' This appeal under section 21 of the Sind Rented Premises Ordinance, 1979 (hereinafter called the Ordinance), is .from the order dated 31-10-1982, passed by the III Senior Civil Judge and Controller, Hyderabad, in Rent Application No, 243 of 1980, in the following circumstances.
2. Respondent No,1 is the owner of a double-storied house bearing CS No,E/795, situated at Ashraf Shah-ka-Pir, Hyderabad, having purchased the same from its previous owner Mst. Nawab Begum by a registered sale-deed dated 24-11-1979.
3. Respondent No,1 sent a notice dated 23-1-1980, by registered post informing their appellant of the change of ownership, but the same, it is claimed, was bused.
4. Thereafter, respondent No,1 filed an application under section 15(ii), (vi) & (vii) of the Ordinance for eviction of the appellant from the house on the ground of sub-letting by the appellant to respondent No,2, requirement of the house for his personal use and occupation, re-construction of the same after demolition, and default in payment of rent with effect from 24-11-1979.
5. The appellant in the written statement denied the claim of respondent No, 1 on all the grounds.
6. The learned Controller framed the following issues: "(1) Whether the opponent No,1 has sublet any portion of the premises in case to opponent No,2?
(2) Whether the opponent had committed default in payment of rent?
(3) Whether the applicant requires the premises in case bona fide and in good faith for his own use?
(4) Whether the applicant requires the premises in case for reconstruction in good faith?
(5) What should the order be ?"
7. Before the Controller respondent No,1 filed his own affidavit and the affidavit of one Nisar Ahmed and also examined Postman Ghulam Ghous. They were all cross-examined by the appellant. The appellant examined himself and one witness namely, Jalil Khan.
8. The learned Controller decided the issues of sub-letting, default and requirement of the house for re-construction in favour of the appellant but decided the issue of requirement of the house for his own use in favour of respondent No,1 and accordingly, ordered eviction of the appellant by the order impugned in this appeal.
9. Respondent No,1, has also filed cross-objection challenging the findings of the Controller on issues Nos. 2 and 4 only.
10. I have heard Mr.Ali Ahmed Khanzada learned Counsel for the appellant and Mr. Hassan Ahmed Shah learned Counsel for respondent No,l. No one has appeared on behalf of responded No,2.
11. So far as the plea of requirement of the house for personal bona fide use is concerned, the learned Counsel for the appellant submitted that respondent No,1 has failed to prove that he required the house for his personal bona fide use.
12. In order to appreciate the contention it is necessary to refer to the pleadings and the evidence on this point.
13. Respondent No,1 in paragraph 5 of the application has stated that he has purchased the house for his bona fide use as he has been residing in a rented small Katcha Pacca house which is not sufficient and suitable for his need.
14. In the written objections to the application the appellant in paragraph 5 thereof has denied the averments made in the application and has submitted that the plea is nothing more than a device to press rise the appellant to enhance the rent exorbitantly.
15. In support of his case respondent Noon paragraph 6 of his affidavit reiterated the contents of paragraph 6 of the application and on this point respondent No,1 in cross-examination has stated that then he has been residing at the plot of Shamim "Charey-Waley" and that father and brothers have their own source of income. He denies the suggestion that his father, his uncle and his brother, did not with 'him.
16. On issue of requirement of the house Nisar Ah.med D.W.2 in paragraph 5 of his affidavit has stated that respondent No,1 is residing in a very small and unsuited rented house which is not sufficient for his requirement. The deponent was not at all cross-examined, on this issue.
17. On this issue the appellant in paragraph 5 of his affidavit has stated that it is incorrect to say that respondent No,1 has purchased the property for his personal bona fide use and for the personal use and occupation of his family members,. He has also denied that respondent No,1 and his family members are living in a rented small Katcha Pacca house and that is not sufficient and suitable for his need. It is claimed therein that respondent No,1 wanted to enhance the rent exorbitantly and that he was pressing for enhancing the rent even after the filing of the application.
