This SA.O. arises out of an ejectment petition filed by Muhammad Nawaz respondent on 18-10-1986 on the solitary ground of personal requirement of his son. The petition was resisted by the petitioner who filed his written statement in the Court. On the pleadings of the parties the trial Court framed the following issues:--
(1) Whether the petitioner requires the premises for the use of his son in good faith ? OPR
(2) Whether the tenancy is for specified period, if so, its effect ? OPR.
(2-A) Whether the present petition is barred under section 14 of Punjab Urban Rent Restriction Ordinance ? OPR.
(3) Relief.
The parties produced their evidence and after perusing the same the learned Rent Controller dismissed the petition vide the order dated 6-2-1990. The said order was set aside by the appellate Court on 9-5-1991 on an appeal preferred by the respondent. The case was remanded to the Rent Controller for a fresh decision in accordance with the law. After remand the trial Court again dismissed the petition vide the order dated 21-9-1991. The respondent preferred an appeal which was accepted by the learned Additional District Judge vide order dated 9-6-1992.
2. The property was rented out to the appellant on 1-7-1971 at monthly rent of Rs.250 for a period of ten years. During the said period, the rent was increased to Rs.450 and fresh tenancy agreement was executed for a period of 10 years, with effect from 2-9-1976. Again rent was increased to Rs,750 with effect from 11-1-1981. A fresh tenancy agreement for a period of 10 years was executed between the parties (mark `A').
3. The appellant's learned counsel contends as under:--
(i) The respondent/landlord failed to prove the . necessary conditions under section 13 (3) of the Punjab Urban Rent Restriction Ordinance to prove his personal need. He explains that the respondent has failed to prove good faith, bona fide needs as well as his proposed business.
Reliance is placed on the following judgments:- DrA.R.Khan v. Muhammad Ishaque (1972 SCMR 437).
Habib-ur-Rehman v. Faqir Muhammad (PLD 1983 Lah. 425).
(ii) Non-disclosure of nature of business in the evidence is fatal to the landlord's claim for bona fide personal need of the disputed premises. In support of this point he placed reliance on the following judgments:-- Noor Ahmad and another v. Kh. Imran Ahmad (1988 CLC 1041).
Haji Siraj-ud-Din v. Haji G.M. Khan (1990 CLC 331).
Haji Mohibullah & Co. and others v. Khawaja Bahauddin (1990 SCMR 1070) and Muhammad Shafi v. Messrs A.C.E. Enterprises and others (1987 CLC 748).
(iii) The learned Rent Controller had rightly dismissed the petition after taking into account the relevant facts and circumstances of the case and that the appellate Court misread the evidence and misapplied the law and wrongly set aside the order of the Rent Controller.
(iv) Since the appellate Court misapplied the law and misread the evidence, the case,requires remand to the same Court.
4. On the other hand, the respondent's learned counsel contends as under:-.
(i) The bona fide personal requirement of the respondent was fully established. The landlord was not required to disclose the nature of business to be run by him in the disputed premises.
(ii) If respondent does not occupy the disputed premises after obtaining its possession the tenant can apply to the Rent Controller to get the possession back by virtue of the provision of section 13(4) of the Ordinance.
(iii) The appellant/petitioner did not enter the witness-box to rebut the respondent's evidence. He merely produced one witness namely Arshad Siddiqui, Superintendent of Rent and Lease Department of the Company who was not authorised to make a statement.
(iv) The tenancy agreement expired in the year 1986 and was not renewed thereafter because the landlord himself needed the property.
5. After hearing learned counsel for the parties at length and going through the case-law cited by them, I find that the view of the Appellate Court that the landlord was not required to state the type or nature of business intended to be started by him, is legally correct. Under the law, the landlord can seek eviction of the tenant from a non-residential building on satisfying the following three conditions:-
(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 without sufficient cause after the commencement of this Ordinance in the urban area.
It is significant to mention that under condition (a) the word "business" is conspicuously absent.
The law-makers have deliberately used the expression "for his own use or for the use of any of his male children." Therefore, what is essential is the `use'. of the non-residential building for any business considered to be suitable by the landlord. The landlord is not required to state the nature of business intended to be started by him either in the ejectment petition or in his own evidence.
