1. Shop No.20 situate in Building No.B/22-A, Bara Market, Rawalpindi City is owned by the respondents which is on rent with the appellant at the rate of Rs.265 p.m. as rent. Respondents filed an ejectment petition against the appellant in the Court of learned Rent Controller, Rawalpindi on the following three grounds:-- (i)default in payment of rent since September/October, 1986; (ii)subletting of the shop; (iii)bona fide personal use of Zahid Masood, real son of Haji Abdul Qadir deceased, landlord of the shop.
2. The application has been contested by the appellant. On the basis of the pleadings of the parties, learned Rent Controller settled the following issues:-- (1)Whether the respondent has committed wilful default in payment of rent?
3. (2)Whether the respondent has sublet the disputed property unauthorisedly?
4. (3)Whether the petitioner has personal need of the disputed premises in good faith?
5. (4)Order.
6. After recording of evidence vide order dated 31-7-1990 learned Rent Controller dismissed the ejectment petition by deciding all the issues against the appellant. Aggrieved of this judgment rendered by the learned Rent Controller Haji Abdul Oadir deceased predecessor-in-interest of the respondents filed an appeal which was accepted by the learned Additional District Judge, Rawalpindi vide order dated 12-12-1991. Learned lower Appellate Court affirmed the findings rendered by the learned Rent Controller on issues No.l and 2, however, reversed the findings on issue No.3 regarding personal need and directed ejectment of the appellant. This order was challenged before this Court in SAO-4 of 1992, which was heard by my learned brother Tanvir Ahmad Khan, J. and was accepted vide order dated 6-5-1992 and the appeal was remanded for decision afresh. The operative part of the remand order is reproduce as under:-- "I have considered the contentions and have gone through the impugned order. In view of the, nature of the order which I am going to pass, I am not dilating upon the merits of this case except the question of non-disposal of the applications filed by the petitioner for further inquiry/additional evidence. In spite of the fact that the learned Additional District Judge entertained the applications, called/obtained reply of the respondent, heard the arguments and adjourned the applications for order on 5-12-1991 but in the impugned order he has not adverted to those applications. It was incumbent upon the Additional District Judge to determine the fate of those applications through a speaking order. However, in the impugned order not to speak of a speaking order even a bald reference has not been made respecting those applications. Omission on the part of the Additional District Judge has prejudiced the case of the petitioner. This shows that the learned Judge was not alive to the record before him. He has completely failed to notice this important aspect of this case while accepting the appeal and ordering the eviction of the petitioner. It is an established principle of law that the act of the Court shall not prejudice any man. Here in this case through an omission the case of the petitioner has been prejudiced and an eviction order has been made without disposal of those applications. In these circumstances, I am of the view that the decision on those applications for further enquiry/additional evidence was necessary in the facts of this case.
7. Accordingly, the order passed by the learned Additional District Judge dated 12-12-1991 is hereby set aside as having been passed without lawful authority. The two applications filed by the petitioner shall be deemed to be pending before the First Appellate Court. The case is remitted and the parties are directed to appear before the Additional District Judge, Rawalpindi, on 20-5-1992 who shall decide the matter within two months uninfluenced by any observation made in this order. There shall be no order as to costs:'
8. In post-remand proceedings, learned Additional District Judge recorded further evidence. The appeal was accepted vide order dated 20-6-1992. The operative part of the order passed by the learned Additional District Judge is reproduced as under:-- "There is no denying the fact that the appellant has other shops and got vacated Shop No.16 and then rented out the same in the year 19$7 prior to the institution of the ejectment application. But the fact remains that it is always the prerogative of the landlord to choose any of the shops which is most suitable for his business. It cannot at all be said that as the appellant has other shops, so he has resorted to this application for the eviction of the respondent with a mala fide intention.
9. The law on the subject has provided sufficient safeguards for a tenant to apply to the Rent Controller for restitution and to be put back into possession of the premises from which he was ejected and the landlord had failed to occupy the same for his personal business or that of his son.
10. In the case in hand, if the appellant seems to be acting mala fide and does not occupy the shop for the business of his son, then the respondent can claim his reinstatement.
