' QALADAR ALI KHAN, J.---Haji Akbar Khan, petitioner, invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, with following prayer:-- "it' is, therefore, prayed that the impugned orders of respondents Nos. 2 and 3 respectively dated 22-3-2011 and 27-6-2011 be declared as without lawful authority and based on no evidence or reason and the eviction/ejectment petition of the petitioner be declared to have been proved and consequently the petitioner is entitled to possession of Shop No.6, Bab Al- Madina Market, Shaheen Bazar, Peshawar City on the basis of personal need of the son of the petitioner."
2. The facts of the case, as gleaned from the writ petition, are that the petitioner (deceased) was owner and landlord of shop No.6 (Saba Cloth House) in Shaheen Bazar, Peshawar, and respondent No.1, Wajid Zahoor, is tenant in the said shop. On 7-2-2009, a notice for vacation of the shop was served on behalf of the former on the latter, only on the sole ground of requirement of shop for use of the son of the deceased-petitioner, Muhammad Rafi, who was statedly unemployed. On 7-9- 2009, respondent No.1 moved application for deposit of rent of the shop against the deceased- petitioner, and, on 2740-2011, the deceased-petitioner filed an eviction petition under section 13 of the Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance 1959), against respondent No.1 on the said only ground of requirement of the shop in question for use off his jobless son, Muhammad Rafi. It was alleged in the eviction petition that the petitioner was aged and sick person, therefore, he required the shop for opening some business for his jobless son. The eviction petition was resisted on several grounds by respondent No.1, leading to framing of following issues by the learned Civil Judge/Rent Controller-IX, Peshawar.
ISSUES:-
(1) Whether the petitioner has got a cause of action?
(2) Whether the petitioner is in bona fide need of the disputed shop for his son?
(3) Whether the petitioner is entitled to the relief as prayed for?
(4) Relief.
3. After recording of evidence of both the parties, and hearing arguments of their learned counsel, the learned Civil Judge/Rent Controller-IX, Peshawar, came to the conclusion that there was no bona fide and good faith on the part of the petitioner while seeking vacation of the shop in question for opening business for his jobless son, and rejected the eviction petition vide judgment/order dated 22-3-2011. The deceased-petitioner preferred appeal under section 15 of the Ordinance 1959, which, too, was dismissed by the learned Additional District Judge-XI, Peshawar vide order dated 27-6-2011, wherein, the learned appellate court concurred with the trial court in respect of the conclusion about the bona fide and good faith of the deceased-petitioner. The petitioner passed away during pendency of the instant writ petition, and is now survived by his legal heirs, including Muhammad Rafi and his attorney, Muhammad Amin.
4. Since the main and pivotal question in this case is the bona fide personal need of the petitioner i.e. Need of his son, in good faith, both the learned counsel for the parties focused their arguments on this issue. It would, therefore, not be out of place to reproduce, for ready reference, the relevant provisions of section 13 of the Ordinance 1959:-- "13. Eviction of tenant. (1) A tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this Ordinance or otherwise, and whether before or after the termination of the tenancy, except in accordance with the provisions of this section.
(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that- (i)................
Explanation:-For the purpose of this clause- (i)...............
(ii)..............
(iii).............
(vi) ............
(v).............
The Controller may.............
' Provided further.................
(3) (a) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession?
(i) in the case of 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 iri the said urban area;
(ii) in the case of a non-residential building or scheduled or rented land, if?
(a) he required it in good faith for his own use or for the use of any of his children;
(b) he or his said child is not occupying in the same urban area in which such building is situated for the purpose of his business any other such building or rented land, as the case may be, suitable for his needs at the time, and
(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; Provided that where the tenancy is for a specified period agreed upon between the landlord and the tenant, the landlord shall not be entitled to apply under this subsection before the expiry of such period; ' Provided further that where the landlord had obtained possession of a residential, scheduled or nonresidential building or rented land under the provisions of subparagraph (1) or sub paragraph
(ii) he shall not be entitled to apply again under the said subparagraphs for the possession of any other building of the same class or rented land unless such residential, scheduled or nonresidential building or land is no longer suitable for the needs at the time.
(b) The controller shall, if he is satisfied that the claim of the landlord is bona fide make an order directing the tenant to put the landlord in possession of the building or rented land on such date as may be specified by the Controller and if the Controller is not so satisfied, he shall make an order rejecting the application: ' Provided that the Controller may give the tenant a reasonable time for putting the landlord in possession of the building or rented land and may extend such time so as not to exceed four months in the aggregate."
5. The words 'good faith' and 'bona fide' used in the aforesaid provision of law have special significance when seen in the light of preamble of the Ordinance 1959, which, otherwise envisages restriction on the eviction of tenants in the following words:-- "An Ordinance to restrict the increase of rent of certain premises within the limits of urban areas and the eviction of tenants therefrom in the Province of [West Pakistan]"
' It may be added here that the Black's Law Dictionary assigns same meaning to both the words 'bona fide' and 'good faith', and provides the following meaning to the word 'good faith'.
