SAIDUZZAMAN SIDDIQUI, J.---We propose to dispose of above appeal and Criminal Original No.38 of 1996 filed by the respondent through a consolidated order.
2. The appellant-landlord instituted ejectment application against the respondent in respect of shop bearing No.25 situated in Khyber Medical Centre, Dabgari Garden, Peshawar, on the ground of default in payment of rent and personal and bona fide requirement before the Controller of Rent, Peshawar Cantt. The application was resisted by the respondent and on the basis of the pleadings of the parties, the following issues were framed-.- "(1) Whether petitioner has a cause of action?
(2) Whether petitioner is estopped by his conduct to institute the present petition?
(3) Whether the petition is incompetent and liable to dismissal?
(4) Whether the petitioner requires the suit shop in good faith and bona fidley for his own use and occupation?
(5) Whether the respondent has improved the status of the property and thus entitled to compensation? .
(6) Whether the petition is mala fide to get more gains from the disputed shop?
(7) Relief. "
The petitioner pressed only the ground of personal and bona fide requirement of the premises before the Rent Controller. The Rent Controller after recording evidence of the parties granted the application by order dated 22-11-1994. The respondent challenged the order of Rent Controller before a learned Judge in Chambers of Peshawar High Court in F.A.O. No.8/95 which was allowed as follows:-- "7.The respondent-landlord sought eviction of the appellant-tenant on the ground of his bona fide, personal requirement on the plea that he would start his own business in the suit shop. It is a fact that the landlord in his entire statement before the Trial Court did not specify the business that he wanted to run in the shop in question. I see no force in the contention of the learned counsel for the landlord-respondent that particulars of the intended business were not required to be given by the landlord. It is -settled. Proposition that to prove the bona fide requirement of the shop for personal use the landlord has to establish the need giving the nature and type of business he wanted to start in his shop. Though in the cross-examination; on the suggestion of the learned counsel for the appellant, he stated that after obtaining possession of the suit shop he would decide whether he should start spectacles business or the medicine yet he admitted that he has no experience in either businesses. He has further admitted that he has an open market in Landikotal in which he still runs 10-12 years old business of selling tyres and Air-Conditioners which is at the present running in loss. His solitary statement on oath would not be sufficient to prove that he required the suit premises for the use of personal business. Under the law, requirement for personal occupation and use has to be established to be bona fide and in good faith. He has .To produce and place on record certain facts so as to enable the Court to make objective assessment of his need and requirement to be bona fidley and in good faith.
8. The perusal of record further suggests that appellant has, from very beginning in written statement denied the bona fide requirement of the suit shop for personal use in good faith by the respondent-landlord on the ground of his having many other properties and settled business in.
Peshawar. When the landlord denied the existence -of his other properties in his statement before the trial Court, the appellant _approached the Controller for the summoning of the record of the same from the concerned quarters. To ascertain the bona fide and faithful requirement of the landlord the trial Court should have examined the record but instead he not only declined the request but closed the appellant's evidence (The underlining is by us).
2.Leave was granted against the judgment of learned Judge in Chambers by this Court to consider the following contentions of the appellant:-- "4. We are inclined to grant leave to consider the question, as to whether the learned Judge in Chambers was justified to reverse the finding of the learned Controller of Rents on the question of personal requirement."
3. It may be mentioned here that alongwith the appeal, the appellant filed an application for- stay of the judgment of the High Court but it was declined as follows:-- "We are, therefore, not inclined to suspend the direction issued by the High Court to the petitioner to restore possession of the shop to the respondent. However, we allow the petitioner 30 days' the from today to restore possession to, the respondent of the shop, failing which, the High Court will get the above order executed against the petitioner.
7. In case, the petitioner restores the possession within the above period of 30 days to the respondent, the appeal arising out of the above petition may be fixed for hearing at an early date. "
5. A contempt application has been filed by the respondent in the above appeal, which is registered as Criminal Original No.38 of 1996 complaining that the order passed by this Court on 14- 2-1996 on the stay application while granting leave to appeal has not been complied with. We have heard the learned counsel for the parties both on the contempt application as well as on the merits of the appeal.