11. The upshot of the above discussion is that this appeal is allowed. The impugned order is set aside and the appellant's application for the eviction of the respondent is accepted. Accordingly, the eviction orders of the respondent from the shop in dispute are passed with the direction that he (the respondent) shall make alternate arrangement to vacate the shop in dispute and hand over its vacant possession to the appellant by 30th September, 1992, or otherwise the appellant shall get the possession through execution. Parties are left to bear their own costs."
12. This order was challenged by the appellant in SAO 13 of 1992, which was accepted by this Court vide order dated 6-3-1993 and the appeal was again remanded to be decided afresh. The relevant portion of the order referred to above as contained in paragraph 3 of the judgment is reproduced as under:-- "I have gone through the judgment. I find that in para. 12 thereof, a reference has been made to Shop No.16, which was got vacated by the respondent prior to the institution of the ejectment petition. However, no reference has been made with regard to the property relating to which documents Exh.R2 and P2 have been placed on record. It is clear that while deciding the appeal, learned Appellate Authority was not even conscious about the existence and effect of the additional evidence, particularly, copy of the judgment Exh.P2, which proves that another shop was got vacated by the respondent during the course of ejectment proceedings and effect thereof shall have to be determined while deciding the question of bona fide need of the respondent.
13. Consequently, it cannot be said that the learned First Appellate Authority has decided the appeal in accordance with law and in a judicious manner.
14. Resultantly, I accept this appeal, set aside the impugned order passed by the learned Appellate Authority and remand the appeal to him for deciding the same afresh after taking into consideration the whole evidence produced in the case, including the one which has been recorded by way of additional evidence. The appeal shall be decided within a period of one month w.e.f. the date the copy of this order is received by the learned Appellate Authority. The parties are directed to appear before the learned Additional District Judge on 13-3-1993. They shall bear their own costs. The record shall immediately be sent to the learned lower appellate Court."
15. Learned Lower Appellate Court accepted the appeal and passed an order of ejectment against the appellant vide order dated i1-4-1993, which is the subject-matter of the present SAO. The relevant portion of the order passed by the learned Additional District Judge is reproduced as under:-- "There is no cavil about the fact that the Zahid Masood and others v. Dilshad Ali Khan appellants own numerous shops in Mod Mahal Market. The building plan Exh.R2 adduced by the respondent in additional evidence goes a long way to prove that the appellants have numerous shops on the property bearing No.B/22 situated in Bara Market, Rawalpindi city.
16. Learned counsel for the respondent has contended that the appellants got vacated other shops in this market but they have not started the business of Zahid Masood appellant in the same. It has been averred in the written arguments submitted by the learned counsel for the respondent that the first shop was vacated and then rented out by the appellants. The learned counsel for the respondent addressed and has so mentioned in the written arguments that the appellants do not need the shop in dispute with a bona fide intention to run business of Zahid Masood and that it is only their whim and wish to get the shop vacated from the respondent.
17. Mr. Atiq-ur-Rehman Kiani, Advocate, learned counsel for the appellants contended that the appellant No.l requires the shop in dispute for his personal use to run similar business of cloth in it.
18. There is no gauge to know the bona fides of the landlords for using the shop in dispute for the business of Zahid Masood appellant No.l. But keeping in view the proceedings in this matter throughout, I am of the considered opinion that the appellants bona fidely need the shop in dispute for the personal use of Zahid Masood, the appellant No.l. Even if, the shop in dispute is vacated and the appellants do not start the personal business of Zahid Masood in the same, then the respondent can set law in motion by moving an application before the learned Rent Controller for restoration of possession in that event. The defence plea of the respondent that the appellants had other shops and that after vacating one of the shops they have further rented out the same is of no avail to the respondent because there is a chain of authorities and galaxy of rulings that it is the prerogative of the landlord to choose any shop .for his bona fide personal use. As the appellants have adduced cogent evidence showing that the shop in dispute suits better for the similar business to the appellant No.l, so the landlord's wish must prevail. Respectfully following the dictum laid down in 1985 MLD 247 (Lahore) 1990, SCMR 997 and 1991 CLC 1781 (Lahore), I allow this appeal.and pass eviction order of the respondent from the shop in dispute. The respondent is directed to make alternate arrangements for his business and hand over vacant possession of the shop in dispute to the appellants by or before 11-7-1993 or otherwise the appellants shall got the possession through execution at the cost of the respondent. Under the present circumstances parties are left to bear their own costs. File be consigned to the record room after its completion."
