SYED NAJAM UL HASSAN KAZM1, J.- This appeal arises from order, dated 9-5-1996, of leamed Additional District Judge, Lahore, whereby order, dated 4-3-1993, of the leamed Rent Controller, dismissing ejectment petition, of the appellants, was maintained and appeal thereagainst was disallowed.
2. A petition u/S. 13 of Punjab Urban Rent Restriction Ordinance 1959, was filed by late Ghulam Qadir, husband of appellant No. I, father of appellants No. 2 to 4 and grandfather of appellants No. 5 to l2, seeking eviction of late Bashir Ahmad, from Shop No. 1190/C, Gumti Bazar, Lahore which was accepted, in consequence of statement of Bashir Ahmad, tenant, followed by an order of eviction, dated 25-7-1983.
3. Ln execution proceedings, Haji Munir Ahmad, respondent herein, resisted warrant of possession, and filed objections to set aside order, dated 25-7- 1983. Vide order, dated 18-3-1984, the leamed Rent Controller, accepted objections add set aside eviction order. The appeal filed by Ghulam Qadir, was dismissed by leamed Additional District Judge on 25-2-1986. These orders were further challenged in Writ Petition No. 1491 of 1986. During hearing of writ petition, a direction was issued, vide order, dated 17-9-1988, that amount of rent deposited with office bearers of Gumti Bazar Cut Price Merchants Association, should be deposited with the Rent Controller or Treasurer of this Court.
The Secretary of Union, made a statement, that a sum of Rs. 48,000/- was lying with the Association, on account of rent, which was ordered to be deposited with the leamed Rent Controller, with a further direction, that the respondent should deposit further rent with leamed Rent Controller, before 15th of each calender month. Ghulam Qadir, landlord and, Bashir Ahmad, tenant, died during the pendency of writ petition and in consequence, legal heirs were brought on record.
4. Vide order, dated 19-4-1989, writ petition was accepted and orders, dated 18-3-1984, as well as 25-2-1986, allowing objection of respondent and dismissing appeal thereagainst, respectively, were quashed, with direction that the leamed Rent Controller should decide objection petition, after framing issues-and recording evidence of parties in accordance with law.
5. After remand, the learned Rent Controller, vide order, dated 13-11- 1989, accepted objection petition by declaring respondent as tenant. The application of appellants, for withdrawal of rent was also allowed vide order, dated 14-1-1990, while ejectment petition was rejected.
6. The matter was taken in appeal, which was accepted by the leamed Additional District Judge Lahore, by his order, dated 18-11-1990, whereby the case was remanded to the leamed Rent Controller, with the direction, to start proceedings afresh, .From 13-11-1989, by impleading legal heirs of Ghulam Qadir in the ejectment petition while respondent/objector, was ordered to be transposed as respondent in the ejectment, on treating him as tenant in the shop, lt appears, that the order was not challenged any further and proceedings scanned denovo, in terms of order, dated 17-11-1990, passed in appeal.
7. Resultantly, the appellants were impleaded as. Legal heirs of Ghulam Qadir while Haji Munir Ahmad was impleaded as respondent and ejectment was claimed on the ground of default in payment of rent, personal use and damage. Issues as to the rate of rent, default. Personal use and damage were framed, evidence recorded on merits and finally eviction petition was dismissed by the leamed Rent Controller, vide his order, dated 4-3-1993. Issue No.1, was decided in favour of appellant, whereby rate of rent was declared to be Rs. 800 - per month while ejectment petition was dismissed, by deciding issues of default, personal use and damage, in negative.
8. The two appeals were tiled, one by the appellants, to challenge the ing eviction and the other by respondent, to challenge the findings on issue No.1. Both these appeals were dismissed by the leamed Additional District Judge, vide order, dated 9-5-1996, who affirmed the findings of leamed Rent Controller.
9. S.A.O. No. 122 of 1996 has been filed by Mst. Fazal Bibi and others, to challenge the orders of leamed Rent Controller and leamed Additional District Judge, dismissing their eviction application as well as appeal, while S.A.O. No. 130 of 1996 has been filed by respondent. Haji Munir Ahmad, to challenge findings recorded against issue No.1. Vide order, dated 26-6-1996. Passed in S.A.O. No. 130/96, the appeal (SAO 130 96) was ordered to be treated as cross objections, u/O 41 Rule 22 of CPC. In SAO 122 of 1996. By this Court, both these appeals, i.e. S.,\.0. 122/96 and SAO No. 130'96 (registered as cross objections) are being dealt with and disposed of.
