' The petitioner through this Constitutional petition has sought declaration that the order of respondent No,1 dated 23-12-1987 is illegal and prayed for its set-aiding and restoration of the order of respondent No, 2 dated 11-10-1986.
2. The relevant facts are that the petitioner let out Shop No, 7, Building No, 1, Commercial Zone, Gulberg-Ill, Lahore, to respondent No, 3 in year 1971. The petitioner sought ejectment of respondent No, 3 on the ground of personal use in the ejectment application filed on 5-7-1984. The tenant resisted this application. The learned Rent Controller in view of the pleadings of the parties framed following issues:-- "(1) Whether the disputed property is required by the plaintiff for his personal use in good faith?
OPP.
(2) Relief."
3. The petitioner in order to prove the issue produced Muhammad Naeem, Advocate as PW1, Mahmood Anwar as PW2, Muhammad Sarwar Qadri as PW3 and himself appeared as PW4. The petitioner also produced documentary evidence, which included Exh. P.1 to Exh.P.6 returns submitted to Excise Department. The decision of his wealth tax case as Exh.P.7, site plan as Exh. P. 8, agreement dated 19-5-1971 as Exh.P.9, agreement dated 6-3-1971 as Exh.P.10, compromise dated 4- 11-1975 between the parties in earlier ejectment petition as Exh.P.11, statements of the parties dated 4-11-1975 as Exh.P.12 and order of the Rent Controller dated 4-11-1975 as Exh. P.13, the application moved by the petitioner and his tenant for dismissal of another ejectment petition in terms of the compromise as Exh. P.14. The tenant in rebuttal examined Sher Amjad as RW1, Tussadaq Hussain as RW2, Naveed Akbar as RW3, Mursalin Dar as RW4, Amjad Waheed Butt as RW5 and himself appeared as RW6. The respondent also produced documentary evidence, which included money order receipt as Exh.R.1, letter from the petitioner as Exh.R.2, copy of ejectment petition as Exh.R.3 while reply to this petition as Exh.R.3/1, the statements of the parties in the matter as Exh.R.3/2, copy of another ejectment petition and its reply as Exh.R.4 and Exh.R.4/1 respectively while copy of application as Exh.R.5, copies of the statements as Exh.R.5/1 and reply to application as Exh.R.5/2, copy of the ejectment petition as Exh.R.6, reply thereto as Exh.R.6/1, copy of the execution petition as Exh.R.7, copies of the ejectment petitions as Exh.R.8 and Exh.R.9.
4. The learned Rent Controller after hearing the arguments proceeded to allow the petition and directed the tenant to put the petitioner in possession of the disputed premises vide order dated 11- 10-1986. The tenant assailed this order through an appeal before the appellate authority, respondent No,1, who after hearing the parties proceeded to accept the appeal and set aside the impugned order of respondent No,2 vide order dated 23-12-1987. It is this order, which has been impugned by the landlord in this Constitutional petition, which was admitted to hearing and notices were issued to the respondents. The respondent No,3, alone has appeared and contested the petition while the other respondents were proceeded ex parte.
5. The learned counsel for the petitioner in support of the petition has argued that it is a judgment of variance and respondent No,1 while reversing the order of the ejectment failed to meet the reasoning given by the learned Rent Controller in support of his order. The learned counsel, in this behalf, has referred to cases of Madan Gopal and 4 others v. Maran Bepari and 3 others PLD 1969 SC 617 and 1987 SCM R 43. The second submission is that the learned appellate authority while deciding the appeal did not take into consideration law laid down by the superior Courts. In this behalf, the learned counsel has referred to PLD 1981 SC 246, Dildar Hussain Nayyar v. Niaz Muhammad Dar and another 1985 SCM R 1769, 1969 SCM R 131, Muhammad Ishaq v. A.R. Khan 1982 CLC 562 and Haji Ghulam Muhammad v. Abdul Qadir PLD 1975 Lahore 200. The argument in nut- shell is that the statement of the petitioner was sufficient to prove the issue and there is a statutory safeguard for the tenant provided under the law, therefore, there was no justification, legal or otherwise, to accept the appeal of the tenant. The other argument was that it is a case of misreading of documents on record by the respondent No,1, therefore, this Court is competent to interfere in the Constitutional jurisdiction. In this behalf, the learned counsel for the petitioner has referred to the judgments of the Hon'ble Supreme Court in the cases of Muhammad Hayat v. Sh.
Bashir Ahmed and others 1988 SCM R 193 and 1988 SCM R 1771. The learned counsel in support of the argument has submitted that the respondent No, 1 has wrongly referred to column No 5 of Exh.P.1 to Exh.P.6. It is submitted that the column pertained to rate of excise duty while the learned appellate authority has read it as increase in the business of the petitioner.
