' The facts necessary for the disposal of the petition are that Mian Abdur Rehman petitioner (landlord) filei a petition for ejectment of Syed Izhar-ul-Hassan Rizvi from a shop on the grounds of default and personal use of his son. The alleged default was from the 1st of April, 1980 to the date of filing the ejectment petition i.e. 8-10-1980. There was a written tenancy between the parties.
According to the petitioner Rs, 9,000 had been deposited as security with him with a mutual agreement that he would be competent to adjust the security amount towards the payment of future rent. According to the terms of the agreement, the rent was to be paid in advance on the 10th of each Calendar month. According to the petitioner, the security amount was adjusted towards the payment of rent till 31st May, 1980 leaving a balance of Rs, 200 only. Since the monthly rent at that time was Rs,250, therefore, the said amount was not sufficient to adjust the rent for the next month.
2. The respondent contested the petition on the point of default. According to him, he had paid the rent till 31st May, 1980 by adjusting the security amount. Since the landlord had not issued receipts for the months of April and May, 1980, he tendered the rent for the months of June and July through money order which the petitioner refused to receive. Whereupon he moved an application on 19-7- 1980 for permission to deposit the rent in Court for the months of June and July, 1980 alongwith the rent for April and May, 1980 which was deposited in the Bank. As regards the personal need of the son of the Otitioner the respondent stated that he was already running his business as bookseller in the shop adjacent to the shop in dispute and as such the petitioner's plea for his personal need was mala fide.
3. The learned Rent Controller framed the following issues:
(1) Whether the respondent has committed default in payment or tender of rent for the disputed period? O.P.P.
(2) Whether the petitioner requires the shop in good faith for use and occupation of his son namely Abdul Hanan? O.P.P.
' After recording the parties evidence, the learned Rent Controller, vide his order, dated 28-2-1980 decided the issue of default against the petitioner but found issue No,2 regarding personal need in his favour and in consequence ordered the respondent's ejectment.
4. Feeling aggrieved the respondent (tenant) preferred an appeal. The Appellate Court (Additional District Judge), vide his judgment, dated 13-6-1983 accepted his appeal and found both the issues in his favour and in consequence dismissed the ejectment petition. Hence this -Constitutional Petition.
5. It is contended by the learned counsel for the petitioner (landlord) that the findings of the learned Rent Controller as well as of the learned Additional District Judge on issue No,1 regarding default are based on misreading of the evidence inasmuch as the said Courts have misread Exh.
R.I. And have illegally assumed that the respondent had not applied for permission to deposit the rent for the disputed months of April and May, 1980 and, therefore, there, was no default. As a matter of fact respondent No,1 in Exh. R.I had specifically applied for permission to deposit the rent for these two months which fact has been misread by both the Courts below for arriving at the conclusion against the petitioner. From the perusal of Exh. R.I, para. 5 it becomes clear that the respondent had sought pemission for the deposit of rent for the months of April, May, June and July, 1980 stating that although he had already paid the rent for the months of April and May, 1980 the receipts for which were not issued by the landlord despite his request he was again depositing the rent for the months of April and May, 1980 reserving his right to get the said rent adjusted afterwards. Learned counsel for the petitioner submits that since the rent for the months of April and May, 1980 had not been paid or tendered within time, the default on the part of the respondent stood proved. It is further stated that the learned Additional District Judge failed to consider the effect of the deposit of rent by the tenant after the default had occurred. It is next contended that the Courts below have erroneously held that the amount of security could have been adjusted towards the payment of rent . Since only Rs, 200 were left and the monthly rent being Rs, 250 even the rent for one month could not have been adjusted against that amount, it is stated.
6. As regards personal need of the petitioner, it is stated that the learned Rent Controller had found this issue in favour of the petitioner but it was reversed by the learned Appellate Court on the ground that the petitioner had failed to mention in the ejectment petition and also could not prove that his son for whose need the shop in dispute was required was jobless before filing of the petition. Learned counsel submits that this view is against the settled proposition of law. He has cited Fazal Azir v. Tariq Mahmood and others PLD 1982 SC 218 and Muhammaa Ashraf v. Jan Muhammad 1981 SCMR 720 in this behalf. In these cases it was held that the landlord could not be expected to sit idle during the pendency of the petition and the mere fact that he was engaged in his pursuits would not negate his personal need. The other ground which weighed with the learned Appellate Court in deciding the issue against the landlord was that he had failed to show that his son had any past experience of stationery business though he had some experience of book- selling. Learned counsel states that this conclusion was also contrary to law as enunciated in the case of Mst. Mumtaz Begum v. Muhammad Yousafj.982 CLC 1735 where experience in trade or business required to be stairted was not considered necessary. Reliance has also been placed on Muhammad Fazal v. Sh. Muhammad Yousaf 1985 CLC 614. The third ground which prevailed with the learned Appellate Court in deciding the issue against the landlord was that the son for whose need the shop in question was required was already doing business with his father in another shop.
