1988 SC 633; Haji Mohibullah & Co. And others v. Khawaja Bahauddin 1990 SCMR 1070 and Messrs Olympia Spinning and Weaving Mills Ltd. And another v. State Life Insurance Corporation of Pakistan 2001 SCMR 1103.
Mr. Neel Keshav failed to advance arguments or refer us to any authority of this Court in rebuttal of the settled principles so as to require us to deviate or take a different view relative to the pronouncements made in the above noted cases.
13. We are mindful of the settled law that it is the prerogative of the landlord to choose a particular house, shop or building for his bona fide personal occupation and use in case the landlord has more than one premises but for exercising such prerogative it is the duty of the landlord to give plausible and satisfactory ground/ explanation for his insistence to occupy a particular premises in preference to occupy any other premises available for occupation and use. From perusal of the material on record it transpires that not a single word has come from the respondent as to why the shop on the first floor, which is in their occupation would not be sufficient and would not meet the demands of the business sought to be established by respondent Mansoor Ahmed. With regard to Shop No,6 on the ground floor the respondents even did not make a mention of the same having fallen vacant and let out during the litigation going on between the parties. The respondents instead of providing plausible satisfactory and cogent grounds for not occupying the shops which had become available for occupation did not even disclose the factum of a shop on the ground floor having become vacant which completely negated their good faith and bona Tides. This Court in the case of Mst. Saira Bai v. Syed Anisur Rehman 1989 SCMR 1366 and Ghulam Haider v. Abdul Ghaffar and another 1992 SCMR 1303 categorically pronounced, that concealment by the landlord of one or more premises having fallen vacant during pendency of the ejectment proceedings would reflect adversely on the bona fide personal need and good faith of the landlord and would be detrimental to his case.
14. Mr. Neel Keshav in order to show that respondent had not acted with clean hands and had approached the Court with mala fide intention and ulterior motive to evict the petitioners from the demised shops submitted that a shop on the ground floor in possession of a tenant was lying closed for last several years but the respondent did not initiate ejectment proceedings against the tenant of the said shop for occupation and use thereof by respondent Mansoor Ahmed. To support his contention he drew our attention to the cross-examination of respondent Sultan Ahmed wherein he admitted that Shop No,2 was in the tenancy of Messrs Mughal Inayatullah but he did not know if the same was lying locked or the last 10/12 years. He also denied the suggestion that he and Mughal Inayatullah have entered into an agreement for letting out Shop No,2 on Pagri. It has also come in evidence through cross- examination of respondent Sultan Ahmed that two rooms on the first floor of the same size as the shops in possession of the petitioners were vacated by one Farooq Rumalwala about 10 years ago and the same were rented out to one Shaft. The period when the above rooms were vacated was suggested to be 4/5 years back which would correspond to' 1983/1984 i.e, after filing of the ejectment case but respondent Sultan Ahmed denied the period to be 4/5 years back and stated that it was 10 years ago. There is also admission on the part of respondent Sultan Ahmad that he had let out two rooms to VIP Advertisers. However, all these facts had been brought on record through the cross-examination of the respondents whereas neither respondent Sultan Ahmed nor respondent Mansoor Ahmed disclosed the above facts either in the ejectment application or in their affidavits-in-evidence. These were very material facts in establishing the good faith and bona fides of the respondents for their bona fide personal requirement for occupation and use of the demised shops and by suppressing/concealing them they had completely demolished their case that the demised shops are required by them for bona fide personal occupation and use.
15. It may be pointed out that Mian Mushtaq Ahmad has vehemently contended that the findings of the Rent Controller and the Appellate Court were arrived at in nonreading of the fresh evidence brought on record through the fresh affidavits of respondent Sultan Ahmed, respondent Mansoor Ahmad and witness Muhammad Ilyas. It was further submitted that had the two Courts below considered the evidence brought on record through fresh affidavits of the respondents they would not have decided the issue of bona fide personal requirement and need against the respondents as from a bare perusal of the contents of fresh affidavits-in-evidence of respondents Sultan Ahmed and Mansoor Ahmed and their cross- examination, the only possible inference or conclusion which could' be drawn was that the demised shops were required by respondent Mansoor Ahmad for his personal occupation and use in good faith which was the ground for seeking eviction of the petitioners. He supported the judgment of the High Court and submitted that the High Court was justified in setting aside the concurrent findings* of two Courts below on the ground that the same suffered from non-reading of the evidence specially supplied through the fresh affidavits of the respondent and/or their witnesses.