6. On the other hand, the learned counsel for the tenant has raised a preliminary objection to the effect that the petitioner during the pendency of this Constitutional petition has initiated yet another ejectment petition against his client and claimed ejectment on the ground of his bona fide requirement of the disputed premises for reconstruction. It is submitted that by filing fresh ejectment petition the petitioner has abandoned his claim of personal use, which is subject-matter of the present Constitutional petition. It is submitted that both the pleas are self-destructive. While on merits it was submitted that the conduct of the petitioner is that the premises were let out to his client on 6-3-1971 at a monthly rent of Rs,500 vide Exh.P.10 and just after two months he was made to enhance the rent to Rs, 625, as is clear from Exh.P.9. This was followed by agreement Exh.P.8, through which rent was enhanced to Rs, 700. Thereafter the petitioner filed an ejectment petition and made him to enhance the rent in two stages. The compromise is Exh.P.11. It was valid for 8 years and according to it the rent was enhanced to Rs,900 for first 2 years and for remaining 6 years the rate was fixed at Rs,1,000. This was followed by yet another ejectment petition, which was also compromised through Exh.P.14. This compromise was to hold field up to 1-7-1985. The rent was increased once again in two stages. The first stage started with effect from 1-7-1979 and rent was fixed at Rs, 1,250 while in next stage which commenced from 1-7-1982, the rent was fixed at Rs, 1,500.
7. The learned counsel for the tenant has further submitted that the learned Rent Controller brushed aside evidence of his client without assigning cogent reasons for the same while the evidence of the petitioner, which suffered from inherent infirmities was taken as gospels truth. It is submitted that in fact the learned Rent Controller has not scrutinised the evidence and proceeded on surmises and conjectures.
8. The learned counsel for the petitioner in reply to the preliminary objection raised by Mian Nisar Ahmad, Advocate for the tenant submitted that the grounds of personal use and reconstruction are not mutually destructive. In this behalf, the learned counsel for the petitioner has referred to the judgments of the Hon'ble Supreme Court in the cases of Didar Shah v. Ch.Ghulam Haider(deceased) through Legal Heirs and another 1985 SCM R 504, Dawood v. Muhammad Yasin PLD 1982 SC 227, Sh. Abdul Aziz and others v. Kh. Hasan Joo and 5 others 1981 SCM R 924 and Abdul Bari v. Khadim Hussain PLD 1978 SC 78. It is added that failure of one ejectment petition does not mean automatic dismissal of the other. In this behalf, he has referred to case of Muhammad Shafique v. S. M. Khurram and others 1983 SCM R 1227. The learned counsel for the petitioner further added that the landlord can maintain successive ejectment petitions. The submission is that the moment there is a fresh cause of action in favour of the landlord he can initiate fresh ejectment proceedings. In this behalf, the learned counsel for the petitioner has referred to PLD 1985 SC 220 and PLD 1985 SC 327. The arguments are concluded with the submission that it is the right of the landlord to receive rent in accordance with market rate and acceptance of rent at enhanced rate does not reflect on the bona fides of the landlord. In this behalf, he has referred to case of Khawaja Muhammad Munawar v. Nisar Ahmad and 2 others 1985 CLC 1613.
9. I have given my anxious consideration to the arguments of the learned counsel for the parties and gone through the record as well as precedent cases. It is worthwhile to deal with the preliminary objection before proceeding with the arguments on merits. The preliminary objection, as already noted, was that by filing fresh independent ejectment petition on ground of requirement of the premises for reconstruction, the petitioner proceeded to abandon the plea of personal use subject-matter of the present Constitutional petition.
10. On the other hand, Kh. Habib Ullah, Advocate for the petitioner submitted that although subsequent events can be taken into consideration while adjudicating a matter but only when following conditions exist:--
(i) the facts must be admitted;
(ii) it must be necessary to do justice; and
(iii) it will help to shorten litigation.
' He, in this behalf, has referred to the judgment of Hon'ble Supreme Court in the case of Muhammad Aslam v. Wazir Muhammad PLD 1985 SC 46. Now in the present case the factum of new ejectment petition by the petitioner on the ground of reconstruction is admitted. The effect of the same is also relevant to do complete justice between the parties and it will also shorten the litigation in the sense that the petitioner will be able to pursue one remedy wholeheartedly instead of going on multiplying the proceedings. Therefore, it is decided to take into consideration effect of subsequent ejectment petition filed on ground of reconstruction.
