1. ' The respondents are tenants of Madrassa Mazharul Uloom in which Hijaz Restaurant is situated.
2. The said building in which the restaurant is run by the respondents has two roads on two sides namely Shah Waliullah Road and Hussain Bhoy Bandookwala ROad. The appellant is a sub-tenant of the respondents in respect of a cabin constructed in the corner end of the restaurant on Bandookwala Road. The cabin is 6-1/2' x 3-3/4'. The respondents filed an ejectment application against the appellant on the ground that they bona fide require this cabin for their personal use and occupation as they want to open a cold drink shop in a portion of the restaurant at Bandookwala Road where they propose to make an opening by removing this cabin which has been built in place of a door. It seems that previously there existed a door which has been converted into cabin. The Controller dismissed the application but the 1st Appellate Court allowed it.
3. ' Mr. Hussain Adil Khatri the learned counsel for the appellant has contended that from the evidence on record, the respondents have not been able to establish that they require the premises for their bona fide use and occupation, because the premises in use of the respondents can easily accommodate the respondents' plan to open a cold drink shop without disturbing the appellant. It has further been stated that adjacent to the cabin is another premises used as a kitchen by the repondents having a door on Bandookwala Road, which is a part of the building and can be used conveniently as a cold drink shop.
4. ' Mr. Muhammad Ali Sayeed the learned .counsel for the respondent has contended that it is the privilege and prerogative of a landlord to use the premises in any manner he likes and as the respondents want to expand their business it is not within the domain of the appellant to suggest in what manner they should expand and carry on their business. The learned counsel further contended that the second Appellate Court has only to see that the judgment passed by the 1st Appellate Court does not suffer from patent misreading of evidence or illegality and if proper and reasonable grounds have been given it should not be disturbed.
5. ' The parties have led evidence in sufficient detail. The admitted position is that the respondents are the tenants of Madrassa Mazharul Uloom. Both the parties have produced sketch plan of the premises and have also examined their architects. There does not seem to be material difference in both the plans except that a premises known as kitchen has been shown in the plan Exh.6/A filed by the appellant which is adjacent to the disputed cabin separated by a dividing wall. Although this has not been shown in the plan produced by the respondents as Exh.3A the factual position emerging from the evidence is that there exists a kitchen in the same location as mentioned in Exh.6A of which the respondents are tenants and Mazharul Uloom Madrassa is the landlord. From the plan it is clear that there is one door on the corner of both the roads adjacent to which is the counter, then there is another door on Shah Waliullah Road, and the third door opening on the same road leads to the kitchen. Besides these doors, from the cabin on Bandookwala Road, right up to the kitchen on Shah Waliullah Road there are four open spaces fitted with iron grills. Two of which are situated facing Bandookwala Road just adjacent to the disputed cabin. From the plan of the respondents it seems that a portion of the restaurant measuring 19.6x14" including the appellant's cabin facing Bandookwala Road has been earmarked for opening a cold drink shop.
6. This area covers the appellant's shop as well as the open space covered with iron grills. It is therefore, to be seen, whether in this situation requirement of the respondents to remove the appellant's shop for opening a door there for entrance in the proposed cold drink shop is required bona fide and in good faith. From the location mentioned herein,the cold drink shop, if opened, will include the open space covered by the grills. The respondents have not specifically stated that how the existence of the small cabin would disturb their plan for opening a cold drink shop. The respondents can conveniently without distrubing the appellant remove the grills and convert it into a door, which will be equally convenient for the purpose of giving access to the proposed cold drink shop, particularly so if the respondents wish to completely separate the cold drink shop from the existing restaurant. The landlords do have a prerogative to use their premises in a manner they wish, but this right is not unfettered or unrestricted. It can be exercised only where it is genuine, bona fide and in good faith. If a landlord's requirement can be met equally in the same proper manner as he desires, without disturbing the tenant, then in such circumstances, A the landlord will not be permitted to exercise his prerogative, to the detriment of the tenant's right. In the present case the respondent has not established how and in what manner the opening of a door by demolishing appellant's shop instead of removing the grills will be more convenient in running a proper efficient and profitable business of cold drink shop. It is more convenient to create opening by removing the grills which is adjacent to the appellant's shop situated on the same road, where the respondents wish to carry on their business of could drink. In the absence of such evidence I am not inclined to hold that the premises in possession of the appellant is required bona fide by the respondents as the same object can be achieved without any detriment by opening the door adjacent to the disputed shop by removing the grills.
