This Constitution petition was directed against the judgment dated 4-6-1992 whereby appeal of the petitioner-tenant was dismissed and the order of eviction dated 9-10-1991 passed by the learned Rent Controller accepting the ejectment petition filed by the respondent-landlord was maintained.
2. The relevant facts briefly stated are that respondents-landlords filed an ejectment petition against the petitioner-tenant on the grounds of bona fide personal need and default in payment of rent. The plea with regard to bona fide personal need in the petition reads as under:-- "That the petitioner requires the property in dispute reasonably in good faith and bona fide for personal need."
The other assertion in the ejectment petition was that the petitioner-tenant occupied Shop No.9 at the rate of Rs.350 per month at the time of its purchase by the respondent-landlord. During the pendency of ejectment petition, respondent-landlords moved an application for incorporating the ground of subletting and impleading respondent No.2 as a party. This application was accepted and the alleged sub-tenant was added as respondent No.2.
3. The ejectment petition was contested and the Rent Controller after framing the necessary issues and recording evidence, decided issues pertaining to default in payment of rent and subletting in favour of petitioner-tenant and the issue pertaining to bona fide personal need in favour of the respondent-landlord. During pendency of the appeal, it was brought to the notice of the learned appellate Court that the two shops on two sides of the shop in question have also been got vacated by the respondent-landlord and one of these shops has been let out to another person and in these circumstances the need of the landlords stands satisfied and as such petitioner's eviction from the third shop need not take place. This application was, however, rejected by the appellate Court and ultimately the appeal also failed.
4. The respondent landlord in his statement had deposed that after getting vacated the shop in dispute it will be amalgamated with the other shops which will then be used for running a hotel. He admitted that in the eviction petition it was not written that after removing the intervening walls of the shops a hotel is to be run. He refuted the suggestion that in the locality neither a hotel can be run nor same i-- suitable place for running a hotel. The appellate Court while considering the question of good faith of personal need observed that in view of the protection granted to the tenant under section 13(4) of the Rent Restriction Ordinance bona fides of the landlord for the personal need of shop in dispute cannot be doubted. It also did not give any importance to the fact that eviction petition earlier filed in respect of disputed shop on the ground of default and personal need was dismissed on 2-12-1986 on the basis of oath on Holy Qur'an taken by. the petitioner-tetant on the question of rate of rent and that the respondent-landlord had got vacated other premises for his business and within few months thereafter the present ejectment petition was filed on 25-4-1987.
5. Having heard learned counsel for the parties at length, the-peculiar feature which has emerged is that the learned appellate Court has failed to appreciate the question of bona fide of the personal need in true perspective. The eviction petition was admittedly filed within five months of the previous eviction petition which was got decided on the basis of oath on Holy Qur'an. No doubt, fresh circumstances may arise giving rise to bona fide personal need and requirement of the property and the previous order may not operate as res judicata, but those circumstances have to be spelt out. Secondly the bona fide of the personal need has to be adjudged in the perspective of over all circumstances emerging on record. The two shops are now available to the respondent- landlord and even if the third is made available, the area of these shops being only 15' x 18', the property cannot be used as a hotel. During the hearing, I questioned the respondent to know whether he is conscious of difference between hotel and a restaurant and I found that he knows the distinction, between the two. If only resraurant is to be run, then seeing nature of the locality, two shops can be used for providing service to adjoining shop-keepers and keeping such a purpose in view, I asked the landlord whether he would be satisfied if the petitioner-tenant shifts to the third shop so that two adjoining shops could be . made available to him. This offer was acceptable to the petitioner-tenant and he showed his willingness to shift to Shop No. 10 or but this was not acceptable to the respondent-landlord. Moreover, plea of reasonableness and bona fide of the personal requirement asserted in the petition is to be adjudged in the context of B evidence produced by the parties. It is true that in the petition, details of the requirement may not be given but improving the plea during the course of proceedings is not to be encouraged. In the instant case, the assertion is that the landlord requires the shop reasonably and in good faith for bona fide personal need. It was only at the stage of evidence that the respondent-landlord came out with the plea that a hotel is to be run in the shops. The question is. whether in the facts and circumstances of the case was it not appropriate to give the purpose for which three shops were being got vacated. The learned Courts below also gave no thought to the fact that the landlord was selling cloth and had no experience to run a hotel. Though such factors standing alone may not be sufficient to cast doubt on the alleged need but these factors considered alongwith other relevant circumstances do assume importance. All these factors were not taken note of by the learned Courts below and as such there is merit in the plea that reasonableness and bona fide of the personal need was not determined in proper perspective.
6.The net result of above discussion is that the impugned order dated 4-6-1992 is declared to have been passed without lawful authority and the same is, therefore, quashed. The appeal shall, therefore, be considered to be still landing and shall be disposed of afresh by the learned appellate Court in accordance with law and in the light of the observations made above. The writ petition succeeds in the above terms and is allowed with cost.