The appellant has come in appeal against the order of the VIII Additional District Judge, Karachi, dated 19-3..1979, whereby the order of the Rent Controller dated 18-5-1.978 was reversed and the appellant was ordered to be evicted from the premises.
I have heard Mr. Khalilur-Rehman, Advocate, the learned counsel for the Appellant and Mr. Mirza A.
Rasheed, Advocate, the learned counsel for Respondent in this :appeal. The facts giving rise to the appeal are as under:-
1. The respondent filed ejectment Case No. 2248 of 1974, against the appellant in respect of shops bearing Nos. 6 & 7 situated on Plot No. I-E-14/1, Nazimabad, Karachi, on the grounds:
(i) that the appellant had violated the terms and conditions of tenancy agreement by opening ventilators in the rear wall of the tenement without permission and consent of the respondent which had the effect of materially damaging and impairing the utility of the premises;
(ii) that the appellant had unauthorisedly set up hedges in front of the tenement 1Nhich was causing obstruction to right of way, besides causing inconvenience and hardship to the passers- by and public in general; and
(iii) that the shops in occupation of appellant were required by the respondent for his bona fide and personal use and occupation. The respondent disputed these allegations and took the plea that the application was not made in good faith, but was filed as a consequence of appellant's refusal to pay the betterment tax which was demanded by the respondent at the rate of 15 Paisa per square foot. It was also avered in the written statement that the respondent in order to bring pressure on the appellant had unautherisdly put a gate-valve on the later-line leading to the premises occupied by the appellant which caused obstruction to the water supply and resulted in criminal proceedings between the parties.
2. The Rent Controller after recording evidence in the case and hearing the parties decided all the issues against the respondent and dismissed the ejectment application. In appeal the VD.I Additional District Judge, Karachi, acting as Ist. Appellate Authority, Maintained the order of Rent Controller with regard to Issues No. (i) and ('ii) but reversed the findings on the issue of personal and bona fide requirement and ordered the ejectment of the appellant from the two shops.
3. Mr. Khalilur-Rehman, the learned counsel for the appellant, besides contending that the order of Ist Appellate Authority is based upon misreading of evidence, has raised a further objection that the application itself was not maintainable in law as during pendency of the application for ejectment filed against the appellant, the respondent succeeded in getting two shops Nos. 8 and 9 in the same building vacated and these two shops were in his occupation. The contention is that the application was hit by 2nd. Proviso to subsection (3) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (which will hereinafter be referred to as "the Ordinance"). In support of his second contention, the learned counsel placed reliance on the decision in the case of Gulam Farooq v. Fazal Ghani 1980 CLC 1082I will deal with this second contention of the learned counsel first. The contention raised by the learned counsel with regard to the maintainability of the ejectment application is based upon the interpretation of the 2nd proviso to subsection (3) of section 13 of the Ordinance. The 2nd proviso is in the following terms:- "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 sub- paragraph (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."
This proviso places a fetter on the right of a landlord, who has obtained possession of a residential, scheduled or non-residential building or rented land on the grounds of personal and bona fide requirement, to the filing of another application on the same ground for the same class of building.
It is contended that this proviso will equally apply to a case where the landlord succeeds in getting possession of a non-residential building without recourse to the proceeding under section 13(3) of the Ordinance in the same urban area during the pendency of an application filed by him for eviction of a tenant from a non-residential building on the ground of personal and bona fide requirement. It is pointed out that the underlying object of the above proviso is to restrict ejectment of another tenant by a landlord on the same ground where the landlord had succeeded in an earlier application on that ground against a tenant. It is accordingly contended that where a landlord is seeking ejectment of a tenant from a premises on the ground of personal and bona fide requirement and during pendency of such proceedings succeeds in getting another premises of same class in the same urban area vacated, whether through recourse to proceedings before Controller o otherwise, he should not be allowed to proceed with the pending case in view of the above proviso. The contention of the learned counsel is fully supported by the following observations in the aforesaid case which appeal at page 1087 of the report:- "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."
While I am in respectful agreement with the conclusion of the learned Single Judge in the above case that if during the pendency of the application for ejectment on the ground of personal and bona fide requirement, the landlord succeeds in getting possession of another premises of the same class and description in the same urban area the 2nd proviso to subsec--petition (3) of section 13 of the Ordinance will come into play, with utmost respect, I am unable to subscribe to the view expressed further by the learned Judge, that in such an event the pending application under sec--petition 13(3) of the Ordinance also becomes non-maintainable and infructuous. In my humble view, the effect of the 2nd proviso to subsection (3) of sec--petition 13 of the Ordinance in such a case on the pending application of a landlord on the ground of personal and bona fide requirement will be that the landlord in addition to proving his personal and bona fide requirement shall have to further satisfy the Controller, before succeeding in the pending case, that the premises so get vacated was not suitable to his needs. In my view the embargo on the right of a landlord to move a second application on the same ground provided in the 2nd. Proviso to section 13(3) of the Ordinance is not complete. If later on, the landlord, who had earlier applied and got vacated a premises for his personal need, is able to show that the premises, so got vacated by him is no longer suitable for his need there is nothing in law which could prevent him from moving a second application on the same ground and succeeding on it.
