' SHAHNAWAZ TARIQ, J.---Through the captioned constitutional petition, petitioner Muhammad Imran has invoked the Constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, and impugned order dated 25-11-2014, passed by learned III Additional District Judge, Shaheed Benazirabad, whereby First Rent Appeal No.04 of 2014, filed by respondents was allowed and order dated 19-2-2014, passed by learned 1st Rent Controller, Shaheed Benazirabad, was set aside.
2. The necessary facts spelt out from the instant petition are that petitioner is tenant of shop No.4 constructed on C.S. No. 204/2 and 204/3, situated in Ward-A, Market Road No. 1, Nawabshah, at the rate of rent of Rs.2000/- per month. Respondents filed ejectment application No.13 of 2013 against the petitioner on two grounds i.e. Default in payment of rent as well as for personal bona fide need.
However, subsequently the ground of default was withdrawn before the learned Rent Controller. It is further averred that the demised premises is required for personal bona use of respondent Muhammad Bilal, who is jobless and intends to start his independent business. It is also stated that respondents made request to the petitioner to vacate the demised shop, but he refused to do so.
3. Petitioner filed written statement and denied the contents of rent application and stated that Muhammad Bilal is running his own business separately in another shop, hence rent application is liable to be dismissed.
4. To substantiate their claim, respondents Ghulam Mustafa, Muhammad Bilal and one Waseem filed their affidavits in evidence as Exs.8, 9 and 10, respectively. In rebuttal, petitioner also filed his affidavit-in-evidence vide Ex.19.
5. Learned Rent Controller while passing order dated 19-2-2014, framed the following points for determination:-- "(1) Whether the landlords require the premises in good faith for the use of applicant Muhammad Bilal?
(2) What should the order be?"
6. After evaluating the evidence and considering the arguments advanced by learned counsel for the parties, learned Rent Controller dismissed the rent application vide order dated 19-2-2014.
Respondents assailed said order through FRA No.04 of 2014, which was ultimately allowed by the Court of III Additional District Judge, Shaheed Benazirabad vide impugned order dated 25-11-2014, and set aside the findings of learned Rent Controller and directed the petitioner to vacate the shop in question within 30 days.
7. Learned counsel for the petitioner contended that in paras-4 and 5 of the rent application, respondents have stated that the demised shop is required for personal bona fide need of Muhammad Bilal, who is jobless and intends to start his business independently. He further pointed out in cross-examination, respondents have categorically stated that Muhammad Bilal is running his business in a shop situated in same building while three shops are lying vacant. He further contended that respondents have concealed the material facts from the Court with ulterior motives as such the personal requirement is based on bad faith. He further contended that respondents have failed to explain that how the available three shops are not suitable to run the business by Muhammad Bilal. He further submitted that appellate Court has not properly appreciated the evidence adduced by the parties while passing the impugned order which is liable to be set aside.
8. While controverting the plea agitated by learned counsel for petitioner, learned counsel for respondent No.1 vehemently contended that it is the choice of landlord to run his business in any of the shops owned by him and tenant cannot dictate his own wish in this regard. He further contended that in all 07 shops are owned by the respondents and two shops which are lying vacant belong to uncle of the respondents. He further contended that learned Rent Controller has not appreciated the circumstances and evidence adduced by the respondents while passing the impugned order, as such the learned appellate Court has rightly set aside the said findings.
9. Perusal of the material available on record and consideration of the arguments advanced by learned counsel for the parties emanate that petitioner is tenant in respect of shop No.4 owned by the respondents. Respondents in paras Nos.4 and 5 of the rent application, have categorically stated that respondent No.1 approached the petitioner to vacate the demised shop which is required for Muhammad Bilal in good faith, to run his separate business, who is jobless. Likewise, respondent Ghulam Mustafa as well as Muhammad Bilal, have also stated same facts in their affidavits in evidence, but amazingly, in the cross-examination, respondent Ghulam Mustafa has admitted that there are five shops in same building and they have taken over possession of two tenements on the ground of personal bona fide need, however, he denied that said shops were again let out to other tenants. He further admitted that at present three shops are in their possession. Similarly, respondent Muhammad Bilal in cross-examination, has stated in contradictory manner taking new stance that he is doing business of hardware in a shop situated in the same building and only one shop is in his possession. He further admitted that there are 6/7 shops in the same building and three shops are lying vacant. He further stated that "It is incorrect to suggest that I am jobless and want to run business in the demised shop."
