2. The factual background giving rise to this writ petition relevant for its disposal is summarised as under:-- The petitioner is the owner of property bearing No.29 situated at Hall Road, Lahore, out of which a shop is being occupied by respondents Nos.3 and 4 as tenant under him at the rate of Rs.1,000 per month as rent. The petitioner filed ejectment petition on 7-3-1985 seeking eviction of respondents Nos.3 and 4 from the said shop on the sole ground that he was requiring the said shop for his bona fide personal use in order to carry on and expand his business which business he was carrying on in the basement under the said shop. Respondents Nos.3 and 4 resisted the said ejectment petition by filing reply/written statement. It was denied that the petitioner was not requiring the shop in dispute in good faith as he was carrying on his business of repairing T.V. And. V.C.R., etc. In the shop situated in the basement of the same building for the last more than 20 years. On the pleadings of the parties the learned Rent Controller framed the following issues:-
(1) Whether the petitioner required disputed property bona fidely and in good faith for his personal use?
(2) Relief.
3. Learned counsel for the petitioner argued that in determining the question of bona fide personal need for landlord, the two Courts below have altogether ignored the principles laid down by the superior Courts providing the guidelines for appraisal of evidence of landlord himself on oath.
Learned counsel for the petitioners maintained that both the Courts below allowed their minds to be prejudiced by the circumstances that the petitioner had received advance rent of the property in dispute in lump sum and got the monthly rent enhanced from time to time and that he allegedly demanded Pugree which according to the learned counsel even if taken into consideration did not detract from the pica of bona Fide personal requirement of the property by the petitioner as according to the principles laid down by the superior Courts the case of the petitioner about his personal need made out by him in his statement on oath has not received consideration on merits.
In support of his arguments he relied upon judgments reported as Sheikh Muhammad Yousaf v.
District Judge, Rawalpindi (1987 SCMR 307) Muhammad Siddique v. Muhammad Shoaib (1986 SCMR 1207), Shamsul Islam Khan v. Pakistan Tourism Development Corporation Ltd. (1985 SCMR 1996). Pirzada Rafiq Ahmad v. Chaudhary Abdul Rehman (1980 SCMR 772)., Syed Akhtar Hussain v.
Wali Bahadur and 3 others (PLD 1981 Lah.326), Muhammad Zaman v. Mahboob Ellahi (PLD 1981 Lah.
609), Haji Ghulam Muhammad v. Abdul Oadir (PLD 1975 Lah. 200) and Hassan Khan v. Mst.
Munawar Begum (PLD 1976 Karachi 832).
4. On the other hand learned counsel for respondents No.3 and 4 with full vehemence at his command maintained that the writ petition suffers from laches, therefore, should be dismissed straightaway on this score. According to him the writ petition has been filed after a period of one year and nine months as the order of the learned Addl. District Judge was passed on 30-7-1986 whereas the writ petition was filed on 9-12-1987. He placed reliance on judgments reported as Hasan Imdad v. Deputy Commissioner/Collector, Lasbella (PLD 1985 Quetta 1) Financial Advisor and Chief Accounts Officer, Pakistan Railways, Lahore and 2 other v. Punjab Labour Appellate Tribunal, Lahore and 2 others PLD 1985 Lah.420. Shams Din v. Amanullah and 3 others PLD 1987 Lah.471 Mubarak A.I v. The Chairman, Union Council, etc. 1987 CLC 1661 Abdul Aziz Baloch v. Republic of Pakistan, etc. PLD 1974 Kar.366 and Settlement Authority through the Chief Settlement Commissioner, Lahore and another v. Mst. Akhtar Sultana (PLD 1976 SC 410) and argued that in all these reported cases delay of even six months or nine months and in one of the cases i.e. "PLD 1987 Lahore 471 even delay of three months was not condoned by this Court.