10. Leamed counsel for the appellants, argued that the learned Rent Controller as well as leamed Additional District Judge mis-construed the scope of Section 13(3) of Ordinance VI of 1959. And the impugned orders were passed by completely ignoring the rule laid down by the superior Courts. He submitted, that ejectment was refused, on the ground that financial resources were not disclosed and the Courts below were persuaded by the fact, that the appellants owned a residential house, though the ejectment was applied for a non-residential premises. He submitted that even if the appellants were held to be owners of residential house, the same would not debar them from seeking eviction of respondent from a shop, to run business nor it was necessary to disclose financial resources.
11. Conversely, leamed counsel for respondents submitted, that the two Courts below after considering evidence, did not accept plea of personal use. w which findings were immune from challenge in second appeal. He also argued, that the findings recorded against issue No.1, determining the rate of rent as Rs. 800/- could not sustain as there was no basis for the same.
12. The submission made by leamed counsel for the parties, have been given due consideration while evidence was re-examined, in the course of hearing of this appeal, with the assistance of leamed counsel for the parties for the purposes of considering the misreading and non-reading, pleaded by the appellants. For the purposes of disposal of these appeals, the issues raised in pre- remand proceedings, need not be considered, as Ghulam Qadir, the person who filed ejectment petition and Bashir Ahmad, against whom the petition was initially filed, have died and in the ultimate order, the appellants were substituted as petitioners while Haji Munir Ahmad, respondent herein, was impleaded as tenant, in the eviction petition, by accepting his plea of occupation of shop. Issues were framed on merits, which led the filing of these appeals. Both the leamed counsel, therefore, confined their arguments, to issue of personal use and rate of rent.
13. As for case of the appellants, set up in the amended petition, rented shop was required in good faith for personal use. Ln support of this plea, Hafiz Abdullah, Mian Rashid Ahmad and Muhammad Shahid appeared as AW-1, and AW-2 and AW-3 respectively. In his deposition. Hafiz Abdullah, stated that rate of rent was Rs. 800/-, the shop was required in good faith by the appellants for their personal use. He deposed that one of the appellants was serving in the market and had no personal business while another appellant, was jobless. The appellants were stated to be six.
Brothers, two sisters one mother. No one was carrying any business. AW-2 deposed that as per decision of Union rate of rent was Rs. 800/-, late Bashir Ahmad had six sons two daughters and one widow. One of them was a servant in a shop, one was blind, one was deaf and dumb while the other appellant was jobless. He deposed that the appellants had no other shop and that they need shop for their personal business. Muhammad Shahid, one of the appellants, appeared as AW-3 and deposed that Ghulam Qadir was his grandfather, the .Rate of rent was Rs. 800/-, the appellants had no other shop, there were six brothers, two of them, (he and Shaheen Ahmad) were mentally and physically sound and could do business and that Shaheen was serving in a shop while he was jobless. He deposed, that they would run the business of cloth in the shop and that they were not in occupation of any other shop to cater their need. The respondent produced RW-1, Syed Shaukat Hussain, who deposed that he was General Secretary of Union, the rate of rent was not determined by Union. He admitted that rent was being deposited with the Treasurer of the Union at the rate of Rs. 800 -per month and that the decision of Union was signed by its President.
He expressed his ignorance as to the fact that the appellants did not own any other shop. Ghulam Mohy-ud-Din RW-2, stated that the rate of rent was Rs. 35/- and on being asked, he expressed his ignorance as to the. Facts that the appellants did not own any other shop for their business. The respondent, appeared as RW-3 and deposed in support of his reply. He also expressed ignorance, as to the fact that the appellants did not own any other shop to run their business. He did not deny, that after decision of Union, the rent was deposited with the Treasurer of Union at the rate of Rs.
800/- per month. From the evidence, produced by the appellants, it becomes obvious, that they do not own or possess any other shop, in the same Urban area, except the rented shop. The witnesses produced by appellants, proved beyond doubt, about their personal needs and stated that Shahid and Shaheen, appellants, want to run business in the rented shop and that they had no other place to carry their business, lt is also established from these statements, that the appellants do not have any other business, one of them is working on daily basis while the other is sitting jobless. With a view to seek eviction, on the ground of personal use, a landlord is required to make statement on oath, in conformity with his pleadings to prove his needs. The statement, disclosing needs of landlord, not shaken in cross-examination, is considered to be an important evidence which cannot be over looked or brushed aside, for any extraneous reasons, particularly, when the material on record and preponderance of evidence were leaning in favour of landlord.
14. A close scanning of the evidence of appellants, particularly the statement of landlord, AW-3, leaves no room of doubt about the bona fide of the appellants. The credibility of these witnesses, could not be shaken in cross- examination. As a matter of fact, on material facts, like idleness of AW-3, absence of any business and shop with the appellants, were not seriously cross-examined to dislodge the statement. The statement of AW-3, and other evidence on record, clearly indicate that the appellants, did not own or possess any other shop, they had no other business, one of the appellants was jobless while the other was working on daily basis and that they intended to occupy the rented shop, for their personal business, for which there was no bar in their way. There is nothing in cross- examination, to injure their credibility.
