' The facts relevant for the disposal of this constitution petition are that Shop No,S-64-R-159, Anarkali Bazar, Lahore, was leased out to the petitioner on 8-3-1965 at the monthly rent of Rs,500 for a period of 15 yeaRs, The lease period expired on 8-3-1980 and Mst. Saeeda Begum widow of Mr. F.A. Wahhab, the deceased landlord, filed an ejectment petition on 25-1-1981 seeking eviction of the petitioner from the shop in dispute on the grounds of default in payment of rent for a period commencing from 1-4-1980 to 31-12-1980, subletting and personal need. The petitioner contested the ejectment petition by controverting the pleas taken therein. The petitioner, however, added that at the time of execution of the rent-deed, Rs,50,000 were received by the original landlord, the husband of the respondent. This fact, however, was not mentioned in the rent-deed but the respondent did not specifically controvert this assertion made in this behalf in the pleadings. The learned Rent Controller framed three issues covering the three aforenoted grounds taken for seeking ejectment.
2. Met. Saeeda Begum, respondent, produced two witnesses, namely F.A. Sattar (A.W.1) and Abdul Ja (A.W.2) besides appearing herself as A.W.3. The documents marked E, E/1, E/2 and E/3 were placed on record subject to objection. The petitioner-tenant produced five witnesses, namely, Muhammad Munir (R.W.1), Muhammad Yusaf (R.W.2), Muhammad Aslam (R.W.3), Wasim Ahmad (R.W.4) and Afzal Ahmad (R .W .5)
3. The learned Rent Controller decided all the issues against the landlady and dismissed the ejectment petition vide order dated 19-5-1982. On appeal preferred by the landlady, the learned Additional District Judge vide judgment dated 7-2-1983 reversed the finding of the learned Rent Controller on the issue of personal need and accepting the appeal, set aside the impugned order and directed eviction of the petitioner from the shop in question. It may be noted that the findings on other issues were not challenged before the learned Appellate Court. The finding on the question of bona fide personal requirement was reversed as the learned Appellate Court was of the view that from the evidence on record the following facts stood fully established:-
(i) that the landlady had no male issue and all her daughters were married and they were living separately in their respective houses;
(ii) that the landlady was doing business in Chittagong and thus was an experienced person in business;
(iii) that the husband of the landlady died in 1971 and thereafter she had been doing all the business and she, had come back to Pakistan.Only in 1978. From this it was inferred that for about seven years, after the death of her husband, she had been doing business in Chittagong.
' From the aforesaid facts found to be established on record, the learned Appellate Court returned the finding that the requirement of the landlady to do business can only be bona fide unless proved to be otherwise. It was further observed that it has come on record through her own statement that in Chittagong she was conducting cloth business and Anarkali is a fit Bazar for doing such a business. The learned Appellate Court was also of the view that neither age nor female sex are relevant considerations to disentitle any person from getting her shop vacated for doing business. It is also in the impugned judgment that the landlady had proved her bona fide requirement of the shop in dispute through oral evidence and the document Exh.A/3. This document is a letter written by the landlady as Proprietor of M/s. Wahhab Brothers in Chittagong in reply to letter Exh.A/2. Reference was also made to Insurance Policy Exh.A/4 in which the name of the landlady was given as Proprietor of M/s. Wahhab BrotheRs, These were the documents on the basis of which it was concluded that the landlady was a person who had experience in business and that she could do business in Anarkali.
