This appeal under section 24 of Cantonment Rent Restriction Act, 1963, is directed against the order of the Additional Controller of Rents Peshawar Cantt: dated 4-3-1997 whereby an ejectment order against the appellant-tenant from the suit premises was passed and tenant was directed to put the landlord in possession of the suit property within sixty days.
2. The brief facts of the case are that the landlords-respondents herein brought an ejectment petition against the tenant-appellant herein from the suit property bearing Survey No,15(132-133) ground floor, Saddar Road, Peshawar Cana: under section 17 of the Cantonments Rent Restriction Act, 1963 asserting that formerly their father was the landlord who entered into lease agreement with the bank on 29-3-1984 for a period of ten years. During the lease period the property was transferred in the names of his sons, the landlords/respondents to whom the bank started paying rent. Before and after the expiry of lease period, the bank was served with two notices asking it to vacate the suit premises as the same was required by the landlords, for their personal use, but to no effect. The ejectment was sought on the ground that they were jobless and need the suit premises for their bona fide personal use to start their business in the suit property.
3. The ejectment petition was contested by the tenant-bank and on the pleadings of the parties as many as eight issues including relief were framed. Parties produced their respective evidence as they wished to adduce and on the assessment thereof the learned Additional Controller of Rents, Peshawar Cantt vide his order dated 4-3-1997 passed eviction order against the tenant-bank from the suit property with the direction to deliver the possession of the suit property to the landlords within sixty days from the date of order. Feeling aggrieved of the above order, the tenant-bank has filed this appeal in this Court.
4. Learned counsel for the appellant contended that under para. (i) of the lease Agreement the landlord had expressly waived all statutory and other rights of ejectment of the bank from the rented premises during the currency of the lease, as such the landlords could not file the ejectment petition against the bank on the ground of personal need. He submitted that the landlord failed to substantiate their alleged personal requirement in good faith of the suit premises for their bona fide personal use, as they failed to disclose the nature of intended business and the source of capital with which they would start their business. He urged that ground of personal need has been coined to pressurise the tenant to submit to their exorbitant demand of rent and thus is mala fide.
He submitted that the bank building was constructed with the advance rent paid to the father of the present landlords, therefore, they were estopped to bring eviction application against the bank.
5. On the other hand, learned counsel for the respondents while defending the impugned order argued that any provisions of the agreement violative of the law would be redundant and have no legal effect as there cannot be any estoppel against statute. He referred to the evidence and argued that the landlords have proved their bona fide requirement of the suit property by non- acceptance of the rent of Rs,80,000 per month.
6. I have given due consideration to the submissions of the learned counsel for the parties and have gone through the record of the case.
7. Section 5 of the Act (ibid) provides that the provisions of the act and any rule or order made there under shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force, or in any instrument or document. The Act has overriding effect over other laws for the time being in force and any inconsistent law, instrument or document shall he ineffective and futile as such the covenant violative of the law have no legal effect. The terms of the lease agreement which are contrary to the provisions of the Act (ibid) have no legal consequences as there can be no estoppel against statute.
8. The landlords in their evidence before the Controller of Rents have substantiated their claim of bona fide personal use beyond any doubt that they require the suit premises for running their business therein which have also been conceded to by the bank witnesses that the landlords who are jobless were not ready to accept the enhanced rent which was offered to them by the bank but they pressed for vacation of the suit premises on the ground. of their personal use. R.W.2 in the cross-examination of his statement also admitted that there was no mala fide on the part of the landlords in filing the eviction application against the bank. Although there is nothing on the record to suggest that the landlord ever demanded enhanced rent but the bank's plea is that the application is motivationally designed to pressurise it to accept the higher rate of rent. Even if such a demand is presumed, it would not by itself cast any shadow on the bona fide personal requirement of the landlords. Reference can be made to 1989 SCM R 1366. The evidence when examined in view of the safeguard provided to the tenant under subsection (6) of section 17 of the Act (ibid), the claim of the landlords get further support. The landords' deposition on oath being in line with the averment of the application regarding their personal need in good faith for doing their business in the premises, has not been shattered in the cross-examination which sufficiently establish their bona fide especially when it has been disproved by the tenant of bank. In case of 'Hassan Khan. v. Mrs Munawar Begum' (PLD 1976 Karachi 832) it has been held that in view of the safeguard contained in section 13(4) of the West Pakistan Urban Rent Restriction Ordinance, 1959, the assertion of claim on oath by a landlord that he required the premises for his personal use shall be accepted by the Controller as bona fide, if such claim or assertion is consistent with the averments of the application and is not shaken in cross-examination or disproved in rebuttal. The aforesaid observation or of the Karachi Bench has been approved by the Supreme Court of Pakistan in case of Mst. Tauheed Khanum. v. Muhammad Shamshad' reported in 1980 SCM R 593.
In view of the above rule the Controller of Rents has properly appreciated and assessed the evidence on the record which fully justifies the claim of the landlords that they need the premises for their bonafide personal requirement and they are not occupying any other such premises in the vicinity.
9. The assertion of the appellant that nature of proposed business has not been disclosed and/or the landlords have no business experience, is without any substance in the light of the observation of the Supreme .Court of Pakistan made in case of Saira Bai. v. Anisur Rehman' reported as (1989 SCM R 1366) which reads as follows:-- "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 facts 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 had 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."
10.As for experience of business is concerned, it can be gained when one enters into the business of trade as no specific training is required for the establishment of private business. The above propositions came under consideration recently before the Supreme Court of Pakistan in case of 'Juma Sher v. Sabz Ali' reported in 1997 SCM R 1062 wherein it was observed as under:- "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 a 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 fide 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, however, 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 case, 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 Khanum v. Muhammad Shamshad (1980 SCM R 593).
11.The question as to who would provide the capital to the landlords was answered by Mumtaz Ahmad (P.W.3) father of the landlords in the cross-examination saying that he would provide the capital to his sons to establish their business. In view of the aforesaid answer given in the cross- examination to the tenant of bank's question, the bank is bound to accept the same as correct and true and it cannot be disputed later on.
12.According to the lease agreement the tenant-bank paid Rs,2,85,000 i,e, half of the rent of the five years, as advance rent and the other half equivalent to the aforesaid amount was paid after completion and handing over of the 1st phase of the building to the bank, and the total thereof was to be adjusted against the rent due which had been adjusted long before the expiry of the lease period. The landlords after adjustment of the advance rent and on completion of the lease period had all the rights under the law to seek ejectment of the tenant on the grounds provided in the Act (ibid).
In view of the above, this appeal being devoid of any merit deserves dismissal. The impugned order is proper and in line with the evidence on the record, to which no exception can be taken.
Consequently, this appeal is dismissed, leaving the parties to bear their own costs.