Ch. Inayat Ullah, predecessor-in-interests of petitioners No. l to 10 and petitioners Nos. 11 and 12 were joint owners/landlords of the suit shop while respondent No. l is occupying the same admittedly as a tenant at monthly rent of Rs.200 per month. On 15-10-1984, the petitioners filed an eviction application under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959, seeking possession of the suit shop on the ground of bona fide need for personal occupation of Nasir Ahmad son of Muhammad Shafiq, petitioner No. 12--one of the landlords. The petition was resisted by denying the personal need as well as by urging that the petition was barred under section 14 of the Rent Restriction Ordinance. The pleadings gave rise to two issues. The same were tried. The learned Rent Controller vide order dated 21-3-1989, found both the issues in favour of the petitioners-landlords and granted the eviction petition. The tenant was directed to hand over vacant possession within two months. On appeal by the tenant, vide Judgment dated 2-7-1990, this order was set aside and the eviction petition was dismissed. Against the appellant judgment S.A.O. No.23 of 1990 was preferred by the petitioners-landlords. It was admitted to regular hearing but then dismissed on 6-5-1991 as incompetent. Therefore, the petitioners filed this Constitutional petition against the appellate judgment.
2. It is urged by Mr. Shahzad Shaukat, Advocate, appearing for the petitioners that learned Appellate Court has misdirected itself in law on both issues. It is urged that in view of the fact that earlier eviction petition was against Muhammad Yousaf, another tenant and not against respondent No. 1, section 14 of the Urban Rent Restriction Ordinance has no manner of application.
In other words, the contention is that since the parties in the earlier eviction petition were different, therefore, the present petition could proceed. It is further urged that in reversing the findings under Issue No. 1, viz., need for personal occupation, the learned Appellate Court has again misconceived the law as it is neither for the tenant nor for the Court to decide the suitability of the premises sought to be vacated nor the suitability of the person to run or conduct a particular business in the premises. It is also urged that the finding is vitiated on account of gross misreading of the statement of Muhammad Shafiq (P.W.1) as well as Nasir Ahmad (A.W.2) In specific, it is pointed out that in para. 11 of the judgment, the learned Appellate Court has recorded the admission of P.W.1 and A.W.2, although a cursory reading of their statement shows that they did not make any such admission, as has been recorded. Learned counsel has relied on Sh. Muhammad Yousaf v. District Judge, Rawalpindi and others (1987 SCM R 307) for the proposition that it is not for the Court to decide as to what business is suitable to the landlord. Peerzada Rafiq Ahmad v. Ch. Abdul Rehman (1980 SCM R 772) and Shamsul Islam Khan v. Pakistan Tourism Development Corporation Ltd. (1985 SCM R 1996) have been relied upon to show that mere demand to enhance the rent does not adversely reflect upon the bona fide of the landlord seeking eviction of the premises. Muhammad Shafi v. M/s. A.C. Enterprises and others (1987 CLC 748), Ahmad Yar Khan v. Additional District Judge and others (1987 M LD 1078) and M/s. Haji Janat Gul & Company v. Ch. Haq Nawaz and others (1983 CLC 241) have been relied upon to contend that the landlord is not bound to disclose the nature of the business or the details of the same in his application under section 13 (ibid.)
3. Mr. Khurshid Ahmad, Advocate, learned counsel appearing for respondent-tenant has, on the other hand, contended that earlier eviction application 'having been dismissed vide judgment (Exh.R.7) it was obligatory upon the landlord to allege in the application and to prove the new circumstances warranting filing of the fresh petition. He has referred to the contents of the eviction petition as well as the statements of A. W.1 and A. W.2 to show that no such change in the circumstances has been either alleged or asserted in the evidence. On these premises learned counsel has submitted that Exh. R.7 operates as a bar to fresh petition. In this connection learned counsel has relied on Abdul Majid v. Anwar A.I (1983 CLC 2511) to show that non-disclosure of changed circumstances reacts adversely upon the bona fides of the landlords. Learned counsel has further relied on Mrs. Freni A. Cavina v. Mrs. Dhunmai Phiroze Dalal (PLD 1991 SC 265) for the proposition that facts have to be pleaded in sufficient details so as to make the 'other side aware of the case which he has to meet. On the question of personal need, learned counsel has supported the findings of the Appellate Court and has controverted the contentions that the finding is based on either misreading of evidence or disregard of material evidence.