4. Learned counsel for the petitioner argubd that the learned Appellate Court has not only misread the evidence but has also illegally and unreasonably relied on documents which were inadmissible in evidence. He argued that though the technical rules of the Evidence Act do not apply to the proceedings before the Rent Controller yet the documents, the genuineness of which is not beyond reproach and are of doubtful character, cannot be relied upon and treated as substantive evidence. Learned counsel for the landlady did not seriously dispute the legal proposition canvassed by the learned counsel for the petitioner but added that even if it is taken that the business experience was not proved on record still the finding that the shop was required for bona fide personal need is to be maintained as business experience is neither the requirement of law nor a condition of eligibility for seeking eviction. He .Argued that a landlord is neither required to mention in his application nor is required to prove by producing evidence the nature of the business or previous experience for running the proposed business. It was also added that availability of necessary capital to start the proposed business may not be pleaded. Learned counsel for the landlady also argued that age factor is also not a relevant consideration for determining the bona fide or otherwise of the alleged requirement. In support of these submissions reference was made to Muhammad Farid Khan v. Haji Mir Zaman Khan PLD 1982 SC 278 wherein it was observed that business can be conducted through the aid of servants and children though the landlady was of 70 years of age. The other cases cited and relied upon were Mst. Tauheed Khanum v. Muhammad Shamshad 1980 SCMR 593, Punjab Hardware and Machine Tools Ltd. v. Wazirali PLD 1976 Kar. 233 and Jannat Gul v. Nawaz Hag 1984 CLC 241. According to the learned counsel for the respondent neither the omission to specify these details nor absence of proof of these facts on record would recoil adversely on the bona fide of the self-need. This position was taken by the learned counsel for the respondent is reply to the argument of the opposite party that for running any business in Anarkali huge capital investment alongwith managerial resources are needed and in the absence of both, the alleged requirement cannot be accepted as "bona fide requirement" but a mere device to bag , huge amount of 'pagri' which will be available for a vacant shop in Anarkali. In this connection the averment that the respondent required the premises for personal use and she has no other place for business for her subsistence, contained in the application was referred to argue that a person who needs to do some thing for his subsistence in terms admits that he is not possessed of the necessary financial resources to run business in Anarkali Bazar. It was argued that in such circumstances instead of conducting business herself, renting out of premises would yield more dividend. Learned counsel for the petitioner also offered to raise the rent from Rs,500 to Rs,3,000 P.M. And to pay rupees two lacs on account of good will to the landlady. According to him, the aforesaid offer made by the tenant would. Be more profitable to any landlady who may like to start a business for subsistence. This offer was, however, not accepted by the respondent. On the basis of the above submissions, it was argued by the learned counsel for the petitioner that neither the good faith nor the bona fide of the requirement can be said to have been established and the requirement set up is a contrivance for collecting huge amount of 'Pagri' which will be receivable in the case of a vacant shop. Learned counsel further added that the Court with a view to find out whether the requirement of the landlord is bona fide, must look to all the relevant facts and surrounding circumstances as was held in Khushi Muhammad v. Muhammad Rashid 1968 SCMR 1158 and that the safeguard provided in the statute does not absolve a landlord from discharging the initial onus placed by law on him in the matter of proof of good faith of the alleged requirement.
5. At this stage, reference may be made to the affidavits filed by the parties. On enquiry made as to the accommodation available on the first and second floor above the shop in dispute and as to why the business was not commenced in the first floor, if the landlady needed to do some business for her subsistence soon after her arrival in Pakistan, these affidavits were filed. The petitioner submitted affidavit deposing about the accommodation available on the two floors with the further assertion that business could be started there as the same is more than sufficient for the needs of the landlady. In the affidavit filed by the landlady, it was deposed that as one of her daughters alongwith her family is living with the landlady, the said accommodation was not sufficient. In view of the order that I propose to pass in this matter, it will be appropriate not to offer any comment on these affidavits at this stage. It may, however, be noted that the claim made in the affidavit that one daughter alongwith her family is putting up with the landlady, runs counter to the finding recorded by the learned Appellate Court that all the daughters were living separately in their respective houses.