Considering the contention of the learned counsel for appellant in the above perspective, I am of the view, that the ejectment application on the ground of personal and bona fide requirements filed by the respondent did not become non--maintainable or infructuous as a result of his succeeding in getting two shops namely shops Nos. 8 and 9 in the same building vacated during the pendency of the ejectment case against the appellant. This, however, could not mean, that the respondent. Was relieved of the burden of proving his bona fide requirement in the case or satisfying the Rent Controller that the premises, , so got vacated by him were not suitable for his needs. I will accordingly now consider, if the respondent succeeded in discharging this burden before the Rent Controller.
4. The learned counsel for the appellant contended that the Rent Controller rejected the application of the respondent on the ground of personal and bona fide requirement on consideration--
(i) that the respondent was a full-time employee of Fakir Spinning Mills where he was serving as an Accountant and being a full-time employee it was not possible for him to do the business;
(ii) that the respondent in his evidence did not state that he had left the employment or is intending to leave the same to start his business; and
(iii) that the respondent had already got possession of two shops namely shops Nos. 8 and 9 in the same building where he could do his business, if he so desired.
The Rent Controller accordingly did not find the evidence sufficient to prove the personal and bona fide requirement of respondent for the above shops. The learned counsel for the respondent contended before me that the finding of Rent Controller that the respondent is in full-time service is of no significance now as the respondent had left the service of Fakir Spinning Mills on Ist.
December, 1977, and accordingly prayed that this changed circumstances may be taken note of in this appeal, In this connection the learned counsel invited my attention to the affidavit filed in this Court on 16-4-1980 alongwith a certificate dated 12-8-1940, issued by Fakir Spinning Mills Ltd., showing that the respondent had left the service of the said Mill on Ist December, 1977. The learned counsel for the appellant vehemently objected to the consideration of this affidavit and the certificate on the ground that it was produced at such a late stage of the proceedings that the appellant was taken by surprise and is deprived of any opportunity of rebutting the same. I am otherwise not inclined to consider or place any reliance on these documents for reasons which I will presently state. According to the certificate the respondent allegedly abandoned the employ-- ment of Fakir Spinning Mills on Ist. December, 1977. The evidence of the appellant before the Rent Controller was recorded on 10-10-1977 and he was cross-examined by the counsel of the respondent on 12-3-1978. If the respondent had already left the employment, as shown in the certificate, the fact should have been put in cross-examination to the appellant, who had clearly stated in his examination-in-chief that the respondent was serving as full-time employee of the said Mill. The judgment in the ejectment case was given by the Rent Controller on 18-5-1978 but no effort was made to bring this fact on record by the respondent. Again, the first appeal was filed by the respondent on 3-5-1978, but this fact was not pleaded in the memo of appeal, although one of the factors taken into consideration by the Rent Controller for disallowing the ejectment application on the ground of personal and bona fide needs of respondent, in his order, was that the respondent continued to be in the service and as such it was not conceivable that he will be doing business in the shops. On the contrary in ground (d) of the memo. Of appeal before the Ist Appellate authority the continuation of respondent in service was sought to be justified in the following manner:- "(d) The Rent Controller has erred in law in omitting to consider the bona fide requirement of the appellant and has unnecessarily gone into the trivial matters concerning the appellant's employment with a firm. It should not have been the concern of the Controller to stress that how could the appellant do business while in service or whether he was going to leave the service, especially when he has deposed in unequivocal terms that he had been doing business before the filing of this case and also during the pendency thereof and still no harm was done to his aforesaid employment."
I am accordingly not prepared to take into consideration the certificate now produced by Respondent to show that he left the employment of Fakir Spinning Mills Limited in December, 1977.
