This writ petition filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, challenges the validity of order passed by the District Judge, Mirpur, on March, 31, 1996, whereby setting aside the order of Rent Controller (Sub-Judge), Mirpur dated December, 31, 1995 dismissing the application of the respondent, the appeal was accepted and the application for eviction of the rented premises was granted.
2. The facts forming the background of this writ petition are that applicant-respondent No.2 filed an application under the Azad Jammu and Kashmir Rent Restriction Act (hereinafter referred to as Rent Restriction Act), for the eviction of Shops Nos. 12 and 13 in Paramount Market, Shopping Centre, B-1, Mirpur, against the non- applicant- petitioner, in the Court of Rent Controller (Sub-Judge), Mirpur, on January 25, 1994. It was stated in the application that the applicant purchased Plot No.34/1-A, B-1, Shopping Centre, Mirpur, measuring 390 Sq. Yds. On December, 27, 1993. Shops Nos.
12 and 13 situate in the above building which are in possession of the non-applicant-- petitioner on rent. It was further stated that the applicant-respondent No.2 purchased those shops to carry his own business. This fact was conveyed to the tenant in presence of the previous owner who agreed to vacate the same within a month but failed to do so, as such, filed the present application after serving a notice through counsel, on him. It was also claimed that the non-applicant-- petitioner has failed to make payment of the monthly rent in the sum of Rs.1,572 and water and electricity charges from January 1, 1994. He is also damaging the shops. The application was resisted by the non-applicant-- petitioner, the tenant by filing objections. The trial Court framed number of issues arising out of the pleadings of the parties. After receiving evidence from both parties and hearing them, dismissed the landlord's application for eviction of the tenant. An appeal filed by the landlord-respondent before the District Judge, Mirpur, was accepted. The order of the Rent Controller was set aside and consequently, the order for eviction of tenant was made. This writ petition has been filed to challenge the aforesaid order.
3. Ch. Muhammad Azarn Khan, the learned counsel for the petitioner raised the following points in support of the petition:----
(i) That the learned District Judge, Mirpur, has decided the appeal without looking to the evidence brought on record by the parties, as such proceeded to accept the appeal against the facts on record, the order suffers from an illegality by misreading the evidence. It was explained that the trial Court, keeping in view the pleadings and evidence, dismissed the application for eviction which did not require any interference in appeal.
(ii) that it was proved by the evidence on record that the applicant respondent, the landlord did not require the premises in good faith for his own use or for the use of any of his male children. The application was filed with mala fide intention, to deprive the tenant-petitioner of his business;
(iv) that the mala fide act of the landlord is apparent from the evidence that a similar business as the petitioner carries, was run by the landlord who transferred the same in the name of his relative and the shops rented to him about 200-300 yards away from the premises in dispute, were handed over to his landlord. Therefore, the filing of the application is not bona fide; and
(iv) that there is no evidence, whatsoever, on record substantiating the plea of requiring the shops for personal use, as such allowing of application by the District Judge is not justified in law.
4. The learned Counsel for the opposite side Ch. Riaz Alain, addressed the following arguments, in support of the order passed by the District Judge:---
(i) That the District Judge, on the basis of evidence produced by the parties, came to the conclusion to allow the application moved by the landlord, as such proceeded to accept the appeal. As the findings are based on the evidence, therefore, cannot be assailed in writ jurisdiction;
(ii) that the application for eviction of the tenant has been moved mainly on the ground of requirement of shops by the landlord for his own use for which the applicant brought sufficient evidence on record. The allegation of mala fide cannot be attached to it; and
(iii) that the findings of facts arrived at by the District Judge are not assailable in Constitutional jurisdiction of this Court, through writ petition.
5. I have heard the learned counsel for the parties and also gone through the record placed by the respective parties. The dispute relates the eviction of the tenant from the Shops Nos. 12 and 13, situate in Paramount Market, Shopping Centre, B-1, Mirpur. The relevant property was purchased by the landlord, respondent No.2, on December 27, 1993. The application for the eviction of the tenant was moved on January 25, 1994. The main ground urged in the application was the requirement of shops by the landlord-respondent for his own use. It was also stated in the application that the tenant, at the time of sale of the shops, was informed who agreed to vacate the same within a month. Respondent No.2, the landlord, in support of the application produced the evidence of Sheraz Arshad son of Arshad Mahmood, Muhammad Siddique and Raja Nusratullah and appeared himself as witness the above witnesses are silent about the requirement of the shops by the landlord for his own use. However, the applicant himself stated in his statement that he required the shops for his own use. The assertion of oral agreement by the tenant to vacate the shops within a month, though stated by the applicant in his statement, is- not supported by the witnesses, as stated by the applicant. It is admitted between the parties that the applicant-respondent No.2 who was also running the same business, transferred his business to one Sheraz Arshad, in July 1993. It is also admitted that the said business was in the same vicinity. The trial Court after discussing the evidence, came to the conclusion that the application was not bona fide and the landlord did not require the shops for his own use and thus, proceeded to dismiss the application. The learned District Judge regarded the order of Rent Controller as emotional and against the facts on record, as such, accepted the appeal.
