' The petitioner is a tenant, who was cited as respondent in an ejectment petition filed by respondent No,2 on 5th of September, 1987, under section 13 of Punjab Rent Restriction Ordinance 1959. The ejectment was sought on the ground of personal use. It was pleaded that the landlord has purchased the shop in dispute on 12th of July, 1987, in order to establish his own business. The petitioner contested this petition. The Rent Controller according to the pleadings of the parties framed following issues:-
(1) Whether the petitioner is in bona fide personal need of the shop in dispute?
(2) Relief.
2. The parties led their respective evidence both oral and documentary. The Rent Controller, after hearing the arguments, proceeded to dismiss the ejectment petition vide order dated 20-6-1988.
The respondent No,2 assailed this order through an appeal before the District Judge, Sialkot, as an appellate authority under Rent Restriction Ordinance 1959. The appeal came up for disposal on the file of Additional District Judge, who proceeded to accept the same vide judgment dated 5-11-1988.
Now this is the judgment, which is subject-matter of this Constitutional petition.
3. The petition came up for preliminary hearing before me on 4th January, 1989 and I issued a pre- admission notice to the respondent No,2 for 8th of January, 1989. The said respondent has entered appearance through Ch. Mushtaq Ahmad Khan, Advocate, while the petitioner is represented by Malik Abdul Wahid, Advocate.
4. I have heard the learned counsel for both the sides. The learned counsel for the petitioner has raised the following points in support of this petition:-
(a) Firstly, that the appellate authority has misread and misinterpreted the evidence of the parties.
The learned counsel in this behalf has referred to statement of the respondent No,2, who had appeared as AW3 and then AW5. It is pointed out that the landlord maintained that he had no other property and was doing no other business. The plea is that this statement is contradicted by documents Ex.A.2, Ex.A.3, Ex. R.1 and Ex.R.2; In this behalf he has referred to cases of Muhammad Hayat v. Sh. Bashir Ahmed and others (1988 SCMR 193), Fazal Karim v. Mst. Shabbiran and others (1983 CLC 2877) and Abdul Majid v. Anwar Ali (1983 CLC 2511),
(b) Secondly, that the plea of personal use is false and actually the respondent No,2, after getting the premises vacated, wants to construct a market. In this behalf he has referred to cases of Seth Abdus Sattar Haji Ahmed v. Sh. Fazal Hussain and another (PLD 1966 Lah.733), Mst. Shirinbai and another v. Messrs Habib Bank Ltd. (1985 CLC 2455) and Habibur Rahman v. Faqir Muhammad (PLD 1983 Lah. 425),
(c) Thirdly, that the petitioner owned the shop but since the respondent No,2 did not ask him for vacation of the shop earlier, therefore, he proceeded to let it out to the M/s Service Industries, which has established a show-room there;
(d) Fourthly, that the respondent No,1 has ignored the documentary evidence and believed oral evidence; and
(e) Lastly, that the respondent No,2 has not dealt with the arguments, which prevailed with Rent Controller while rejecting the ejectment petition. In this behalf the learned counsel has referred the last part or para 9 as well as 1st part of para 12 of the order of Rent Controller. In this behalf, reliance is placed on Muhammad Sharif Khan v. Mst. Ismat Bi and 4 others (PLD 1982 SC (AJ&K) 76).
5. On the other hand the learned counsel for the respondent No,2 has argued that the Rent Controller based his order on surmises and conjectures rather than evidence on record. It is added that the respondent No,2 has neither made any misstatement nor suppressed any material fact. It is further argued that the District Judge has decided the appeal after proper appraisal of evidence and the judgment is strictly in accordance with the law and decision of superior Courts. The learned counsel has referred to the cases of Ghulam Ali and 4 thers v. Muhammad Shafi and 2 others (1983 CLC 1418) and Shahriyar Ali Patudi and 3 others v. Messrs Decora Furnishers (PLD 1985 Kar.47) to argue that the statement made by the landlord on oath is sufficient to answer the issue of personal use in his favour.
