1. DORAB PATEL, J.-- The petitioner. Who is a doctor, is the owner of a building on Nisbat Road, Lahore.
2. There are three shops on the ground floor of this building, but as one of them is used by the petitioner for his clinic, only to of the shops have been rented out and the respondent is the tenant of one of these to shops, whilst the other shop (hereinafter referred to as the other shop) was demised jointly to to other tenants. As the petitioner had to adult sons, he filed an application in 1968 for the eviction of the tenants of the other shop for the benefit of his eldest son Farooq. But he compromised that application. The order by which this application was compromised is not available. Be this as it may, in January, 1974, he filed an eviction, application against the respondent for his eviction on the ground that he needed the demised premises for the use of his younger son. Khalid Mahmood, so that this son could run therein a chemist's shop for himself. The respondent resisted his eviction on the ground that the petitioner's demand was not bona fide and in this-connection he relied on the fact that the petitioner had compromised the eviction application filed by him in 1968 for the other shop.
3. The petitioner and the respondent produced evidence in support of their respective contentions.
4. The petitioner gave evidence about the requirement of his son Khalid Mahmood, and so did Khalid Mahmood. The petitioner admitted that he had filed an eviction application earlier for the other shop, which had been disposed of by a compromise, but he did not properly explain why that eviction application was compromised. On the other hand, the respondent examined witnesses in support of the contention that the petitioner had demanded "Pagri" from him and was trying to increase the rent.
5. As the evidence produced by the respondents did not impress the Rent Controller, he decreed the eviction application, therefore, the respondent filed an appeal in the District Court Lahore, which was heard and allowed by the learned District Judge, Lahore.
6. In allowing the respondent's appeal, the learned Additional District Judge criticised the petitioner's claim that he required the shop in dispute because "respondent is occupying the biggest shop out of these shops. So we have to see the bona fide or good faith of the appellant, with reference to his prayer". As learned counsel criticised this passage, which, to say the least, is far from clear, we may pause to observe that the mere fact that the petitioner was using the largest of the three shops for his own clinic was not a circumstance which could react against his good faith as his sons were not joining him in the medical profession. However, the learned Additional District Judge also disagreed with the finding of the Rent Controller that the witnesses produced by the respondent were not reliable and he was poorly impressed by the fact that the petitioner had earlier filed an eviction application for the other shop, which he had compromised with the tenant of that shop.
7. Accordingly, by his order dated 20th December 1975, he allowed the respondent's appeal.
8. The petitioner challenged this order in a second appeal in the Lahore High Court, which was dismissed in -limine by a learned Judge of the High Court. The learned Judge pointed out that the petitioner had filed to other eviction applications one of which had been compromised whilst the other was pending. He was of the view that these were circumstances, which reacted against the bona fides of the petitioner---s claim, and he preferred the appreciation of evidence by the first appellate Court to that by the Rent Controller. Accordingly, by his order dated 6th February, 1976, he dismissed the appeal in limine. Hence this petition for leave:- Mr. Khawaja Tufail submitted that the High Court and the first appellate Court had dismissed the petitioner's eviction application under an erroneous conception that he had filed several eviction applications. But, even according to learned counsel, the petitioner had filed an eviction application for the other shop in 1968. Then, after entering into a compromise in that application he had in 1974 filed the eviction application under appeal and on a later date, which is not known, the petitioner had filed, for the second the, an eviction application for the other shop on the ground that it was again required for his eldest son Farooq who also wanted to run a business of electrical appliances in the demised premises. Thus, even according to learned counsel the petitioner had filed in all three applications one of which had been disposed of by a compromise. Now as submitted by learned counsel, these facts are not clearly stated in the first appellate Court but we are satisfied that the order of the learned Judge is not based on any misconception of the facts. .