7. 'The admitted position is that the respondents are tenants of the Masjid and it is a term of tenancy that the tenant cannot make any alteration without prior permission and consent of the landlord.
8. The respondents did not examine any witness from the Masjid but the appellant has examined one witness from there who has stated certain facts relating to the existing construction, the terms of tenancy and also that the premises adjacent to the appellants shop is held by the respondents as tenants. From the evidence of this landlord it is clear that he did not speak a word about granting permission to the respondents to remove the cabin from the restaurant and construct a door there.
9. ' Mr. Muhammad Ali Sayeed the learned counsel for the respondents contended that it was the duty of the appellant to establish through his witnesses that the respondent has not obtained any permission from the Masjid/Madrassa for removing the shop. The respondent had been pleading their requirement for personal use and occupation. It is an admitted position that the appellant's shop termed as cabin is not in the nature of a temporary construction. It has been existing for the last more than two decades and its removal will entail demolition of permanent construction and erection of doors. In these circumstances it was obligatory on the respondents to establish that for such alteration and addition, they have obtained permission from the landlord, because without the permission, however genuine the requirement of the respondents may be, they cannot make alteration and addition in the premises. In the absence of any material on record to prove this permission, it cannot be presumed that the respondents have obtained permission or that for making alterations as proposed by them in their plan Exh.3/A, they have taken sanction from the landlord or any other authority. The absence of such material facts adversely affects the bona fide requirement of the respondents.
10. ' Taking up the second argument of the learned counsel it is well settled that if the judgment of the 1st Appellate Court, and the trial Court are conflicting the second Appellate Court can enter into the evidence to determine which of the judgments has taken a correct view of the evidence. The Courts have leaned towards the finding given by the 1st Appellate Court, but where material facts, documents and evidence have not been considered by the Ist Appellate Court, its findings are liable to be set aside. In the present case the lower Appellate Court did not take into consideration the location, situation of the shop, the existing position which was so visibly brought on record and also the fact that the respondents have not established that they have obtained permission from the landlord for making such alterations. All these facts and evidence were completely ignored and therefore, the finding of the lower Appellate Court was not justified in law.
11. ' The law relating to exercise of jurisdiction in second appeal is well settled by authoritative pronouncements of the Supreme Court in Nazar Muhammad and another v. Mst. Shabzada Begum and another PLD 1974 SC 22 and Bibi Jan v. Habib Khan PLD 1975 SC 295. In Nazar Muhammad's case following rule was laid down:- "It may thus be safely concluded that if there be no proper evidence in support of a finding by the first Court of appeal, or the evidence is misread or misrepresented the finding, though one of fact, is vitiated and a Court of second appeal is entitled to review it."
12. ' Following this observation, in Bibi Jan's case it was held:- "No doubt, it has been consistently held in a chain of authorities starting from Durga Chowdhrani v.
13. Jewahir Singh Chowdhri up to Bharpura v. Jiwan Chand unexceptionally followed by the superior Courts of India and Pakistan that the High Court has no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact howsoever gross or inexcusable the error may be, yet there is ample authority for the proposition that no sanctity attaches even to a concurrent finding of fact based on misreading or misrepresentation of evidence as this would clearly bring the case within the scope of clause (c) of section 100, C.P.C."
14. ' In this regard reference can also be made to Phiroja v. Shafiunnisa PLD 1982 Kar.
222. These observations equally apply to the facts of this case where the finding of both the Courts is not concurrent and evidence has been misread and misrepresented.
15. ' This appeal is therefore, allowed.
16. Eviction set aside.