10. After minutely consideration of the above facts and evidence adduced by respondents, I am clear in my mind that respondents have concealed the material facts from the Court while agitating the personal bona fide requirement of Muhammad Bilal for the demised shop, being a jobless. It is worthwhile to mention that while seeking the personal bona fide need, it is incumbent upon the landlord to plead his need in good faith by furnishing the relevant fact truthfully, but in present case, respondents have failed to discharge such burden honestly, fairly and candidly, which is fatal to the bona fide need of the respondent in good faith. It is well settled that it is the prerogative of the landlord to choose a particular premises for his bona fide personal occupation and use in case the landlord has more than one premises but for exercising such prerogative it is the duty of the landlord to give plausible and satisfactory explanation for his insistence to occupy a particular premises in preference to occupy any other premises available for occupation and use.
From perusal of the available material, it reflects that not a single word has come from respondents as to why the three shops, which are in their possession, would not be sufficient and would not meet the demands of the business sought to be established by respondent Muhammad Bilal. Moreover, the respondents instead of providing plausible, satisfactory and cogent grounds for not occupying the shops which had become available for occupation did not even disclose the factum of three shops having become vacant as well as already carrying his business by respondent Muhammad Bilal which completely negated their good faith and bona fides.
11. At this juncture, I would like to refer the relevant case-law as follows:--
(i) In case of Mrs. Shah Noor Fazal v. Ghulam Akbar Mangi (1987 SCM R 2051), the honourable Supreme Court has observed as follows:-- "If at all, the flat lying vacant was not suitable for her needs it was then necessary that she should have made out a case that the flat which was lying vacant was not sufficient for her needs and that it was for that reason that the disputed flat was needed by her. This was a legal requirement which had to be pleaded and proved. Not having done so, it was not open to the Rent Controller to take notice of what transpired in the evidence. The High Court took note of this deficiency and rightly held that in the absence of such a pleading it cannot be said that the disputed premises was required in good faith. Accordingly, it reversed the conclusion of the trial Court. The learned counsel for the petitioner was unable to convince us as to how in the absence of a specific pleading as to the vacant premises not being sufficient for her needs she could seek ejectment of the respondent from the disputed premises. Accordingly, the order of the High Court is unexceptionable".
(iii) In case of Abid Masood and others v. Dilshad Khan (1995 SCM R 146), the honourable Supreme Court has observed as follows:-- "We have, however, perused the various orders passed by the Courts below and find that the petitioners owned numerous shops in the building and during the pendency of these proceedings got vacated some shops which were let out to tenants. In post-remand proceedings the petitioners had opportunity to lead evidence to show that the shops having fallen vacant during the pendency of the ejectment proceedings were not suitable for their use but led no evidence in this behalf. The perusal of the order of the Rent Controller, shows that the evidence produced by the petitioners was vague and fell short of proving their bona fide personal need for the shop in question. In these circumstances, in our view this is not a fit case to interfere in the impugned order passed by the learned Lahore High Court maintaining the order of the Rent Controller rejecting petitioners' eviction petition filed Against the respondent. Resultantly, this petition is dismissed and leave refused".
(iii) In case of Latif Ahmed v. Mst. Farrukh Sultana (1996 SCM R 1233), the honourable Supreme Court has observed as follows:- "Just before filing ejectment application landlady had got vacated one shop which she divided into two, qnd rented out the same to two different persons, but she did not mention such fact in her ejectment application nor did she state reasons as to why her son (for whom she required such premises) did not occupy said vacated shop nor any averment was made to the effect that shop in question; was more suitable to the requirement of her son than the one she had obtained possession shortly before filing the ejectment application. Shop which landlady got vacated earlier was admittedly situated in the same market in which shop in question was situated.
Landlady although, had the prerogative to have premises of her choice and tenant had no right to challenge such right of landlady, yet it was incumbent upon landlady to have disclosed factum of vacation of shop and then renting out the same by dividing it into two shops and the reason as to why that shop was not suitable for her/ her son's requirement particularly keeping in view that said shop and shop in question, were situated in the same market. No case for personal requirement was thus, made out and Rent Controller had rightly and correctly declined to order ejectment of tenant. High Court was not justified in setting aside order of dismissal of ejectment application' and allow the same. Order of High Court whereby ejectment of tenant was ordered was set aside while that of Rent Controller dismissing landlady's ejectment application was restored in circumstances".
