The relevant facts for the decision of this second appeal against the order are that the respondent is owner of property commonly known as P-189, Street No.10, Khalsa College, Jaranwala Road, Faisalabad, while the appellant is in occupation of the part of the premises as a tenant. The respondent filed an ejectment petition against the appellant in respect of two shops in his occupation. The ejectment was sought on the grounds of default in the payment of rent and personal need. The appellant contested the ejectment petition. The Rent Controller accordingly framed following issues:---
(1) Whether the application has been filed out of mala fides, if so, its effect? O. P. R.
(2) Whether the petitioner has no cause of action to file this application? O.P.R.
(3) Whether the respondent has spent Rs.17,000 on the construction and renovation of the shop with the consent of the petitioner and as such he is entitled to receive the same? O.P.R.
(4) Whether the respondent is defaulter in the payment of rent? O.P.A.
(5) Whether the petitioner requires the disputed shops for his personal need bona fidely? O.P.A.
(6) Relief.
The respondent examined Ejaz Ahmad as A.W.1, Ghulam Qadir as A.W.2, Shah Muhammad as A.W.3, himself appeared as A.W.4 and Muhammad Sarwar Alvi, as A.W.5. The appellant in rebuttal examined Khushi Muhammad as R.W.1, Abid Hussain as R.W.2, Muhammad Latif as A.W.3, Tariq Majeed as R.W.4, Ghulam Muhammad as R.W.5 and the appellant himself appeared as R.W.6. The Rent Controller after hearing the arguments decided issue No.5 in favour of the landlord while issue No.4 was decided against the respondent while issues Nos.1, 2 and 3 were decided against the appellant. The Rent Controller in view of findings on issue No.5 allowed the ejectment petition vide order dated 22-2-1994, which was assailed through an appeal before the appellate authority, who confirmed the findings of the Rent Controller on all the issues and as a result thereof dismissed the appeal vide order dated 12-2-1995, which was assailed through this present appeal. The same was admitted to hearing and notice was issued to the respondent, who has entered appearance and contested the appeal.
2. The learned counsel for the appellant argued that the respondent admittedly got shop from Messrs Khalid Autos vacated during the pendency of the ejectment petition against the appellant and proceeded to let out the same to Messrs Ahmad Autos. The learned counsel in this behalf has referred to the statements of A.W.4 and R.W.4. It is added that since the respondent has let out the premises after the filing of the ejectment petition, therefore, this fact was sufficient to disentitle him to seek ejectment of the appellant on the ground of personal use on the one hand and on the other it proved that the ejectment petition was mala fide. It is added that both the Rent Controller and appellate authority failed to appreciate that legal and factual position. It is argued that the respondent no where explained as to why he wanted the premises in possession of the appellant particularly whereas he is owner of 8 other shops. It is added that the respondent admittedly is in possession of other property and he has no; decided as to its use so -far. The learned counsel for the appellant in support of the arguments has referred to clause (ii) subsection (2) section 13 of the Punjab Urban Rent Restriction Ordinance, 1959 (hereinafter to be referred as Ordinance, 1959) and then referred to the judgments reported as Dr. A.R Khan v. Muhammad Ishaque 1972 SCMR 437, Muhammad Aslam v. Muhammad Aslam 1987 CLC 686, Abdul Majid v. Anwar A.I 1983 CLC 2511 and Muhammad Siraj v. Muhammad A7ub and another 1987 MLD 1425.
3. On the other hand, the learned counsel for the respondent argued that the shop was vacated by Khalid Autos much earlier to the filing of the ejectment petition. It is added that the respondent wanted to run business in the premises in dispute after his retirement from the Agricultural University. It is argued that it is a case of concurrent findings of fact recorded by two Courts below and there is no scope for interference in the second appeal. The learned counsel in this behalf has referred to the judgments reported as Top-Star, Company v. Mirza Amad-ud-Din 1993 MLD 1964, Mrs. Naheed Ghafoor v. Muhammad Rafique Chaudhry and 2 others 1993 CLC 53, Farzand A.I v. Aziz Bibi 1993 CLC 1309, Sabir A.I v. Mst. Zubaida Bibi 1993 MLD 321 and Adeeba Mushraf v. Muhammad Ishaq and another 1993 SCMR 2354. It is argued that it was sole discretion of the respondent/landlord to select the premises for his personal use or occupation out of the premises owned by him. The learned counsel in this behalf has referred to the judgment reported as Abdus Qadus v. District Judge, Sialkot etc. 1982 CLC 2355(2) and Malik Abdus Qadoos v. Mst. Maryam Bibi etc. PLD 1981 Lah. 456.
