' Writ petition is directed against order, dated 4-12-1983 of learned District Judge, Lahore, passed in appeal maintaining order dated 31-7-1983 of learned Rent Controller, dismissing ejectment petition, filed by Khawaja Muhammad Munawwar seeking eviction of his tenant, Nisar Ahmad on the ground of bona fide personal use of the shop for his son, Muhammad Jamal.
2. Respondent was in possession of portion of shop bearing survey No. 139 (139-B) situated in Badami Bagh, Lahore, as a monthly tenant holding under Khawaja Muhammad Munawwar on payment of Rs.125 as rent per mensem. Landlord applied to the Rent Controller, Lahore, urban area for ejectment of his tenant on the sole ground that the commercial premises were bona fide and in good faith required for the use of Muhammad Jamal, his son. This application, though signed on 2- 12-1979, yet was presented before the Court on 2-6-1980. Tenant, in response to the notice issued, appeared and through his written statement resisted the ejectment petition. It was stated in reply that the monthly rent which was Rs. 125 in November, 1979, was raised to Rs. 250 p.m. in December, 1979, in October, 1980, to Rs. 325 and then in the month of November, rent was enhanced to Rs. 350 per mensem. It was also pleaded in defence that ejectment was motivated by a keen desire to further increase rate of monthly rent. As regards personal need, it was stated that need was neither bona fide nor genuine. On 25-3-1981, learned Rent Controller raised following issues:-
(1) Whether the petitioner requires the premises in question in good faith for the use and occupation of his son? OPR.
(2) Whether the petition is premature? OPR
(3) Whether the petition is based upon a male fide intention? OPR ' After settlement of issues on merits, Rent Controller proceeded to record the evidence produced by the parties. Petitioner produced Muhammad Moeen (P. W. 1), Muhammad Jamal for whose benefit the shop in question was required, as P.W.2, Muhammad Razi-ud-Din P.W.3, Kamal Nasir P.W.4, Muhammad Rafi P.W.5, and himself appeared to support his need for occupation of the shop.
The tenant, on the other hand, was supported by Sultan Mahmood (R.W.1), Muhammad Akhtar (R.W.2), tenant also appeared in his defence. In the statement of tenant, receipts Exh.R.1, R.2 and copy of compromise R.3 were tendered in evidence.
3. After the parties evidence was closed, respondent-tenant moved a petition seeking permission for additional evidence to show that Jamal, the son of the writ petitioner, was in the employment of the Bata Shoe Company. This attempt to reopen the case did not prove successful and the petition was dismissed by the Rent Controller on 21-5-1983. Again, through another Misc. Petition, tenant made a prayer for exhibiting certain documents or in the alternative Personnel Manager of the Company to be summoned as a Court witness. This was to show that Jamal was in service of the Bata Shoe Company as a Plant Engineer and did not need the shop for his occupation. The prayer was refused and the petition dismissed on 24-7-1983, by the learned Rent Controller. Rent case then was adjourned for hearing arguments. Rent Controller vide order, dated 31-7-1983 did not find merit in regard to the plea of personal necessity. In the result of the discussion, issues Nos. 1 and 3 were answered against landlord and issue No. 2 was found against the tenant. Ejectment petition did not succeed and was dismissed on 31-7-1983 by the Rent Controller. Soundness of this order was contested in appeal by the landlord. Findings recorded by the Rent Controller were approved and the appeal was dismissed on 4-12-1983 by the learned District Judge. Orders passed under the Rent Ordinance, have been assailed in constitutional jurisdiction at the instance of the unsuccessful landlord.
4. Khawaja Saeed-uz-Zafar, Advocate, appeared in support of the petition and Muhammad Amin Kalanauri, Advocate for the respondent-tenant. Both the learned counsel have been heard at length and with their assistance I have also examined records.
