' On 3rd November, 1977, the respondent filed a petition for the eviction of the appellant from Shop No, 3.S.45/B, Urdu Bazar, Block No, 3, Sargodha on the ground of personal need alone. This petition for eviction was contested by the appellant and the requirement of the respondent of the shop in dispute in good faith was denied. It was also urged that the respondent was estopped by his conduct to file the present petition. It was also contended that the site plan was not correct. The learned Rent Controller framed the following issues :-
(1) Whether the correct plan of the shop has not been annexed with the application, if so its effect ?
0. P. R.
(2) Whether the petitioner is estopped to file this application by his own words and conduct ? 0. P.
R.
(3) Whether the petitioner needs the disputed shop for his bona fide personal need ? If so, its effect ? 0. P. A.
(4) Relief.
2. The learned Rent Controller vide his order, dated 30th October 1978, held that the appellant required the shop in dispute bona fide for his own use. The appellant filed an appeal which was Also dismissed by the learned District Judge. Sargodha vide his judgment, dated 27th March, 1979.
3. The learned counsel for the appellant has raised the following Contentions :- (i)That from the record it was abundantly clear that the main dispute between the parties was one relating to the increase of the rent and this aspect of the case has not been adverted to by both the Courts below;
(ii) That the respondent has not disclosed any type of business which he intends to carry on.
Sometimes the respondent has asserted that the shop was needed for his own use and at other stage for his son ,
(iii) That admittedly the nature of business carried out by the respondent at the time when the shop was let out to the appellant was stamp making in the upper portion and the same business is being carried out now and as such the respondent cannot get the premises vacated for his own use ;
(iv) That the material evidence has been omitted from consideration ; particularly the documents Exhs. R/1 to R/3 ;
(v) That the respondent having got the shop evicted after the coming into force of the Ordinance and having not occupied the same no application for eviction could be filed subsequently: Reliance was placed on expression "after the commencement of this Ordinance under subsection
(3) of section 13 of the West Pakistan Urban Rent Restriction Ordinance".
4. I have carefully considered the above contentions and I find that there is no force in the submissions. Documents Exhs. Rj1 to R/3 to which it is said that the Courts below have not adverted consist of a copy of the previous application for eviction (Exh. R/1) and a statement (Exh. R/2) of Muhammad Sharif, the previous co-owner of the shop and the order of the learned Rent Controller (Exh. R/3) on the previous application, dated 11th February, 1967. The earlier application for eviction had been filed when the shop had not been partitioned and a joint application had been made against Faiz Muhammad their tenant. The property was thereafter partitioned and Abdur Rashid, respondent, in the first instance, let it out to Sultan Ahmad and thereafter to the present appellant on an initial rent of Rs, 190 p.m. Which was subsequently increased to Rs, 225 p.m. The learned District Judge vide his order, dated 27th March, 1979, had considered these documents and found that the documents are not relevant as they pertained to a period when the property was joint. No exception can be taken to the observation of the learned District Judge, Sargodha in this behalf.
5. In Haji Ghulam. Muhammad v. Abdul Qadir (1) non-disclosure of the nature of business was also taken to be as one of the grounds for doubting the bona fides of the landlord. It was observed by Mr. Justice Muhammad Afzal Zullah (as his Lordship then was) that it was sufficient that the shop was needed for business and no details are necessary. This
(1) P L. D 1975 Lah. 200 judgment has also dealt with clause (c) of section 13 (3) (a) (ii) of the Ordinance, which is to the following effect 7-d "(c) he has not vacated such a building or rented land without sufficient cause after the commencement of this Ordinance, in the said urban area."
' In this case it was observed as under :- "This provision as it stands, particularly with the expression "after the commencement of this Ordinance" would have had real meaning in case it was contained in a temporary law. The Ordinance is in force for the last one and a half decade. The aforementioned expression appears to have lost its significance. This provision, therefore, needs amendment qua at least specification of the period so as to restore its original significance. Leatned counsel apart from surface reading of the provision and insistence on enforcement thereof could not assist on its pith and substance of course as it stands in the present form. Leaving this aspect of the matter to be taken care of by the legislature, I proposed to consider the argument as raised from the side of the appellant."
6. Reference may also be made to another judgment reported as Muhammad Siddique v Mistri Muhammad Aslam (I) wherein the question of bona fide requirement for a landlord or his son had been considered in the light of subsection (4) of section 13 of the Rent Restriction Ordinance. It was observed as under :- "According to this provision if a landlord or his son does not occupy the premises vacated by the tenant within a month of the date of obtaining possession, the evicted tenant will have the right to get his possession restored on his application made to the Rent Controller. If a landlord asserts that he or his son needs particular premises for personal use and it is also proved on record that he or his son is not occupying in the same urban area any building for the purposes of his business suitable for his needs or has not vacated such a building or rented land without sufficient cause then the question with regard to bona fides or good faith, will have to be determined in context of the provision as contained in subsection (4) of section 13 of the Ordinance. What is after all required by a landlord or his son to prove his good faith or bona fides in regard to personal use he has to make a statement with regard to factual position as it stands and if the same is disproved in rebuttal in context of the conditions as laid down in sub-paras qb) and (c)' of Para. II of subsection
(3) of section 13 of the Ordinance then it can be safely said that the landlord or his son has not been able to prove his bona fides or good faith. In the present case the appellant had made a statement without any rebuttal that he and his son both have been out of work for a long time and further that the Saw Mill in question has been in his occupation before it was let out to the respondent "
' It was further observed as under :- "In case of his mala fide intention the entire proceedings started by him would be rendered useless and he will have to surrender the
(1) p L D 1975 Lah. 308 possession of the premises to the evicted tenant. Since the intention of the appellant to prosecute ejectment proceedings in good faith and bona fide for his personal use has not been examined in view of the provisions as contained in sub-paras. (b) and (c), as mentioned above and subsection (4) of section 13 of the Ordinance therefore, the finding as given by the Courts below cannot be treated as a finding of fact, but contrary to law,"
7. I have gone through the entire evidence with the help of the learned counsel for the parties. On the question of personal need Kh. Nasrullah (P. W. 2) has stated that he knew Sh. Rashid and his son Asif who are carrying on the business of stamp-making on a footpath. Similarly the respondent has appeared as his own witness. He deposed that he along with his son carried out the business of stamp making in front of the show in dispute at the foot of the stairs on a place which is not more than 2i feet. He further deposed that the place where he was carrying on the business belonged to the Municipal Committee. He specifically stated that they did not own any other shop. The statement was quite sufficient to establish the bona fides.
8. In Mansoor Ahmad v. Bashir Hussain Babri (1) it was held that the statement of the landlord that he needed the premises in good faith for the convenience of his ailing wife in respect of residential premises the statement of the landlord was held sufficient to constitute bona fide and was not merely a desire.
9. From the evidence on the record it is established that the respondent is carrying on the business of stamp-making on the footpath. He cannot be deprived the benefits of his own shop, only because the respondent had once increased the rent from Rs, 130 to Rs, 225.
10. No ground has been made out for interference in the concurrent finding of fact. This appeal has no force and is hereby dismissed with costs.
11. However, the appellant being in possession of a business premises is allowed for months' time to deliver the vacant possession to the respondent subject to his paying the monthly rent.
(1) PLD 1977 Lah. 346