The appellant's learned counsel placed reliance on the judgment in the case of Noor Ahmad and another in which it has been held that it is imperative for landlord to plead and prove nature of business and financial ability or resources, to establish his bona fide personal need. With due respect, I am unable to subscribe to the view expressed in the said judgment. Under the law, the landlord is merely required to satisfy the above-referred three conditions and the condition of pleading and proving of the nature of business cannot be introduced under the garb of the bona fides of the landlord. The view expressed in Noor Ahmad's case apart from being inconsistent with the statutory provisions, goes against the judgment of the Hon'ble Supreme Court in the case of Mst. Saira Bai relied upon by the Appellate Court. In the said precedent, it was specifically held that it was not essential for the landlord to state the nature of business in his ejectment petition because it was not a part of the cause of action. The relevant portion from the judgment is reproduced below:-- "Regarding the non-mentioning the nature of the business in application it may be observed that an applicant has to state in his application the material facts i.e. facts which constitute cause of action. In a case of present nature the applicant has to state those facts which prima facie show that the requirement is according to law, and is made in good faith. This has been so stated in the application. It is not essential as it is not part of the cause of action to state the nature of business which the applicant intends to carry on. Take a case where the applicant states in the application that she requires the shop for her son for carrying on a particular business but later on pending hearing of the application or after eviction of the tenant, the applicant thinks that the business can no more suitably and profitably be carried on in the shop, the question might arise; could he change the nature of business or not. The choice of doing a particular business also depends on many other factors such as the nature of the locality or the nature of business being carried on in other shops in the neighbourhood. It also depends on the flow of customers and class of people residing in the area. Therefore, if there is any change in circumstances, the nature of business could also be changed. Accordingly, the answer would be that the applicant could change the nature of business with the change of circumstances because in law no restraint or bar is provided.
Therefore, the mentioning of the nature of business was not a material fact or so essential that without it the application must fail:"
A similar view was expressed by the Hon'ble Supreme Court in the earlier case of Mst. Toheed Khanum (1980 SCMR 593). The appellant's learned counsel tried to distinguish the Supreme Court judgments on the ground that emphasis in the said judgment was on non-mentioning of nature of business in the ejectment petition. According to the learned counsel it was enough for the landlord to state in the ejectment petition that he needed the shop for his own business or business of his son but he ought to state the nature of business in his evidence before the Court. I am afraid the argument of the appellant's learned counsel is devoid of force. As discussed above, the statute is concerned essentially with the `use' of the non-residential building by the landlord and not any particular business. Therefore, what need not be pleaded, as held by the Hon'ble Supreme Court in Mst. Saira Bai's case, need not be proved through evidence. Had the nature of business anything to do with the bona fide requirement of the landlord then the Hon'ble Supreme Court would have held so in the above-referred two precedents. When pleading of the nature of business in the ejectment petition is not required, the intention is that the tenant is not to be given an opportunity to show that the landlord does not have the capacity, ability or experience to run a particular business in the shop. Even if the tenant succeeds in establishing his assertion qua the capacity, ability or experience of the landlord, the landlord can at his own choice change the nature of business and may run the risk of starting any new business for trying his luck. What is essential is that while trying his luck in the business field, the landlord must use the premises got vacated by him. In the context of bona fides of the landlord, the Rent Controller is to be satisfied that the landlord is not in occupation of any other shop in the same urban area suitable for his needs or he has not vacated such a building without sufficient cause after the commencement of the Ordinance. He may also see other relevant circumstances of a particular case. For example a landlord or his son may be jobless or may be likely to retire from Government service and wanted to start some business or be qualified and desirous of establishing a clinic for medical practice or office for legal practice. In cases pertaining to medical or legal practice the nature of business is known at once. However, in other cases, the precise nature of business may not be stated by the landlord without any risk of his claim being dubbed as mala fide.
The appellant's learned counsel has laid great stress on the use of the words, "his business" occurring in subsection (3)(a)(ii)(b) of section 13 of the Ordinance to urge that it was meant to make it obligatory. for the landlord to state the type or nature of his business. The argument has not impressed me. Where a new business is to be started by the landlord he need not plead the nature of his business. However, if he is already running some business in another shop located in the same urban area, then for the purpose of showing that the accommodation already with him was not sufficient for his needs, he has to state the kind and nature of business being run by him.
However, if the landlord is going to start a new business, then he need not state the nature of his business either in the ejectment petition or in his statement before the Rent Controller. In the case of Haji Moheeb Ullah and Company (1990 SCMR 1070) the Hon'ble Supreme Court reiterated the law already laid down, in the cases of Mst. Saira Bai v. Syed Anisur Rahman (1989 SCMR 1366) and Mst.
Tobeed Khanum v. Muhammad Shamshad (1980 SCMR 593) by making the following observation, "This Court has already held that there is no legal requirement on the part of the landlord to disclose the nature of the business he intends to conduct in the premises, for which he has made an application seeking possession. It has also been held by this Court, notwithstanding the statutory requirement as contended under section 13(3) (a)(ii)(b) of the West Pakistan Urban Rent Restriction Ordinance, 1959, that though there may be a failure on the part of the landlord to mention in his eviction petition that he was not occupying similar commercial property in the same area suitable for his needs, it would not be fatal to his case, if otherwise his bona fide need was established".
6. The evidence on the record shows that the respondent's son had passed Matriculation Examination and was jobless. He intended to start his own business in the disputed shop which was located in the Main Bazar. The , landlord's bona fide requirement of the shop for use of his own son is fully ` established on the record. The finding of fact recorded by the Appellate Court regarding the bona fide requirement of the shop by the landlord for use of his son does not suffer from any misreading or non-reading of the evidence on the record.
7. For the foregoing discussion, I find no merit in this appeal which is dismissed, leaving the parties to bear their own costs. The appellant is allowed time for one month to vacate the disputed shop failing which the respondent landlord may obtain possession of the shop through execution of the ejectment order in accordance with the law.