6. We would first like to dispose of the contempt application filed by the respondent (Sabz Ali), alleging that the order of this Court passed on the stay application of the appellant has been violated by the appellant. We have already reproduced the order passed by this Court on the stay application of the appellant which stated that in case the appellant delivered back the possession of the shop in suit within 30 days to the respondent the appeal may be set down for regular hearing at an early date. Mr. Younis Shah, the learned counsel for the respondent contends that this order has not been fully complied with and 'therefore, appeal should not be heard which is fixed today in Court. It is not denied by the learned counsel for the respondent that the possession of the property has been handed over to the respondent within 30 days as directed in the order dated 14-2-1996. It is, however, contended by the learned counsel that at the the of handing over of the possession of the shop to the respondent, the appellant illegally removed the goods and articles lying in the said shop. The learned counsel therefore, contended that it cannot be argued that the order dated 14-2-1996 passed by this Court on the stay application of the appellant has been fully complied with as the possession of the goods and articles lying in the shop were never restored to the respondent. It is further stated by the learned counsel for the respondent that they have already filed an application before the High Court where an enquiry is being conducted to find out whether the goods lying in the shop were removed by the appellant before restoring possession of the shop to the respondent. We would not like to go into the controversy whether the appellant had removed the goods and articles lying in the shop before restoring possession of the shop to the respondent as directed by this Court on 14-2-1996, as according to the appellant enquiry to this effect is already pending before the High Court wherein this question will be resolved finally. Since the possession of the shop was handed over by the appellant to the respondent within 30 days of the order, we are inclined to hear the appeal on merits in terms of the order dated 14-2- 1996. It is, however, clarified that hearing of this appeal will not come in the way of the High Court in determining the controversy raised before it by the respondent relating to alleged removal of goods and articles from the shop by the appellant before delivering possession of shop to respondent and which according to respondent is pending determination before the High Court.'
With these observations, the contempt application stands disposed of.
7. On merits, the learned Judge in Chambers reversed the order of the Rent Controller on the ground that the appellant in his evidence before the Rent Controller failed to disclose the nature and type of business, he wanted to establish or start in the shop. It was further observed by the learned Judge in Chambers that the appellant had admitted in his evidence before the trial Court that he had no experience either in the business of spectacles or medicines which he intende6 to start in the shop after its vacation by the respondent. It was lastly observed by the learned Judge in Chambers in the impugned judgment that the Rent Controller was not justified in refusing to summon the record from the concerned authorities on the application of the respondent which was moved before the Trial Court.
8. We are sorry to say that none of the grounds mentioned by the learned Judge in Chambers in the impugned judgment justified interference with the order of the Rent Controller passed in the above case.
9. The application for ejectment was instituted on the ground of default in payment of rent for the month of September, 1992 and personal and bona fide requirement of the appellant. The respondent filed his written statement on 18-1-1993. It appears that during pendency of the rent case before the Rent Controller an order for deposit of rent in Court was passed by the Rent Controller which was not complied with by the respondent and as such his defence in the case was struck of. However, on appeal the case was remanded to the trial Court by order dated 16-2- 1994 with the direction to afford opportunity. To the respondent to prove that non-payment of rent had resulted on account of his illness. The appellant, however, did not press the ground of default before the Rent Controller after the remand of the case and accordingly issues were framed in the case and he completed his evidence before the trial Court on 26-7-1994. The case was adjourned to 12-9-1994 for evidence of the respondent but on that date, it was adjourned as the respondent applied for adjournment on the ground of his illness. At the adjourned date the case was again adjourned as the respondent once again applied or adjournment supported by a medical certificate. When the matter was taken up again on 25-10-1994 for recording evidence of the respondent side, it was once again adjourned at the request of the respondent to 2-11-1994. On 2- 11-1994 the respondent instead of producing his evidence moved another application before the trial Court seeking adjournment of the case on the ground that he wanted to obtain copies of the record concerning the properties of the appellant so that he may properly cross---examine the appellant. Notwithstanding the fact that the appellant had already closed his evidence before the trial Court on 26-7-1994 and, therefore, question of his cross-examination did not arise in the case, the trial Court in order to show indulgence and to afford another opportunity to respondent to produce his evidence adjourned the case after imposing costs of Rs.500 to 22-11-1994. On 22-11- 1994 the respondent once again failed to produce his evidence and submitted yet another application similar to the one