The appellant above named, being aggrieved by judgment dated 7th July, 1971, of the learned District Judge, Hyderabad, passed in appeal No. 2/71 filed by original respondent Fazal Karim, by which he set aside the order dated 26th November, 1970 passed by Civil Judge and Rent Controller, Hyderabad, in Rent Case No. 320/69, has preferred this appeal on the following facts and grounds :-
2. The Respondents as L. Rs. Of Fazal Karim are the landlords of Shop No. E/37-2420, Islami Chowk, Thathara Lane, Hyderabad. The appellant is the tenant of the respondents in respect of said shop on a rent of Rs. 40 P. M. It was the case of the original respondent, that the appellant had failed to pay the arrears of rent since July, 1969 and that the shop premises were required by him for his bona fide personal use, as he was working as a tailor master in his house for want of a shop. The appellant in his written statement contended, that the landlord had refused to accept the rent as he wanted to have enhanced rent. He, therefore, sent the rent by money orders, but the same were always refused. That the shop was not required by the landlord for his personal use and he was only trying to harass him.
3. The learned 'Civil Judge found, that the appellant had been offering rent to the landlord by remitting the same by money orders, much before the filing of the ejectment application. That there was no default in payment of rent on the part of the appellant. Regarding the other issue, that the shop was required by the landlord for his bona fide personal use, the learned Rent Controller also held against the original respondent and consequently the learned Rent controller dismissed the ejectment applica--tion of the original respondent; vide his order dated 26th November, 1970.
4. The original respondent Fazal Karim being aggrieved by order dated 26th November, 1970 of the learned Civil Judge and Rent Controller. Hyderabad filed 1st Appeal No. 2/1971 against the said order, in the Court of District Judge, Hyderabad, who by his judgment dated 7th July, 1971 allowed the said appeal and set aside the order of the learned Rent Controller and granted original respondent's ejectment application as prayed.
5. The appellant above named being aggrieved by judgment dated 7th July, 1971 of the learned District Judge, Hyderabad has preferred this appeal, on the grounds mentioned in the memo of appeal
6. 1 have heard the learned counsel for the parties and have gone through the impugned order dated 26th November, 1990 of the learned Rent Controller and impugned judgment dated 7th July; 1971 of the learned District Judge, Hyderabad as well as through the evidence adduced by the parties before the learned Rent Controller and judgment dated 28th January, 1980 of the hon'ble Supreme Court passed in 11. A. No. 385/71 and through the various authorities cited by the learned counsel for the parties before me.
7. The first contention, that has been raised by the learned counsel for the appellant before me was, that appellant was not given full opportunity to produce all the witnesses, by the learned Rent Controller on remand of the case for the said purpose, by this Court, vide order dated 9th August, 1980. The learned counsel for the respondents denied this allegation of the learned counsel for the appellant and drew my. Attention to the statement of the learned counsel for the appellant dated 13th November, 1980 for closing his side which is at page 115 of the record of the learned Rent Controller and stated, that in view of this statement in writing, this allegation of the learned counsel for the appellant has no force. At all. I have seen the statement dated 13th November, 1980 on R and P of the learned Rent Controller. In the face of this, statement made on behalf of the appellant. By his counsel, I see no force in this contention of the learned counsel for the appellant.
8. The second contention, that has been raised by the learned counsel for the appellant before me was, that according to order dated 28th January, 1980, of the Hon'ble Supreme Court the learned Rent Controller had no right to give his fresh finding, after recording of additional evidence on remand and as such order dated 3rd December, 1980 of the learned Rent Controller ought not to be taken into consideration, while, disposing of the present appeal, The learned counsel for the respondents, on the other hand drew my attention to consent remand order dated 9th August, 1980 of this Court and stated that in view of this consent order, the submission of the learned counsel for the appellant has no force. I have gone through the consent order dated 9th August, 1980 of this Court, passed in above appeal and I agree with the contention of the learned. Counsel for the respondents, that order dated 3rd December, 1980 of the learned Rent Controller has been passed on the basis of this consent order. In view of this, I see no force in this contention of the learned counsel for the appellant. However, I have also gone through the fresh evidence recorded on remand, by the learned Rent Controller and I propose to appraise the same, without taking into consideration order dated 3rd December, 1980, of the learned Rent Controller and propose not to treat the said order, as concurrent finding of fact, for purposes of this appeal, as the said order could not be challenged by the appellant, by way of first appeal.