4. A perusal of Exh.R.7 at page 39 shows that it is a judgment delivered by the then Rent Controller on 2-10-1965 in rent application entitled Ch. Muhammad Shafiq etc. v. Muhammad Yousaf. There is not a word in the judgment from which it can be inferred that the shop in possession of Muhammad Yousaf was sought to be obtained by the present petitioners for use and occupation of Nazir Ahmad son of Muhammad Shafiq, petitioner. There is an admission by Muhammad Shafiq (P.W.1) that it is correct that the shop of Muhammad Yousaf was sought to be vacated for the benefit of Nasir Ahmad. Mr. Khurshid Ahmad, A&ocate, has contended that this admission removes the ambiguity in Exh.R.7 and it stands settled that the Rent Controller while dismissing the eviction application on 2-10-1965, vide Exh.R.7, did not find that the shop was needed bona fidely for use and occupation of Nasir Ahmad.
5. In so far as the removal of ambiguity is concerned, the learned counsel may be correct. But this alone is not sufficient to hold that section 14 of the Ordinance is attracted, in the facts and circumstances of this case. Firstly because more than two decades have been passed by between the dismissal of earlier application on 2-10-1965 and filing of the present eviction petition. It is too much to contend that everything remained static and nothing changed in spite of twenty years.
Secondly, Exh.R.7 related to the shop in occupation of Muhammad Yousaf an not Chiragh Din. If the earlier judgment held that shop was not bona fidely required, it cannot be rationally stated that it should also be held that the present shop is not needed. Reliance in this connection by Mr. Shahzad Shaukat on Ghulam Bahauddin Qureshi v. Mrs. Hawa Bai (PLD 1979 Kar. 597) seems correct. The issues in two proceedings, one decided by Exh.R.7 and the other decided by the Rent Controller in this case are not substantially the same, inasmuch as, the premises for eviction sought are different and so are the parties. Resultantly, I hold that the learned Appellate Court has acted against law in returning a finding that present petition is barred by application of section 14 I of the Urban Rent Restriction Ordinance, 1959.
6. In para.11 of the impugned judgment, the learned Additional District Judge has relied on the statement of Muhammad Shafiq (A.W.1) where he allegedly admitted that one of the shops from Hotel Hamdard was got vacated in February, 1996. Similarly the learned Additional District Judge also relied upon the statement of Nasir Ahmad (A.W.2) wherein he has allegedly admitted that one of the shops is lying vacant which was got vacated in February, 1984, just before the institution of present petition. The Court proceeded to hold that in that way the bona fide requirement of Nasir Ahmad is not proved on record.
7. A perusal of the statement of both A.W.1 and A.W.2 makes it clear that these two witnesses never made any such admission. All that the witness (A.W.1) stated was that "in Hotel Hamdard we had got a shop vacated in February, 1984". However, in the next sentence the witness denied that in the hotel two shops are lying vacant. He thereafter, volunteered that there is only one shop which is being run by Mansoor and Munawar. He further clarified that shop was got vacated for the benefit of Munawar. Similarly, at page 20 Nasir Ahmad (A.W.2) had denied the suggestion that out of the two shops got vacated, one was lying vacant and the other was given on rent. In this manner, it is clear that the findings of the learned Appellate Court stand vitiated on account of this gross misreading of evidence and on account of reliance on the so-called admission of the two witnesses. Such findings can be interfered with by the High Court in exercise of its Constitutional jurisdiction.
8. There is considerable evidence on the file for determining the question of bona fide need, but sitting in Constitutional jurisdiction, I would like to avoid this exercise.
9. In the circumstances and for the reasons noted above, I hold the appellate judgment dated 2-7- 1990 to have been passed without lawful authority and of no legal effect. As a result, the tenant's appeal in the Appellate Court shall be deemed to be pending which shall now be proceeded and decided expeditiously but not later than three months from today, in the light of this Judgment and in accordance with law. Parties are left to bear their own costs.