(iv) In case of Shahid Nadeem and others v. Muhammad Shafi (2000 SCM R 542), the honourable Supreme Court has observed as follows:- "4. In this case although the fact that two shops had been vacated in the same building during the pendency of the first appeal had been brought to the notice of the Court but in spite of availing opportunity to explain that the said shops were not suitable for the petitioner's need, the latter went to deny the fact that any shop had been vacated as alleged by the respondent. Although, the petitioner succeeded in getting an order in his favour but nevertheless the First Appellate Court gave a notice for contempt of Court to the petitioner for making a false statement but subsequently the proceedings were dropped for technical reasons. But the petitioner failed to succeed before the learned Judge in the High Court, who took notice of the fact that the requirement to prove bona fides had not been established by the petitioner in view of such circumstances. The learned Judge appears to have taken a .Serious view of the fact that although opportunity had been provided to the petitioner to explain that the said shops failed to " serve his requirements, but such opportunity was clearly lost by the latter when he resisted such attempt by the respondent to lead additional evidence in this regard.
5. Khawaja Muhammad Farooq, learned counsel for the respondents has invited our attention to the case of Abid Masood and others v. Dilshad Khan (1995 SCMR 146) wherein failure of the landlord to bring circumstances on record which could establish his bona fides as to the need of the premises required by him were found to be fatal to his case. Consequently, in our view, the view taken by the learned Judge in the High Court appears to be reasonable and the same does not appear to be open to interference by this Court."
(v) In case of Muhammad Lehrasab v. Mst. Aqeel-un-Nisa and 5 others (2001 SCM R 338), the honourable Supreme Court has observed as follows:-- "4. There is no cavil with the proposition that ordinarily the High Court in its Constitutional jurisdiction would not undertake to reappraise the evidence in rent matters to disturb the finding of facts but it would certainly interfere if such findings are found to be based on non- reading or misreading of evidence, erroneous assumptions of facts, misapplication of law, excess or abuse of jurisdiction and arbitrary exercise of powers. In appropriate cases of special jurisdiction, where the District Court is the final Appellate Court, if it reverses the finding of the trial Court on the grounds not supported by material on record, the High Court can interfere with it by issuing writ of certiorari to correct the wrong committed by the Appellate Authority. Reference can be made to Rahim Shah v. Chief Election Commissioner (PLD 1973 SC 24), Lal Din Masih v. Sakina Jan (1985 SCMR 1972), Muhammad Hayat v. Sh. Bashir Ahmad and others (1988 SCMR 193), Abdul Hamid v.
Ghulam Rasul (1988 SCMR 401) and Assistant Collector v. Al-Razak Synthetic (Pvt.) Ltd. (1998 SCMR 2514). The High Court was, therefore, in its writ jurisdiction competent and justified to have interfered with the Appellate Order. No case is made out for grant of leave to appeal."
12. It is significant to mention that in present case, the statements of respondents Ghulam Mustafa, Muhammad Bilal and Waseem are not in consistence with the averments of the main rent application. The main factor which has gone against the respondents is that they did not disclose in the memo of rent case and their affidavits in evidence that they were in possession of three shops and respondent Muhammad Bilal was already carrying his business in another shop in same building. The suppression of the above facts has adversely affected the credibility of the respondents, therefore, I am of the considered view that respondents have failed to establish their personal need in good faith. But on the contrary, their mis-statements and concealment of necessary facts have established the bad faith on their part which is completely based on mala fide and ulterior motives.
13. Indeed, while recording the reasons for rejecting the verdict of learned Rent Controller, learned appellate Court should have discuss and examine the relevant facts, prevailing circumstances and clear admission made in the statements of respondents judiciously, but learned appellate Court has failed to appreciate the available material, as such not only committed serious illegality and material irregularities, but the impugned order is found to be based on non-reading and Misreading of the evidence which is contrary to C the material available on the record. There is no manner of doubt that the facts having been expressly and unequivocally admitted in the cross- examination did not require any proof by the petitioner, as the honourable Supreme Court in plethora of cases has observed that the facts admitted need not to be proved. In the circumstances referred supra, in my humble view this is a fit case to interfere in the impugned order passed by the learned appellate Court. No case for personal requirement was thus, made out and Rent Controller had rightly and correctly declined to pass order for ejectment of petitioner.
Consequently, instant petition stands allowed as prayed and impugned order dated 25-11-2014, passed by learned III Additional District Judge, Shaheed Benazirabad, having no legal substance, is set aside.