18. Jail Khan in his affidavit on this issue has denied that respondent No,1 is living in a small Katcha Pacca house or the house which is not sufficient and suitable for his need. He has further stated that respondent No,1 was living separately from his father and that he owns his own house. He gave the number of the house of respondent No,1 as No,108, Gaoshala Road, Hyderabad. In cross- examination he denied the suggestion that respondent No,1 was residing in an old house. He however, admitted that he had not seen the house from inside and respondent No,1 and his family members are residing in one house. He has claimed that respondent No,1's father and brothers are residing about 2 or 3 miles away from respondent No,l's house. This witness has stated that he is a resident of Hyderabad but be has not given his residential address and also has not stated what statements made in affidavit are based on personal knowledge and what statements are based on information and what is the source of information. There is even otherwise no indication in the affidavit how he came to know of the appellant and what is his connection or relationship with him.
His evidence is therefore, unsatisfactory and does not inspire any confidence.
' Moreover, no evidence from Excise & Taxation Department or from the office of the Sub-Registrar was produced to prove the allegation that respondent No,1 owns any other house in the same area and is the occupant thereof.
19. Having reviewed the relevant evidence on the point I may state that it is submitted by Mr.Khanzada that respondent No,1 requires the house for use and occupation of his father and brothers, but for their requirement the appellant could not be evicted because under section 15(2)
(vi) of the Ordinance the requirement contemplated is that of the landlord, his or her spouse and/or any of his children. In my view this submission is wholly misconceived for in the application as well as in the affidavit respondent No,1 has clearly stated that he requires the house for his use and occupation, though no doubt he has filed the photo stat copies of National Identity Cards but it is submitted that it was for the purpose of showing that he has eight members' in his family and in the family of his father. Although in the cross-examination it was suggested that his father, uncle and brothers were not residing with him but he denied the suggestion. He has asserted in the cross-examination that he is residing in the premises on plot of Shamim Charey Waley. No satisfactory evidence to contradict the same was produced by the appellant.
19A. The learned Counsel for the appellant has however, argued that even if respondent No,1 is residing in a rented house he should have proved that the same is not sufficient and suitable for his need. The Counsel has relied on Fahmeeda Jahan Begum v. Varindamal 1980 CLC 604; Mst.
Hajra Bai Suleiman v. Mst. Aisha Bai 1982 CLC 1444 and Syed lsrar Alam v. S.M. Hussain 1983 CLC 468.
19B. The contention is not well founded for respondent No,1 in his affidavit has clearly stated that he is residing in a rented small Katcha Pacca house which is not sufficient and suitable for his need.
He is also fully supported by his witness Nisar Ahmed. Nothing to the contrary has been brought on record in cross-examination or otherwise except bare denial of the claim made by respondent No,1 in his affidavit and the application.
20. Now, the house occupied by the appellant is a double storied house consisting of one room and amenities on the ground floor and one room on the first floor. The premises therefore, seems to have a A better accommodation. Respondent No,1's desire to live in his own house which has better accommodation is but natural and proper and is, therefore, bona fide.
21. In Muhammad Hanif v. Mst. Sara PLD 1982 Kar.
182.
I had the occasion to state that the landlord desire to live in his own house is natural, more so when he will monetarily be benefited therefrom and I may state that in section 13(2)(vii) of the Ordinance the word used is 'require' which means 'need' and 'wish to have'. I may here quote the meanings of the word 'require' from the Concise Oxford Dictionary, 6th Ed., page 954. It reads: "REQUIRE: v.t. Order (person), demand (of or from person), to do (they require me or of me to appear); demand or ask in words (person's action, act of person, thing at person's hands, that, etc.) esp. as of right (they require my appearance, an oath of me, a gift at my hands or from me, that I shall appear).
2. Lay down as imperative (had done all that was required by the Act; Gray's 'Anatomy' is required reading for nurses).
3. Need, depend for success, E fulfilment etc., on, (the emergency requires it, that it should be done irony requires care in its use, to be used with care, place would require an army to take it; machine requires no attention; it required all his authority to keep them under control); wish to have (do you require tea?,), (emphasis supplied).
4. Hence-ment (-irm-) n. (ME, f. OF require f. Rom." requaerere f.L re (quirere quest = quartered seek); see RE-6)".
22. In my opinion the meaning of the term 'wish to have' seems to be more appropriate than the meaning 'need' for it will be more in consonance with the right of ownership, and its enjoyment, no doubt B' the word 'wish' is controlled by the term 'good faith' and I had the occasion to discuss the term in paragraphs 19 and 20 of my judgment in Muhammad Asif Khan and another v. Mubarak Ahmed PLD 1982 Kar.
