' This is a landlord's second appeal from order of the Rent Controller, Lahore dated 29-7-1992, which was affirmed in appeal by the Additional District Judge on 1-6-1994, dismissing an application under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959, moved by the appellant against the respondent.
2. The dispute relates to a shop situate in the basement of Property No,S-19-R-41 commonly known as Dawar Building Shahrah-e-Quaid-e-Azam, Lahore which is in possession of respondent as a tenant under the appellant and others. On 28th of March, 1987 the appellant applied for eviction of the respondent on the ground that he required the shop for his own use bona fide and in good faith. The petition was contested by the respondent, by filing a reply which led to the framing of following two issues:-- "(1) Whether the petitioner is entitled to seek ejectment as being co-owner to the extent of 1/5th share in the premises in dispute? OPP
(2) Whether the petitioner requires the premises bona fidely in good faith for personal need? OPP.
(3) Relief."
2. In support of his case the appellant examined Zahid Hussain his uncle and attorney as A.W.1 who deposed that the appellant required the shop in good faith for his own use. In rebuttal respondent produced Shaukat Iqbal R.W.1, Sheikh Muhammad Maqbool, R.W.2 and appeared himself as R.W.3.
3. As already observed the ejectment petition was dismissed by the Rent Controller on 29-7-1992 who held that the appellant had failed to prove that the shop was required by him for personal use mainly for two reasons; firstly that a portion of the same building was in possession of the appellant, and secondly that the appellant had not appeared himself in the witness-box.
4. When the matter came up before the Additional District Judge, he dismissed the landlord's appeal primarily on the ground that the appellant had not mentioned in the ejectment petition that he did not own any other building sufficient for his need. It was also observed that the landlord had failed to give the details of the personal requirement and had not appeared as his own witness.
5. In support of this appeal, learned counsel for the appellant has vehemently argued that the personal need of the landlord stood established on the record and the Rent Controller as also Additional District Judge while holding contrary have not only misread the record and omitted to consider material evidence but have also acted in violation of the law declared by the Superior Courts of this country. Learned counsel for the respondent has, however, defended the impugned orders.
6. From perusal of the judgment of the Additional District Judge and the order of the Rent Controller it would be seen that the first ground on which the appellant-landlord has been non-suited was that he had failed to disclose in the ejectment petition that he was the owner of other premises nor did he assert that he was not in occupation of any other shop suitable for his need. It is unfortunate that while observing so, the learned Additional District Judge as also the Rent Controller completely omitted to consider the averments in para. 4 of the ejectment petition to the effect that the appellant was not in possession of any property suitable for his needs. Be that as it may, it has been repeatedly held by the Superior Courts that the landlord is not obliged to aver in the ejectment petition that he does not own any other property or was not occupying any property sufficient for his own need. In Haji Mohibullah v. Kh. Bahauddin 1990 SCMR 1070 it was laid down that failure on the part of landlord seeking ejectment of non-residential property to mention in the ejectment petition that he was not keeping similar commercial property in the same area suitable for his needs would not be fatal to his case. Similar view was expressed in Muhammad Sharif v.
Nisar Ahmad 1988 SCMR 1587.
7. The other ground which prevailed with the Additional District Judge for dismissing the appeal of landlord is equally untenable. There is no law that the landlord must spell out the details of his requirement in the application for eviction which may well be established by leading evidence as ruled by the Supreme Court of Pakistan in Zahoor Din v. Mirza Ayub Beg 1981 SCMR 1081. In that case an application for eviction was filed against the tenant on the ground of personal need in which it was not asserted that he required the property for the residence of his son who was going to be married. It was ruled that that omission has no consequence. Again in Mohibullah v. Bahauddin 1990 SCMR 1070 the Supreme Court of Pakistan was pleased to observe that: "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."
8. The same question was considered by this Court in M. Amjid Bhutta & Co. v. Abdul Majid Tiwana PLD 1990 Lah. 412 where after exhaustive survey of the case-law Zia Mahmood Mirza, J. (as his Lordship then was) observed that the proceedings before the Rent Controller being of quasi judicial nature could not be adjudicated upon from the point of view of mere technicalities and the landlord could not be non-suited on such a ground.
9. As regards observations of the Rent Controller and the Additional District Judge that there were other portions of the same building lying vacant in which the landlord could set up his business, on perusal of the record, it becomes evident that these findings are based on non-consideration of material evidence and are contrary to law. According to the statement of the respondent who appeared as R.W.3 the two portions which were lying vacant were situate on the first floor of the property and basement. As regards the first Sh. Muhammad Maqbool R.W.2 a witness produced by the respondent himself had admitted that it was a residential in nature, and occupation of such premise cannot deprive the landlord of his right to have non-residential premises vacated for the purpose of running business. So far as part of the basement was concerned again Sh. Muhammad Maqbool R.W.2 admitted that the portion lying vacant was without any roof. This fact was also partly corroborated by respondent himself while appearing as R.W.3, during the course of his cross-examination when he stated that the portion was partly covered and partly without roof.