9. The third contention, that has been raised by the learned counsel for the appellant before me was, that, in original application filed by the predecessor-in-interest of the present respondents, the original respondent had not mentioned, that he required the shop in question for himself as well as his sons and as such, on the present plea of the present respondents, order dated 3rd December, 1980, of the learned Rent Controller and judgment dated 7th July, 1971 of the learned District Judge, Hyder--abad, cannot be sustained. The learned counsel for the respondents on the other hand drew my attention to the order dated 28th January, 1980 of the Hon'ble Supreme Court, passed in appeal arising out of lI. Appeal No. 385/71 and, stated that Hon'ble Supreme Court was fully aware of this fact, but in spite of this, the Hon'ble Supreme Court, for the reasons given in its said order remanded back the above appeal for giving oppor--tunity to both the parties to adduce further evidence and thereafter to dispose of the above appeal on merits. In view of this, learned counsel for the respondents submitted, that this Court was competent to decide the personal and bona fide need of the respondents, in the light of fresh (e.i)--dence adduced by the parties, before the learned Rent Controller, after remand, by this Court and in case this Court comes, to the conclusion, that the shop premises in question are also required by the respondents for their personal and bona fide use in good faith, then the order dated 26th November, 1970 of the learned Rent Controller could be set aside and his order dated 3rd December, 1980 could be confirmed and judgment dated 7th July, 1971 of the learned District Judge, Hyderabad, need not be set aside and the above appeal could legally be dismissed. I have care fully considered these submissions of the learned counsel for the parties and in view of order dated 28th January, 1980, of the Hon'ble Supreme Court, which more or less was passed with the consent of the parties, in view of their submissions made before the hon'ble Supreme Court, I agree with the submissions made by the learned counsel for the respondents in this connection and 1 am of the opinion, that the stand of the learned counsel for the appellant in this connection is misconceived, as in my opinion, it was not necessary for the original respondent to specifically mention, in his application, that he also required the premises for the use of his sons, as if he succeeded in his application, his sons could have also used the premises in question along with their father. But since original respondent died, before the ejectment of the appellant, this question required specific finding, for sustaining the impugned judgment dated 7th July, 1971 and it was because of this, that hon'ble Supreme Court remanded back the above appeal, for recording fresh additional evidence on this point, before disposing of above appeal, in order to save multiplicity of proceedings and to cut down unnecessary fresh litigation between the parties.
10. As far as merits of the personal and bona fide need of the present respondents, on the basis of fresh evidence adduced by the parties, before the learned Rent- Controller, the learned counsel for the appellant submitted, that respondents have failed to establish their personal and bona fide need. In support of this. Assertion of his, the learned counsel for the appellant submitted, that according to respondent the shop in question is required for the use of Abdul Majid and Abdul Rashid, respondents Nos. 3 and 2 respectively and in this connection, the respondents examined on oath respondents Nos. 2 and 3 as well as one witness Allah Noor, whereas appellant examined himself and witnesses Races Khan and Mubarakuddin. According to the learned counsel for the appellant, as far as respondent No. 2 Abdul Rashid is concerned he has admitted in his deposition.