557. I may reproduce the same here for convenience.
"19. Now reverting to the phrase 'good faith' used in section 15(2)(vii) of the Ordinance, it may stated that it has not been defined in the Act through it is defined in clause (2) of section 27 of the West Pakistan General Clauses Act, 1956, as follows: "A thing shall be deemed to be done in 'good faith' where it is in fact done honestly whether it is done negligently or not."
' Now, from the above quoted definition it follows that if the application is made honestly then it is made in good faith.
'Honestly' means; "Honorable or upright conduct, esp. without fraud or falsehood, with honest intention or by honest means, sincerely, fairly, frankly, without disguise." (See Oxford English Dictionary 1961 Edition, Vol. V, p.362).
' According to Ballantine's Law Dictionary, 3rd Ed., p.528 &good faith' means; "Fairness and equity, The antithesis of fraud and deceit." According to the same Dictionary 'honestly' means; "The quality of being honest, neither cheating nor lying."
"The word is derived from the Latin honest us, and is essentially one which takes its meaning from its context. Primarily, it means suitable, becoming, or decent. In money transaction, it means financial integrity. In affairs of state, it means loyalty. In matters of friendship, it means stead fast. In sexual relations, it imports fidelity. (State v. Snorer 63 NJL 392, 43 A 1959.
' Black's Law Dictionary, Fourth Edition, page 223, has given the following meanings of the phrase 'bona fide'.
"Good faith, integrity of dealing; honestly; sincerity; the opposite of male fides and of Dolus Malus."
20. Now, I would examine t!1 case in the light of the above-mentioned meanings of the phrase. A person who is residing in a rented premises would naturally like to live in his own house, if the house is suitable for his need. Such a conduct would be consistent with honorable and upright conduct and fairness. Now in the present case the respondent has stated that he is residing in a rented house which has 4 rooms, i.e, drawing dining and two bedrooms. While the premises in which the appellants are residing has similar accommodation i.e, drawing, dining, and two bed rooms. The assertion made by the appellants that the house in which the respondent is residing consisting of six rooms, cannot be accepted for the simple reason that assertion is based, so far as the evidence of appellant No,2 is concerned, merely on guess and not on physical inspection of the house and so far as evidence of Ghousuddin is concerned he has admitted in his cross-examination that he did not count the number of rooms in the house where the respondent is residing when he visited the same, even if he is believed that he at all visited it. Therefore, definite statement made by the respondent should be .believed moreso, when he is an advocate and there is no reason why he should make an incorrect statement on that point. There is yet another fact which cannot be lost sight of. It is that the respondent is paying a rent of Rs,450 per month for almost the same accommodation while admittedly he is receiving Rs,225 per onth as rent for the premises. Naturally, he would, therefore, like to live in his own house. From these facts no dishonest intention or insincerity or unfairness an the part of the respondent could be inferred. No doubt they have no elements of cheating. There is also no question of lying. In fact in my opinion, these facts not only clearly establish good faith on the part of the respondent in requiring the premises for his own use and occupation, but also reasonableness of the requirement."
23. These observations apply with full force in the present case,' for respondent No,1 is residing in a rented premises which is a small Katcha Paces house while the house in which the appellant is residing, is a double storeyed house which will naturally be more suitable for respondent No,l. In absence of any adverse factor it fulfills the require ment of the law. The appellant has alleged that respondent No,1 does not want the premises for his personal use and occupation but he wants to coerce the appellant to pay rent at the rate of Rs,500 per month. There is no satisfactory evidence to prove the same. Further although the rent of the house is only Rs,20 per month the appellant failed to pay the same from November, 1979 till the filing of the appli cation. Indeed, it is in evidence that the appellant wanted to purchase the house in dispute and he had even asked the Registrar not to register the sale-deed in favour of respondent No,1. It was at no time his case that he had tendered the same to respondent No,l. His case throughout has been that he has not received the notice of transfer of ownership.
24. Now, remains the three cases cited by Mr.Khanzada 1; Fahmeeda Jahan Begum v. Varindamal 1980 CLC 604; Mst. Hajra Bai Sulaiman v. Mst. Aisha Bai 1982 CLC 1444 and Syed Israr Alam v. S.M.
Hussain 1983 CLC 468.
25. In the first named case it was held that even if the landlord is in occupation of a rented premises he mu t show that such premises was unsuitable for his need. In the present case respondent No,1 has proved the same.