19. Hence this second appeal has been filed by the tenant.
2. Hafiz SA. Rehman, Advocate has appeared on behalf of the appellant, whereas Mr. Atiq-ur- Rehman Advocate has appeared on behalf of the respondents. Learned counsel for the appellant has vehemently argued that there was a special direction by this Court contained in the two remand orders that the effect and impact of availability of other similar properties with the respondents which already existed and which came into their occupation by ejectment of tenants during the pendency of ejectment proceedings shall be taken into. consideration by the learned lower Appellate Court while deciding the question of bona fide personal need of the respondents but the learned lower Court has not followed the abovesaid direction and has passed a similar order almost on the same grounds which have already been set aside. Elaborating his argument, learned counsel has contended that the availability of other similar properties at the time of the institution of the ejectment petition and coming into occupation of similar properties during the pendency of the ejectment proceedings and renting out the same is an important circumstance which goes against the bona fides of the landlords but the learned lower appellate authority in his judgment of variance has not followed the settled law on the subject, hence the order passed in appeal is illegal and liable to be set aside. In support of above proposition learned counsel relies upon the law declared in the following cases:-- (1)Muhammad Abdul Lateef v. Sh. Ejaz Ahmad (1987 SCMR 162).
20. (2)Haji Abdul Ghafoor Rishi v. Raza Muhammad Khan (1987 SCMR 1826).
21. (3)Muhammad Bashir and 5 others v. Hayat Muhammad and another (1986 SCMR 1158).
22. (4)United Bank Ltd. and another v. Abdul Wahab Khan (1983 CLC 824).
23. (5)Mirza Farooq Beg v. Muhammad Arif (PLD 1981 Karachi 67).
24. (6)Abdul Hameed v. Mst. Amina Begum (1982 CLC 1018).
25. Learned counsel has further contended that the statement of the landlord has been disbelieved by the learned Rent Controller on the ground that it has been found false on the question of default and as such the statement of the landlord being false in part had to be disbelieved as being in view of the law declared in cases of Ohulam Qadir v. Esab Khan and others (1991 SCMR 61), Sultan Khan v. Sher Khan and others (PLD 1991 SC 520).
26. As against the above arguments addressed by the learned counsel for the appellant, Mr. Atiq-ur- Rehman Kiani, Advocate, learned counsel for the respondents has argued that it is the prerogative of the landlord to occupy any of the property which is owned by him and the tenant cannot direct or pre--empt the need of the landlord, and, therefore, even if, the landlords are in possession of other properties of similar nature to have got vacated certain shops during the pendency of the ejectment proceedings in question and have rented them out, it will not make any difference as the need of the respondents has been established to be genuine. In support of his contentions, learned counsel has placed reliance on the following cases:-- Farzand Ali v. Aziz Bibi (1993 CLC 1309), Mir Ghulam Ahmad v. Tariq Mehmood (W.P.No.21/92) decided on 25-10-1993, Haroon Kassam and another v. Azam Suleman Madha (PLD 1990 SC 394), Muhammad Yamip v. Mst. Asghari and 2 others (1985 MLD 247) and Muhammad Siddique v. District Judge, Gujranwala and 2 others (1991 CLC 1781).
