1. ' This appeal is directed against the order dated 12th January, 1977 passed by the Vth Additional District Judge, Karachi, acting as the first appellate authority under the provisions of the West Pakistan Urban Rent Restriction Ordinance,1959 reversing the order of Rent Controller and directing ejectment of appellant on the ground of personal and bona fide requirement of respondent.
2. ' Briefly stated the relevant facts are that AI-Haj Hafiz Muhammad Ishaq (I will hereafter refer him as the deceased) filed an application under section 13 of the Ordinance for eviction of the appellants on the ground of personal and bona fide requirement. It was alleged in the ejectment application that some of the male children of the deceased were grown up and were unemployed and unsettled in their lives and therefore the deceased needed the premises to set up proper business for them to enable them to start their own business. It was further stated in the application that neither the deceased nor any of his sons are occupying any such building which is suitable for their need in the same urban area and that neither the deceased nor any of his children vacated any such building after the commencement of the Ordinance. The application for ejectment was resisted by the appellants and it was urged that the application is mala fide as the deceased at the time he let out the premises to appellants had argeed that the appellants will not be evicted from the premises and therefore the appellant spent a substantial amount over making additions, alterations and on beautifying the said premises. It was also stated that the main reason for filing application was to extract enhanced rent which the appellant has refused to pay. The Rent Controller framed the following issue in the case : "Whether the applicant/landlord requires in good faith the premises in question for the use and occupation of his children".
3. After recording the evidence of parties the Rent Controller dismissed the application and held that the requirement expressed by the respondent was neither bona fide nor reasonable. However, in appeal the Vth Additional District Judge, reversed the findings of the Rent Controller and ordered ejectment of the appellant from the premises.
4. ' The learned counsel for the appellant contended before me that the reversal of the findings of Rent Controller by the first appellate authority was unjustified, arbitrary and based upon insufficient reasons. It is contended that the main reason which prevailed with the first appellate authority for reversing the findings of the Rent Rontroller was that the appellant had full protection available to them under section 13 (4) of the Ordinance against a mala fide application by the landlord. It is further contended that non-production of the two sons of the deceased in evidence for whose benefit the premises were allegedly required by the deceased was itself a sufficient circumstance for rejecting the application of respondent on the ground of personal and bona fide requirement of the sons of deceased. Lastly it is contended by the learned counsel that the evidence on record did not establish the bona fide requirement as alleged by the deceased but at best shows a case of mere "desire", as in his evidence the deceased admitted that he had not yet decided as to what type of business will be run by his sons. The learned counsel for the respondents on the other hand contended that the reversal of the findings of Rent Controller by the first appellate authority on the issue of personal and bona fide requirement proceeded on sound and logical basis and it is binding on this Court in Second Appeal as the determination of "personal and bona fide requirement" of landlord is a pure question of fact. The scope of interference by an appellate Court with findings of facts in Second Appeal has been finally determined by the Supreme Court of Pakistan in the case of Madan Gopal v. Maran Bepari and I can do no better than to reproduce here the following passage from the above case appearing at page 618 of the Report :- "The legal position does not admit of any doubt that a concurrent finding of fact reached by the lower Courts will not be disturbed by the High Court in a Second Appeal even if it disagrees with that finding on its own view of the evidence, although the concurrent finding of the lower Courts may appear to be grossly erroneous, unless, as laid down in subsection (c) of section 100, the error or defect discovered is of a substantial character pertaining to the procedure as provided by the Code or by any other law for the time being in force which may possibly have produced an error or defect in the decision of the case upon its merits. Interference would also be justified if the decision of the lower Courts is found to be contrary to law or some usage having the force of law or has failed to determine some material issue of law or usage having the force of law. If the finding of fact reached by the first appellate Court is at variance with that of the trial Court, the former will ordinarily prevail, although it would not possess the same value or sanctity as a concurrent finding.