The respondent had ample opportunity to prove and bring this fact on record before the Rent Controller, and the Ist. Appellate Authority, but he failed to avail the same and accordingly he cannot be allowed to plead it now. Turning to the merits of the case, in my view, the grounds given by the Rent Controller in his order for dismissing the application of respondent on the ground of personal and bona fide requirement, were sufficiently sound and cogent. In the case of Gopal Madan v. Maran Bepari PLD1969SC617.it was observed by the Supreme Court at pages 620 and 621 of the report in the .Above case while considering the scope of interference in Second Appeal on finding of facts arrived at by the Ist Appellate Court, at variance with the trial Court in the following terms:- "If the finding of fact reached by the first appellate Court is at variance with that of the trial Court, the former will ordinarily prevail although it would not possess the same value or sanctity as a concurrent finding. Such a finding by the lower appellate Court will be immune from interference in second appeal only if it is found to be substantiated by evidence on the record and is supported by logical reasoning, duly taking note of the reasons adduced by the first Court which have been disfavoured in the contrary finding. The finding being at variance with that of the trial Judge, the two will naturally come in for comparison for their comparative merits in the light of the facts of the case and the reasons on which the two different findings have respectively proceeded. If the finding of the first appellate Court cannot be supported on the evidence on record or if it has failed to take into account a material piece of evidence or if it does not reveal a logical basis for differing from the finding of the trial Court, or is otherwise found to be arbitrary or capricious, it will have to be rejected in second appeal."
Now considering the findings of the 1st Appellate Court in the light of above observations of the Supreme Court, I find that the main reasons which persuaded the Ist Appellate Court to take a contrary view on evidence and differ from the finding of the Rent Controller were; firstly, that the respondent in his deposition had stated that he had obtained licences for imports and exports which the appellant was unable to prove as forged or not issued by the competent authority and which the 1st Appellate Authority considered a strong circumstance to prove bona fide requirement of respondent; secondly in the words of Ist. Appellate authority, "The other plea of the respondent that the appellant is in service, therefore, he does not require the shops for his personal use is worthless", and thirdly the fact that two shops were got vacated by the respondent during pendency of the case was immaterial as in the opinion of Ist. Appellate Court, the respondent had a prerogative and choice as a landlord, to insist for occupation of any shop he liked. In my view the findings of the Ist Appellate Court when compared with those arrived at by the Rent Controller, not only fall short of disclosing a logical basis for differing with the findings of Rent Controller, but are also base E upon misreading of evidence and a fallacious approach to the case. Firstly the documents (Exhs. 2 and 3) described by the lower Appellate authority as Import and Export Licences in his Judgment were only Import and Export Registration Certificates which did not authorize the respondent to make actual import or export of any goods which could be done only under a valid licence granted by the authorities concerned in that behalf. These documents at best, could be described as a step for securing the Import & Export licence, which admittedly were not granted to the respondent at that time. There was thus a clear misreading of the evidence by the lower Appellate Court. Secondly, the continuation of respondent as a full time employee of a Mill, while expressing his requirement for the shops for doing business, was a circumstance which could legitimately be taken into consideration by the Rent Controller while weighing the claim of bona fide requirement of respondent in the case. The lower Appellate Court while considering this aspect of the case only remarked that this plea was "worthless", without giving any reason whatsoever for holding it so. This approach of the lower Appellate Court can hardly be described as judicious. Similarly the approach of lower Appellate Court in holding that the respondent had a prerogative and choice to insist for occupation of any of the shops belonging to him was equally misconceived. The objection in the case before the Ist Appellate authority did not relate to the choice or prerogative of the respondent to select any of the shops for his occupation. The objection was that the respondent having come into possession of two shops during pendency of the ejectment application, there remained no justification for him to insist for eviction of appellant from the shops in his occupation. What required to be established in these circumstances by the respondent before the Courts below, was, that the shops, which came in his occupation in the meantime, were not suitable for his needs and it was on proof of this fact alone he could succeed.
The matter of choice or prerogative of respondent had no relevance. The learned counsel for the respondent argued that it had come in the evidence of respondent that shops No. 8 and 9 were not sufficient for his requirement. My attention was invited to the following sentence in the cross- examination of respondent: "Shops Nos. 8 and 9 are not sufficient for me."
Firstly, the respondent did not state in his examination-in-chief that these shops were in his occupation and that these were not suitable in relation to his requirement. It was only in cross- examination When he was confronted that the two shops which had fallen vacant in the meantime are in his possession and that previously business of air-conditioning, refrigera--petition and second hand cars was being carried on in these shops by the respective tenants at different times that the aforesaid reply was made. In my view this bald statement of respondent in cross- examination in the circumstances without disclosing further the reasons for the unsuitability of these shops in relation to the requirements of respondent, was not sufficient to reach a finding that the two shops No. 8 and 9 in occupation of respondent were not suitable for his needs. In these circumstances the Rent Controller was justified in holding that the respondent had failed to prove his bona fiderequirements of the shops in occupation of appellant and accordingly the Is Appellate authority was not justified to reverse this finding.
5. In the result this appeal is accepted, the order of the Ist Appellate authority is set aside and that of Rent Controller is restored. Here will, -however, be no order as to costs.