4. I have given my anxious consideration to the arguments of the learned counsel for the parties, gone through the record and precedent cases relied on behalf of the patties. It is clear from the argument that the findings of the Rent Controller and the Appellate Authority on issues No. 1, 2 and 5 have been challenged. The main issue is No.5 while issue No. l was framed unnecessarily and did not arise in view of issue No.5. This way the sole question for determination in this appeal is whether the premises can be got vacated by the respondent for his personal use. The relevant provisions contained in section 13(3)(ii) which reads as under:---- "in the case of a 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 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 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 Ordinance in the said urban area: ...."
It is clear from the above provision that in order to succeed landlord has to prove--
(i) that the premises were required in good faith for his own use or for the use of any of his children;
(ii) that he or his said children were not occupying any other such building or rented land in the same urban area suitable to their needs; and
(iii) that he has not vacated such building or rented land without sufficient cause after the commencement of this ordinance.
5. Learned counsel for the appellant argued with reference to the cases of Abdul Majid and Muhammad Siraj that the landlord has failed to prove the above ingredients.
Abdul Majid's case It was a case of ejectment from shop. The appeal of the tenant was accepted by this Court after holding that the landlord neither mentioned in his application that the other shop was not suitable for his needs nor he cared to point out and furnish sufficient cause for vacating the shop. It was held after referring to the judgments reported as Sabu Mal v. Kika Ram alias Heman Das 1973 SCMR 185, Dr. A.R. Khan Muhammad Ishaque 1972 SCMR 437 and Seth Abdus Sattar Haji Ahmed v. Sh.
Fazal Hussain and another PLD 1966 Lah. 733 that it adversely reflected on his bona fides.
Muhammad Siraj's case
6. This was again a case of ejectment from shop under the Sindh Rent Premises Ordinance, 1979.
The appeal of the landlord was dismissed by the High Court after holding that one of the tenant vacated another shop in 1978 but s the landlord did not start his business in the same. In this behalf reliance was placed on the judgments reported as Arshad Umar and another v. Begum Nazrul Askari PLD 1985 SC 38 and George Levi v. Mrs. Zakia Sultana 1984 CLC 3066.
Muhammad Aslam's case
7. This was also case of ejectment from shop. The appeal of the tenant was accepted by the Karachi High Court after holding that the landlord failed to discharge the burden of issue that the shop was bona fide required by him. It was further held that weaknesses, if any, in the case of tenant would not help the landlord. The learned Judge in this behalf has referred to the judgment reported as Messrs Eastern Express Co. Ltd., Karachi v. Tariq Hameed (PLD 1986 Karachi 84). The statements of A.W.1 and AW.2 are about service of notice while A.W.3 is as to alleged additions made in the premises by the appellant and A.W.5 has only proved plane of shops. This way the only evidence left in the field is statement of respondent himself. He has simply stated that the shop is required for his personal use in good faith. He has neither deposed anything as to the business nor as to the preparation made by him in this behalf. On the other hand, A.W.3 admitted that the respondent made demand for enhancement of rent while the respondent admitted that the shop was vacated by Khalid Autos Store and was let out to Ahmad Autos Store. This statement was recorded on 4-1-1994 and according to him this was let out about 12/13 months. Besides this he also admitted that he is in possession of a garrage and site which was previously under workshop.
He admitted that he is making fresh construction but has not yet decided as to what would be its use. The relevant portion of his statement reads as under:--- The respondent has avoided to commit on material facts like:- This statement is insufficient to prove issue No.5. In this behalf reference can be made to the judgment reported as Malik Muhammad Ramzan v. M/s General Iron Stores, Sargodha and another 1984 CLC 2418 and adversely reflected on his claims. This "way the respondent has failed to prove issue No.5. On the other hand, there is ample evidence on record that the application was mala fide. The Rent Controller as well as Appellate Authority have not only failed to appreciate the evidence on record but also the provisions of subsection 3 of section 13 of the Rent Restriction Ordinance, therefore, their decisions are liable to be set aside.
8. The upshot of the above-discussion is that the order of Rent Controller dated 22-2-1994 and that of Additional District judge dated 12-2-1995 are set aside by accepting this appeal with costs