5. Such a finding by the lower appellate Court will be immune from interference in second appeal only if it is found to be substantiated by evidence on the record and is supported by logical reasoning, duly taking note of the reasons adduced by the first Court which have been disfavoured in the contrary finding. The finding being at variance with that of the trial Judge, the two will naturally come in for comparison for their comparative merits in the light of the facts of the case and the reasons on which the two different findings have respectively proceeded. If the finding of the first appellate Court cannot be supported on the evidence on record or if it has failed to take into account a material piece of evidence or if it does not reveal a logical basis for differing from the finding of the trial Court, or is otherwise found to -be arbitrary or capricious, it will have to be rejected in second appeal."
6. ' I will therefore, now examine the order of first appellate authority in the light of the above observation of Supreme Court to find out if the reversal of the findings of Rent Controller on the1 issue of personal and bona fide requirement by the first appellate authority was justified. The Rent Controller while rejecting the ejectment application of the deceased took note of the following facts :-
(I) The shop for which ejectment was Sought was not a suitable place for starting a new business as it was not in the market place.
7. (2)The deceased failed to produce his two sons in evidence for whose benefit the shop was required.
8. (3)The deceased failed to disclose- in--his evidence what kind of business his sons intended to start in the shop.
9. (4)That the deceased and his sons were resident of Nazimbad whereas the shop in question was situated 5 to &miles away from the place of their residence, and therefore it was neither economical nor convenient for the sons of landlord to start business in the shop in question and the deceased should have settled them in business at Nazimabad where the rents were comparatively low.
10. (5)That the deceased failed to disclose particular reason for selecting the shop in dispute for his son.
(6) That the deceased while filing ejectment case against another tenant of adjacent shop occupied by a welder on ground of nonpayment of rent, could have also included the ground of personal and bona fide requirement and if the deceased's sons could start business in the shop occupied by the appellant why could they not start business in the other shop occupied by a welder ; and
(7) That the sons of the deceased had no capacity to do the business as they had no previous experience.
11. ' All the above reasons given by the Rent Controller were duly taken note of by the first appellate Court and on very sound and logical basis each one of them was rejected. Mr. Muhammad Ali Sayeed, the learned counsel for the appellant very frankly stated before me that in so far reasons No, 1 and 4 to 7 stated above are concerned they were not sufficient grounds for the Controller to reject the application of the deceased but maintained that on reasons No, 2 and 3 alone the application on the ground of personal requirement could have been rejected by the Rent controller. In spite of the statement of Mr. Muhammad Ali Sayeed that he does not support the order of Rent Controller on reasons No, 1 and 4 to 7 stated above, I have also examined each one of these grounds and found that the disfavour of the first appellate authority with the above reasons of the Controller was not only on logical basis but was also supported by appropriate case law on the point. In so far the contention of Mr. Muhammad Ali Sayeed that the deceased did not produce his two sons in evidence for whose benefit he required the shop is concerned, it was found by the first appellate Court that it was an admitted position in the case that the two sons of the deceased were grown up, B. Com. And unemployed. It was also found by the first appellate Court that it was not shown that the sons and the father were not on cordial terms and accordingly it was found that the non-production of the sons in the evidence in these circumstances was immaterial as it would have been only the duplication of evidence and nothing more. The conclusion reached by the first appellate authority is neither contrary to evidence on record nor I preverse or fallacious so as to justify interference by me in second appeal. The next contention of the learned counsel is that the main consideration on which the first appellate authority reversed the findings of Rent Controller was that sufficient safeguard was available to appellant against a mala fide action in view of section 13 (4) of the Ordinance. It is urged that the admission of the deceased in evidence that he had not decided the kind of business to be done by his sons in the premises amounted to only the expression of 'desire' on his part and therefore the personal and bona fide requirement was not proved as required under the law. The first appellate Court dealt with this argument in his judgment as follows :- "13. In the instant case, the appellant's statement to the effect that his two sons have cleared 'B.