which he filed before the trial Court on 2-11-1994, which was rejected and as the respondent did not even examine himself in the case, his evidence was closed and ejectment order was passed From the above resume of the facts, it is quite clear that the respondent was allowed ample opportunity to lead his evidence but he deliberately failed to produce his evidence. In these circumstances, the applications moved by the respondent on 2-11- 1994 and 22-11-1994 praying for adjournment to obtain copies of the record of the properties of appellant, were rightly rejected and his defence was closed by the Rent Controller as these applications were merely an attempt to protract the proceedings. It is not disputed by the learned counsel for the respondent before us that full opportunity was allowed to the respondent to cross- examine the appellant which is otherwise evident from the lengthy cross-examination of appellant before the trial Court. There is nothing on the record to show that the respondent made any request to the trial Court to reserve cross---examination of the appellant in the case as he wanted to confront him with certain document for which he had applied to the authorities concerned for grant of copies. In these circumstances, the observation of the trial Court that these applications were filed by the respondent merely to delay the proceedings, appears to be quite correct. We enquired from the learned counsel for the respondent whether his client has been able to obtain the copies of the document which he applied for in 1994. The learned counsel after consulting his client who was present in Court, stated before us that till today these copies have not been granted to the respondent. We also enquired from the learned counsel for the respondent, whether his client made any request before the learned Judge in Chambers to summon the record with which he wanted to confront the appellant. The learned counsel, after consulting his client, stated that neither his client made any such prayer before the High Court nor any application for additional evidence was moved before the learned Judge in chambers. In these circumstances, we fail to see how the learned Judge reached the conclusion that the trial Court should have examined the record and should not have declined application of the appellant for summoning the same. As pointed out by us earlier, it was .The duty of, the respondent to have obtained the copies of the document which he wanted to confront the appellant in cross-examination before he was' examined in the case. The respondent, was allowed several adjournments in the case but he failed to produce his evidence without any plausible explanation. The learned, Judge in Chambers, therefore, was not justified in entertaining the grievance of the respondent in this behalf.
10-A. The learned Judge in Chambers in reversing the order of the learned Rent Controller was much, impressed by the fact that the appellant in his evidence before the trial Court failed to disclose the nature of business which he wanted to start in the shop after its vacation, by the respondent. The learned Judge was also of the view that since the appellant had no experience in the business which he wanted to start in the shop, His needs were not bona fide. Another factor which influenced the decision of learned Single Judge was, that the sole testimony of appellant was not sufficient to establish his bona fide requirement of the premises. We are constrained to remark that the approach of the learned Judge in Chambers was in total disregard of the principles laid down by this Court in this behalf in various reported cases. There is no legal requirement that the landlord in seeking ejectment of the tenant from all commercial premises on the ground of personal and bona fide requirement must disclose the nature of the business which he intended to start in the premises. Similarly, it is also not necessary for a landlord to prove his personal and bona the requirement of commercial premises that he must possess experience in the trade or business which he intends to set up in the premises after eviction of his tenant. If this argument is accepted, then a landlord, howsoever, genuinely he may require a commercial premises for his personal requirement cannot succeed if he does not possess experience of a particular business or trade. The principles for appreciation of evidence in cases where the landlord applies for ejectment of a tenant on the ground of personal and bona fide requirement of a commercial premises were stated by this Court in the case of Toheed Khanam v. Muhammad Shamshad (1980 SCM R 593) as follows:-- "The appellant, in support of the plea, examined her husband, Islam Ahmad, and her son, Ahtramuddin. Islam Ahmad, in his deposition stated that his salary was Rs.335 p.m. And that out of this income he had to support his large family consisting of his wife, the appellant, three sons and three daughters. Out of them one son and to daughters were major and that his major son, Ahtramuddin, was jobless and he wanted him to do some business for supplementing his meagre income tie also stated that he had money to start a small business. In cross-examination he stated that he had Rs.3,900 lying to his credit in the G.P. Fund which he could draw for starting the business in the shop; and that his son had no experience of business. He also stated that he had no particular business in mind but had ideas about what business he should start with. There was no cross-examination on the point of his income or the reason which he had assigned for doing the business. Ahtramuddin, stated that he was jobless; and that he wanted to run some business in the shop as there was no other source of income. As to his financial condition, he stated that the appellant had 5 tolas of gold ornaments; and that his father could get an advance from his G.P.
