' This judgment will decide S.A.O. No,85 of 1998 and S.A.O. No,86 of 1998 as the same raise common questions of law and facts.
2. Muhammad Amin Butt and Abida Sultana Butt, appellants in the two appeals, are husband and wife, who filed two separate ejectment petitions for seeking eviction of respondents in these appeals from the rented shops, on the ground of their personal use. S.A.O. No,85 of 1998 arises from the ejectment case filed by Muhammad Amin Butt while the other appeal (S.A.O. No,86 of 1998) arises from the ejectment case filed by Abida Sultana Butt.
3. In S.A.O. No,85 of 1998, the facts are, that the appellant applied for eviction of the respondent (Abdul Razzaq) from the shop on the ground that the same was required by him for his personal use, to run the business of General Store. It was claimed that ever since the purchase of the property including the shop, the appellant was sitting idle, had nothing to do and that he wanted to carry his own business in the rented shop: It was also alleged that there was only one shop but the respondent used to obtain three receipts to give an impression as if he was in occupation of three shops. In brief, the ejectment was claimed from the shop, which was one unit and according to the respondent it comprised of three shops. The cement was opposed on the ground that the learned Rent Controller had no jurisdiction, the ejectment petition was not verified or signed in accordance with law, there were three shops which were wrongly described as one shop, the previous ejectment petition filed by the landlord was dismissed for non-prosecution on 16-6-1991, and therefore, the second application could not proceed, the appellant was only interested in increasing the rent and getting Pagri, there was no bona fide need to occupy the shop and that the ejectment petition was filed without any cause of action. After evidence, the ejectment was allowed by the learned Rent Controller vide order, dated 17-6-1997 but in appeal the order was set aside and ejectment petition dismissed by the learned Additional District Judge vide order, dated 15-4-1998. This led to the filing of S.A.O. No,85 of 1998 by the landlord.
4. In S.A.O. No,86 of 1998, the facts are, that Abida Sultana Butt appellant applied for ejectment of respondent (Masood Alam Chisti) from a shop on the ground of her personal use. It was claimed that the appellants had been working in a Garments Factory abroad and bad the experience in garments Business and that she intended to open a Botique of Readymade Garments for ladies along with provision of baby needs in the shop in question and, therefore, the shop was required by her in good faith for running her own business. It was added that although the respondent occupied one shop but he used to have two receipts by exerting pressure on the husband of the appellant to create an impression that he was occupying two shops, though in point of fact there was only one shop. The ejectment petition was resisted on similar grounds as taken in the other case, namely, petition was not maintainable, not signed and verified in accordance with law, there were two shops but shown one in the ejectment petition, the intention was to increase rent and secure Pagri, earlier ejectment petition was dismissed for non-prosecution and, therefore, the subsequent potion was not maintainable and that the ejectment petition was mala fide. After evidence learned Rent Controller allowed ejectment petition vide order, dated 17-6.1997. In' appeal order was set aside and the ejectment petition was dismissed vide order, dated 15-4-1998 of the learned Additional District Judge, Lahore, which led to the filing of the present second appeal.
5. Learned counsel for the appellant argued that none of the grounds which prevailed upon the learned Additional District Judge for reversing the findings of the learned Rent Controller were tenable in law and that the learned Rent Controller virtually made it impossible for the appellant to ever apply for the ejectment on the ground of personal use, which view cannot be approved in law.
It was added that there was substantial evidence record to prove bona fide need which considered by the learned Rent Controller but in appeal the learned Additional District Judge overlooked the evidence and proceed on conjectures and surmises. It was contend that bona fide having been proved, the plea on alleged increase in rent was never considered to be a ground to adversely reflect the bon fide of the landlord. Learned counsel submitted that the purchase of the property for a smaller amount could hardly be a factors relevant in the adjudication of personal use causes under the rent laws.
6. In reply, .It was argued by learned counsel for the respondent, that the appellant avoided stamp duty and as such, not entitled to discretionary relief, the preamble of the rent laws makes it obvious that the Ordinal provided a safeguard against mala fid eviction, the inaction of the landlord for 2- 1/2 years after the dismissal of earlier ejectment petition for non-prosecution would reflect adversely against the plea of bona fide the increase of the rent in the past would speak heavily against the appellant, the property being located in Shad Bagh, there could be no possibility of a lady running a Botique in such area, the landlord had no funds to run the business and that the finding of fact recorded in appeal could not be challenged in second appeal and has to be given preference as against the findings of the learned Rent Controller.
7. The points raised by learned counsel for the parties have been given deeper considerations and the evidence on record has been examined with the assistance of learned counsel for the parties.
8. Appellants, in these two appeals, sought ejectment of respondents on the ground of personal use. Appellant in S.A.O. No,85 of 1998 claimed that the shop was required by him for running his own business of General Store as on return from abroad he had no work. In the second appeal filed by wife of appellant in S.A.O. No,85 of 1998, ejectment was claimed by the landlady for running Botique of Readymade Garments for ladies along with provision for Baby needs. She claimed to have been working in a Garments Factory abroad and having experience in this business. For proving the plea of bona fide, appellants in both the cases appeared as their respective witnesses and deposed that they were in need of the shops for running their own business. Muhammad Amin Butt appeared as P.W.4 in his own case while Abida Sultana Butt appeared as P.W.3 in her own ejectment petition. As P.W.4, Muhammad Amin Butt deposed that he lived in Norvey for 16/17 years where he was running a General Store and that he required the shop in issue for running his own General Store. He further explained that he had no other vacant shop in his possession to carry the requisite business. Detailed cross-examination was made but the statement could not be shaken.
