JUDGMENT CH. MUSHTAQ AHMAD KHAN, J. ~ Briefly stated facts of the case out of which this Constitutional petition has arisen are that Sameera Aarnir, respondent No. 1. Who is landlord of a shop situate in Liberty Market filed a petition for ejectment against Sh.Muhammad Aslant petitioner amongst others on the ground of personal need. During the pendency of this application, another application was filed by the petitioner on the ground of re-construction. Both the applications were contested by the petitioner. Application filed on the ground of re-construction was dismissed by the learned Rent Controller on the ground that before filing of the application the petitioner has not obtained the necessary' sanction for re-construction of the disputed shop. Application filed on the ground of personal need which has been'contested by the petitioner, the learned Rent Controller framed the following issues
(1) Whether the applicant requires the disputed premises bonct fidley and in good faith for her personal use and occupation ? OPA.
(2) Whether the application is frivolous and vexatious ? OPR.
(3) What the order should be ?
After recording of evidence of the parties oral and documentary', learned Rent Controller vide order dated 14.3.1989 dismissed the application. Aggrieved by the said order, the respondent filed an appeal before the learned District Judge, Lahore who acting as an appellate authority under the provisions of Urban Rent Restriction Act. Accepted the same vide order dated 18. l2.1989, and passed an Older of eviction against the petitioner. This order has been.Challenged by the tenant - petitioner in this Constitutional petition on the ground that' the petitioner is being vexed twice inasmuch as the ejectment application has been filed on the personal need as well as re-construction and the application on the ground of re-construction was dismissed, therefore, the present application is' barred by the principle of res judicata and further that transfer of the shop in favour of the petitioner is through sham and illegal transection and therefore-reacts on the bona ftdes of the petitioner in filing of present ejectment petition and also on the ground that the ejectment of reversal rendered by the learned appellate Court is not lawful and does not hav e the same sanctity as is attached to a judgment of concurrence.
2. Mian Nisar Ahmad. Senior Advocate, learned counsel for the petitioner has raised the following contentions;-
1. That after filing of an application for ejectment on the ground of. Personal need the petitioner filed another application on the ground of re-construction but this application was dismissed, therefore, the application filed on the ground of personal need is mala fide inasmuch as a joint application on he ground of personal need and reconstruction is permissible under the law but filing of a subsequent application on the ground of re-construction reacts adversely on the bona fide of the petitioner, In this behalf learned counsel has relied upon Nazir Ahmad Butt r. Malik Mushtaq Ahmad Writ Petition No. 1695-88 decided on 13.6.1990 wherein the predecessor in interest of the petitioner was refused ejectment of one of the tenants of the same building on the same basic grounds, by learned Single Judge of this court.
2. That the impugned judgment is at variance and is not in accordance with law inasmuch as the same is based upon surmises and conjectures and a well reasoned judgment of the learned Rent Controller has been set aside by the learned appellate court without any lawful and cogent reasons.
3. That the property in question has been transferred in the name of the petitioner through sham transaction just to procure the eviction of " the petitioner with a view to increase the rent rather than for bone fide personal use and occupation.
Mr.Naveed Ahmad Shahryar, Advocate, learned counsel for the- respondent No. I has argued that there is no bar in filing of ejectment petition on the ground of re-construction during the pendency of an application filed on the ground of bona fide personal need if a fresh cause of action on the ground of re-construction arises and therefore the dismissal of the application on the ground of re-construction is not at till a relevant factor to test the bona fides of the landlady. Learned counsel has placed on record a photostat copy of the judgment rendered in CPSLA No. 1247 of 1990.
Decided on 13.1.1992 where in the order passed in Writ Petition No. 695 of 1988 referred to by the learned counsel for the petitioner had been challenged and had been set aside through compromise, Learned counsel has argued that in fact learned counsel for the petitioner who himself was a counsel for the respondent in the said C.P.S.L..A.Rather conceded the legal position that a cause of ,action can mature during the pendency of the proceedings and cited certain judgments in 1 to our of this proposition and therefore the judgment of the learned single Judge relied upon by the learned counsel for the petitioner is no longer in the field and hence cannot be followed as a precedent. Learned counsel has further argued that it is correct that it is a judgment at variance yet the learned appellate authority has taken into consideration the whole evidence produced in the case and lias recorded a J'inding of fact to the effect hat the respondent No. 1 requires the shop in question in a bona fide manner. This finding according to the learned counsel being based appraisal of the evidence, and having been recorded by a court of exclusive jurisdiction is not challengable in exercise of the writ jurisdiction of this court inasmuch as question of appraisal of evidence does not fall within the area of exercise of jurisdiction in writ jurisdiction.