15. Amazingly, the leamed Rent Controller, was persuaded by the factors, which were neither relevant nor material in considering the question of bona fide and good faith. The leamed Rent Controller, was persuaded by the fact, that the appellants own a residential , house in Gumti Bazar and did not disclose financial resources, while the leamed Additional District Judge was persuaded by the lack of disclosure of financial resources. The reasons, which prevailed with the two Courts below were preversed and devoid of any merit. Admittedly, appellants were seeking eviction from a shop and, therefore, ownership of residential house was hardly material for adversely effecting the requirements of a non-residential premises. It was not the case of respondent, that the appellants owned non-residential premises in the same Urban area. Rather, the witnesses of respondent, including the respondent himself, could not deny the suggestion, that the appellants did not own any other shop to run their business. For non-suiting, a landlord, in the matter of vacant non- residential premises, suitable to his needs, in the same Urban area or had got vacated die same and rented, out. Even, simple ownership of other premises would not bar the maintainability of eviction petition on the ground of personal be, as it is the prerogative of landlord, to decide, which one of the shop will be suitable for his needs and in making such determination, he cannot be guided or directed by the tenant nor the tenant can suggest, that a particular shop should be occupied by the landlord to satisfy his needs. Similarly, it is not the requirement of law, that the landlord must disclose his financial sources, for enforcing his claim of personal needs. In Haji Majid v, Haji Imamuddin (1981 CLC 1091), it was ruled, that landlord need not to produce evidence of availability of funds, for seeking eviction on the ground of personal need, of running business. In Messrs Haji Jannat Gul & Co. v. Ch. Nawaz Haq and 6 others (1983 CLC 241), it was observed that the landlord is not required to mention in his application as to who would do the business and what sort of it nor he is required to give source Of capital, experience etc. In Muhammad Usman v. Iqbal Hussain Khan (1995 CLC 831 Karachi), it was ruled, that landlord is not under any obligation to give particulars of business proposed to be established in the rented premises.
16. Even otherwise, in the modem age of advance economy, where the business community, uses finances of banks and financial institutions, it is not difficult to raise funds, by getting financial assistance from any banking institution against a security of the property. This fact can be taken note of that in these days huge business is being carried in the Country, with the assistance of financial institutions and therefore, arrangement of funds is hardly a problem, in these days. Even otherwise, it is no requirement under the Ordinance, to disclose, financial resources, for seeking eviction on the plea of personal use to run business in the rented shop. The leamed Rent Controller as well as leamed Additional District Judge, therefore, committed material illegality, by being persuaded by extraneous and irrelevant considerations and ignoring, that the bona fide and good faith, was proved, in this case independently.
17. In Mst. Saira Bat v, Syed Anisur Rehman (1989 SCMIC1366), it was held that the landlord has to state in his application, the material facts, which constituted cause of action Which prima facie show that the requirement was according to law and was made in good faith. It was ruled that landlord is not required to state nature of the business, which he intended to carry, as the same was neither essential nor formed part pf cause of action, it was further observed, that demand of higher rent by itself would not cause any doubt on the bona fide requirement, where the bona fide needs were independently proved. It was ruled, that the High Court, could interfere in concurrent findings, if there was misreading of evidence or legal principle laid down by Supreme Court had not been followed.
18. In Sh. Muhammad Yousuf v. District Judge (1987 SGMR 307), an order of ejectment was upheld, where the landlord had worked throughout his life, as a Cobler and wanted to run his business of Goldsmith along with his son. In Junta Sher v. Sabz Ali (1997 SCM R 1062). It , was held that it was not a legal requirements, that the landlord, seeking ejectment from commercial premises, on the ground of personal need, must disclose the nature of business he intended to start nor it was necessary to prove that he had experience in the trade business which he intend to start. It was observed that the statement of landlord on oath, consistent with the averments made in ejectment petition, will justify acceptance of evidence of landlord and ordering eviction.
19. The review of rule, laid in the cases, noted supra, would reveal, that in the cases, seeking ejectment, on the ground of personal use, the landlord, has to make statement on oath, consistent with the averments made in the petition, which has to be given due importance for deciding the question of bona fide and good faith. If the statement made on oath, is consistent and the credibility is not shaken, while the material on record and the circumstances of the case, lean in favour of upholding the plea, then the matter has to be examined, in the light of protection, provided by Section 13(4) of the Ordinance, which extends salutary check to protect the tenant, against any mala fide eviction.
