This second appeal is by the landlord Haji Muhammad Ishaq and has arisen out of an application made by him under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance) for the ejectment of the respondent tenant from a shop situate on the Mall, Murree. The appellant had prayed for ejectment of the tenant on .The ground that he required the premises for the use of his son Muhammad Ayub who had no other shop in his possession, nor had he vacated any shop within the Murree Municipal Area.
2. The application was resisted by the tenant on the ground that the landlord was in the habit of forcing his tenants to pay enhanced rents by bringing ejectment proceedings, and that the application had been brought for the reason that he had refused to pay enhanced rent as demanded by the landlord. It was asserted that the application was mala fide, as the members of the landlord's family never did any business, depending as they did solely on rents derived from property. It was also alleged that the landlord's son was doing business at the family shop in Rawalpindi.
3. The learned Rent Controller framed the following two issues :-
(1) Whether the petition is mala fide?
(2) Whether the petitioner required the premises bona fide for the use of his son?
On the first issue he observed that although the tenant had asserted that the landlord had demanded enhanced rent, but the latter had stated in the witness box that the tenant was paying only Rs.950 although the assessed rent of the shop since 1961 was Rs.1,250 and that he had never demanded the enhanced rent. The learned Rent Controller observed that he saw no justification to prefer the statement of the tenant to that of the land--lord. On the second issue the learned Rent Controller found that the shop at Rawalpindi had gone to the landlord's brother as a result of partition of the family property and, therefore, the shop in dispute was needed bona fide for the use of the landlord's son. On the basis of these findings the learned Rent Controller accepted the application and directed the tenant to deliver possession of the shop within one month from the date of the order.
4. This judgment of the learned Rent Controller has, however, been reversed by the learned District Judge, Rawalpindi, acting as appellate authority under section 15 of the Ordinance. He bas observed that although partition of the family property had taken place in 1962 and the landlord's son Muhammad Ayub was out of job since then, yet the application was not instituted until three years later, thus showing that the shop was not required bona fide for the use of the son. The learned District Judge has further observed that as the landlord had several shops in Rawalpindi, he should have normally decided that his son should start his business there and not at Murree which is only a seasonal shopping centre during the summer months. Finally, the learned District Judge has taken note of the fact that it was the landlord himself who had got the rental assessm ent of the shop increased from Rs.950 to Rs.1,250, and that showed his real intention. On this view of the matter, the learned District Judge has come to the conclusion that the landlord did not require the shop in good faith for the use of his son, and that this position was not altered by the fact that section 13 itself contained a penal provision for the restoration of possession to the tenant in case the landlord did not use the premises for the purpose stated in his application. As a result of these findings the learned Rent Controller's order was set aside and the landlord's application dismissed.
5. It is submitted by Sh. Abdul Haque, the learned counsel for the appellant, that the learned District Judge has adopted a completely erroneous approach to the question whether the landlord required the shop for the use of his son in good faith, as it is the right of the landlord to select the shop where his son should carry on business, and it is not the privilege of the Court to dictate to the landlord in this behalf. It is further contended that the mere fact that the rental assessment of the property was increased in 1962 does not mean that it was with any mala fide purpose, or that the real intention of the landlord in filing the ejectment proceedings was to compel the tenant to pay increased rent. Finally, it is submitted that the learned District Judge has also erred in thinking that the penal provisions contained in section 13(4) of the Ordinance have no dirt bearing on the question which was in issue between the parties, as these provisions contain a salutary check on a landlord who does not act bona fide in the matter of getting his property vacated for personal use.