Fund. He further stated that he intended to sell Chappals in his shop. In cross-examination he admitted that he had no experience of business but as his uncle was manufacturing Chappals, he could get them from him and sell them in the shop.
The respondent examined himself in evidence and denied that the appellant in good faith needed the shop for her personal use. The other facts in his evidence related to the earlier application having been rejected on the same ground and the attempts made to enhance the rent.
The first Appellate Court, after recalling the evidence, did not further proceed to appraise it but held it insufficient to establish the plea of bona fide personal use principally on the observation made in the case of Mst. Almas Begum v. Haji Pir Bakhsh (PLD 1964 Pesh. 278). This approach to the evidence on record was unsatisfactory as on the facts stated in the evidence led on behalf of the appellant a finding had to be given qua the bona fide requirement of the shop by the appellant. There was no dispute that the husband of the appellant had no other income except his meagre salary which was insufficient to maintain a large ' family. Equally, it was also brought on the record that the husband of the appellant was in a position to draw from his Provident Fund a loan sufficient to start a small business like the one stated by his son. There was also no reason to discredit the assertion of the son that his mother had 5 tolas of gold ornaments which could also provide some financial assistance in starting the business. To ignore these considerations which were unrebutted on the record was to misread the evidence. _Again the High Court fell into an error when it placed undue reliance on the fact that the nature of the business was not stated in the application and we are surprised to note that the High Court has held that the first appellate Court ha(, on a proper assessm ent of the evidence, reached the conclusion that the requirement was not genuine' although this exercise was not done by that Court; apart from giving credit to the improper motive in filing the application which consideration also prevailed with the High Court. There is no objective assessm ent of the evidence produced on behalf of the appellant even by the High Court and it felt content in holding that no attempt was made to show that the first appellate Court had ' in any manner misread the evidence on record or that his conclusions were wrong'. In this connection we would refer to the opinion of I. Mahmood J., in Hassan Khan v. Munawar Begum (PLD 1976 Kar.. 832) which we have recently approved in another case which correctly lays down the mode of assessing the bona fide requirement of the landlord."
(The underlining is ours).
The principles for appreciation of evidence in such cases enunciated in Hassan Khan v. Munawar Begum (PLD 1976 Karachi 832) specifically approved by this Court in Toheed Khanam's case (supra) are as follows:-- "8. In Muhammad Siddique v. Mistri Muhammad Aslam (PLD 1975 Lah. 308), it was observed that the assertion of the landlord that he required the premises for his personal use should be determined to the context of the provision contained in subsection (4) of section 13 of the Ordinance, which enables a tenant to regain possession from his landlord who had obtained it on a false plea of bona fide personal need but he had failed to occupy the premises within one month of the date of obtaining possession or who re-let it within to months of the said date to any person other than the tenant. This is said to be a safeguard for the tenant against being ejected on a false plea of bona fide requirement by the landlord. The effect is that the assertion or claim on oath by the landlord that he required the premises for his personal use, should be accepted by the Rent Controller as bona fide, if such claim or assertion although by itself may be insufficient, vet is consistent with his averments in the application and is not shaken in cross-examination or disproved in rebuttal. The evidence in this case fully justified the claim by the landlord that he required the premises bona fide for his own use as he had no other accommodation of his own. To have dismissed this plea as not proved, merely because he had failed to prove his illness as a heart patient by medical evidence was arbitrary and' contrary to law. I am therefore, of the opinion that the finding on this I issue by both the lower Courts is against the law."
(The underlining is ours).