' So far as Syed Israr Alam's case is concerned this case was decided under the provisions of section 14 of the Ordinance wherein it is observed that the question of bona fide could be investigated by the Court in cases under section 14 of the Ordinance and it is held that the word 'need' used in section 14 of the Ordinance would envelop the concept of bona fide. It is further held that a landlord when he projects his needs, under section 14 has to subject himself to judicial scrutiny, so that it would be found, whether the needs that he express, are genuine, or, he is wanting more accommodation on account of desire to live in unreasonable luxury, or, a desire to dislodge his tenant.
' The cited case is therefore, distinguishable on facts as well as the law under which it was filed.
' In Mst. Hajra Bai's case it was held by a learned Single Judge of this Court that "a landlord has to prove his requirement by convincing and satisfactory evidence. Mere desire of the landlord to occupy his house or his feeling however strong it may be that he bona fide requires the premises is not sufficient to prove personal requirement."
' In the present case as already stated that respondent No,1 in his affidavit stated that the premises in his occupation as a tenant is not sufficient and suitable for his needs.
26. This brings me to the cross-objections filed by respondent No,1. It is submitted by the learned 'Counsel for the appellant that these objections are not maintainable for there is no provision in the Ordinance for filing the same and the provisions of Order XLI. rule 22, C.P.C. are not applicable. I agree with the learned counsel for the appellant that there is no provision in the Ordinance for filing the cross-objections and the Visions of C.P.C., except those mentioned in section 20 of the Ordinance, are not Applicable. However, it is settled that broad principles embodied in the C.P.C. relating to procedure could be resorted to. It is also settled that respondent can not support the order impugned in appeal on any ground that has been decided against him because there is no right of appeal to a party who has succeeded. If any precedent is needed reference may be had to Venkatta Rao v. Sutnaryanmurthi AIR 1943 Mad. 698. Reference may also be had to the decision of a Division Bench of Lahore High Court in Robert Cotton Association Ltd. v. Firm Inayatullah & Co.
Gujranwala PLD 1959 Lah. 178, wherein it was ordered as follows: "We accordingly overruled the objection raised on behalf of the appellants and hold that the plaintiff respondent is within his rights to support the decree granted in his favour on any of the grounds decided against him in the Court below, without filing any appeal or cross-objection."
' Mr. Hassan A. Shah also relied on Yusuf & Co. v. Rasheeda Begum PLD 1975 Kar. 684; which is a single Bench decision of Agha Ali Hyder, J. which supports the preposition.
27. I accordingly, proceed to consider the point raised by. Mr. Hassan A. Shah. He submitted that the finding of the learned Controller on issue No,4 is erroneous for while accepting that a landlord has a right to improve the property by reconstructing it, the Controller has erred in holding that the landlord is supposed to show that he has sufficient funds for re-construction of the building. He submitted that under the present Ordinance the words "good faith" have been omitted. What is required under section 15(11)(vi) is that the landlord has obtained sanction for reconstruction from the competent authority under any law for the time being in force to give such sanction. He submitted that the respondent No,1 has fulfilled these conditions. He submitted that respondent No,1 has produced the approved plan from the Hyderabad Development Authority along with permission to reconstruct the building which are available on record. It may be stated that the appellant in his written statement has stated that he has been maintaining the house and it is in perfect good condition. He has further stated therein that the respondent has failed, to make out a case for reconstruction and .the plea of reconstruction is nothing more than a maneuvering to achieve enhancement of rent. However, the Controller has decided this issue against respondent No,1 only on the ground that he had not proved that he had sufficient fund to reconstruct the building, a plea which is not taken in the written statement.
I am therefore, of the opinion that after rightly finding that a landlord has a right to improve his property by reconstructing it, the Controller seriously erred in deciding issue No,4 on a plea which was not taken in the written statement, and which being a plea of fact. It may be stated that firstly it is not a condition provided in section 15(2)(vi), secondly, assuming the respondent No,1 has no funds, he can borrow the same from the House Building Finance Corporation and other institutions.
I may take judicial notice of fact that of loan against the security of immovable property is easily available these days.
