1. SAJJAD AHMAD, J.-The brief facts leading up to this appeal, by special leave, are as follows: The appellant, Dr. A. R. Khan, has been running a clinic since a 1957 in a tenanted premises bearing No. 117/1, Exchange Building, The Mall, Murree, which belongs to the respondent, Muhammad Ishaque. The latter sought the ejectment of the appellant under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as `the Ordinance') on the ground that he required the premises in question in good faith for installing his son, Muhammad Ayub, in business, who had no other shop in his possession in the urban area of Murree suitable for his needs. This prayer was made in terms of clause (ii) of subsection (3) (a) of section 13 of the Ordinance, which is as follows: "13 (3) (a).-A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession-
(ii) in the case of non-residential building or a scheduled building or rented land, if-
(a) he requires it in good faith for his own use or for the use of any of his male children;
(b) he or his said child is not occupying in the same urban area in which such building is situated for the purpose of his business any other such building or rented land, as the case may be, suitable for his needs at the time; and
(c) he has not vacated such a building or rented land with--out sufficient cause after the commencement of this Ordinance in the said urban area."
2. The defendant-appellant denied the bona fide requirement of the shop by the respondent. The parties led evidence on the main issue as to whether the respondent required the premises in good faith for the use of his son. After analysing that evidence, the learned Rent Controller came to the conclusion that the respondent had successfully established the bona fide requirement of the premises in dispute for the use of his son, and consequently issued an ejectment order on the 13th of December 1966, directing that the respondent be put in possession of the premises within a month of the date of the order. The appellant went in appeal to the District Judge, Rawalpindi, who accepted the same and reversed the finding of the Rent Controller regarding the bona fide requirement of the premises for the use of the respon--dent's son. The reasons, which weighed with the learned District Judge, for reaching his conclusion may be reproduced in his own words : "There are quite a few telling circumstances in the evidence which form a pointer towards the fact or at least a strong inference that the proceedings leading to this appeal were wanting in bona fide. As already stated above, partition of property amongst the respondent and his brothers took place in 1962. Muhammad Ayub, son of the respondent, is out of job since then. The application was instituted after about three years. It is not easy to understand why the respondent could not have been keen for early economic rehabilitation of his son. Explanation of the respondent in this behalf, which can be found in his cross-examination, is far from being satisfactory. He says that the proceedings leading to this appeal were instituted when it was thought that the shop in dispute should be got vacated. The respondent owns several shops in Rawalpindi, which fact he admits in the statement. Normally, he should have decided that his son should start business at Rawalpindi, where the business is continuously brisk round the year. The shops at Murree are closed for about seven months in a year.
3. There is abundant material on the record to show that the respondent had applied to the Municipal authorities at Murree for increase of rental assessment of the shop from Rs. 950 to Rs.
4. 1,250. It cannot be denied that increase in the rental assessment of the shop would have burdened the respondent with more taxes . . . . . . . . Obviously, the respondent appears to have applied to the Municipal Committee, Murree, for increase of rental assessment of the shop so as to compel the appellant to pay more rent in accordance with revised assessment. All these facts accord more with a clear probability in favour of contention of the appellant that proceedings were not bona fide."
5. The argument made for the respondent that if he did not use the premises for the occupation and business of his son, as alleged by him, the Ordinance provided a remedy for the appellant to be restored to the possession of the shop, as provided in sub--section (4) of section 13 of the Ordinance, was repelled by the learned District Judge on the ground that this check in favour of the tenant does not absolve the Court of its duty to record a careful and well considered decision as regards the bona fide requirement of the landlord.
6. The respondent challenged the order of the District Judge by a second appeal in the High Court, which was accepted by a learned Single Judge, who held that the learned District Judge had completely misdirected himself in reaching his conclusions. It was pointed out that in expressing his opinion that the respondent should have normally decided to put his son in business in Rawalpindi where he happened to have many shops and where the business is continuously brisk round the year and not in Murree where shops are closed for about 7 months, the learned District Judge was taking upon himself the responsibility of a personal choice and decision, which the law leaves entirely to the landlord himself. Another factor, which weighed with the learned District Judge, was equally fallacious, namely, that the annual assessment of the shop was increased by the Municipal Committee at the instance of the landlord with a view to increase the rent. The rental assessm ent was increased from Rs. 950 to 1,250 in the year 1962, and it was ignored by the learned District Judge that in spite of this increase in 1962, the ejectment proceedings were not brought till 1965, and no demand from the tenant was made for the increased rent at any stage, who continued to pay the old rent of Rs. 950 per season. The learned Single Judge has also observed that the learned District Judge had omitted to give due weight to the penal provisions contained in subsection (4) of section 13 of the Ordinance, as they do have 'a material bearing on the question of good faith on the part of the landlord in requiring the shop for his personal use or for the use of any of his male children.
7. It was contended that the High Court was not justified in interfering in a second appeal, with a finding of fact recorded by the lower appellate Court.