It is stated that even if, that be so there was no bar in the way of the petitioner's son to start his independent business in an indeRendent shop as laid down. In Malik Abdul Qaddus v. Mst. Maryam Bibi P L U 1981 Lah.
456. It is next submitted that the learned Appellate Court erred in observing that another shop was available to the petitioner's son which he had rented out to Ilmi Kutab Khana 11 years before filing of the ejectment petition. He states that this was not the case of the respondent in the written statement and there was only a suggestion in the cross-examination of P.W.1 who himself explained this point, by stating that the said shop belonged to the brother of the petitioner and that he had rented it out. Further that the petitioner was never confronted with this plea when he appeared in the witness-box. It is further contended that the observation of the learned Appellate Court that the petitioner wanted enhancement of the rent is not based on any evidence because the rent from 1972 to 1980 was static at the rate of Rs, 250 per month and no attempt was made during this period to enhance it. It is stated that even if the landlord had wished so this could not have been fatal to his case. Reliance in this behalf has been placed on Pirzada Rafiq Ahmad v. Ch. Abdur Rehman 1980 SCMR 772.
7. Learned counsel for the respondent states that there is a concurrent finding of fact on the question of default. He states that the rent for the months (of April and May, 1980 had been deposited as a precautionary measure. The respondent could have been declared a. Defaulter if he had failed to pay or tender rent for the months of April, 1980 till 30th of June, 1980 but since he had remitted. Rs, 500 through money order on 1-7-1980 and Rs, 200 were also available from the security amount, therefore, there was no wilful default on the respondent's part. According to him, if the security amount had been adjusted towards the payment of rent for the month of April, 1980 then only Rs, 50 would have been outstanding against the respondent which if added in the rent of May, 1980 would have brought the outstanding amount of Rs, 300 but the respondent had paid Rs, 500 through money order on 1-7-1980 showing that he had no intention to commit any default.
'As regards the question of default, I do not find any misreading of evidence by the learned Rent Controller and the learned Additional District Judge. The material on record does not show that the respondent had made any wilful default in the payment of rent.
' So far as bona fide personal need of the petitioner is concerned, his case is that he required shop for the use of his son namely Abdul Hanan who was jobless. The learned Rent Controller had decided the issue in his favour but in appeal it was reversed by the learned Additional District Judge. According to the learned Additional District Judge the petitioner had failed to mention that his son was jobless at the time of filing of ejectment petition. Furthermore, Abdul Hanan was already doing business in partnership in the shop known as Fazal Sons Book-Sellers. According to the appellate Court Fazal Sons Book-Sellers seemed to be a spacious shop which was sufficient to accommodate the petitioner and his son. It was further observed by the learned appellate Court that the petitioner had failed to prove that his son had any past experience of stationery business.
After perusal of the record, I find that the order of the learned Appellate Authority suffers from misreading of evidence inasmuch as, there is nothing on record to show that Abdul Hanan had been running business in partnership with Kh. Abdul Rashid, No partnership deed or books of account was produced by the respondent. The finding that Fazal Sons Book-Sellers shop where the petitioner is run"in business is spacious enough to accommodate his son Abdul Hanan is conjectural.
' As for the other reason that the petitioner had failed to mention in th petition that his son was jobless and that he had no experience in stationery business, etc. I am afraid that it could be taken int consideration to test the bona fide need of the petitioner (landlord). It is now well-established that the assertion on oath by the landlord tha he required the premises for his own use should be accepted as bona fide if such assertion is consistent with his averments in application and not shaken in cross-examination as laid down in the case reported as Hasan Khan v. Munawar Begum PLD 1976 Kar.
832.
' The learned Rent Controller and the First Appellate Authorit are to ascertain and determine the exact 'heed of the landlord afte deciding upon the question of personal need and if they are satisfied that his requirement is bona fide his plea is to be accepted. Experienc in trade or business required to be started is not a condition precedens for getting business premises vacated.
Furthermore, a landlord cannon be legally denied the right of getting a shop vacated for the start o independent business by his son.
8. For what has been stated above I am convinced that the judgment of the learned Appellate Court on the question of personal need of th petitioner suffers from misreading of evidence and the relevant provision of law have been flouted and the case-law laid by the Superior Court has been misconstrued and as such the impugned order is declared t be without lawful authority and of no legal effect. Resultantly th petition is accepted and the appeal filed by the petitioner shall b deemed to be still pending and shall be disposed of by the learne appellate Court afresh in accordance with law.
' In the circumstances of the case, there shall be no order as to costs.
' The learned appellate Court is directed to dispose of the appeal within three months.