' However, it is submitted by Mr. Ali Ahmed Khanzada that the grounds of requirement of the building for personal use and re construction are mutually destructive and therefore, no eviction could have been ordered. In support of the submission the learned Counsel relied on Sheikh Mohammad Yusuf v. Mst. Zohran Bibi PLD 1973 Pesh. 186, wherein reliance has been placed on Abdullah Baloch v. Adam Ali PLD 1961 SC 28.
I do not agree for a landlord may require the building for his own use as well as for reconstruction.
The requirement for two purposes cannot be mutually destructive in all circumstances. I would illustrate point by giving an example. A landlord may require a building for personal use but it early in such a dilapidated and dangerous condition that he can it only after its demolition and reconstruction but if the building is not in such a condition he may occupy it immediately on its vacation by the tenant and may reconstruct it later on. In my opinion the desire to develop his property and to have more income from it on the part of a landlord is but natural. Such requirements were recognized by the Supreme Court in MessRs,', Amir Din Allah Ditta v. Seth Adamji Abdullah and others 1969 SCMR 131.
Although this case was decided under section 13(ii)(vi) of the West Pakistan Urban Rent Restriction Ordinance, 1959 but the ruling support the claim of respondent No,l. It was ruled: "The findings reached by all the Courts below that the respondent genuinely wants to reconstruct the building for his own use and for which his plan has also been sanctioned' by the Municipal Corporation, is one of fact well based on evidence and does not warrant interference by us."
' As regards PLD 1973 Pesh. 186, it came up, for, consideration in Abdul Bari v. Khadim Hussain PLD 1978 SC 78, wherein it was overruled and the Supreme Court case relied upon therein was explained as would appear from the following observations of Anwarul Haq, C.J. who delivered the opinion of the Court at page 82 of the report: "We shall first take up the question whether the pleas of reasonable and bona facet requirement for the reconstruction of a building, and its requirement for the personal use of the landlord are indeed mutually exclusive and destructive of each other. As already stated, the first plea is embodied in clause (vi) of subsection (2) of section 13 of the Ordinance whereas the second plea finds mention in subsection (3) of the same section, and is described separately in the case of residential and non-residential buildings. But the mere fact that the pleas are embodied in different subsection of section 13 of the Ordinance would not, by itself, shuw that they are mutually exclusive and' cannot be taken together in the same case. However, Mr. Noori has placed reliance on Abdullah Baloch v. Adam All PLD 1961 SC 28; Sheikh Muhammad Yusuf v. Mst. Zohran Bibi PLD 1973 Pesh. 186 and Bashir Hussain and another v. Sh. Muhammad Saeed and 2 others PLD 1976 Lah. 1095, in support of his submissions.
' We find that the first case mentioned by the learned Counsel proceeded on a somewhat different basis. In that case the landlord had linked up the requirement of reconstruction with his own personal requirements, but the findings of the Rent Controller specifically negative each of the personal requirements and for this reason the Court held that these findings must necessarily react upon the allegation of reasonable and bona fide requirement for reconstruction. It was added that requirement for reconstruction, for the sake of reconstruction, was not a valid requirement to enable a landlord to obtain ejectment of a tenant under the Act, as it must be a reasonable and bona fide requirement. It seems to us that the decision in this case cannot be interpreted as laying down the principle that the plea of reconstruction, and that of personal requirement are mutually destructive of each other; on the contrary the judgment in this case indicates that the two can certainly be linked together, but the requirement of reconstruction would fail if need for personal occupation is not established. In other words this judgment runs contrary to the submissions made by Mr. Noori.
' The next case cited by Mr. Noori does, of course, support the submissions made by him, but a perusal of the judgment shows that the dictum of this Court in the case of Abdullah Baloch, referred to above, was not properly understood by the learned Judge, and he erroneously thought that this Court had held the two pleas to be mutually destructive of. each other. We have already seen that far from expressing any such opinion, This Court had observed that if the two pleas are linked together, then the plea of requirement of reconstruction would fail if the ilea of bona fide personal requirement for which reconstruction was needed, was not established on the record. It seems to us, therefore, that this particular judgment of the Peshawar High Court cannot be regarded as laying down good law in this behalf.