20. One of the reason, which prevailed with the Courts below. Was, that in filing ejectment petition against Bashir Ahmad, the appellants, adopted a device to eject the respondent, in execution of the eviction order, secured against Bashir Ahmad, which was taken as an adverse factor to assume mala fide against the appellant, so as to doubt their plea of bona fide. This assumption, w as not only untrue and illogical, but also without any basis. Reason being, that in the first instance, the ejectment was not instituted by the appellants against Bashir Ahmad tenant Ghulam Qadir, filed eviction petition, against Bashir Ahmad and in those proceedings, eviction order was passed which was subsequently set aside and the case tried on merits, to determine the bona fide needs of the present appellants, w ho were impleaded as party through a amended petition, ln this situation, it was not the bona fide need of Ghulam Qadir, which was in issue but was the need of present appellants which was under consideration and. Therefore, any plea raised against Ghulam Qadir, could not be possibly used against the appellants, for the purposes of assuming mala fide against them, particularly w hen they w ere neither responsible for the same nor beneficiary thereof. The appellants proved their bona fide needs, independently and nothing was brought on record to establish any mala fide against them. This being so, they could not be non-suited on a plea which w as not available against them. Even otherwise Jiling of ejectment petition against Bashir Ahmad, could not be termed as mala fide. The fact of the matter is, that tenancy of Bashir Ahmad was not in issue but the respondent jumped in the proceedings with the claim, that he had joined Bashir Ahmad in the business, he had some claim of money against Bashir Ahmad, and in pursuance of the decision of Union, he was agreed to be taken as tenant in the shop, lt was never the case of respondent, that he was initially a tenant in the shop or that the ejectment against Bashir Ahmad was filed, fictitiously, to non-suit him, but his case was. That as a result of the subsequent arrangement, he was to be taken as a tenant and; therefore, could not be deprived from the rights in the shop, in pursuance of an ejectment order against Bashir Ahmad. Assessing the facts as they are. It could not be argued, that the filing of eviction petition against Bashir Ahmad, was a mala fide device to non-suit the respondent. As a matter of fact, the appellants could have, pleaded, that a arrangement between the respondent and late Bashir Ahmad tenant, could not effect their rights nor could create any rights in tenancy, but. with a view, to avoid contest on these questions, the respondent was accepted as a tenant and consequently, the eviction proceedings continued against him. To ascertain the plea of default and personal needs of the appellants. In this back-drop, the leamed Rent Controller, as well as the leamed Additional District Judge, adopted an absolute perverse reasoning, while assuming mala fide, for the filing of eviction petition against Bashir Ahmad. There was hardly any basis to raise such inference or assumption.
Even otherwise, to non-suit the landlord, the act of mala fide, must be linked up with the individual conduct of the persons, who are raising plea of bona fide. The appellants, who intended to use the shop, which being sought to be vacated, were not in picture, at the relevant time and had joined the proceedings, on the filing of amended petition, to raise their present plea of bona fide needs, w which had to be decided by the leamed Rent Controller, on its own merits, being uninfluenced by any extraneous reason. Taking the case as it is, it could not be said, that the appellants had used any device of illegally ejecting the respondent from the rented shop and the observations made by the leamed Court below' were without any legal or factual justification.
21. In this back-drop and for the reasons, taken hereinabove, it is concluded, that the appellants had proved their bona fide needs, independently, and without any shadow of doubt and that the findings recorded by the leamed Courts below, suffer from misreading, non-reading of the evidence and non-consideration of the rule laid by the superior Courts and, therefore, the same are reversed.
22. In so far as, objection of respondent, to the findings on issue No. 1, is concerned, the same is not well founded. The w witnesses of appellants, have pros ed, that the rate of rent was Rs. 800 -. Even otherwise, it is in the evidence of respondent, that as a result of understanding, in the conciliation proceedings before Union, the rate of rent was agreed to be Rs. 800 -. At which rate, the respondent had been depositing the rent with the Treasurer of the Union. Later, the rent deposited with the Treasurer, was ordered by this Court to be deposited with the learned. Rent Controller while the respondent was required to deposit the rent at the same rate. The respondent claimed tenancy, on the basis of the decision before the Union and after having taken benefit of the said decision, he cannot object to the rate of rent: at which, the rent was deposited with the Union and subsequently, with the Rent Controller. The leamed Rent Controller, as well as the leamed Additional District Judge, held the subsisting rate of rent as Rs. 800/-. Of which, no exception can be taken, in view of the evidence on record.
23. For the reasons herein above. S.A.O 122 of 1996 is accepted and by reversing findings of the leamed Courts below, on issue of personal use, ejectment is allowed, on the ground of personal use of appellants. The Appeal (SAO. 130 96). Treated as cross objection, is dismissed.
24. The respondent is directed to deliver vacant possession of the shop, within two months. No order as to the costs.