This second appeal is against the judgment dated 30th November 1968 passed by the District Judge, Hyderabad, by which he allowed the appeal of respondent No. 1 and set aside the order of eviction dated 11th August 1967.
2. Admittedly the appellant is the owner of disputed shop No. B/19-839 situated in Shahi Bazar, Hyderabad, while respondent No. 1 is its tenant. The appellant sued for this eviction upon the grounds of default, subletting, making alterations in it and for his own bona fide use. The Rent Controller vide order dated 11th August 1967 repelled the first three grounds but ordered eviction on the fourth ground, that the appellant required the shop in good faith for his own use. On appeal the learned District Judge set aside the finding on this ground and dismissed the application.
3. The appellant in para. 8 of the application stated that he required it "for his bona fide use".
Respondent No. 1 while denying it in para. 10 of his objections pleaded that he should strictly prove his contention regarding his personal use. In the proceedings before the Rent Controller, only the appellant and respondent No. 1 were examined. The appellant in his evidence stated that he required the shop for his personal use, that he had no other shop, and that he wanted to start radio repairing work in that shop. He was not cross-examined on this aspect of the case and the only question put to him in cross-examination was whether he had asked one Muhammad Farooq to dispose of the shop, to which he had replied that he did not even know who Muhammad Farooq was. Despondent No. 1 did not say a word in his own evidence to rebut the case of the appellant and in this light the Rent Controller while ordering the eviction of respondent No. 1 held as under :- "Let us now examine the need of the applicant from the aforesaid principle. The applicant in his statement on oath has contended that he requires the shop for his personal use a that he had no other shop and that he wanted to start radio repairing work therein. It would not be out of place to mention here that the applicant is a Radio Mechanic and, therefore, he intends to start the business of the radio in the shop in dispute. It is important to note here that the opponent has not assailed his version in the cross-examination except a suggestion that he approached one Farooq Broker for disposing the shop to which the applicant expressed that heaven did not know any person by name `Farooq'. The opponent even did not examine that Farooq for the purpose of substantiating his suggestion to the applicant. More so there is not a word in the statement of the opponent to show that the need of the applicant is not reasonable and bona fide. He has not at all controverted the assertion of the applicant in regard to his need for the disputed shop. In these circum--stances, I find that the assertion of the applicant as to his requirement for the shop should be doubted and tainted with mala fide on his part. I have earlier pointed out that the hardship of the tenant is not to be seen as soon as the requirement of the landlord is proved to be reasonable and bona fide."
4. The appellate Court did not accept this conclusion and held that the evidence fails to satisfy that the requirement of law was fully established by the appellant and that he had not acted in good faith. The reasoning which persuaded the learned District Judge to reach this conclusion is apparent from the contention of the learned counsel for respondent No. 1, which is mentioned in para. 5 of his judgment.
5. The argument advanced was that the evidence of the appellant was "only casual and bare" and also "fails to show that the landlord did not own any other shop or rented land." The foundation for this contention appears to be hypothetical, for respondent No. 1 failed to challenge the stand taken by the appellant and even did not controvert it in his own evidence. No one was examined to disprove that he had no shop and in this context I do not see how this conclusion can be spelled out from the evidence of the appellant.
6. The learned District Judge also relied on that was stated in para. 3 of the application which was to the effect that respondent No. 1, had to execute a fresh rent agreement for 11 months, which he refused to execute in his favour. According to the learned District Judge this showed that the appellant was even prepared to extend the lease. If this stand was inconsistent with the evidence of the appellant then this averment should have been put to the appellant to get an explanation from him and in its absence, this cannot be read against him with a view to show that the requirement was not made in good faith. Clearly this is a case where the learned District Judge has drawn inferences merely on a hypothetical plane which were against the evidence on record and more so, unrebutted. The learned counsel for respondent No.1 cited before me the case of Seth Abdul Sattar Haji Ahmad v. Shaikh Fazal Hussain and another (PLD 1966 Lah. 733), to impress that the requirement of clauses (b) and (c) of section 13(3)(ii) of the West Pakistan Urban Rent Restriction Ordinance, 1959 should have been established by the appellant before the Rent Controller could reach a conclusion that the requirement was made in good faith. There cannot be two opinions on this question but this case is distinguishable on facts, for, in it, the opponent had raised in a substantial form the plea that the landlord had in his occupation other shops as well, while in the instant case no such plea has been taken. The appellant has stated that he had no shop and clearly an inferential conclusion can be drawn that he had not also vacated any shop for if he did not occupy one, the question of its vacation also does not arise. The question is one of degree of proof and in a proper case even an inferential conclusion can satisfy the require--ment of section 13(3)(ii)(c) of the Ordinance.
7. In the result, I find that the learned District Judge has misread the evidence and drawn conclusions against it and no good reason has been given why he had differed from the opinion of the Rent Controller. For the foregoing reasons I set aside the order of the District Judge, dated 30th November 1968 and restore Oat of the Rent Controller and allow this appeal with no order as to costs.