8. On a petition to this Court, leave was granted to the appellant on the 276 of February 1970, to consider the question whether the bona fide requirement of a landlord as a ground for the eviction of a tenant is purely a question of fact or a mixed question of law and fact, and the further question as to the effect of the penal provisions contained in section 13(4) of the Ordinance in determining the issue of bona fide requirement of the landlord.
9. The learned counsel for the appellant has forcefully argued that the question whether or not a premises is needed by the landlord for his own bona fide requirement or that of his male child is purely one of fact on which a finding had been rendered in his client's favour by the learned District Judge, which should not have been interfered with in second appeal by the High Court. There is no doubt that in the last analysis the question', becomes one of fact whether a landlord does or does not require a certain premises for his bona fide requirement, as contemplated by the Ordinance, although the intention behind the move is purely subjective, which can only be inferred from the circumstances, which must be alleged and proved by the landlord by producing evidence in manifestation of that intention. In the present case, however, the position is that the finding on this point of fact made by the Rent Controller was in favour of the respondent, which has been reversed by the learned District Judge purely on conjectural grounds. The learned District Judge, therefore, committed a legal error in reaching his conclusions on pure conjectures and surmises, which fully justified interference by the High Court in second appeal. The learned District Judge was wrongly influenced by the circumstance that the respondent had not thought of putting his son earlier in business although he was out of job for three years. It was for the landlord to decide as to the opportune time for putting his son in business depending on his resources and opportunities.
10. Again, the opinion of the learned District Judge that the respondent should have put his son in business in Rawalpindi, which was a more prosperous town from the business point of view than Murree, is merely fanciful. It was wrong on the part of the learned District Judge to assume the role of a gratuitous adviser as to which place was more suitable for the son of the respondent to set up his business.
11. The scope of interference by the High Court in second appeal, with a finding of fact reached by the Courts below was stated quite comprehensively by this Court in the case of Madan Gopal and 4 others v. Maran Bepari and 3 others (PLD1969SC617), wherein it was observed: "The legal position does not admit of any doubt that a concurrent finding of fact reached by the lower Courts will not be disturbed by the High Court in a second appeal even if it disagrees with that finding on its own view of the evidence, although the concurrent finding of the lower Courts may appear to be grossly erroneous, unless as laid down in sub--section (c) of section 100, the error or defect discovered is of a substantial character pertaining to the procedure as provided by the Code or by any other law for the time being in force which may possibly have produced an error or defect in the decision of the case upon its merits. Interference would also be justified if the decision of the lower Courts is found to be contrary to law or some usage having the force of law or has failed to determine some material issue of law or usage having the force of law. If the finding of fact reached by the first appellate Court is at variance with that of the trial Court, the former will ordinarily prevail, although it would not possess the same value or sanctity as a concurrent finding.
12. Such a finding by the lower appellate Court will be immune from interference in second appeal only if it is found to be substantiated by evidence on the record and is supported by logical reasoning, duly taking note of the reasons adduced by the first Court, which have been disfavoured in the contrary finding. The finding being at variance with that of the trial Judge, the two will naturally come in for comparison for their comparative merits in the light of the facts of the case and the reasons on which the two different findings have respectively proceeded. If the finding of the first appellate Court, cannot be supported on the evidence on record or if it has failed to take into account a. Material piece of evidence or if it does not reveal a logical basis for differing from the finding of the trial Court, or is otherwise found to be arbitrary or capricious, it will have to be rejected in second appeal."
13. These observations aptly apply to the finding of the learned District Judge in the case in hand. The finding recorded by him being purely capricious and arbitrary based on conjectural hypothesis, interference by the learned Single Judge in second appeal was wholly justified.
14. The learned counsel for the appellant has also argued that the learned Single Judge of the High Court was greatly influenced by an erroneous interpretation of the penal provisions contained in section 13, subsection (4) of the Ordinance, in holding that in the presence of those provisions, there was not much possibility of a landlord acting in bad faith in bringing ejectment proceedings against his tenant on the grounds of his personal requirement or that of his male child, and that for that reason normally the Rent Controller should accept the requirement of the landlord, when it is reasonably proved on the record without imputing bad faith to him, unless there were strong circumstances to the contrary. It may be that the effect of these provisions has been a little over- stated in the observation made by the learned Single Judge, but, as pointed out by him, these penal provisions do constitute a salutary check to restrain the landlord from prosecuting ejectment proceedings on the basis of his bona fide requirement, as the entire proceedings may be rendered useless if the requirement does not materialise in actual fact, in which case he will have once again to abandon the premises in favour of the tenant. As rightly contended by the learned counsel for the appellant, the provisions of sub--section (4) of section 13 of the Ordinance have been enacted in favour of a tenant to restore him to possession, if a landlord has failed to prove by his subsequent action that his bona fide requirement, as alleged in the ejectment proceedings, has not come true. These provisions do not relieve the landlord of the basic onus on him to prove affirmatively that he does require the premises for his bona fide requirement or that of his male child.