6. Before adverting to the merits of the case, it would be appropriate to peruse the provisions dealing with the situation. The relevant provisions of section 14(3)(a)(ii) of the Rent Restriction Act, 1986, are usefully reproduced as below:--- "S.14(3)(a)(ii).---A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession:---
(ii) in the cases of non-residential building or a scheduled or rented land if:---
(a) he requires it in good faith for his own use or for the use for any of this 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 Act in the said urban area ---.."
A critical analysis of the above provisions reveals that a landlord may apply to the Controller to put him in possession in case of non-residential building provided he requires the same in good faith for his own use, or for the use of any of his male children provided he or his said child is not occupying in the same urban area any other building or rented land in which such building is situated, suitable for his needs or he has not vacated such a building in the said urban area. In the light of the law dealing with the matter, it is firstly to be determined that the applicant-respondent requires the relevant shops for his own use and he is entitled to file an application. The word "good- faith" used in the above provisions, is significantly important as where the requirement of own use is considered a ground for eviction of a tenant, the tenants' interest is also safeguarded by putting a condition of 'good-faith' in filing the application. Therefore, an application filed not with bona fide intention, gets no favour. The word 'good faith' attracted the attention of the Karachi jurisdiction in a case title ' Aneesur Rehman v. Mst. Sharifa Khatoon and others' 1986 CLC 448 wherein the following observation was made at page 453:--- ---....The expression "requires in good-faith" has been considered by superior Courts on several occasions. Broadly stated merely wish, convenience, whim or fancy of the landlord/landlady would not be enough to show that the landlord/landlady "requires the premises in good faith". The landlord/landlady must allege and prove certain circumstances or facts which go to prove his/her requirement. The law does not require a landlord/landlady to establish need or absolute requirement without which he shall have no shelter over his head. What is meant by "requires in good faith" is that the landlord/landlady requires the premises for his/her reasonable needs and that he/she is not seeking eviction on the, pretext of requiring additional accommodation with an oblique motive or realising some extraneous purpose. The term 'requires' means that there must be an element of need before a landlord/landlady can be said to require premises for his/her own use and occupy the premises. What is necessary is that he/she should need them for his/her own use and occupation. The need has to be reasonable and bona fide. The onus of proof of this is certainly on the landlord/landlady. Although the word 'reasonable' does not appear to the Ordinance, the question of reasonableness is relevant in deciding the bona fides of the landlord/landlady Gross unreasonableness may in proper circumstances lead the Controller to reach a conclusion that the landlord's/landlady's requirement is not in good faith. Therefore, while deciding the question of good faith, the reasonableness of the need or requirement is relevant. Full effect will have to be given to the expression used in the clause, namely 'requires in good faith'. The words 'good faith' mean honestly and not actuated by bad faith or oblique motive. Mere wish or intention of the landlord/landlady is not sufficient to give him/her a right to evict the tenant. "
7. The point of use of the property by the landlord for his personal use referred to in the `above provisions of law, alongwith the words 'good faith', also came under consideration before the Lahore High Court in a case titled Muhammad Siddique yr Mistri Muhammad Aslam PLD 1975 Lah.
308. The resolution is usefully reproduced below:--- ---....If a landlord asserts that he or his own needs particular premises for personal use and it is also proved on record that he or his own son is not occupying in the same urban area any building for the purpose of his business suitable for his needs or has not vacated such a building or rented land, without sufficient cause, then the question with regard to bona fides or good faith, will have to be determined in context of the provision as contained in subsection (4) of section 13 of the Ordinance. What is after all required by a landlord or his son to prove his good faith or bona fides in regard to personal use, he has to make a statement with regard to factual position as it stands and if the same is disproved in rebuttal in context of the conditions as laid down in sub-paras. (b) and
(c) of para II of subsection (3) of section 13 of the Ordinance then it can be safely said that the landlord or his son has not been able to prove his bona fides or good faith."