This Court in Saira Bai v. Anisur Rahman (1989 SCM R 1366) once again reiterated the above principles for appreciation of evidence as follows:-- "10. It was next argued, as it was argued before the Controller and- the High Court, by the learned counsel for the respondent that the appellant, in her application, has not stated the nature of the business for which the shop is required and in her deposition, she expressed her unawareness as to the nature of business which her son would carry on. However, her son, in his deposition, has stated that he would do paints business in the shop.
Regarding the non-mentioning the nature of the business in application it may be observed that an applicant has to state in his application, the material fact i.e. Facts which constitute cause of action. In a case of present nature the applicant has to state those facts which prima facie show that the requirement is according to law, and is made in good faith. This has been so stated in the application. It is not essential as it is not part of the cause of action to state the nature of business which the applicant intends to carry on. Take a case where the applicant states in the application that she requires the shop for her son for carrying on a particular business but later on pending hearing of the application or after eviction of the tenant, the applicant thinks that the business can no more suitably and profitably be carried on in the shop, the question might arise; could he change the nature of business or not? The choice of doing a particular business also depends on many other factors such as the nature of the locality or the nature of business being carried on in other shops in the neighbourhood. It also depends on the flow of customers and class of people residing in the area. Therefore, if there is any change in circumstances, the nature of business could also be changed. Accordingly, the answer would be that the applicant could change the nature of business with the change of circumstances because in law no restraint or bar is provided.
Therefore, the mentioning of the nature of business was not a material fact or so essential that without it the application must fail.
In any case, there is authority of this Court in the case of Mst. Toheed Khanum v. Muhammad Shamshad (1980 SCM R 593) wherein a similar point was raised and it was observed as follows:-- 'Again the High Court fell into an error when it placed undue reliance on the fact that the nature of the business was not stated in the application ....'
Further, as mentioned hereinbefore, it was unambiguously stated by the applicant that she requires the shop, in good faith, for use and occupation of her son, and her son, in his deposition, has in clear terms, stated that he would carry on the business of paints in the shop. Therefore, this objection has no force and ought not have been given any weight by the High Court."
11. Mr. Younis Shah, the learned counsel for the respondent very vehemently argued that the learned Judge in Chambers after appraisal of the full evidence in the case reached the conclusion that the evidence of appellant was not confidence inspiring and therefore, he was justified in reversing the said evidence. We are unable to accept the contention of the learned counsel for the respondent. We have gone through the statement of the appellant recorded before the Rent Controller in the case. The appellant in his evidence clearly stated that he required the premises for his personal and bona fide need and that he is presently not occupying any other shop or premises where he could do the business in the cantonment area. He was subjected to a very lengthy cross---examination by the counsel for the respondent but his evidence could not be shaken. Nothing was brought on record to show that the appellant was in possession of any other property in the cantonment area suitable for his needs and requirements. It has been held by this Court in the case Messrs F.K. Irani & Co. v. Begum Feroze (1996 SCM R 1178), that even the sole testimony of the landlord is sufficient to establish the personal and bona fide requirement of landlord. In the case before us, the statement by the appellant on oath was quite consistent with his averments made in the ejectment application and neither this statement was shaken nor anything was brought in evidence to contradict his statement. In fact, the respondent did not even step in the witness-box to controvert the testimony of the appellant in the case. In these circumstances, the Rent Controller was fully justified in accepting the evidence of the appellant and ordering eviction of respondent from the premises. There was no ground, whatsoever, available before the learned Judge in Chambers to interfere with the order passed by the Rent Controller. The learned counsel for the appellant has cited large number of cases in support of his contention that this Court would not disturb the finding of fact arrived at by the High Court in 1st Appeal after taking into consideration all the material facts on record. It is not necessary to refer to these cases as we have reached the conclusion that the learned Judge in Chambers reversed the findings of Rent Controller on the issue of personal and bona fide requirement of appellant in total disregard of the principles laid down by this Court for appreciation of evidence in this regard. We have also noticed that the learned Judge in Chambers completely overlooked the large number of reported decisions of this Court on the issues cited before her. We, accordingly, allow this appeal, set aside the order of the High Court and restore the order of Rent Controller. There will, however, - be no order as to costs in the circumstances of the case.