6. The learned counsel for the respondent No,2 has pointed that his client has clearly stated that he does not own or possess any shop except the shop in dispute and this fact is not denied. It is argued that reference to factory is entirely irrelevant. The learned counsel in this behalf has relied upon the case of Mst.Kaniz Yousaf and 10 others v. Bakhsh Elahi (NLR 1981 SCJ 632). The arguments are concluded with the legal objection that the petitioner has failed to make out a case for invoking Constitutional jurisdiction. In this behalf the learned counsel has referred to the cases of Sardar Khan v. Riaz Ahmad and others (1986 SCMR 1981), Sheikh Muhammad Yousaf v. District Judge, Rawalpindi and 2 others (1987 SCMR 307) and Muhammad Saleem v. Muhammad Aslam (1986 MLD 663).
7. I have given my anxious considerations to the arguments of the learned counsel for the petitioner as well as the counter-arguments of the learned counsel for the respondent No,2 and gone through the paper-book with their assistance. Now I proceed to deal with the points raised by the learned counsel for the petitioner with reference to the reply made by the counsel for the respondent No,2 and record.
8. It was firstly argued that it is a case of misreading and misinterpretation of the evidence. The plea in nut-shell was that the respondent No,2 is shown to have purchased land for erection of a factory through Ex.A.2 and in fact the factory was established on this land as is clear from Ex.R.1 and Ex.R.2. The grievance is that this evidence has not been taken into consideration and the statement of the respondent No,2 was patently wrong in face of these documents.
9. I have gone through the statement of the landlord as AW3 and AW5. He has nowhere denied the fact that he purchased the land for factory. He has, however, stated that the factory was established by his father, who had, also, purchased the land through Ex.A.3 and the same is being run by his brothers. The respondent in support of this plea has placed on record Ex.A.5 to Ex.A.8, which are the electricity bills and Ex.A.13 and Ex.A.14, which are copies of the Income Tax Assessm ents.
10. The plea is irrelevant for the simple reason that even if the landlord is owner of the factory and is running the same still he could not be deprived to have the shop for his personal use. Therefore, reference to cases of Muhammad Hayat, Fazal Karim and Abdul Majid is not relevant. Both the premises are of two different categories. It is admitted position on record that the respondent No,2 does not own or possess any shop within the same urban area except the shop in dispute. The respondent No,2 has also, categorically stated that the factory premises are not suitable for use as shop. This part of the statement not only remained unrebutted but also, not challenged in cross- examination. Therefore, it is a fact proved on record. It is not also the case of petitioner that the respondent No,2 is in possession or has vacated any such shop. The learned counsel for respondent has rightly referred to the case of Mst. Kaniz Yousaf and 10 others. The relevant portion of the judgment reads as under:- "After hearing both the learned counsel on this question, we are of the view that the factory even if it can be considered non-residential premises is not suitable for the business which the respondent wants to run in the shop in dispute. There is, therefore, no force in the second argument either."
11. The second argument was that the real object of the respondent No,2 is to get the shop vacated and demolished in order to construct a market thereon. There is nothing on record to prove this plea. In any case the respondent No,2 failed to occupy the shop then the petitioner can invoke the penal provision contained in subsection (4) of section 13 and move the Rent Controller for the restoration of possession. This plea is otherwise a question of fact which cannot be gone into in the Constitutional jurisdiction. The reference to case of Seth Abdul Sattar is not relevant because the petitioner was to prove in rebuttal that the respondent No,2 is in possession of any such property suitable for his needs. It is true the onus of proof of personal need was on the landlord. Since I have held that the onus had been discharged properly and the petitioner has failed to rebut the evidence, therefore, reference to case of Mst. Shirinbhai and Habibur Rahman is, also, irrelevant.
12. It was thirdly argued that the respondent No,2 by his conduct made the petitioner to believe that shop is not required by him. The result was that the petitioner proceeded to let out his own shop to M/s Service Industries. The plea is without any merit for the simple reason that petitioner has failed to prove any assurance on behalf of the landlord. It is admitted position that the shop was purchase by the respondent on 12-7-1987 and ejectment petition was instituted on 5-9-1987, while the petitioner had let out his own shop in January, 1986. This way he let out his own shop even before purchase of the shop in dispute by the respondent No,2. Therefore, there was no question of any assurance that the shop in dispute will not be got vacated by the petitioner. The learned counsel for the respondent No,2 has rightly pointed out that there was no delay in filing the ejectment petition as in the month of August the civil Courts were closed for summer vacations and immediately on the reopening of the Courts the ejectment petition was presented. It was further clarified that the respondent was living abroad since 1970 and came back for good only on 23-6-1987.