5. Learned counsel for the writ petitioner strenuously contended that both the learned Courts below have misdirected themselves in holding that Jamal, a qualified Plant Engineer in the employment of Bata Shoe Company for whose benefit the shop in question was sought to be vacated was debarred to accupy the shop where he proposes to start his business in consonance with his professional skill and qualifica tions after quitting his present job. Mr. Saeed-uz-Zafar stated that the moment the shop was vacated by the present tenant, Jamal will say good-bye to his present job and will occupy the shop, start his business, which, these days, was more profit giving and lucrative as against those in service, may be of a company like Bata. He also urged that the enhancement in monthly rent would not adversely react on the bona fide personal need which was fully established in the evidence on record. Enhanced rent was otherwise accepted "without prejudice" which meant that right to proceed with ejectment petition was not waived at all by the landlord. Reference to the statutory safeguards provided in the Rent Ordinance was .made to contend that the learned Courts below had not given deserving consideration to these safeguards which provide a safe guarantee for the tenant against the landlord acting male fide. Lastly, complaint was made that the orders under challenge are outcome of gross misreading/non- reading of evidence and further, that the learned District Judge has relied on material not part of legal evidence which is vitiative of the order passed in appeal. Learned counsel has placed reliance on PLD 1982 SC 317; 1982 CLC 562; 1980 SCMR 772.
6. Muhammad Amin Kalanauri, Advocate, learned counsel, in reply, argues that concurrently concluded finding of fact qua personal need cannot be reopened for scrutiny in exercise of extraordinary jurisdiction by the High Court because the matter in the last analysis pertains to appreciation of evidence which clearly falls within the domain of the Courts vested with exclusive jurisdiction under the Rent Ordinance correctible in appeal under section 15 of the aforesaid Ordinance. He also urged that the Courts have after appreciation of the entire evidence/material have rendered a concurrent judgment holding that the need was not established. Jamal was a qualified Engineer in service of an international commercial concern drawing a very handsome salary and it was highly improbable that he would quit the job for a paltry business in a small shop situated at Badami Bagh, Lahore. Conduct of the landlord in the enhancement of monthly rent was highlighted to show that the ejectment petition was a clever camouflaged move to exert, pressure to extract further increase in rent alongwith the huge amount of 'pugri'. Learned counsel lastly contended that through additional evidence, tenant wished to bring on record nature of Jamal's employment in Bata Shoe Company, his emoluments and that he was under bonded service with the Company and that Jamal could not leave his service as and when he liked, as suggested by the learned counsel for the petitioner. As regards scope of interference in constitutional jurisdiction with orders passed under Rent Ordinance, learned counsel referred to the pronouncement of the august Supreme Court of Pakistan in PLD 1981 SC 246. Contentions of the parties have been faithfully reproduced in the preceding lines. No other point was raised. Stage is now ripe to evaluate the contentions raised on merits.
7. Muhammad Moeen P.W.1 stated that Jamal after successful completion of his education as Mechanical Engineer was in service of Paintex and that Jamal wanted to start his own business.
Statements of P.W.3, P.W.4, P.W.5, are also on the same lines. Jamal as P.W.2 deposed that right from the start he intended to do business after completion of his education and that he was in service of Paintex.
P.W.6, landlord, also testified on oath about the need of his son. It is true that monthly rent was increased more than once but the landlord explained that he accepted the increase without prejudice to his right to proceed with the ejectment petition against the tenant. Ejectment petition filed by wife of the landlord against another tenant was not so weighty a consideration against the landlord so as to non-suit him when he asked for vacation of his own shop for use of his son, Jamal. As regards enhancement of the monthly rent suffice it to say that in the past few years value of the real estate has risen and gone high. Judicial notice can well be taken of the trend of rising prices of various commodities and real estates. Rents of property have also correspondingly shown rising trend. So this factor, in itself, could not heavily weigh against the landlord when the increase has been received 'without prejudice'. Supreme Court of Pakistan in 1980 SCMR 772 has observed:- "Ejectment--Requirement for personal use--Demand of higher rent by landlord--Held, does not by itself cast any doubt about personal bona fide requirement of premises by landlord if factum of bona fide requirement independently proved."