Learned counsel relied upon case of Muhammad Sharif and another t . Muhammad Afzal Soliail.
Etc. (PLD 1981 SC 246) and case of Mi raj Din and another v. Mahboob Elahi and four others 1992 C.L.C. 2457) and has contended that the petitioner has neither pleaded nor proved that the order is without jurisdiction, therefore, the writ petition is liable to be dismissed.
3. I have considered the arguments addressed by both the learned counsel lor the parties and have gone through the two judgments which are at variance and the evidence produced in the case. The respondent No.l, filed an application for ejectment and specifically stated in her application that she wants to set his on. Business in the shop in question so that she could independently meet her day-to- day expenses inasmuch as her husband has been arrested in a murder case and after his acquittal a notice of divorce has been sent to her by her husband on 22.2.1989. In support of her case, she herself has appeared as P.W. 1 and has made a statement on oath fully demonstrating her bona fides to occupy the shop in question by her. As against the above evidence, the respondent has examined Abdul Hameed Waris, RW1. Agha Sher Muhammad, PW.2, Mursaleen. P.W. .3 and has himself appeared as RW.4. All the witnesses produced by the respondent, have stated that the petitioner is. Not in need of the shop in question and that the shop is being got vacated tor the purpose of getting an increased rent, it has . However, been admitted ' th;il ladies are working in the Liberty Market and some of them are watching the business in various shops. The emphacise of evidence of this witness is that the husband of the petitioner is behind the whole show and he wants to increase the rent of. The shop in question and also to get PAGRL The petitioner himself hits also made a similar statement.
In cross-examination he has admitted that the respondent is not a Pardanashin lady and she drives her car herself. He has further stated that the respondent is literate and his in-laws are Billioners and his parents are w'ell to do people, that the witnesses produced by the respondent have made statements with regard to mala J'ide of the predecessor-in-interest of the petitioner but not of the respondent herself. The petitioner has stated that he has no knowledge about the murder case against the husband of the petitioner. This evidence is not sufficient to disbelieve the statement of the petitioner on oath which remains unshaltered in cross-examination and which is in line with the particulars of personal need mentioned in the ejectment petition. Learned Rent Controller while dismissing the application had relied upon extraneous consideration particularly the evidence of mala fide of the predecessor-in-interest of the respondent No.l and has therefore recorded an erroneous finding to the effect that respondent No. 1 is not in a bona fide need of the shop in question. Proviso to section 13(4) of the Act also a sufficient safeground against the mala fides of the landlady. Merely because during the pendency of ejectment petition on the ground of personal need another application on the ground of re-construction was filed in no manner reacts on the bona fides of the landlady and in fact this legal position has been conceded to by the learned counseLfor the petitioner in a'similar circumstance in CPSLA No. 1247 of 1990. Decided on 13.1.1992. The order in this Rent Appeal reads as follows:- "This is a landlord's petition seeking leave to appeal from the judgment dated 13.5.1990 rendered by the High Court, dismissing his writ petition against the acceptance of tenants's appeal, resulting in reversal of ejectment order passed by the Rent Controller.
"The petitioner is running a Snak Bar business in a shop owned by him and applied to the Rent Controller for eviction of the respondent/tenant from the adjoining shop on the ground that lie wanted to convert the Snak Bar business into a full-fledged Restaurant ; existing business premises being insufficient to meet his requirement, he stood in need of additional space. Through a fairly lengthy order, the Rent Controller accepted this plea. The tenant went in appeal, In the opinion of the Additional District Judge, the landlord failed to establish an increase in the customers, necessitating additional space, which caused a doubt on the bona fide of his requirement. The appellate court further maintained that the running of the Restaurant essentially requires merger of the two shops, entailing constructional changes, under a plan sanctioned by the local authority but such sanction was never obtained by the landlord.