5. In order to appreciate the arguments of the learned counsel for the petitioner correctly, it will be useful to refer to the relevant portion of ejectment petition wherein the petitioner has raised the plea of bona ride personal need of the stop in dispute. Para 3 of the ejectment petition containing this plea reads as follows:- ---That the petitioner requires the premises in dispute for his bona fide personal requirement in order to carry on and expand his business which he at present is carrying on in the basement under the shop in question. It is neither convenient nor appropriate and profitable for the petitioner to continue to carry on his business in the premises in his possession. Petitioner finds it most uncomfortable to carry on his business in the basement as he is suffering front Diabetes. Petitioner with limited income from his present business finds it difficult to meet the legitimate expenses of his large family. The basement in possession of the petitioner has been shown in green colour in the plan attached. The premises in possession of the petitioner are not at all suitable and sufficient for the business of the petitioner. Besides the petitioner requires the premises in possession of the respondent for expansion and betterment of his business. Customers are most reluctant to go down in the basement and thus the petitioner's business has registered a steep fall.--- When the Petitioner examined himself on oath as AW.3 he deposed that he was carrying on his business in the basement which is insufficient for him. He had nine children and the age of the youngest child was 30 years. He had no other property anywhere in Pakistan except the shop in dispute and the said basement. Fie also deposed that his present business was not yielding sufficient income to meet the expenses of his family. His business in the basement was not properly running because that part of the building is not visible to the customers. The said basement according to his statement was 8 and 9 feet deep from the footpath and the customer could not reach tile said basement himself as the place is not visible to him. He also deposed that he was ready to give undertaking in writing that after getting the shop vacated he would not rent it out to any person. He also deposed that he had not filed the ejectment petition for enhancing the rent. In deciding issue No.1 against the petitioner the Courts below were merely influenced by the circumstance that the petitioner claimed that he was in need of the shop in dispute for the last 5/6 years but he gave no notice of his need. They are also influenced that the rate of rent was enhanced in 1977, 1982 and 1983 and the petitioner had received substantial amount as advance rent and after the advance rent stood adjusted he would get enhancement in the monthly rent and used to receive substantial amount as advance rent for the last so many years.
They also took notice of the fact that the sons of the petitioner were out of country and his one son who is in Pakistan is serving in F.C. Fertilizer Company. The evidence of Ahmad Yar Khan AW 1 has been rejected mainly on the ground that he had family relations with the petitioner. He was held to be interested witness merely because he attended every date of this case with the petitioner. It was also held that this ejectment petition was riled at the instance of Ahmad Yar Khan AW. 1 because according to the respondent No.3 as pointed out in his written statement the said respondent appeared as witness against Ahmad Yar Khan in an ejectment petition filed by Ahmad Yar Khan. The evidence of Malik Gulzar Ahmad AW 2 was also brushed aside on the ground that brother of this witness was student of the present petitioner namely Saeed Oureshi. He was also found to be not creditworthy because he did not know about the income of the petitioner. The Courts below also took note of the fact that the petitioner when examined himself as his own witness remained silent about the allegations made by respondent No.3 in the written statement that the petitioner demanded Rs. One lac as Pugree' and Rs. One lac as advance rent and as such a presumption was raised against the petitioner
6. The question for determination is whether the two Courts below have followed the rules laid down in the reported judgments by the superior Courts providing guidelines for determination of question of bona fide personal need by landlord, of the rented property. Needless to observe that both the Courts below were bound to follow the law as declared by the superior Courts while determining the question of personal need of the landlord about the premises in dispute. It has been held in "7985 SCMR 1996" that desire of landlord to seek maximum income from his property by itself would not furnish negation of bona fides. In the present case even if the rent of the premises was enhanced in the year 1977, then in 1982 and in 7983 as observed by the Courts below, this by itself according to law laid down by the Supreme Court was not sufficient to negate bona fides. There is no evidence brought on the record by respondents Nos.3 and 4 that the petitioner received any amount in addition to the agreed rent of the premises. If according to agreement between the parties the rent for a particular A period of tenancy was paid in lump sum and in advance that would not also by itself detract from bona