' The last case relied upon by Mr. Noori, namely, that of Bashir Hussain, does not appear to be directly helpful in the present context. That was undoubtedly a case where the landlord's application for ejectment had combined both the grounds we are considering here. But as regards the ground of personal requirement, the learned Judge observed that it could not be said to have been established as the landlord needed the property for the occupation of the Habib Bank, held that was not a personal requirement of the landlord. He further held that the provisions contained in subsection (5-B) of section 13 of the Ordinance were relevant for the purpose of interpreting the provisions of subsection 2(vi) thereof which provides that ejectment can be only for bona fide reconstruction. He added that a reconstruction, the object of which was to override the provision of subsection (5-B) could not be deemed to be bona fide. We are unable to see how these observations can be taken to mean that the pleas of bona fide reconstruction and bona fide personal requirement, cannot be linked together in one case The findings arrived at by the learned Judge On both the pleas are directly related to the facts before him, and do not lay down a principle of general application as to the two pleas being inconsistent."
32. The point was again considered by the Full Bench of the Supreme Court in Dawood v.
Muhammad Yasin PLD 1982 SC 227 wherein Muhammad Afzal Zullah, J. noticed the abovementioned cases and observed at page 230 of the report as follows: "The two decisions of this Court which were referred to by the Peshwar High Court in the cases of Sheikh Muhammad Yusuf and Abdullah Baloch v. Adam All PLD 1961 SC 28, and Messrs Amir Din Allah Ditta v. Seth Adamji Abdullah and others 1969 SCMR 131. Both of them were referred and considered in Abdul Bari v. Khadim Hussain PLD 1978 SC 78 and it was found that the decision in the case of Abdullah Baloch could not be interpreted "as laying down the principle that the plea of reconstruction, and that of personal requirement are mutually destructive of each other; on the contrary the judgment in this case indicates that the two can certainly be linked togethe'r...."
Regarding the case of Messrs Amir Din Allah Ditta, it was found that the observations made therein were rightly followed by the Lahore High Court in Khuda Bakhsh v. Muhammad Yousuf PLD 1976 Lah. 275 the law laid down wherein was considered as unexceptionable, because as observed then by this Court (in Abdul Bari's case), the contention that the pleas of reconstruction of a building and its consequent requirement for the personal need of the landlord are mutually destructive of each other, is not supported by authority. On the contrary, if the landlord spells out a sound reason for the reconstruction of the building it. should re-enforce his case on this account rather than destroy the same." The foregoing examination of the three decisions in the cases of Abdullah Baloch? Messrs Amir Din Allah Ditta and Khuda Bakhsh would show that the view taken in the Peshawar case of Sheikh Muhammad Yusuf was not correct. It might be mentioned here that the Peshawar High Court itself in a latter Division Bench judgment Bader and Brothers (Arms and Ammunitions Dealers) Peshawar v. Muhammad Aslam and 2 others (PLD 1977 Pesh. 80) dissented from the view taken by the learned Single Judge of the Court in Sheikh Muhammad Yusuf's case.
"The same question came under re-examination by this Court in somewhat different circumstances in Messrs Ismail Brothers v. Kewalram (1980 SCMR 776) and Sh. Abdul Aziz and others v. Kh. Hasan Joo and 5 others (1981 SCMR 924). In the latter case, the objection with regard to possible conflict resulting from implementation of subsections (4), (5),(5-A) and (5-B) of section 13 of the Ordinance was considered and it was observed that "while subsection (4), (5-A) and (5-B) of the West Pakistan Urban Rent Restriction Ordinance, 1959, provide sufficient safeguard of the rights of the tenants. Subsection (5) of the said section also provides sufficient guarantee that the landlord shall reconstruct the building after it is got vacated through the Court; because he would not only have to put back the tenant in possession, but shall also be liable to undergo a sentence of imprisonment. As such, the mere fact that the landlord has made an ejectment application with full knowledge of the liability imposed by the aforementioned provisions of law is sufficient to demonstrate the bona fides of his intention to reconstruct the premises in question after getting it vacated."
33. I therefore, hold that the Controller erred in not granting the eviction of the appellant on the ground of re-construction and he ought to have allowed the eviction on this ground too.
34. Mr. Hassan A. Shah has also challenged the finding of the Controller on the issue of default but I am, of the opinion that the view taken by the Controller that the service of notice of transfer of ownership of the property was not satisfactorily proved relates to appreciation of the evidence and the finding of the Controller on this issue is not such that it call for any interference by this Court.
Therefore, respondent No,1 could not succeed on this ground.
' In the result, I dismiss the appeal. However, I leave the parties to bear their own costs as Mr. Shah does not claim the same.