8. A similar point also arose in 1986 CLC 448, referred to above, wherein the following observation was made:--- " ....S.21(1)---Personal need--Claim for--Genuineness of--Landlady who claimed eviction of tenant from shop in dispute vaguely stated in her eviction application that she wanted shop to start business--Landlady had not stated as to what kind of business she wanted to start--Landlady for that purpose must put before Rent Controller all necessary details which we're required for granting relief--On such vague allegation as made in eviction application or in affidavit landlady, held, could not expect to get relief, on ground of requiring shop for her occupation or for occupation of her son. "
9. Considering the law on the subject, it can safely be held, in the light of the evidence brought on record, that the landlord-respondent has failed to substantiate his application for the following reasons:--- .
(i) That the landlord was carrying on the same business of Bakery as run by the tenant, the petitioner herein in the same vicinity where the building in dispute is situated. The landlord sold the business and vacated the shops, handing over the possession to his landlord only 6 months before the filing of this application where he could carry on any business if he so wished;
(ii) that the landlord has failed to mention any business in his application or in his statement which goes against the bona fides of his application, as such the condition of requirement of the shops by the landlord in good faith for his own use, does not appear to be satisfied therein;
(iii) that there was no agreement between the previous landlord and the tenant-petitioner herein or the present landlord which may determine the terms. In absence of any agreement, the assertion of the landlord for the tenant to agree to vacate the shops within a month, does not appear to be supported by any evidence; and
(iv) that the perusal of the evidence brought on record by the landlord respondent does not prove his good faith in filing the application for eviction of the tenant in view of his personal use.
10. It was strenuously contended by the learned counsel for the respondent that the legislature has not provided any appeal against the order passed by the District Judge in appeal, as such, the findings of facts arrived at by him, are not amenable to constitutional jurisdiction vested in this Court through writ petition. It was emphasised that the learned District Judge after appraising the evidence, gave the impugned verdict which, according to him, is based on facts, as such, the same cannot be interfered with by this Court, particularly in writ jurisdiction. As the learned Rent Controller dismissed the application on the appraisal of evidence and the learned District Judge accepted the appeal by allowing the application, I went through the entire evidence brought on record by the respective parties, including the relevant provisions of law. The order passed 6y the Rent Controller was based on appreciation of evidence and is well founded as well, particularly keeping in view the relevant provisions of law. The learned District Judge did not give any reason in support of acceptance of appeal, except regarding the order of the Rent Controller as emotional The observation of the learned District Judge with regard to the requirement of shops by the landlord for his personal use, is against the record because the requirement of personal use has to be appreciated in the light of law applicable to it. A bare statement of requirement for personal use by the landlord is not sufficient for the grant of an application if the same is rebutted by any evidence which proves mala fides or not filing the application with good faith. The findings recorded by any lower Tribunal or Court can be assailed even in writ jurisdiction if the same are based on no evidence or there is misreading or non---reading of evidence. Reliance in this regard may be placed on PLD 1992 SC (AJ&K) 58 wherein it was laid down as under:--- ---....The sanctity of findings of fact of such functionaries of exclusive jurisdiction is undisputed but we are unable to agree with the proposition that such findings cannot be disturbed at all. The correct state of law is that a finding of fact cannot be disturbed in writ jurisdiction except when the Court comes to the conclusion that it is based on no evidence as held in Muhammad Aslam v. Atta Muhammad 1969 SCM R 16 or, as laid down in N.M. Khan v. C.S. & R.C. 1970 SCM R 158, where it is based on erroneous deduction from facts which manifestly could not support such an inference or, as held in Chief Election Commissioner v. Ch. Abdul Majid PLD 1986 SC (AJ&K) 120, if it is patently wrong, is based on inadmissible evidence or there is gross non-reading or misreading of evidence."
The proposition also finds support from PLD 1982 SC AJ&K 1 Mirza Muhammad Afzal Khan v. Azad Government of the State of Jammu and Kashmir and others, wherein it was held as below:--- "...S.42--Writ jurisdiction of High Court---Finding of fact by Additional Custodian based on no evidence---Held, not immune from review by High Court under S.42--Discretion exercised by High Court in a manner directing law into a wrong channel by conclusion unsustainable in law--Held, can be interfered with by Supreme Court."
11. In view of the above discussion, the writ petition is accepted and the order passed by the District Judge is set aside while that of Rent Controller is hereby restored, with no order as to costs.