' Only point thus falling for decision was whether Jamal a qualified Mechanical Engineer first in service of Paintex and then in the Bata Shoe Compnay really and genuinely required the shop after its vacation for his own personal use and further whether in view of the personal necessity, he would forego his present assignment and its handsome emoluments. Further point which may also arise is whether there was any insuperable obstacle operating against Jamal in leaving his job of Plant Engineer in Bata Shoe Company. I have given careful consideration to the points raised and after evaluating them in the light of the evidence adduced and the provisions of the Rent Ordinance alongwith the pronouncements of the superior Courts, I do not feel any hesitation C in saying that both the learned Courts have not correctly approached the controversy raised before them. In the result, conclusions arrived at are not immune from scrutiny in constitutional jurisdiction. In so observing I am mindful of the weighty observations of the august Supreme Court of Pakistan in PLD 1981 SC 246. Speaking on the scope of interference in constitutional jurisdiction, with orders passed under the Rent Ordinance, honourable Judges of the Supreme Court observed:- "In our view the jurisdiction of the High Court to interfere in the matters of the kind involved in the present case, is a very limited one and confined only to ascertaining whether the District Judge has not flouted the provisions of the relevant statute or has failed to follow the law relating thereto as laid down by the superior Courts."
' Bowing in respect to the dictum laid down by the Supreme Court in the aforesaid precedent, the Court has to examine whether the case under consideration falls within the aforesaid scope left open for interference in writ jurisdiction. It is correct that Jamal was a qualified Mechanical Engineer and was with the Paintex, at the time he appeared to testify on oath about his intended requirements and thereafter he joined Bata Shoe Company. There is no evidence on record to show his monthly salary and benefits. May be, he was, in consonance with his qualifications drawing handsome amount. But then it was for him to chalk out his future programme in regard to his career. Nothing debarred him from quitting his this much coveted job and embark upon business career. In business, may be, he sees better prospects for him.
Therefore, when Jamal Ahmad showed firm determination for a business career instead of service, his requirements, could not be checkmated successfully by the Rent Controller and the learned District Judge. After all, good or bad, this was his decision and the Courts do not act as gratuitous advisors for the parties in telling them about their choosing of profession. Point, therefore, was whether this was a firm determination or a temporary one made only to deprive the tenant of his possession of the shop. Supreme Court of Pakistan in PLD 1982 SC 317 observed:- "Although there was concurrent finding of fact by the learned Courts below on lack of bona fides regarding personal requirement of respondent No. 1, yet after hearing the learned counsel we find that there was misreading of evidence in this behalf. High Court was thus justified in correcting the error so made by them. The admitted fact that the respondent No. 1 went abroad cannot by itself be considered as showing lack of bona fides. It ha been observed in a number of cases that the landlord seeking eviction on the ground of personal requirement would not sit idle for periods of time during the pendency of eviction proceedings. If during such period he employs himself in a gainful occupation, that as a general proposition, would not negate the assertion of bona fide on his part. In this case, learned Courts below it seems, misinterpreted the law, when raising a presumption in this behalf, against the landlord."
' Neither learned Rent Controller nor learned District Judge, has enquired into the dispute from this angle. Tenant, after close of evidence, attempted twice to bring on record relevant evidence which could have facilitated the Court in the satisfactory resolution of the dispute placed before it. The learned Rent Controller did not accept the prayer, as permission would have reopened the matter already delayed. In this way, the Court had been deprived of the proper and necessary material which could have greatly helped it, in finding out the truth qua the bona fide need of Jamal Ahmad.
In cases, brought before the Court under the Rent Ordinance if the parties omitted to produce necessary evidence, Rent Controller is not expected to be a mute spectator of the events which take place before him and to make his order solely on the basis of the evidence which the parties have chosen to lead. The law requires "him" to make an enquiry and it is "his" duty to make "one" by calling additional evidence if he finds that the evidence produced by the parties was inherently defective or was insufficient to enable him to pronounce a satisfactory judgment in the case. If he fails to perform the duty which devolves upon him it is then for the District Judge in appeal either to remand the case to the Controller for fresh enquiry or to hold a further enquiry himself under relevant provisions of the Rent Ordinance.
8. In the result, I am of the firm opinion that the learned Courts below have not approached and decided the Rent matter in accordance with the provisions of Rent Ordinance and the dictum of the Superior Court. Writ petition is, accordingly allowed, impugned judgments are set asid and the case is remitted to the Rent Controller, Lahore, for its decision afresh in accordance with law after allowing parties further opportunity to lead evidence if so desired in the light of the observations made in the order. Costs to be borne as incurred. Parties are directed to appear before the .Rent Controller on 16th of March, 1985.