3. I have considered the arguments addressed by the learned counsel for the parties and have also gone through the record as well as the judgments cited at Bar. The property in dispute is a shop, hence the ejectment thereof is governed by the provisions of section 13(3)(a)(ii) of West Pakistan Urban Rent Restriction Ordinance, 1959, which is reproduced as under:-- "S.13(3)(a). A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession-- (i)
27. (ii)in the case of non-residential building or a scheduled building or rented land, if-- (a)he requires it in good faith for his own use or for the use of any of his 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 maybe, 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 said urban area:"
28. A perusal of the aforementioned statutory provisions clearly shows that in order to obtain an order of ejectment on the ground of personal need, a landlord has to prove that he is in bona fide real need of the premises in ,4 question; and that he has neither vacated nor is in occupation of the similar properties which are suitable for his needs. In case of "Muhammad Abdul Lateef" referred to supra at page 164 of the report it has been held as under:-- At the hearing of the appeal both the learned counsel agreed that the rent application, which was filed under 1959 Ordinance, was to be decided in accordance with the provisions of the said Ordinance alone. It was, however, contended by the learned counsel for the appellant that it was nowhere alleged by the respondent in his written statement that the appellant had vacated any accommodation during the pendency of the proceedings which was sufficient for his need. On the contrary his plea was that the bungalow, where the appellant was residing at the time of filing of the case, was owned by him. This plea was found to be incorrect and it was held by the learned Rent Controller that the bungalow in question factually belonged to the father of the appellant. It was complained by the learned counsel that it was neither proved that the two flats were available, vacant and/or in occupation of the appellant at the time of the filing of the application or any question with regard to such letting out was at all put to the appellant during his cross- examination.
29. The above contentions of the learned counsel appear to be correct. The appellant was indeed not afforded any opportunity to rebut the allegation of letting out the two flats and to show that he had not vacated any rented premises without sufficient cause within the meaning of clause (c) of section 13(3)(a)(i) of the 1979 Ordinance.
30. In the circumstances the impugned judgment of the learned High Court is set aside and the case is remanded to the learned Rent Controller with the direction that the same may be decided, after giving necessary opportunity to the parties according to the provisions of section 13(3)(a)(i) of the West Pakistan Urban Rent Restriction Ordinance, 1959. The rent case will be disposed of at an early date. The appeal is thus, allowed with no order as to costs."
31. In case of "Haji Abdul Ghafoor Rishi" which was a leave granting order, Hon'ble Supreme Court of Pakistan took note of the circumstances of getting other properties vacated during the tenancy of the proceedings but as in the said case the opportunity was not granted to the landlord to prove that subsequently vacated and rented out the premises were not suitable for his needs, the leave was granted. In case cf "Mirza Farooq Beg" referred to supra at Page 69-70 of the report, it has been held as under:-- Mr. Khalilur Rehman, the learned counsel for the appellant, besides contending that the order of Ist Appellate Authority is based upon misreading of evidence, has raised a further objection that the application itself was not maintainable in law as during pendency of the application for ejectment filed against the appellant, the respondent succeeded in getting two Shops Nos.8 and 9 in the same building vacated and these two shops were in his occupation. The contention is that the application was hit by 2nd proviso to subsection (3) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (which will hereinafter be referred to as "the Ordinance"). In support of his second contention, the learned counsel placed reliance on the decision in the case of Ghulam Farooq v. Fazal Ghani (1). I will deal with this second contention of the learned counsel first. The contention raised by the learned counsel with regard to the maintainability of the ejectment application is based upon the interpretation of the 2nd proviso to subsection (3) of section 13 of the Ordinance. The tad proviso is in the following terms:-- "Provided further that where the landlord had obtained possession of a residential, scheduled or non-residential building or rented land under the provisions of sub-paragraph (i) or sub- paragraph (ii) he shall not be entitled to apply again under the said sub-paragraphs for the possession of any other building of the same class or rented land unless such residential, scheduled or non-residential building or land is no longer suitable for his needs at the time."
32. This proviso places a fetter on the right of a landlord, who has obtained possession of a residential, scheduled or non-residential building or rented land on the grounds of personal and bona fide requirement, to the filing of another application on the same ground for the same class of building.
33. It is contended that this proviso will equally apply to a case where the landlord succeeds in getting possession of a non-residential building without recourse to the proceeding under section 13(3) of the Ordinance in the same urban area during the pendency of as application filed by him for' eviction of tenant from a non-residential building on the ground of personal and bona fide requirement. It is pointed out that the underlying object of the above proviso is to restrict ejectment of another tenant by a landlord on the same ground where the landlord had succeeded in an earlier application that ground against a tenant. It is accordingly contended that where a landlord is seeking ejectment of a tenant 'from a premises on the ground of personal and bona fide requirement and during pendency of such proceedings succeeds in getting another premises of same class in the same urban area vacated, whether through recourse to proceedings before Controller or otherwise, he should not be allowed to proceed with the pending case in view of the above proviso: The contention of the learned counsel is fully supported by the following observations in the aforesaid case which appear at page 1087 of the report:-- "By keeping in view the spirit of law, I am constrained to hold that the instant application did not remain maintainable after the landlord succeeded in obtaining possession of the adjacent shop from the tenant under the said parallel proceedings. The bar contained in the above-quoted proviso to a subsequent application, therefore, would still be available to render this application incompetent and having become infructuous."