"A state of mind consisting in honesty in belief or purpose, faithfulness to one's duty or obligation,
(3) observance of reasonable commercial standards of fair dealing in a given trade or business, or (4) absence of intent to defraud or to seek unconscionable advantage.'
6. The perusal of record would show that after appraisal of evidence of the parties, both the trial and appellate courts arrived at this unanimous conclusion that 'bona fide' and 'good faith' were lacking on the part of deceased-petitioner. There is sufficient evidence on record to fortify this view of the trial and appellate courts. There is, indeed, ample proof, even admission on the part of the petitioner with respect to vast and extended business of the petitioner, not only in Pakistan but also abroad in Dubai, where his son Muhammad Rafi was born and stayed till his return to the home land somewhere before the filing of the eviction petition. There can be no cavil to the proposition that it is the prerogative of the landlord to chose/select a shop suitable for his use or business of his son/child, and existence of his other shops in the same vicinity or in the same town would not deprive him of this discretion; but he, nevertheless, would be required to show that how and why his other shops are not suitable for the business, in order to prove his 'bona fide' and 'good faith', in the light of judgments reported as 2006 SCM R 152, 2010 M LD 665 (Karachi) and 2000 SCM R 542.
7. Besides the record, evidence adduced on behalf of the petitioner comprising statements of his two sons, namely, Muhammad Amin (A.W-1), his attorney, and Muhammad Rafi (A.W-2), the son for whom the shop in question has been shown to be required, would show that the petitioner is owner of several plazas and markets, having hundred shops, in Peshawar as well his home town, Hangu; and A.W-1 has admitted this fact in his statement before the court that quite few of the said shops situated on G.T. Road were still vacant, without explaining that how and why the said vacant shops were not suitable for his proposed business. According to the petitioner, the shop in question was required for establishment of a cloth shop for his son, but his son, Muhammad Rafi, stated that be had no past experience of running a cloth shop. The petitioner also alleged that the said Muhammad Rafi was jobless, but A.W-1 admitted in his statement that a hospital on G.T. Road, belonging to the petitioner, was being managed by Muhammad Rafi along with his brother Muhammad Shafi. Moreover, there is overwhelming evidence showing receipt of rent in lacs by the petitioner and his son from the property owned by them in Peshawar, Hangu and abroad, thus falsifying the ground of personal need of the petitioner or his jobless son.
8. While relying on the judgments reported as Haji Mohibullah v. Khawaja Bahauddin (1990 SCM R 1070), Muhammad Shoaib Alam and others v. Muhammad labal (2000 SCM R 903), Syed Jan Muhammad and another v. Syed Abdul Khair (2001 SCM R 1287), Allies Book Corporation v. Sultan Ahmad (2006 SCM R 152), Ferozuddin v. Additional District Judge, Karachi East and another (2010 YLR 874), Pakistan Institute of International Affairs v. Naveed Merchant and others (2012 SCM R 1498), Ferozuddin and another v. Additional District Judge, Karachi" East and another (2012 SCM R 1679) and Muhammad Younas v. Rana Muhammad Zahid (PLJ 2012 Islamabad 157), the learned counsel for the petitioner urged that on the basis of statement on oath of the petitioner (attorney for the petitioner) and his son, for whom the shop in question was required for running his business; and in view of safeguard of reoccupation of the premises by the tenant in case of non-occupation by the landlord for personal use contained in subsection (4) of section 13 of the Ordinance 1959, there was no justification to deny vacant possession of the shop to the petitioner/son of the petitioner. Needless to say that this contention has already been repelled by the apex court in the judgment reported as PLD 2000 SC 829. In short, proof of 'bona fide', and 'good faith' aresine-qua- non for an order of eviction by the Rent Controller. The learned Rent Controller and the appellate court, when they arrived at the conclusion that both the said necessary ingredients for an eviction order were missing, correctly declined the requisite order to the petitioner.
9. Adverting to the question of maintainability of writ petition after both the trial and appellate courts concurrently held the eviction petition devoid of merit, it would suffice to refer to judgments reported as Shabbir Hussain v. Muhammad Afzal and others (1972 SCM R 47 (in the context of Constitution of Pakistan, 1962, Secretary to the Govt: of the Punjab, Forest Department, Punjab, Lahore, through Divisional Forest Officer v. Ghulam Nabi and 3 others (PLD 2001 SC 415 (c) and (d), Badruddin Roshan v. Mst. Raziq Sultana and others (2002 SCM R 371), Muhammad Anwar v. Tahir Jabeen and 3 others (2003 CLC 878 (Peshawar), Messrs Muhammadia Medical Hall, Khan Arm Dealers through Khurshid Alam v. Mahmood-u-Hassan and 3 others (NLR 1982 SCJ 23) and Rasee- Ud-Din and others v. Mian Muhammad Farooq and others (2001 SCM R 1801), leaving no doubt about non-maintainability of a writ petition in such like situation.
10. In the light of foregoing reasons, we find no merit in this writ petition, which is, as such, dismissed.