6. On behalf of the respondent tenant a preliminary objection has been taken by Mr. Ziaullah to the effect that the appeal is incompetent as being insufficiently stamped with court-fee of Rs.4 only, whereas it required ad valorem court-fee of nearly Rs.120 in accordance with Article 1 of Schedule I to the Court Fee Act, 1870, and that the deficiency not having been made good even on a demand made by the High Court office, the mistake was deliberate and could not be allowed to be rectified by the exercise of the Court's discretion under section 149 of the Civil Procedure Code. On merits it is contended that the matter really stands concluded by the finding of fact recorded by the learned District Judge in first appeal and, therefore, it cannot be reopened in second appeal. The learned counsel submits that the drawing of an inference from certain facts is not a question of law, but remain a question of fact. It is further submitted that the learned District Judge has arrived at his conclusions by taking into account all the relevant factors and, therefore, no justification is made out for inter--ference by the High Court in second appeal.
7. As regards the preliminary objection concerning the deficient Court-- fee, it is correct that an objection was raised by the office with reference to the Division Bench judgment in Ghulam Hassan Khan v. Dr. Rashid Ahmad (PLD 1967 Kar. 35) in which it has been held that the court-fee payable on a Memorandum of Appeal under section 15(4) of the Ordinance has to be ad valorem according to the value of the subject-matter as required by the provisions of Article 1 of Schedule I to the Court Fees Act, 1870. To this objection, which was raised on the 18th of September, 1967, the learned counsel for the appellant replied on the 23rd of September, 1967, saying that the soundness of the view expressed in the ruling referred to by the office had not been accepted as yet and that the matter may be referred to the Court for decision. At the Bar it was stated by Sh.
Abdul Haque that at the time he recorded this reply it was his understanding that the matter had been referred to the learned Chief Justice for constituting a larger Bench to examine the view taken in Ghulam Hassan Khan's case although subsequently this reference was turned down, with the result that this view still holds the field. It would be seen, therefore, as far as the question of the court-fee on the memorandum of Appeal in this case is concerned, the matter is governed by the decision in the Karachi case, with the result that the appeal must be held to be in--sufficiently stamped.
8. However, the question is whether in the circumstances any justifica--tion is made out for the exercise of the Court's discretion under section 149, C. P. C. In favour of the appellant by allowing him time to make good the deficiency. It has been strenuously contended by the learned counsel for the respondent that this is not a case where deficient court-fee was paid due to a bona fide mistake on the part of the appellant or his counsel ; on the contrary, it was a deliberate and contumacious act in the face of a Division Bench ruling of this Court, and accordingly the discretion conferred by section 149, C. P. C. Should not be exercised in favour of the appellant. Mr. Zia Ullah has placed reliance on Lekh Ram v. Ramji Das (I L R Lah. 234) in support of his contention. That was a case in which court-fee was not correctly paid according to certain decisions of the Lahore High Court itself or of its predecessor, namely, the Punjab Chief Court, and the reason given by the learned counsel for the appellant was that while consulting the case-law on the subject, he had found an unreported Bombay case and an Allahabad case to the contrary. The learned Judges observed that at the time the appeal was put in, the law had been clearly laid down in a judgment reported in the Punjab Record of 1911, which judgment had also been subsequently approved by the Court, and, therefore, "the plain facts of the matter are that the appellant, who appears to be somewhat impoverished to suit his own convenience deferred the payment of court-fee in spite of the knowledge conveyed to him by his counsel of the correct fee payable. So far, therefore, a bona fide mistake having been made, the omission m this case was deliberate. We, therefore, agreed with the contentions and authorities cited by counsel for the respondent that this is not a case in which the extension of time should be granted".
9. It seems to me that while the initial facts of the precedent case are very similar to those of the case before me, yet that similarity ends with the initial stage, for it cannot be said in the present case that the landlord would not have been willing to pay a comparatively small amount, namely, only Rs.116 to make up the deficiency in court-fee, if indeed he had been advised to do so by his learned counsel. The statement made at the Bar by Sh. Abdul Haque to the effect that there was move at one time to refer the Division Bench judgment to a larger Bench for further examination was not con--troverted by the learned counsel for the respondent, although he emphasised that no such reference was ultimately made. That may be so but the fact remains that the learned counsel for the appellant was of the bona fide view that the Division Bench ruling needed reconsideration, and accordingly in his note of the 23rd of September, 1967, he had suggested to the office that the matter be referred to the Court. It appears, however, that no action was taken by the High Court office on that suggestion nor was the appellant called upon to make good the deficiency at any subsequent date. In these circumstances, the dictum in Lekh Ram's case is hardly applicable to the appellant before me.