11. Now coming to the cases relied on by the learned counsel for the petitioner in support of his argument that the grounds of reconstruction and personal use are not inconsistent and self- destructive. The perusal of the judgments in the cases of Sh. Abdul Aziz, Dawood, Didar Shah and Muhammad Shafique, establish one thing clearly that the grounds of reconstruction and personal use were taken together in one and the same application. The relevant portion of the judgment of the Hon'ble Supreme Court in the case of Dawood reads as under:-- "Looked at from whatever angle (a) of principle, which, as would be shown presently, already stands settled in several rulings of the superior Courts, and also (b) of interpretation and analysis of the relevant provisions of section 13 of the Ordinance, the eviction of a tenant on both the grounds of personal requirement and reconstruction in same proceedings, would not be illegal, as the two grounds are not mutually destructive."
' There are two clear and basic differences in the case in hand and the cases relied by the learned counsel for the petitioner namely:- ' Firstly, in the case in hand landlord has sought the ejectment of the tenant on the grounds of reconstruction and personal use in two different petitions while in the precedent cases both the grounds were urged in one and the same position. The arguments of the learned counsel that both the pleas are ! Mutually not destructive. There is nothing wrong with the submission but in the present case the main ingredient 'mutuality' is lacking. The word `mutuall presupposes at one and the same time, common, reciprocal; and ' Secondly, in one case the landlord proves his desire to reconstruct the premises and occupy the premises 'so reconstructed' while in the other situation his desire is on the one hand to occupy 'the premises as it is' and on the other hand, he is also desirous of pulling down the same with object to reconstruct.
' Now coming to the present case. If this petition is allowed today the petitioner will secure possession and proceed to occupy it. But tomorrow he will proceed to demolish the same for reconstruction. This clearly negates his personal need of the premises, as it is. It is for this reason that both the pleas when taken separately are destructive and inconsistent.
12. In the present case it is admitted that the petitioner has filed an ejectment petition on the ground of reconstruction. The learned counsel for the petitioner submitted that the petitioner has pooled up sources with others to have a joint venture. In this behalf, he has referred to the building plan got sanctioned by the petitioner and others. This completely demolishes and millitates against the plea of personal use of the petitioner because there is no nexus between the plea of personal use and reconstruction.
13. The learned counsel for the tenant rightly submitted that while getting building plan sanctioned and filing the ejectment petition against his client on the basis of reconstruction, the petitioner has abandoned his earlier claim for ejectment of the tenant on ground of personal use of the premises, as the same stood today.
14. The learned counsel for the petitioner further submitted that there is no bar in maintaining second ejectment petition and it is vested right of a landlord to move for the ejectment of the tenant the moment a fresh cause of action accrues in his favour. In this behalf he has referred to the judgment of Mushtaq Mirza and others v. Haji Rahsid-ud-Din and 2 others 1971 SCM R 60. There is no cavil with the proposition that the landlord can maintain an ejectment petition in respect of every cause of action accruing in his favour but at the same time it is not a licence to take contradictory and self-destructive pleas in different petitions. The Courts are not precluded from examining whether the two actions of the landlord are mutually consistent or inconsistent. In the case of Mushtaq Mirza and others the previous rent proceedings on the ground of reconstruction were allowed and second appeal was pending in the High Court when the tenants fell into arrears of rent and the landlords filed fresh ejectment petitions on the ground of default in payment of rent.
There was objection as to the competency of the subsequent proceedings. The same was overruled. The relevant portion of the judgment reads as under:-- " This contention was not raised before the High Court. We are, therefore, not inclined to allow it to be raised before us in these petitions for special leave to appeal. In any case, there was no bar for the second application to be brought against the petitioners on a different cause of action."
15. Now coming to the merits. The learned appellate authority has inadvertently referred to column No,5 of Exh.P.1 to Exh.P.6 while working out the business out turn of the petitioner.
16. Before proceeding any further the grievance of the petitioner can be made clear. The petitioner led evidence to show that his business is ever increasing. In this behalf, he produced Exh.P.1 to Exh.P.6 and in column No,3 of these documents number of cash memos. Issued in relevant month are given while in column No,5 rate of excise duty is mentioned. The learned appellate authority inadvertently referred to column No,5 while discussing the increase in income.
This reference is admittedly incorrect but now question for determination is that whether every mistake or error made in reading the evidence will vitiate the judgment? In my humble opinion the misreading of evidence should be on a material point, which forms basis of the judgment.
Secondly, it should be the sole basis. On the other hand, if the misreading is on a point, which is inconsequential e.g. Mentioning wrong date, wrong number of property or name of party then it is not material. All these mistakes or errors will be considered slip of pen and of no consequences.
Similarly, if the findings of one particular point are based on more than one reasoning and there is misreading in respect of one of these while others remain unaffected then again misreading will not be fatal.
17. This misreading is of no consequence in view of the finding recorded thereafter by the learned appellate authority. The same reads as under:-- " From the documents Exh. P1 to Exh.P6 though there appears to be increase in the payment of Excise duty and the income yet the material thing to be considered is the increase in term of customers. ...."