That he carries on cloth business in the shop of one Adam Bhai and the said shop does not belong to him and as such he was at the mercy of said Adam Bhai. This conten--tion of the respondents is denied by appellant in his statement on oath, in which he said, that respondent No. 2 was carrying on business in Jamia Cloth Market, Unit No. 18 Latifabad, Hyderabad, exclusively. This statement of the appellant was fully corroborated by his witnesses Races Khan and Mubarakuddin. In view of this, the learned counsel for the appellant submitted, that since statement on oath of appellant and his two witnesses remained unshaken in their cross-examination, the statement of respondents Nos. 2 and 3, which no doubt is corrobo--rated by their witness Allah Noor, who was the -clerk of respondents' advocate at one time, cannot be relied upon. The learned counsel for the appellant further submitted, that respondent Abdul Rashid failed to produce Adam Bhai to support his contention, that he was licencee of him, which was the best evidence available to this respondent and as such adverse inference as drawn for non-production of the said witness, against this respondent. The learned counsel for the respondents on the other hand submitted that burden for proving this fact was fully. Discharged by respondent No. 2, by his statement on oath supported by respondent No. 3 and Allah Noor and production of Adam was not at all necessary, as appellant did not produce any documentary evidence to rebut the plea of respondent No. 2. 1 have carefully considered these submissions made by the learned counsel and have gone through the statements of all witnesses, which are on record, in my opinion, in the absence of any documentary evidence produced to show, that the shop, where respondent No. 2 is carrying on business belongs to Adam Bhai, it was necessary for respondent No. 2 to produce him in support of his contentions, as burden of proving this point was on respondents. Therefore, in my opinion, respondents have filed to establish, that the premises in question are required by the respondents for personal and bona fide need of respondent No. 2, in good faith, as required by the provisions of section 13 of W. P. U. R. R. Ordinance, 1959.
11. In view of above finding, as far as respondent No. 2 is concerned the only question which now requires consideration, is whether respon--dents require the premises in question for personal and bona fide use of respondent No. 3, who is alleged to be carrying on tailoring business at his house, for want of shop. In this connection, the learned counsel for the appellant submitted that there is word against word of the parties and their witnesses and as such evidence adduced by the appellant is more reliable and independent and as such the same be accepted, in preference to the evidence produced by the respondents, as respondents have filed this application, in order to get enhanced rent. The learned counsel for the respondents on the other hand submitted that respon--dent have fully discharged their burden and have established by statement of respondents Nos. 2 and 3 and their one witness, that respondent No. 3 is carrying on tailoring business at his house, for want of shop and there is no room in his house to carry on such business, because of his house family etc. The learned counsel for the respondents further submitted, that mere denial on the part of appellant in this connection, without any evidence to establish, that this respondent has his own shop for business cannot be relied upon, as to defeat the plea of this respondent. In support of this contention, learned counsel for the respondents relied upon cases reported in PLD 1976 Kar. 233, P I. D 1976 Kar. 620 and PLD 1977 Kar.
80. I have carefully considered these submissions made by the learned counsel for the parties and have gone through the above noted authorities as well as statement of all the witnesses in this connection. It is significant to note, that respondent No. 3, took the plea of personal and bona fide use before this Court as well as before Hon'ble Supreme Court, as far back as December, 1979 or at least before the orders dated 28th January 1980 of the Hon'ble Supreme Court, but according to his statement on oath and his cross-examination dated 6th November, 1980, he admitted, that six months prior to this date, he was carrying on business of tailoring at Latifabad Cloth Market, which means upto 30th April, 1980, i. e. At the time of Hon'ble Supreme Court order dated 28th January, 1980, he had shop for his business at Latifabad Cloth Market. Therefore, it is obvious, that this respondent, in order to support his plea of personal and bona fide use, either gave up the said shop or passed on the same to some other person, few months before recording of his statement dated 28th October, 1980 and his cross-examination, dated 6th November, 1980. This action on the part of respondent No. , in my opinion, creates doubts on his bona fide and good faith, about his plea of personal use, for the shop premises in question. Evidence of this respondent is no doubt supported by his brother and Allah Noor. But Allah Noor admittedly was Clerk of the learned counsel for the respondents, just before his statement. In view of this, I am inclined to accept the statements on oath of appellant and his two independent witnesses, whose evidence on this point is not at all shaken in their cross- examination. Therefore, in my opinion, even respon--dent No. 3, has failed to prove, that he requires the shop premises in question for his personal and bona fide use. The authorities cited by the learned counsel for respondents are based on different facts and as such in my opinion are not applicable to the facts of the present case at all.
12. In view of my above conclusions and findings, I allow the above appeal and set aside order date 3rd December, 1980 of the learned Rent Controller and impugned judgment dated 7th July, 1971 of the learned District Judge, Hyderabad, passed in Rent Case No. 323 of 1969 and 1st Appeal No. 2 of 1971, respectively, with costs, and dismiss respon--dents ejectment application and confirm the original order dated 26th November, 1970 of the learned Rent Controller.