34. While I am in respectful agreement with the conclusion of the learned Single Judge - in the above case that if during the pendency of the application for ejectment on the ground of personal and bona fide requirement, the landlord succeeds in getting possession of another premises of the same class and description in the same urban area the 2nd proviso to subsection (3) of section 13 of the Ordinance will come into play. With utmost respect, I am unable to subscribe to the view expressed further by the learned Judge, that in such an event the pending application under section 13(3) of the Ordinance also becomes non-maintainable and infructuous. In my humble view, the effect of the 2nd proviso to subsection (3) of section 13 of the Ordinance in such a case on the pending application of a landlord on the ground of personal and bona fide requirement will be that the landlord in addition to proving his personal and bona fide requirement shall have to further satisfy the Controller, before succeeding in the pending case, that the premises so gel vacated was not suitable to his needs. In my view the embargo on the right of a landlord to move a second application on the same ground provided in the 2nd proviso to section 13(3) of the Ordinance is not complete. If later on, the landlord, who had earlier applied and got vacated a premised for his personal need, is able to show that the premises so got vacated by him is no longer suitable for his need there is nothing in law which could prevent him from moving a second application on the same ground and succeeding on it. Considering the contention of the learned counsel for appellant in the above perspective, I am of the view, that the ejectment application on the ground of personal bona fide requirements filed by the respondent did not become non -- maintainable or infructuous as a result of his succeeding in getting two shops namely Shops Nos.8 and 9 in the same building vacated during the pendency of the ejectment case against the appellant. This, however, could not mean, that the respondent was relieved of the burden of proving his bona fide requirement in the case or satisfying the Rent Controller that the premises, so got vacated by him were not suitable for his needs, I will accordingly now consider, if the respondent succeeded in discharging this burden before the Rent Controller."
35. In case of "Sultan Khan" (supra) it has been held that the statement of an accused under section 342, Cr.P.C. is to be read as a whole. Same view has been taken in case of "Ghulam Qadir" referred to supra.
4. In case of Farzand Ali v. Aziz Bibi (1993 CLC 1309) it has been held that occupation of the premises and decision with regard to the suitability of the same lies with the landlady and merely because certain other premises have fallen vacant alone is not sufficient ground to hold that the landlord is not in bona fide need otherwise stands established on record. In case of Muhammad Yamin v. Mst.
36. Asghari and 2 others (1985 MLD 247) it has been held that if a shop falls vacant during the pendency of an application for ejectment it will not disentitle the landlord to get the premises vacated as the choice is to be with the landlord. In case of Haroon Kassam and another v. Azam Suleman Madha (PLD 1990 SC 394) their Lordships of the Supreme Court after comparing the provisions of West Pakistan Urban Rent Restrictions Ordinance, 1959 and the Sindh Rented Premises Ordinance, 1979 came to the conclusion that as the provisions of eviction in the latter Ordinance on the ground of personal need were different and less cumbersom, it was not necessary for the landlord to prove that the premises are required by him in good faith for his own use and occupation and for the occupation of his spouse or children. In case of "Muhammad Siddique"
37. (supra) the factum of availability of two shops which were lying vacant was taken note of and it has been held that as the landlord has explained that the said two shops were not available, it cannot be said that the need of the landlord is not bona fide. In case of Mir Ghulam Ahmad v. Ch. Mohabat Khan (W.P.No.21/92) it has been held that the shops in question were most suitable of the needs of landlords. A perusal of the abovementioned statutory provision as well as the case-law declared in various judgments of this Court as well as the Hon'ble Supreme Court of Pakistan following legal principles appear to have been laid down for deciding the question of bona fide personal need of landlord regarding non-residential properties: (i)That the landlord is entitled to get his premises vacated on the ground of bona fide personal need provided he proves that the need is genuine and he is really a needy person and not a greedy and further that he is neither in occupation of the similar properties at the time of filing of the ejectment proceedings which are suitable for his needs nor subsequently vacated premises are suitable to meet his desired request.
