The property bearing No. C-32, Vehari, is a composite building consis--ting of 2 shops and a residential unit. The appellant who is the owner of this property is in possession of one shop and a part of the chaubara, whereas the other shop and residential portion is in occupation of the respondents as a tenant under him. The appellant filed a petition for ejectment of the respondents from the demised premises on the ground of default in payment of rent for the period from February to May, 1975, damage to the property, reconstruction and bona fide personal use. I was averred that the appellant had got the building plan sanctioned and would construct a market. He asserted that he required the business premises as well as the residential units for the use of his two married sons.
2. The respondent's predecessor-in-interest resisted the petition, con--troverted the appellant's contention and urged that the petition was filed by him merely to use it as a lever for enhancement of the rent. He contended that the rent was remitted to the appellant through money order which he refused to receive and consequently it was deposited in the office of the Rent Controller.
3. The appellant examined Amir Ahmad Qamar the Chief Officer of the Municipal Committee, Vehari, to prove the sanction of the building plan. 1t may be added that this witness was also examined by the respondent to prove the certificate (Exh. R/1).
The appellant besides his own testimony also relied on the statement of Muhammad Rafique, P.
W.3. It is in the deposition of this witness that the appellant has to reconstruct a market in place of the existing building which is in a dilapidated condition. He stated that the appellant and his two married sons were not in possession of any business unit except the shop located in the building in question that the demised premises were required by the appellant for the use of his sons the residential portion to be constructed in the first floor would also be occupied by them for their own residence. While appearing as his own witness the appellant contended that the property in dispute was required by him in good faith for reconstruction. He deposed that after reconstruction he would deliver one shop to the respondent that none of his two sons, who were married was in possession or owner of any other shop. He further stated that after construction of the market he wanted to set his sons on the business' and claimed that he had already initiated separate proceedings before the Rent Controller for permission to change the residential character of the building into commercial one. In cross-examination he admitted that he was a licensee for the sale of opium and his elder son worked with him. He denied that his elder son was a tonga contractor but conceded that he did this contract business during the period 1970-75. He also admitted that in the beginning his elder son Abdul Aziz held toll tax contract from the Municipal Committee, Vehari.
He categorically denied the suggestion that he wanted to increase the rent.
4. The respondent, on the other hand, examined Abdul Hamid, Clerk of the Municipal Committee Chishtian to prove Exh. R. 1, which is to the effect that a cinema plot was purchased by Khushi Muhammad and others from the Municipal Committee Chishtian. The respondent also produced Barkat Ali, R. W. 3 and Meraj Din, R. W.
4. There is nothing in their statements relevant to the matter in issue. His other witness, Muhammad Safdar, R. W. 5, simply stated that the shop was in good condition. The respondent who died during the pendency of this litigation and is now represented by his legal heirs, arrayed as respondents to this appeal, also appeared in the witness-box, as his own witness. He stated that the appellant wanted to increase the rent from Rs. 300 to Rs. 400 per month and that he was a contractor of a cinema and toll tax; the shop was in good condition and was not required by the appellant in good faith for personal use; ejectment proceedings were initiated merely to increase the rent.
5. The learned Rent Controller awarded findings in favour of the respondent on all the issues and by his order dated 31-7-1978 dismissed the petition. He held that neither the respondent committed default in payment of rent nor did he damage the property. On issue No. 3. Regarding reconstruction he found that the appellant did not want to rebuild the property in good faith. The reasons assigned by him for the appellant's lack of bona fides, were that due to reconstruction the nature of the property would be altered from residential to commercial one for which the appellant did not obtain permission from the concerned quarters; no notice was given to the respondent by the Municipal Committee before according sanction to the building plan in favour of the appellant; he also did not get permission from the Colonization Officer for construction of the building. The learned Rent Controller was of the view that mere sanction of the plan by the Municipal Committee was not sufficient to establish that the appellants want to raise construction and to prove his bona fides. He maintained that the appellant failed to produce any independent evidence besides the sanction of the Municipal Committee.
6. As regards the ground of self-use, the learned Rent Controller referred to the statement of Muhammad Rafique, and maintained that according to the testimony of this witness the appellant and his sons were opium contractors. He further held that the appellant failed to state that the property was required by him for the residence of his sons. In his opinion the appellant's one son was engaged in the contract business and was also a partner in the lease of the Octroi of the Municipal Committee. He relied on Exh. R.