9. And further the learned Judge dismissed the petitioner's appeal, because, like the first appellate Court, he preferred the respondent's evidence to that of the petitioner and because he was of the view that the manner in which the petitioner had filed and disposed of his earlier eviction application against the tenants of the other shop, re-acted against his (the petitioner's) bona fides in the eviction application under appeal.
10. Mr. Khawaja Tufail, therefore, invited us to prefer the view taken by the Rent Controller, which was that the evidence produced by the respondent was not reliable. Now it is true that the Rent Controller had the advantage of watching the demeanour of the witnesses. But by itself this was not sufficient to preclude the first appellate Court from making its own appreciation of evidence and it did so. We have examined the depositions and as the view thus taken was a possible view, it cannot be said that the High Court committed any error of law in agreeing with the first appellate Court's appreciation of evidence. In any case, it is clear that the learned Judge was of the view that the respondent's evidence had to be examined in the background of the eviction application filed by the petitioner in 1968, for the other shop. Therefore, Mr. Khawaja Tufail submitted that as the petitioner had to sons, his requirement for the to shops was reasonable. Now clause (ii) of subsection (3) of section 13 of the West Pakistan Urban Rent Restriction Ordinance VI of 1959 (hereinafter called the said Ordinance) entitles the landlord to seek the eviction of a tenant from a shop if-- "(a)he requires it in good faith for his own use or for the use of any of his male children."
11. On the plain language of this provision, a landlord would not be debarred from seeking possession of more than one shop, if he has more than one son for whose use the shops are required in good faith. But it was not on this ground that the High Court dismissed his eviction) application. The learned Judge was of the view that the compromise of the earlier eviction application reacted against the bona fides of the petitioner. Therefore, learned counsel submitted that the dismissal or withdrawal of the earlier eviction application could not deprive the petitioner of his rights under section 13(3)(ii)(a) of the said Ordinance.
12. Now although the onus is on a landlord under this clause to show, for example that his requirement for a shop is in good faith, it cannot be said that a landlord does not require a shop in good faith because he was unsuccessful in an earlier eviction application. An eviction application can be dismissed erroneously; similarly it can be withdrawn or compromised on erroneous advice given by counsel. Therefore, the mere fact that a landlord has been unsuccessful in an earlier eviction application will not by itself react against his good faith, in a later application. The question is always of the facts and the circumstances of each case and as the facts relevant to the compromise of the eviction application filed by him in 1968 were within the petitioner's exclusive knowledge, the burden was on him to explain why he had settled that earlier round of litigation.
13. According to Mr. Khawaja Tufail, the reason why that eviction application was compromised was that it had been filed in order to enable the petitioner's eldest son to run a business in the shop, but the petitioner changed his mind because his eldest son had been involved in a criminal prosecution. And further, according to learned counsel, the petitioner's good faith was proved beyond doubt, because, despite the litigation, he had not raised rent of the other shop either before or after the compromise of that eviction application. As according to learned counsel, this aspect of the case had not been examined by both the appellate Courts, the submission that the concur-- rent finding against the petitioner was based on misreading of evidence appeared prima facie to be attractive.
14. However, when we invited learned counsel to refer us to the evidence in support of the pleas thus advanced before us, he could only refer us to the petitioner's evidence. But the petitioner only stated before the Rent Controller that he had filed the eviction application of 1968 for the benefit of his eldest son, but that this, son had been involved in litigation. Now merely because this son was involved in litigation was by itself no explanation for dropping the eviction application, and further no evidence was produced to show that the petitioner had not raised the rent of the other shop illegally through or in consequence of the eviction application of 1968, therefore, if the pleas advanced before us by learned counsel be correct, we can only observe that the petitioner's case has gone by default. But the Courts could only go by the somewhat unsatisfactory evidence on the record and in view of that evidence, it cannot be said that they had erred in law in holding that the petitioner's previous conduct reacted against his good faith within the meaning of section 13(3)(ii)
(a) of the said Ordinance.
15. The petition is without merit and is dismissed.