10. The learned counsel for the respondent has also referred to Muhammad Majid Ullah Khan v.
Muhammad Hamid Ullah Khan (A I K 1924 Lah.325) in which the view taken in the case mentioned above was followed. That again was a case where the appellant's pleader deliberately refused to pay the extra court-fee although the insufficiency was brought to his notice. These facts are again distinguishable for the reason that there was no absolute refusal on the part of Sh. Abdul Haque to pay the extra court-fee but merely a request that the matter be referred to Court which was, however, not done, nor was any further intimation sent to the appellant for making good the deficiency.
11. It seems to me that the matter should really be decided in the light of the principles laid down by a Full Bench in Jagat Ram v. Kharaid Ram and another (A 1 R 1938 Lab. 361). Their Lordships were dealing with a case in which a plaint bpd been filed with insufficient court-fee on the last day of limitation and the prayer for extension of time was made on the ground that when the plaintiffs had gone to the treasury to purchase the necessary stamps they found the treasury closed and consequently they were compelled to put in the plaint with one rupee stamp only and made good the deficiency the next day. The trial Court refused to exercise its discretion in favour of the plaintiffs on the ground that the mistake was not bona fide for the reason that the plaintiff's lawyer was of 17 or 18 years standing and would be expected to know the working hours of the Treasury. The learned Judges observed :- "The discretion conferred on the Court by section 149, Civil Procedure .y; . Code, is normally expected to be exercised in favour of the litigant except in cases of contumacy or positive male fides or reasons of a similar kind. The question of bona fides in this connection should be construed in the sense that the word is used in the General Clauses Act and not as used in the Limitation Act.
A thing should be presumed to be done bona fide if it is done honestly, whether it is done negligently or not, for the purpose of judging whether the discretion under section 149 should or should not be exercised in favour of the litigant. On this point of view, there is no proof and no suggestion has been made in this Court that there was any male fides on the part of the plaintiff.
The only thing that has been suggested is that he might have gone earlier in the day to the Jullundhur Treasury or should have taken the precaution of depositing his money one day earlier and thus making certain of getting stamps on the last day of limitation. This can hardly be said to constitute male fides sufficient to disentitle him from the exercise of the discretion in his favour."
Now, in the present case the appellant's counsel was contesting the soundness of the view taken by the Division Bench in all good faith and there could be hardly any question of the counsel or the appellant trying to deliberately postpone the payment of the extra sum of about Rs.116 only, especially when it is remembered that on the respondents own showing the appellant and his family are big landlords, living on the income of their properties.
12. Another case which appears to be of direct assistance in this context is Putta Venkata Krishniah v. Sheikh Ali Sahib and others (AIR 1938 Mad. 921) in which it was observed by a learned Single Judge that where an appellant had been contesting with some show of justification the correctness of the order requiring him to pay enhanced court-fee, he should be allowed reasonable time in which to pay the deficiency on an adverse order being passed against him. It has already been stated that the appellant's counsel had suggested that the matter be referred to Court for final decision, but that was not done, and the first occasion on which the question is being decided is during the hearing of the present appeal. Such being the case, is would be in the fitness of things to allow time to make good the deficiency at this stage. Accordingly, I allow the appellant four weeks' time from the date of this order to make good the deficiency of court-fee in the Memorandum of Appeal in accordance with Article I of Schedule I to the Court Fees Acts, 1870.