12. Corn.' and are unemployed and unsettled has not been controverted. It has also not been controverted that the appellant is able to invest Rs, 50,000 for the purpose. What has really been disputed is the good faith of the appellant on the grounds mentioned above. Thus the contention of the applicant stands established. In PLD 1975 Lah. 308, it was held that "if the landlord asserts that he or his son needs particular premises for personal use and it is also proved on record that he or his son is not occupying in the same urban area any building for the purpose of his business suitable for his needs or has not vacated, such a building or rented land without sufficient cause, then the "question with regard to bona fides or good faith would have to be determined in context of the provisions as contained in subsection (4) of section 13 of the Ordinance. What is after all required by the landlord or his son to prove his good faith or bona fides in regard to personal use is to make a statement with regard to factual position as it stands and if the same is disproved in rebuttal in context of the condition as laid down in sub-paras. (b) and (c) of para. II of subsection
(3) of section 13 of the Ordinance, then it can be safely said that the landlord or his son has not been able to prove his bona fides or good faith."
13. ' The first appellate Court further referred to the case of Muhammad Siddik v. Mistri Muhammad Aslam and held that subsection (4) of section 13 of the Ordinance is a sufficient safeguard to a tenant with regard to mala fide action as in the event of non-occupation of the shop by the landlord the tenant can apply for having put in possession of the premises vacated on the ground of personal and bona fide requirement. The manner in which the landlord should prove his personal and bona fide requirement was considered in the case of Hassan Khan v. Mrs. Munawar Begum by I. Mahmood, J. (as he then was) as follow at page 835 of the report :- "8. In Muhammad Siddik v. Mistri Muhammad Aslam it was observed that the assertion of the landlord that he required the premises for his personal use should be determined in the context of the provision contained in subsection (4) of section 13 of the Ordinance, which enables a tenant to regain possession from his landlord who "had obtained it on a false plea of bona fide personal need, but he had failed to occupy the premises within one month of the date of obtaining possession or who relet it within two months of the said date to any person other than the tenant.
14. This is said to be a safeguard for the tenant against being ejected on a false plea of bona fide requirement by the landlord. The effect is that the assertion or claim on oath by the landlord that he required the premises for his persona! Use, should be accepted by the Rent Controller as bona fide, if such claim or assertion, although by itself may be insufficient, yet is consistent with his averments in the application and is not shaken in cross-examination or disproved in rebuttal".
15. ' The above observations of the learned Single Judge was fully approved by the Supreme Court in the case of Toheed Khanam v. Muhammad Shamshad. The reasons given by the first appellate Court in accepting the personal and bona fide requirement of respondents are quite in accord with the above-quoted observations in the case of Hassan Khan and therefore I find no justification to interfere with the same. Mr. Muhammad Ali Sayeed lastly contended that on account of death of the deceased and one of his sons for whose benefit the premises was required in a Air Crash during the pendency of this appeal, the plea of personal and bona fide requirement is no more valid and taking note of these changed circumstances the ejectment order be set aside. I may mention here that during pendency of this appeal the appellant filed C. M. A. No, 548 of 1981 seeking to amend the memo. Of appeal to add the ground that on account of death of deceased and one of his sons the ground of personal and bona fide requirement was no more available to the respondents.2 3 4 This application was ordered to be heard alongwith the main appeal. Mr. Muhammad Ali Sayeed, contends that due to death of the deceased and one of his sons during pendency of this appeal the whole complexion of the case is changed and the requirement as originally pleaded cannot be now enforced. The contention of the learned counsel has not impressed me. The requirement as pleaded by deceased Hafiz Muhammad Ishaq was with regard to his two sons out of which one is admittedly surviving and therefore it cannot be argued that the requirement has come to an end by reason of death of one of the sons of the deceased. Secondly from the list of L. Rs, who were substituted as respondents in this appeal after the death of deceased it is clear that apart from, the son of the deceased who died in an air crash during pendency of this appeal the deceased is survived by five sons and three daughters out of whom' three sons and three daughters are adult.
16. In these circumstances it will be highly inequitable and unjust if the respondents are now denied the relief which they were found entitled to, on account of death of the deceased and one of his sons. There is no merit in the appeal which is accordingly dismissed with cost but the appellants are allowed four months' time to vacate the premises subject to their depositing in Court the monthly rent for the period. PLD 1969 SC 617 1973 SCMR 185 PLD 1976 Kar, 832 1980 SCM R 593