13. The other point was that the learned Additional District Judge has believed the oral evidence and ignored the documentary evidence. This argument is in fact part of the arguments noted as No,1 and the same point was raised but in different phraseology. I have seen the evidence, the same has been properly appraised by the respondent No,1, who has not ignored any evidence. The decision is strictly in accordance with law and facts on record.
14. Now I take up the last argument. It was vehemently argued by the learned counsel that the decision of Rent Controller was based on evidence and respondent No,1 has failed to repel the points, which prevailed with the Rent Controller while rejecting the ejectment petition. The learned counsel in this behalf firstly referred the following part of para 9 of the order of Rent Controller:- "In the case relied upon the landlords were not in possession of any property but in the present case it is abundantly proved from the oral as well as documentary evidence that the petitioner is in possession of factory and 16 marlas of land.
' It is also proved that the petitioner is running sports business on the back side of the shop in dispute."
15. I have asked the learned counsel to show from the evidence that the respondent No,2 owned factory and also 16 marlas of land. The learned counsel failed to refer to any piece of evidence in this behalf. The fact of the matter is that the respondent No,2 had purchased 16 marlas of land for establishing a factory thereon. The plea of the petitioner is that he did establish a factory but the respondent No,2 refuted this assertion and to prove the same he has produced electricity bills and Income Tax Assessm ents. On the other hand, the petitioner has only produced copies of P.T.1 for the year 1982-83 as Ex.R.1 and 1987-88 as Ex.R.2. This entry in Excise record does not prove that the respondent No,1 is running the sports business. I wonder how the learned counsel happened to rely on the order of the Rent Controller, and when I confronted him with the evidence, he failed to justify the observation of the Rent Controller.
16. The other portion referred to from the order of the Rent controller reads as under:- "The proposition that the petitioner can select any of the property for his personal business is true.
But the petitioner is to prove that he was doing no other business and he alleges that he was not doing any other business and it is proved that he was doing some other business. The need of the petitioner could not be termed as bona fide."
17. These observations of the Rent Controller are incomplete ignorance of law and against evidence on record. The landlord, who had sought ejectment of his tenant from a non-residential premises is only required to prove following factors:-
(a) He requires it in good faith for his use or use of his male children;
(b) He or said children is not occupying in the same urban area in which such building is situated for the purpose of his business any such building suitable for his needs; and
(c) He has not vacated such a building in the said urban area.
' The legislature has repeatedly used the word such in subparagraph (2) of paragraph (a) of subsection (3). This is not without purpose. The redundancy cannot be attributed to the legislature.
It is clear from the reading of above provision that the legislature has not made any restriction on a factory owner to establish his show-room or any other business in a shop. Therefore, the findings of the Rent Controller that respondent No,2 was to prove that he was not doing any other business are in utter disregard of the provision of law. A 'factory' and a 'shop' are two different species of nonresidential buildings. The respondent No,2 has moved an application for eviction of the petitioner from the shop. Therefore, his occupation or possession of a factory is irrelevant and of no legal consequences because the factory is not 'such building'. I am constrained to remark that the Rent Controller has dealt with the matter in most casual and careless manner.
18. The argument is supplemented with the remarks that it was for the respondent No,2, who was appellant before the respondent No,1 to show that the judgment under appeal was wrong. It is concluded this having not been done and, therefore, the respondent No,1 acted illegally in disturbing the finding recorded by the Rent Controller. The argument is misconceived and without substance. It is clear from the judgment of the respondent No,1 that the Rent Controller did not apply correct law and failed to decide the matter in accordance with the evidence on record.
19. Before concluding this judgment I may refer to the objection of the learned counsel for respondent that appraisal of evidence is outside the scope of the Constitutional jurisdiction. The learned counsel is right to argue that the Constitutional jurisdiction cannot be substituted for appellate jurisdiction and it is not possible to appraise the evidence in writ jurisdiction. I uphold this objection. The petition was liable to be dismissed on this short ground but since it was a judgment of variance, therefore, I have gone through the evidence myself to find out whether the Rent Controller has ignored the evidence or the District Judge. Since I had concluded that the finding of the Rent Controller are against facts on record, therefore, the legal objection must be upheld.
20. The result is that I do not find any merit in this petition and the same is dismissed with no order as to costs. The petitioner, however, is allowed three months to hand over the vacant possession of the shop in dispute to his landlord.