13. A question was raised by the learned counsel for the respondent regarding the applicability of section 149 of the Civil Procedure Code to the proceedings in the present appeal. It was contended that the Rent Controller and the Appellate Authority not being Courts of civil jurisdiction, the provisions of section 149 of the Civil Procedure Code could not be invoked for applying the procedure laid down in the Civil Procedure Code to proceedings before the Rent Controller.
Reliance was placed in this behalf on Khadim Mohyuddin etc. v. Ch. Rehmat All Nagra etc. (PLD 1965 SC 459), Siraj Dill v. Mst. Iqbal Begum (PLD 1968 Lah. 639) and N. Q. Industries v. Mst. Bapai Kaikhusro (PLD 1968 Kar. 589).
14. It does not, however, appear to me to be necessary to examine this contention at any length for the reason that whatever the nature of the proceedings before the Rent Controller or the Appellate Authority, the appeal to the High Court provided by subsection (4) of section 15 of the Ordinance has to be heard and determined as an appeal falling under section 96 of the Code of Civil Procedure if it is from an order of the Rent Controller an as an appeal from the appellate order under section 100 of the said Code in it is from the order of Appellate Authority, and the relevant provisions of the Code relating to appeals shall apply to such proceeding with such modifications as the context may require. It will be seen, therefore, that the proceeding before me are no different from any other second appeal in the High Court with the necessary consequence that all the powers available under the Civil Procedure Code with respect to such appeals would obtain in the present case as well. On this view of the matter, the provisions contained in section 149 of the Civil Procedure Code could not be excluded from application.
15. Coming now to the merits of the case, me may first dispose of the preliminary objection raised by the learned counsel for the respondent that the findings of fact recorded by the learned District Judge as Appellate Authority cannot be reopened in second Appeal. The learned counsel has placed reliance on Abdusattar Haji Ahmad v. Sh. Fazal Hussain and others (PLD 1968 Lah. 733) and Malik Muhammad Hayat Khan v. Subedar Yar Muhammad Khan (PLD 1966 SC 612).
16. In the first mentioned case the learned Judges of the Division Bench held that the question of good faith under section 13 of the Ordinance is a question of fact and observed, with reference to the dictum in Abdul Majid v. Khalil Ahmad (PLD 1955 FC 38) and Pathana v. Mst. Wasal and another (PLD 1965 SC 134), that the High Court had no jurisdiction to entertain a second appeal on the round of an erroneous finding of fact, however gross and inexcusable the' error may seem to be, unless there is an error in the procedure provided by law 'which may have produced an error or defect in the decision of the case on the merits. In the second case their Lordships of the Supreme Court have laid down that "the question of the proper legal effect of a document or of a proved fact is always a question of law, but when an inference is to be drawn as to a question of fact, then whether the inference is drawn from oral evidence or from documents it is always a question of fact".
17. The proposition advanced by the learned counsel for the respondent regarding the reopening of a question of fact in second appeal does not admit of any doubt or debate in view of the settled position of the law in this behalf, but it seems to me that the question which truly arises in the present appeal is not one of fact but one of law, namely, the correct interpretation of the provision contained in clause (it) of subsection (3)(a) of section 13 of the Ordinance. This provision may be reproduced here with advantage :- "(3)(a) A landlord may apply to the Controller for on order directing the tenant to put the landlord in possession
(i) in the case of a non-residential building or a scheduled building or rented land, if-
(a) he requires it in good faith for his own use or for the use of any of his male 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."
18. From the provisions of law cited above, it will be seen that it is for the landlord to decide and then to prove in Court that he requires the premises in good faith for his own use or for the use of any of his mall children. The law does not give power to the Court to decide that the landlord or his child should start his business in one particular shop or in an particular locality, assuming that it was open to the landlord to do so a different places. In the instant case, the landlord admittedly owns property both at Rawalpindi and Murree, and it was clearly for him to make the choice and not for the Court to dictate that the landlord's son should start business at Rawalpindi and not at Murree. The proved or admitted facts are that the landlord has a grown up son who is not occupying any business premises either at Rawalpindi or at Murree, the shop at Rawalpindi having fallen to the share of the landlord's brother as a result of family partition. In these circumstances, the learned District Judge therefore, completely misdirected himself when he stated as under :- "The respondent owns several shops in Rawalpindi which fact he admits in his statement. Normally he should have decided that his son should start business at Rawalpindi, where the business is continuously brisk round the year. The shops at Murree are closed for about seven months in a year." upon himself the responsibility for a personal decision which the law leaves with the landlord to make. The subsequent conclusion recorded by the learned District Judge regarding the mala fide nature of the proceedings basically stems from this legal error.