The petitioner then filed writ petition in the High Court and during its pendency instituted another ejectment petition against the tenant on the ground of reconstruction of the property, which is still sub judice. This, according to the learned single Judge, completely militated against the landlord's plea of personal use as in his view there was no nexus between the such plea and reconstruction. * it is on the record that earlier an ejectment 'petition filed by the petitioner was compromised between the parties. The memorandum of" compromise included a condition that monthly rent after lst July. 19X5 would be fixed by mutual agreement between parlies. Before the High Court, it was debated that this memorandum constituted a tenancy for a 'specified period' and the ejectment petition before the expire' thereof was barred under the provisions of the Rent Restriction Ordinance. In dismissing the writ petition this argument .Also influenced the decision of the learned single Judge.
We find that in several cases it has already been held by this court that the pleas of reconstruction and personal use are not mutually destructive. Reference in this connection may be made to Dawood v. Muhammad Yasin (PLD 1982 SC 227). Muhammad Shafique v. S.M. Khurram and others (1983 SGMR 1227) and Didar Shah v. Ch. Ghulam Haider (Deceased) through Legal Heirs and another (1985 SCMP. 504). It is being so. It has been urged on behalf of the petitioner that the view taken by the High Court is not in conformity with the law laid down by this Court. The learned counsel for. The tenant however, endeavoured to distinguish these judgments, that in these cases the pleas of personal use and reconstruction were included in the, same petitionm but in the instant case separate petitions have been constituted. Whatever, may be the merit of this argument, we feel that the point needs a serious examination and further the question of applicability of first proviso to section 13(3) (a) (ii) to the case in hand, alsd requires consideration.
Leave is. Therefore, granted."
Learned counsel for the appellant reiterated the same points a noted in the above reproduced order. Learned counsel for the respondent to be fair to him frankly conceded the legal position on the point of maturing of the cause of action during the proceedings; rather he himself cited Muhammad Hussain v. Muhammad Siddiqtte (PLJ 1988 SC 579). The other judgments punted out at the bar on the point are National Steel Ltd. v. Mrs.F.Afsar (PLD 1979 SC 819). Raj Muhammad r. Muhammad Zarin (1980 SGMR 339) and Muhammad Glutlab v. Fatal Mahmood alias Khawar Baba (1984 SCM R 967).
In view of the above finding of the learned appellate court though of variance is exceptionable and same is upheld. Need of the respondent No. 1 has not proved to be mala fide and therefore arguments of the learned counsel for the petitioner in this behalf is repelled. Even otherwise, the findings of fact recorded by the learned . .
Appellate authority which is a court of exclusive jurisdiction cannot be interfered within writ jurisdiction of this court merely because' a wrong appraisal of evidence has allegedly been done by the learned first appellate court for the reasons that firstly, the evidence has been appraised correctly and the learned counsel for the petitioner has not been able to point out any misreading or non-reading of-evidence or any other legal infirmity with the judgment of the learned appellate court and secondly appraisal of evidence is not a subject for exercise of the revisional jurisdictibn as argued by the learned counsel for the petitioner. Consequently, the arguments of the learned counsel to the effect that the judgment being at( variance should be set aside merely'because according to the learned counsel evidence has not been properly appaised is repelled. Arguments of the learned counsel that the transfer in favour of the respondent is illegal and sham is misconceived and is baseless. There is no cogent evidence on the record to prove this contention.
This plea even otherwise appears to have not been-pressed seriously. Hence this argument is also repelled and it is held that transfer of the shop in favour of the respondent is lawful and genuine and bona fide. Before concluding this judgment, 1 had asked the learned counsel for the respondent as to whether the respondent is ready to grant any time to the petitioner for vacation to the shop in question in view of the fact that the shop is a business premises of the petitioner, learned counsel has gracefully agreed to allow a period of six months with effect from today to the petitioner to hand over the vacant possession of the shop in question to the respondent No. 1.
Resultantly, this writ petition is dismissed. However, respondent No.l is allowed a period of six months with effect from today to vacate the shop in question and hand over the vacant possession thereof to the respondent No. 1 without obliging her to file an execution proceedings.
The petitioner is directed to go on paying the rent during this period regularly in accordance with the terms of tenancy .Mil also shall not cause any damage to the shop and shall not hand over the possession ol' the shop to anyone else during the interregnum, in case the petitioner la.iK io comply with this order besides the consequences which the petitioner shall lace, the respondent No.l shall be at liberty to execute the order to get possession of the shop in execution of the order of ejectment passed in her favour. Parties are iefi to bear their on. Costs.