' Thereafter the learned appellate authority took pains to work out the number of customers and after working out these details from the documents held as under:-- " Virtually there appears to be no positive progress shown in matter of number of customers visiting the shop of the respondent in result of documents Exh.P.1 to Exh.P6."
The learned counsel for the petitioner has also given the data calculated on the basis of these documents. The same reads as under:-- MonthExh.No.No. of Bills.
Nov.84P-1 2235 Dec.84P-2 2194 Jan.85P-3 2069 Nov.85P-6 2110 Dec.85P-5 2162 Jan.86P-4 2103 ' It is clear from the above data that there is nothing wrong with the finding and the approach of the learned appellate authority.
18. The evidence produced by the petitioner includes a statement of a colleague Advocate, an employee, himself and a witness clearly sponsored by the petitioner. The petitioner as well as witnesses have made evasive statements on material points which clearly shows that either they are not aware of the correct facts or they are withholding the information, so it may not go against the petitioner. PW3 stated that the Restaurant was established by the petitioner three years ago and he is employed therein since then. On the other hand, the petitioner himself has stated that he retired from Telephone Department in 1982 and since then he is doing the business of Snack Bar.
This way the evidence led by the petitioner does not inspire any confidence.
19. There is a merit in the argument of the learned counsel for the tenant that the petitioner had picked up only few returns and placed them on record as Exh.P.1 to Exh.P.6. The matter could have been absolutely clear if the petitioner had placed all the statements from November, 1984 to June, 1986 on record. The presumption, therefore, is that the same were withheld purposely. It was further submitted by the learned counsel for the tenant that 'flourishing business' can be well-imagined from the fact that the petitioner even did not have alternative arrangement for light. It is submitted that in case the need was so pressing then the petitioner could attract more customers by utilizing the load-shedding time by making provision of alternative source of energy. This also is a relevant factor for determining the bona fides of the so-called pressing need of the petitioner. The argument has a merit.
20. The learned counsel for the respondent-tenant has vehemently argued that the conduct of the petitioner is not fair, therefore, he is not entitled to any relief in the Constitutional jurisdiction, which is discretionary in nature. The learned counsel for the tenant, in this behalf, has referred to following facts, which according to him constitute misconduct:-- ' Firstly, the term of the tenancy as fixed through Exh.P.14 was to expire on 1-7-1985 while the ejectment petition was filed by the petitioner on 9-7-1984; ' Secondly, the object of the landlord is clearly to oust his client totally from the property. In this behalf, he has referred to the case of Muhammad Hafeez and another v. Muhammad Azeem and 9 others 1984 CLC 1083; and ' Thirdly, the offer in the Court proceedings, which should be treated as most solemn proceedings, to pay Rs, 1,00,000 to the tenant if he vacates the premises forthwith, is highly objectionable.
21. There is a merit in the first and the last plea while the second plea is not worth consideration. The petitioner according to Exh.P.14 allowed the tenant to continue till 1-7-1985 at a monthly rent of Rs, 1,500, therefore, he should have waited for expiry of this term of tenancy fixed by himself. It is made clear that I am not holding or dismissing ejectment petition as premature but this is being taken as a factor, which adversely reflects on the conduct of the petitioner. It may be mentioned here that the learned Rent Controller when confronted with this legal proposition brushed aside the same with the following observations:--
(a) that no period is fixed in Exh.P.14;
(b) that the document is not registered; and
(c) that the cause of action has matured during the pendency of the petition.
22. The learned Rent Controller failed to appreciate that the document Exh.P.14 was a memorandum of compromise between the parties, therefore, not compulsorily registerable and in any case document has been produced by the petitioner himself and was exhibit marked without any objection. The same, therefore, could not be excluded from consideration. The other reasoning that no time was fixed in the document is falsified by the document itself. The relevant portion reads as under:-- "....The monthly rent will be payable on the Ist of each month in advance by deposit in the petitioner's Saving Bank Account as is being done at present. The monthly rent after Ist July 1985 will be fixed by mutual agreement between the parties."
(Last lines have been underlined by me).
It is clear from the document that not only the tenant was granted lease up to 1-7-1985 but there was also assurance to allow him to further continue subject to fixation of fresh rate of rent by mutual agreement. This also was a good ground to set aside the order of the learned Rent Controller.
23. Now coming to the offer of the petitioner to pay Rs, 1,00,000 in case the premises are vacated by the tenant forthwith. The learned counsel for the tenant is not unjustified to say that the petitioner should not have made an offer, which is illegal, in the Court proceedings. The petitioner does not seem to be conscious of immoral offer, if not illegal, made by him.
24. The result is that the petition is dismissed with costs both as having become infructuous as well as on merits.