3. To hold that the appellant's son was a partner in the cinema at Chishtian. As a result of his these findings, the learned Rent Controller held that the claim put forth by the appellant for vacation of the premises was tainted with bad faith.
7. In appeal, the learned District Judge maintained that the permission of the Colony Department was not necessary and the Municipal Committee, Vehari, alone was competent to accord sanction to the building plan. However, he found that the sanction obtained by the appellant for recon-- struction was not bona fide. This finding rested on the inference that the appellant gradually increased the rent of the demised property, he wanted to convert the residential portion of the building into commercial unit and thus deprive the respondent of user of the property for residential purposes. In this connection, the other factor which weighed with the learned District Judge was that the appellant did not mention in the petition that be would deliver possession of the property to the respondent after its reconstruc--tion. In his view, the appellant's this omission smacked of his mala fides. With regard to the bona fide personal use of the property, the learned District Judge, drew an inference against the appellant for his failure to produce his sons in the witness-box. He maintained that tire appellant's son was working with him in the opium contract business for the last 10 years. According to the learned District Judge all these factors debarred the appellant from seeking ejectment of the respondent on the ground of bona fide personal need. In view of his these findings, the learned District Judge by his order dated 15-2-1978 dismissed the appeal.
8. The unsuccessful landlord has now come to this Court in second appeal.
9. The learned counsel for the appellant confined his submission only to Issues Nos. 3 and 4, relating to reconstruction and bona fide personal use. He argued that the evidence was grossly misread and the 'relevant provisions of law misconstrued by both the learned Courts below. In his submission the judgments of both the learned lower Courts rested on extraneous and irrelevant considerations. It was urged that violation of section II as to conversion of residential building into commercial one without the permission of the Rent Controller, was not a valid ground to refuse ejectment of the respondent. He submitted that as the findings of the learned two Courts below were vitiated by misreading of evidence and incorrect application of law, the entire case could be re-examined. In support of his these submissions, the learned counsel heavily relied on Messrs Amir Din Allah Ditta v. Seth Adamji Abdullah and another (1), Muhammad Ibrahim v. Mst. Surayya Sultana (2) and Raja Muhammad Khan V. Babu Fazal Karim (3).
10. On the other hand the respondents' learned counsel contended that both the learned lower Courts, after appraisal of evidence gave findings on both the issues against the appellant, which being findings of fact, could 'not be reopened in second appeal. He relied on Waris Khan v. Abdul Aziz (4), Haji Fazal Hussain v. Mistri Taj Din (5) and Allah Rakha v. Muhammad Shafi (6).
11. I have gone through the entire evidence thoroughly, to weigh the respective contentions of the learned counsel for the parties and find force in the submissions of the appellant's learned counsel.
Section 11 does not govern the provisions of section 13 of the Ordinance. The distinction drawn between a residential and non-residential building, in the definition clauses, embodies in section 2 has no applicability to section 13 (2) (ii) (vi of the Ordinance. This view finds support from Raja Muhammad Khan v. Babu Fazal Karim. In Muhammad Ibrahim v. Mst. Surayya Sultana, it was held that contravention of section 11 is not a valid ground in resisting an application for ejectment. This being the position in law, the view taken by the learned Rent Controller, which also found favour with the learned District Judge that the appellant wanted to change the nature of the property and that after reconstruction the respondent would be deprived of its user for residential purposes, is palpably wrong.
12. There is no provision in the Municipal Administration Ordinance, or for that matter, in the Punjab Local Government Act, 1975, casting an obligation on the Municipality to serve a notice on the occupant/ tenant of the building before sanctioning the owner's building plan for reconstruction.
Equally ill founded is the finding of the learned District Judge, in dubbing the appellant's requirement for reconstruction as mala fide on the ground that he failed to mention in the ejectment petition that after reconstruction of the building he would pass on its possession to the respondent. There is no such requirement of law. The relevant provision in this respect is to be found in subsection (5-B) of section 13 of the Ordinance, which confers right on a tenant, who is ejected on the ground of reconstruction, to approach the Rent Controller before the completion of the new building for issue of a direction to the landlord to put the tenant into possession of such an area of the new building as does not exceed the area of the old building of which he was in occupation.