6. I have gone through the oral and documentary evidence with the assistance of the learned counsel for the parties. Mst. Saeeda Begum appeared as A.W.3 and in her own statement she herself did not make a claim that she was conducting the business personally in Chittagong or that she had the experience to run the business or that she had been conducting busines with the help of servants. In her statement she deposed that she used to live in Chittagong. She had cloth business and the name of the firm was Wahhab Brothers and that she was its proprietor. She also deposed that she wants to do business in the shop and that she had no other shop in her occupation and that she had neither a brother nor a son. She thereafter produced documents Exhs. A/2, A/3, A/4 and A/5 under objection. In cross-examination she admitted as correct the suggestion that in Chittagong the business was done by the husband with the help of servants. F.A.
Satter and Abdul Jalil the two witnesses produced by her, however, deposed that she had been doing the business herself but such a claim was not made by the respondent herself in her own evidence.
' Coming to the documentary evidence, the first thing to be noted is that the learned Appellate Court relied on the documents being conscious of the fact that admissibility into evidence of these documents was objected to and these documents cannot be read into evidence without first determining the question of admissibility of these documents. The disposal of appeal and reading of the documents into evidence as such is open to valid objection. On the question of admissibility of documents, I may add that it is well-settled that the proceedings under the Punjab Urban Rent Restriction Ordinance, 1959, are summary in nature and, as such, to these proceedings provisions of Evidence Act and the Civil Procedure Code do not strictly apply. See Javed Iqbal v. Rana Muzaffar Khan 1976 SCMR 229; Abdul Majid etc. v. Muhammad Aslam 1981 CLC 20 and Rehmatullah v. All Muhammad etc. 1983 SCMR 1064. Though Evidence Act in its rigor is not intended to apply to the summary proceedings before the Rent Controller yet it does not mean that each and every document can be treated as a piece of substantive evidence ignoring valid objection to its genuineness or authenticity. It will be seen that formal proof is not required in these proceedings of documents which are public documents or which are of the type and quality which by itself ensures their authenticity. The documents produced by the landlady, even if accepted in evidence, at best show that Mst. Saeeda Begum was Proprietor of M/s. Wahhab Brothers. From these documents it cannot be reasonably concluded that the business was being conducted personally by Mst. Saeeda Begum or that she was an experienced person in business. Moreover, except for Exh.E.2, the Insurance Policy, which was assigned in favour of the bank in the year 1967 and reassigned in 1973, there is nothing to ensure the genuineness or the authenticity of the other documents produced by the respondent. It was for these reasons that the learned counsel for the landlady considered it appropriate not to place reliance on these documents. He did not make any attempt to support the findings recorded by the learned Appellate Court on the basis of these documents and instead argued that neither the experience nor the availability of funds was one of the requirements or the qualification or condition of eligibility for seeking ejectment of a tenant.
These submissions made before me were admittedly not in the contemplation of the learned Additional District Judge while reversing the finding of the learned Rent Controller. In fact, he was not even conscious that the documents being relied upon by him could not be treated as substantive evidence and, as such, were not available for drawing the inferences, that he preferred to draw, for the purposes of holding that the respondent-landlady was successful in establishing bona fide and good faith of her requirement. It will, therefore, be seen that if these documents and the inferences drawn therefrom are ruled out of consideration, then there remains nothing to sustain the impugned order of the learned Additional District Judge.
7. The plea advanced by the learned counsel for the respondent that the order of dismissal of ejectment petition passed by the learned Rent Controller was otherwise not sustainable in view of the opinions expressed in the precedents cited by him, cannot be attended to by me in constitutional jurisdiction as this Court is not required to determine the appeal itself. It will be for the Appellate Court to decide the question keeping in view the evidence properly brought on record and to draw its own inferences from the facts established on record. This Court can neither perform the functions of the Appellate Court nor can substitute its opinion for the opinion formed properly on the basis of the evidence available on record. In nutshell, the evaluation as well as the appreciation of evidence cannot be made by this Court in exercise of constitutional jurisdiction.
8. The net result of the above discussion is that the impugned order is declared to have been passed without lawful authority and the same is, therefore, quashed. The appeal filed by the respondent shall be treated as pending and shall be disposed of in the light of the observations made and in accordance with law within a period of three months. The parties are left to bear their own costs.
THE END