fides of the Petitioner's/landlord. The finding of the learned Rent Controller that the petitioner in his statement did not state about the pica of the respondents Nos.3 and 4 in the written statement that he demanded Rs. One lac as `Pugree' and Rs. One lac advance rent is based on misreading of the statement of the petitioner as AW.3. The petitioner categorically denied the correctness of the suggestion put to him that he demanded Rs. One lac as `Pugree' and Rs. One lac as advance rent. This part of his statement in cross-examination has altogether been ignored and kelp out of consideration. The rule is firmly established that the statement of a witness in cross-examination stands on the same footing and not distinction cart be made between a statement made in examination-in-chief and the one made in cross---examination. In 1980 SCMR 772 their Lordships of the Supreme Court to the view and laid down the law that demand of higher rent by landlord does not by itself cast any doubt about personal bona fide requirement of premises by SCMR 307--- it was held that receipt of any amount as ---Pagri--- by the landlord at the time of letting out shop could not debar from instituting eviction proceedings on a ground of bona fide, personal need and it was held that payment of ---Pagri--- was a mutual arrangement and as such could not be put up ass defence against the demand of the landlord to get the premises vacated for his personal use. In "1986 SCMR1207" their Lordships of the Supreme Court repelled the contention that solitary statement of landlord was not enough to establish his bona fide need of shop for his own occupation. Similar is the law laid down by the other reported judgments noted in the arguments of the learned counsel for the petitioner. I find that both the Courts below failed to follow the law and the principles respecting appraisal of evidence in such cases and in particular the statement on oath of the landlord laying down the guidelines as to how and from what angle the bona fide requirement of landlord is 'to be viewed. The Courts below as such have not exercised their jurisdiction in accordance with law. There is no provision in the Rent Restriction Ordinance, that a landlord is required to issue notice to the tenant before- raising plea of personal use. Non-issuance of-such a notice has additionally been taken note of by the learned Rent Controller in deciding issue No.1 against the petitioner which in lily view being not requirement of law could not be a factor which could be set up against the landlord. No clear finding has been recorded as to reasonableness or otherwise of the demand of the landlord to get the premises on the plea that the basement where he was doing his business was nest suitable for his personal need and the reasons for saying so given in Para.3 of the ejectment petition as also in the statement of the petitioner himself as AW.3.
The circumstances due to which the said basement is not thought fit for has business has also not been considered objectively. Keeping in view the law laid down by the superior Court as noted above it was necessary for the learned lower. Court appellate Court to record finding with reasons that in the circumstances n disclosed by the petitioner on oath he was not entitled to have better place ownea by him for his business requirement. The learned lower appellate Court was duty's bound under the law to examine the legality or otherwise of the order of the learned Rent Controller he being the appellate Court both on facts and law. The impugned order of the learned lower appellate Court for the foregoing reasons cannot be sustained.
7. I do not feel persuaded in my discretion to dismiss the writ petition on the ground 61-laches in peculiar circumstances of this case. No doubt in those cases on which reliance has been placed by the learned counsel for respondents No.3 and 4 the writ petitions were dismissed and the learned Judges did not exercise discretion in- favour of the writ petitioners due to laches. In my view the objection grounded on laches is primarily, relatable` to the discretion of the Court and not to the jurisdiction. It has been laid down in the Judgment reported ass Pakistan 'Post Office v. Settlement Commissioner and others (1987 SCMR 1119) that no hard and fast rule can be laid down regarding laches. In the present case to my mind the case of the petitioner did not receive consideration on merits according to the law laid down by the superior Courts. This is a case where justice has not beer done and exercise of discretion in favour of dismissal of writ petition on the ground of laches would not be just and proper. It was the right of the petitioner that his case should have been considered on merits according to law.
8. For the foregoing reasons this writ petition succeeds, the order dated 30-7-1986 passed by the learned Addl. District Judge, Lahore, on appeal filed by the petitioner is hereby declared to have been passed without lawful authority and of no legal effect and is quashed. As a consequence thereof the appeal by the petitioner before learned Addl. District Judge, Lahore, against the order of Rent Controller dated 7-1-1986 shall be deemed to be pending and the learned Addl. District Judge is hereby directed to dispose of the said appeal in accordance with law. There will, however, be no order as to costs.
H.B.T./S-322/L