16. The contentions advanced by Mr. Mushtaq Ahmad are without any substance. From perusal of the material on record it may be observed that non-reading and/or misreading of the fresh evidence by the Rent Controller and the Appellate Court did not in any manner adversely affect the case of the respondents resulting in causing them prejudice or legal injury. The case of the respondents would not have been advanced or improved on reading of fresh evidence in view of omission of the respondents to provide plausible, satisfactory, and sufficient explanation for not occupying Shop No,6, which had fallen vacant and rented out as well as some other, shops which had also fallen vacant during pendency of the proceedings and rented out as per admission of respondent Sultan Ahmed in his cross-examination. The findings of the two Courts below even on this score did not suffer from any legal defect or infirmity.
17. In the presence of above facts and circumstances the Sindh High Court erred in holding that the findings of the two Courts below were not based on proper reading, appreciation and appraisal of evidence and suffered from illegality and infirmity which warranted interference. The concurrent findings of the two Courts below having been arrived upon justly, fairly and legally were not liable to be interfered with as the same were neither wrong or incorrect nor were based on arbitrary or fanciful discretion so as to be interfered with as per the pronouncements made by this Court in the cases of Utility Stores Corporation Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447 on the .One hand and the cases of Muhammad Sadiq v. Punjab Labour Court No,l Lahore and another PLD 1988 SC 633; Haji Mohibullah & Co. And others v. Khawaja Bahauddin 1990 SCMR 1070 and Messrs Olympia Spinning and Weaving Mills Ltd. And another v. State Life Insurance Corporation of Pakistan 2001 SCMR 1103 on the other hand. In doing so the High Court committed grave and serious illegality.
18. For the foregoing facts, reasons and discussion this petition is converted into appeal and is allowed. The impugned judgment of the High Court is set aside and the concurrent findings of the Rent Controller and Appellate Court are restored. Parties are left to bear their own costs.
' Learned counsel for the petitioners, while referring to the above quoted observations of Honourable Supreme Court, recorded in para. 11 onwards in the case of Allies Book Corporation, also referred to the C.M.A. No,784/07, filed in this petition by the petitioners (supported with an affidavit *of petitioner No,4 namely Farooq), wherein it is alleged that two shops in possession of previous tenants of the respondents fell vacant but instead of respondent Muhammad Shoaib occupying/ taking possession of the same during pendency of the present case proceedings, let out the same to other new tenants and, according to the learned counsel, such aspect of the case militates against bona fides and good faith on the part of respondent and demonstrates greed and hollowness for his demand of the disputed godowns from the petitioners; the details of the said shops are mentioned in the said application which reads as under:-
(i) Shop in occupation/possession of previous tenant namely Aamir Enterprises, Proprietor Mazhar Lotia has been vacated by the said previous tenant and the same has been let out to now to Noor Machi Nery Store after its vacation by new tenant namely Madina Mill Store as Shop No,A/1 in the subject case property, photographs of the said shop marked as annexures A/l and A/2 are filed herewith.
' Thus, the respondents have to show, in case the said contentions of the petitioners are correct, as to why the demand of the business sought to be established by respondents No,3 (a) could not have been met with satisfactorily. For such a reason the further evidence essentially needs to be recorded.
' This constitutional petition is hereby accepted; impugned judgment/order passed by the two Courts below are set aside, and the rent to the Rent Controller with direction that further evidence of both the parties be recorded on the said point within a period of two months from the date of receipt of this order and then to hear the parties afresh and to decide the ejectment application according to law.