Even the site plan filed by the respondent as R.1 lends support to this fact. In these circumstances, the Rent Controller and the Additional District Judge were clearly in error in holding that there were other portions of the same property in possession of the landlord where he could establish his business.
9-A. Be that as it may it is well-settled that it is the prerogative of the landlord to select anyone of his properties for his own need and neither the Rent Controller nor the Additional District Judge have any right to insist that he should occupy some other property. Reference may be made to Adeeba Musharaf v. Muhammad Ishaq and another 1993 SCMR 2354, Haroon Kassam and another v. Azam Suleman Madha PLD 1990 SC 394, Bashir Ahmad v. Muhammad Shafi 1989 SCMR 538 and Nooruddin v. Asghar Ali 1986 SCMR 1087. It is strange that in the impugned judgment Additional District Judge himself has accepted this legal proposition as correct but for reasons best known to him refused to give effect to it.
10. The next ground which prevailed with the Courts below for arriving at the conclusion that the personal need of the landlord had not been established was that the landlord himself has not appeared as a witness but he had examined his attorney. Again this finding proceeds on ignorance of true legal position and is contrary to law declared by the Supreme Court of Pakistan.
The attorney who appeared on behalf of the landlord was also his uncle and was fully conversant with the facts and was deposing about the requirement of the landlord from his own knowledge. In these circumstances the insistence of the Rent Controller as also Additional District Judge that the landlord should have himself appeared as a witness is wholly unjustified. Reference is made to Muhammad Iqbal v. Saeeda Bano 1993 SCMR 1559. In that case an ejectment petition was filed on the ground of requirement of the shop for the son of the landlady but neither the landlady nor her son appeared as a witness in support of the claim. They instead examined their attorney who was also the husband of the landlady. The Supreme Court of Pakistan while relying upon its earlier decision Dilshad Begum v. Zubaida Begum 1981 SCMR 895, Zahoor Din v. Mirza Ayub Beg 1981 SCMR 1081 was pleased to rule that the need and its bona fide can be established by leading other evidence like examining the attorney of the landlady. Similarly in Muhammad Ibrahim v. District Judge and others 1984 CLC 77 a Division Bench of the Sindh High Court laid down that the appearance of the landlord in witness-box to prove his bona fide requirement was not mandatory and non-appearance not fatal to his ejectment petition. It was also observes' that the dismissal of an ejectment petition by the District Judge on such a ground amounted to an error of law. Again in Faqir Muhammad v. Akhtar Ali etc. 1990 CLC 22 the same principle was reiterated by the Peshawar High Court.
11. Learned counsel for the respondent has relied upon the judgment of this Court in Muhammad Asghar etc. v. Mst. Jamila Khatoon 1979 CLC 367 which is clearly distinguishable as what was held in that case was that the failure of the landlord to appear in the witness-box is a circumstance which together with other circumstances can be taken into account for deciding the question of personal need. The other case cited by the learned counsel was Ghulam Mohy-ud-Din v.
Muhammad Ishaq and others 1980 CLC 241 is again of no avail to him inasmuch as in that case the Court found that the facts disclosed by the attorney of the landlord made it improbable that the landlord would occupy the shop himself.
12. It follows from the above discussion that the impugned judgment of the Additional District Judge as also order of the Rent Controller are not only based upon misreading of evidence but are violative of law declared by the Supreme Court of Pakistan and none of the grounds which prevailed with them for dismissing the ejectment petition have any validity.
13. In the present case the need of the landlord stands proved by the statement of his attorney who while appearing as A.W.1 had categorically stated that the landlord was not gainfully employed and wanted to run his business in the shop. In view of this statement, the onus shifted upon the tenant to prove to the contrary which he failed to do inasmuch as no evidence was led by him to show that the landlord was either carrying on business anywhere or was otherwise employed.
Similarly although it was asserted that the application for ejectment was mala fide but this bald assertion made in the written statement in absence of any detail was hardly sufficient. There is also no evidence on the record to show that the application had not been filed bona fide. Even the respondent while appearing as R.W.3 did not so assert. Reference may be made to the judgment in Muhammad Ayub Khan v. Muhammad Suleman Somro 1984 CLC 50 in which Sajjad Ali Shah, J. (as his Lordship then was) was pleased to lay down that after the landlord has produced evidence to show that his requirement was bona fide the tenant as to prove bad faith on the part of the landlord and burden of proof has to be discharged by him by proving any fact indicating lack of good faith on the part of the landlord. The impugned orders are therefore clearly not sustainable.
14. In view of what has been stated above this appeal is allowed. The judgment of the Additional District Judge and the order of the Rent Controller dismissing the ejectment petition is set aside and an order of ejectment is passed in favour of the appellant and against the respondent directing him to handover the possession of the premises in dispute to the appellant. He is however allowed one month's time to vacate the shop. There shall be nor order as to costs.