38. (ii)That in case certain properties fell vacant during the pendency of ejectment petition it does not become incompetent and the landlord has to be given an opportunity to lead evidence to prove that the said B premises were also not suitable for his need.
39. (iii)That it is the prerogative of the landlord to decide as to which of the premises are sufficient to cater for his needs.
40. (iv)That the landlord has not vacated similar properties without a sufficient cause.
41. (v)That in case any such premises fall vacant during the pendency of ejectment proceedings in question and are not occupied by the landlord for the pleaded need without a reasonable cause and are rented out, it is an important negative circumstance for the purpose of determination of bona fide need of 'the landlord. However, landlord is entitled to prove that the said vacated premises were not suitable for his need.
5. Examined this case in the light of the aforementioned legal principles and the remand order passed by this Court which have become final, and is I binding upon the parties, it was necessary for the respondents to have positively proved that the shops which have fallen vacant during the pendency of the ejectment petition were not suitable for their needs. In post-remand proceedings although opportunity to lead evidence was granted to the parties, yet the respondents did not lead any evidence not even statement on Oath to prove that the vacated premises were not suitable for their needs. They relied upon evidence which had been recorded prior to the passing of the remand order by this Court in the earlier round of litigation which firstly is not of much relevancy to decide the controversy in question and secondly is not at all sufficient to discharge the onus upon the landlord to prove that the said vacated premises were not suitable for his needs. Learned First Appellate Court has not examined the case in the light of the remand order passed by this Court and hence has not exercised the jurisdiction in accordance with law while writing judgment of variance. Learned Rent Controller has dismissed the ejectment petition, deciding all the issues against the respondent. Judgment of variance rendered by the learned First Appellate Court has to stand the test as laid down in case of M/s. Beach Luxury Hotel Ltd. v. Commissioner of Income Tax, Central, Karachi (PLD 1981 SC 202). A comparison of the two judgments clearly shows that the learned First Appellate Court -has neither considered and met the reasoning given by the learned trial Court while reversing the finding on issue of personal need nor has correctly followed the true import of remand orders, statutory provisions on the subject and the guidelines referred to above, while deciding the question of personal need of the respondents. The order passed by the learned lower Appellate Court clearly shows that he has not at all applied mind and has not even read the ultimate remand order inasmuch as he has brushed aside the issue regarding the effect and impact of the circumstance of falling vacant of similar shops during the pendency of the lis and renting out the same by the respondents without proof of their unsuitability and any reasonable cause for not occupying the same by the respondent No.l for whose alleged need shop in question is being got vacated. In paragraph 12, learned Appellate Court has held that there is no cavil about the fact that the respondents own numerous shops in Moti Mahal Market, and that the building plan Exh.R2 adduced by the respondent in additional evidence goes a long way to prove that the appellants have numerous shops in the property bearing No.B/22 situated in Bara Market, Rawalpindi City. In paragraph 13, he has also taken note of the fact that the respondent got vacated certain shops during the pendency of the ejectment petition and instead of starting their own business have rented them out. Strangely enough in spite of a specific direction in the remand order, the effect of the above conduct of the landlord on his bona fides has not been determined in accordance with law. In paragraph 15 of the judgment, learned lower Appellate Court has simply stated that there is no gauge to know the bona fide of the landlords to use the shop in dispute for the business of Zahid Masood appellant No.l. Instead of discussing the evidence and the case-law on the subject he has stated that he is of the considered opinion upon that the appellant needs the shop in dispute bona fide for the use of Zahid Masood. It appears that the judgment of variance rendered by the learned First Appellate Court, therefore, is illegal, arbitrary and hence is not sustainable.
6. In view of the above, I accept the appeal set aside the judgment rendered by the learned lower Appellate Court on issue No3 and hold that the I respondents have miserably failed to prove their bona fide need for personal use and occupation regarding the shop in question, hence finding of the learned Rent Controller on the above issue is restored.
42. Resultantly, this SAO is accepted. The impugned order passed by the learned lower Appellate Court is set aside and the ejectment petition is dismissed, with no order as to costs.