(1) 1969 SCMR 131(2) PLD 1966 Lah. 406
(3) PLD 1973 Notes 131 at p. 201 (4) PLD 1967 Pesh. 56
(5) PLD 1978 Lah. 728(6) 1978 SCMR 437 The mere deprivation of the respondent from using the property for residential purposes, cannot be counted as a factor in regarding appellant' requirement for reconstruction as mala fide.
13. The appellant has got the building plan sanctioned. It was specifically stated by him in the ejectment petition that he wanted to construct a market in place of the existing building. There is no legal bar on a landlord to develop his property and to seek the ejectment of his tenant for such reconstruction. There is more than enough evidence on the file to substantiate that the appellant intends to make improvements in his property by constructing a market consisting of a number of shops and further erect residential units in the first floor. Besides other evidence this is quite evident from the sanctioned building plan placed on the file. After having considered the entire evidence, I am unable to agree with the learned District Judge that the requirement of the appellant for reconstruction, was motivated by bad faith. This evidence fully proves that the property is needed by him reasonably and in good faith for erection of a new building. It is clear to me that the findings of the learned two Courts below on Issue No:3, largely rest on irrelevant considerations, and therefore, cannot b upheld. The penal provisions of section 13 (5) of the Ordinance also provide adequate safeguards against the mala fide of a landlord. The findings of the learned Courts below on Issue No. 3 are, therefore, reversed and it is held that the appellant has succeeded in proving that he requires the demised premises reasonably and in good faith for the reconstruction of the building.
14. The other question as to whether the premises are required by the appellant bona fide for the use of his sons may now be dealt with. I find myself unable to uphold the findings of the Courts below on Issue No. 4, as well. It is not an absolute rule that to prove his bona fides the landlord's son for whose benefit he seeks the ejectment of a tenant must be put by him in the witness-box to support the ejectment petition, failing which adverse inference would be justified against him. Each case has got to be decided on its own facts and the evidence produced by the parties. I cannot lose sight of the fact that the appellant appeared m the witness-box and was subjected to lengthy cross-examination. I do not think that in the circumstances of the case, non-appearance of his son as witnesses militates against the appellant's bona fide Muhammad Rafiq, P. W. 3, simply stated that the appellant's son Abdul Aziz, worked at the opium shop and that in 1970-75, the appellant had the business of Municipal Octroi contract. It is in the statement of the appellant that the opium contract is held by his son for the last 10 years, and that this business is run by him. No doubt, the appellant also stated that his elder son worked with him but while determining the question of his bona fide requirement, his deposition that after construction of the market he wanted to set his sons on the business cannot be brushed aside. It appears that the appellant wants to establish his sons, independently in business, and arrange business premises for them. There should be no bar in getting the property vacated from his tenant for this purpose. The case, seemingly, has not been examined by the learned two Courts below in its true perspective.
15. The fact that the rent of the demised premises was enhanced from time to time, was also considered by the learned District Judge, a ground for regarding the appellant's requirement as mala fide. To me, it appears that the rent was increased with the mutual consent of the parties.
One thing is quite obvious that the increase in the rent was not made a ground by the respondent at the relevant time. This would justifiably lead to the inference that he willingly increased the rent.
Sharp fall in the money value during the recent years would also be a relevant factor in this respect. In this view of the matter, the increase in the rent by itself, cannot be considered a pointer to the appellant's mala fides.
On this analysis, the findings of the learned lower Courts, on Issue No. 4, cannot be upheld and are, therefore, reversed.
16. The precedent cited by the learned counsel for the respondent, need not be examined in detail.
All these rulings simply enunciate the well-established principle that a concurrent finding of fact of the Courts below, cannot be reopened in second appeal. The weight of this principle of law can hardly be diminished, but it is well-established that a finding of fact has no sacrosanctity which it suffers from misreading of evidence or' is violative of some legal principle. It has been found in no small measure, that the findings given by the learned Courts below, were founded on irrelevant considerations and incorrect application of the provisions of law, and therefore, cannot pose a bar on intervention by this Court in second appeal.
17. As a result of the above discussion this appeal is accepted, the order under appeal is set aside, and the respondents are ordered to be ejected from the property in question. They shall hand over its vacant possession to the appellant within four months. It shall be open to them to approach the learned Rent Controller under section 13(5-B) of the Ordinance, before the completion of the building. If so advised.
In the circumstances of the case, the parties are left to bear their own costs.