1. Muhammad Afzal appellant-landlord sought eviction of his tenant Haji Abdul Jalil respondent from the Shop bearing No. 243-44/1 249 situate within the area of Put Pakhta, Bazar Kalan, Peshawar City, mainly on the ground that he required it for the business of his son, namely Humayun. The respondent contested the eviction application and the learned Rent Controller after framing issues on the pleadings of the parties and recording their evidence thereupon allowed the eviction application vide his order dated 8-5-1979, but on appeal filed before him by the respondent, the learned Additional District Judge, reversed the order of the learned Rent Controller and while allowing the appeal dismissed the eviction application of the appellant vide his order 15-12- 1979.Hence this second appeal by the appellant.
2. I have beard the learned counsel for the parties and perused the record. The only and one question which influenced the learned Additional District Judge in allowing the appeal of the respondent was that in his evidence the appellant has stated that the rent of the shop in question would be Rs.
3. 500 p. m. While in his application (Exh. P. W. 1/L) he had shown its rent to the Excise and Taxation Department as Rs. 70 p. m. The learned Additional District Judge observed that this he did with a view to deprive the government from tax. HP also observed that as admitted by the appellant, he is getting Rs. 120 per month as rent of the shop in question from the respondent. From all this, he came to the conclusion that "he (appellant) has not brought the application for eviction in good faith and he does not acquire the shop, for his son. It appears that he is after the enhancement of the rent and m this way by failing to enchance the rent, he wants to eject the tenant".
4. I think that because the appellant stated that the rent of the shop ' question would be Rs. 500 p. m.
5. While he is getting Rs. 120 p. m. From the respondent as also that he has deprived the Government of tax by showing to the Excise and Taxation Department that he is getting Rs. 7 per month as rent of the shop in question alone should not be the ground that the appellant/landlord does not require the shop for the business of hi son unless there is other evidence on the record to show the mala fide on his part that his object is to enhance the rent. I do not find any other evidence available on the record to justify the impugned conclusion o f.4 the learned Additional Judge. True, the appellant has stated that the rent of the shop in question would be Rs. 500 p. m. But he would appear to be correct in this respect, as the shop is situated in a busy locality as P.I Pakhta, Peshawar City and nowadays its rent would seem to be Rsr 5J per month. As regards the fact that be had shown to the Excise an Taxation Department the rent of the shop in question as Rs. 70 per month, it was a matter between the appellant and the Department and this should not mean that the appellant does not require the shop for his personal use Now the question remains whether the appellant/landlord requires the shop the business of his son namely Humayun. In support of his claim, the appellant besides himself also examined his son Humayun. In his evidence, the appellant stated that "I am ready to take oath that I will not lease out the shop in question to any other person except the business and for the personal need for myself and my son. In case of violation I take the responsibility to pay the respondent cash amount of Rs.
6. 20,000 as penalty to the respondent".
7. Now there is nothing on behalf of the respondent that Humayun the son of the appellant/landlord is doing some other business which will not spare him to run business in the shop in dispute.
8. Therefore it would appear that the appellant has been able to prove that he requires the shop for B the business of his son. The apprehension of the respondent that it is jus a subterfuge on the part of the appellant to evict him from the shop in question while after his eviction he will give the same at enhanced rent does not seem to be an established fact in the present state of record. In any case, if the appellant does not occupy the shop in q6estton within one month of the date of obtaining possession or having been so occupied is relet within two months of the said date to any person, the respondent on his application to the Rent Controller under subsection (4) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, shall have to be restored to possession of the shop in question. This should therefore allay the apprehension from the mind of the tenant/ respondent that after his ejectment the disputed shop will be let out at enhanced rent, as in that event statutory provision exists that its possession shall be restored to him obviously on the previous rent before his ejectment. It may be observed that the following portion of subsection (4) of section 13, ibid does not seem to have been properly constructed :- ". . . Or where the building has been got vacated for the occupation of any his children, such child does not occupy it within one month of the date of obtaining possession, or having been so occupied is relet within two months of the said date to any other person other than original tenant, the tenant who has been evicted may apply to the Controller for an order directing that he shall be restored to possession of such building or rented land and the Controller shall make an order accordingly."
9. The expression "or having been so occupied is relet within two months" has brought about confusion. It will mean that after the expiry of two months, the landlord can give on rent the building to any person other than the original tenant. This does not seem to be the object and scheme of the Ordinance. I am of the view that the idea behind this provision of the Ordinance is that if the landlord succeeds in evicting his tenant from the disputed building on the ground of his personal use, he will have to use it for that purpose and if he is found to have not occupied it for his personal use and he has to re-let it out at enhanced rent, the original tenant will have the right to claim restoration to possession of the disputed building shop even if it occurs after the expiry of two months.
10. The learned counsel for the respondent/tenant contended that as the learned Additional District Judge, has recorded a finding that the appellant/ landlord does not require bona fide the shop for the business of his son but his object is to enhance the rent and this being a finding on a question of fact, this Court will have no jurisdiction to interfere with the same in second appeal. I have already found that the learned Additional District Judge, has not considered the evidence produced by the appellant/landlord that he requires the shop in question for the business of his son and as I have come to the conclusion that the appellant/landlord has been able to prove his bona fide requirement as regards the shop in question to be used for the business of his son, it means that the learned Additional District Judge has disregarded to consider the material evidence favourable to the appellant and thus his impugned finding is the result of misreading of evidence. Therefore, it cannot be said that in such a case this Court in second appeal will have no jurisdiction to interfere with a finding erroneously reached by the Court below on a question of fact.
11. As a result, this appeal is allowed, the impugned order of the learned Additional District Judge is set aside and that of the learned Rent Controller is restored. The respondent /tenant is directed to vacate the disputed/shop within two months. No order as to costs.