19. Another factor which has weighed with the learned District Judge in coming to his finding regarding the lack of good faith on the part of the landlord is that the annual rental assessment of the shop was increased by the Municipal Committee, Murree in 1962 from Rs.950 to Rs.1,250 at the instance of the landlord. It appears to the learned District Judge that this -was a clear indication of the fact that the real intention of the landlord in instituting the present proceedings was to compel the tenant to pay the enhanced rent. In coming to this finding .The learned District Judge has ignored a very important aspect of the facts before him, namely, that although the rental assessm ent was increased in 1962, yet the ejectment proceedings were not brought until 1965 and in the meantime, the tenant had continued paying rent at the old rate of Rs.950. It is clear, therefore, that if' the intention of the landlord had been to compel the tenant to pay enhanced( rent, he would not have waited for full three years before initiating the present E proceedings. The omission to take note of this fact has vitiated the findings reached by the learned District Judge on the question of good faith of the appellant.
20. Finally, there seems to be force in the contention raised by the learned counsel for the appellant that the learned District Judge has omitted to give due weight to the penal provisions contained in subsection (4) of section 13 of the Ordinance, as they do have a material bearing on the question of good faith of the landlord in requiring the shop for his personal use or for the use of any of his male children. This subsection lays down "Where a landlord who has obtained possession of a building or rented land in pursuance of an order made under sub-paragraph (i) or sub-paragraph (ii) of Paragraph (a) of subsection (3), does not himself or where the building has been got vacated for the occupation of any of his children, such child does not occupy it within one month of the date of obtaining possession (for having been so occupied is relet within two months of the said date to any person other than the 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,"
These are salutary provisions and provide a check on mala fide pro--ceedings by the landlords.
While dealing with a similar provision as contained in subsection (5) of section 13 of the Ordinance, their Lordships of the Supreme Court were pleased to observe in Messrs Amfr Din Allah Ditta v. Seth Adamji Abdullah and others (1969 SCMR 131) that these penal provisions afford as adequate safeguard against a landlord acting in bad faith and in this context "the argument that the landlord's requirement of the new building was neither reasonable nor bona fide was not relevant to the disposal of the ejectment petition filed under section 13(2) (vi) of the Ordinance aforesaid. If I have understood these observations correctly they are clearly intended to lay down that in the presence of the penal provisions as contained in subsection (4) or (5) of section 13 of the Ordinance there was no such possibility of a landlord acting in bad faith in bringing ejectment proceedings against his tenant on the ground of his personal requirement or that of his male child.
Such being the case, the Rent Controller or the Appellate Authority should, therefore, normally accept the requirement of the landlord when it is reasonably proved on the record, without imputing bad faith to him, unless there were strong circumstance to the contrary, which is not) the case here.
21. Some reference was made by the learned counsel for the respondent to the fact that the landlord possessed another shop in Murree adjoining the shop in dispute which had been let out to another concern and was lying closed for some time. The suggestion was that the landlord should have applied for the vacation of that particular shop. 1 have already observed that the law leaves such decision to the landlord and it is not for. The Court to decide as to which property he should get vacated for his personal use,
22. For the foregoing reasons, I would accept this appeal with costs, and set aside the judgment of the learned District Judge, thereby restoring the original order of the Rent Controller directing the ejectment of the tenant. The tenant is allowed one month's time from the date of this order for putting the landlord in possession.