From the statement of P.W.4, appellant, it is obvious, that the appellant was previously living in Norvey, he had migrated to Pakistan, he intended to run his own business in Pakistan, he had no other business in Pakistan, he was not in occupation of any other vacant shop suitable to his needs and that he was desperately in need of the shop in issue. His statement was also corroborated by the evidence of P.W.1, P.W.2 and P.W.3. As against this, the evidence of R.W.1; R.W.2, R.W.3 and R.W.4 is mainly to the effect that the appellant wanted to increase the rent and that he was not in need of the shop. R.W.1 admitted in his cross-examination that he has no knowledge as to the personal use of the landlord. R.W. 2 admitted in cross-examination that he did not know as to what the appellant was doing in those days and that he only knew that the appellant had been visiting Norvey. On being further examined he expressed his ignorance if the appellant had been running a General Store in Norvey and had the experience in this business. R.W.3 admitted that the landlord never issued any notice for the increase .Of rent. Respondent appearing as R.W.4 admitted that after 199,1 appellant never issued any notice for the increase of rent. The evidence on record, thus, proved beyond doubt, that the appellant had established the plea of personal use and that the respondent could not make out any case of mala fide. The only plea of alleged intention to increase rent stands demolished by the admissions made by witnesses of the respondent. Who did not deny that no notice for the increase of rent was ever issued. So much so, witnesses of respondents were unaware of the personal need of the landlord or as to his business abroad. It is also observed that the learned Rent Controller did take note of the above circumstances and also the evidence but the learned Additional District Judge completely misdirected himself by being influenced from the factors which were neither relevant nor material .
9. In the other case, Abida Sultana Butt appellant herself appeared as P.W.3 and made a detailed statement as to her personal need. She stated that she had been running a shop of garments in Norvey and that she had experience in this business. It was deposed by her that the building was purchased in 1990 and that except shop in issue she was not in occupation of any other vacant shop and that the respondents despite commitment did not vacate the shop. She was also subjected to lengthy cross-examination but the statement could not be shaken. P.W.3 appellant was corroborated by P.W.1 and P.W.2 who deposed about the personal need of the landlady. As against this, R.W.1, R.W.2 and R.W.3 produced by the respondent claimed that the appellant did not need the shop and intended to increase the rent. R.W.1 admitted in cross-examination that Abida Sultana Butt appellant had been doing business in Norvey. In cross-examination he expressed his lack of knowledge if the appellant wanted to run garments business. R.W.2 also admitted that the landlady had been doing business of garments in Norvey. He expressed his lack of knowledge if the landlady was idle from 22-11-1990. So much so, he expressed his lack of knowledge in cross- examination, as to the personal need of the landlady.
10. The evidence and circumstances referred to hereinabove, thus, make it clear that the appellant had proved her bona fide. The facts as emerged from the evidence are that the landlady was in Norvey, she was running her garments business abroad, she migrated to Pakistan, purchased the property and decided to run garments business in which she had the experience and that she was not in occupation of any other shop suitable to her needs in the same urban area and that the aforementioned facts could not even be contradicted or denied in cross-examination by the witnesses of the respondent.
11. Interestingly, the learned. Additional District Judge was influenced by the argument that on the sale-deed in favour of the two appellants lesser stamp duty was paid and lesser price of the property was shown and from this he assumed that the ejectment petition was not bona fide. It was wrong consideration which influenced the learned Additional District Judge. In the first instance, the relationship of landlord and tenant was admitted and the respondent' had nothing to do with the title deed of the property or the duty paid thereon. The purchase in favour of the appellants was through registered sale-deed and it was the duty of the Collector to see that the document was properly stamped. If in the subsequent sale-deed the property is sold for a lesser amount it does not lead to an inference that the same was done to avoid stamp duty. One can take judicial notice of the fact that for so many years there is a slump in the market, buyers are not available and one finds it difficult to dispose of the property according to his choice price. The sale at the lesser price could also be for the reason that the seller was in need of the money and therefore, he was willing to sell it at throw away price. Whatever may be the circumstance, the fact remains that the sale-deed was drawn on a stamp paper according to the value given in the document and the Collector never objected that it was insufficiently stamped. This being so, it was none of the concern of the tenant to find fault in the title deeds on erroneous assumptions. It appears to be an example of chronic litigant, who with a view to harass the landlord, remains in search of frivolous objections to prolong the litigation by misdirecting the trial, with a view to continue stay in the property. The learned Rent Controller or the learned Additional District Judge were hardly required to go into this question. Once the relationship of landlord and tenant was established and admitted, there was no reason to look into the title deeds or to critisize the mode of sale. Only requirement under section 13(3)(a)(ii) of the Ordinance was to examine the bona fide of the landlord, in regard to the use and occupation of the shop and if the landlord had proved that he was not in occupation of any other shop, he was in need of the shop to run his own business, he had not previously got vacated a shop and rented out, then the question of bona fide had to be read in context with section 13(4) of the Ordinance, which provides salutary check against any mala tide eviction. For this purpose, the statement of the landlord is always of paramount consideration and if the statement is consistent with the pleading and nothing could be extracted in cross- C examination, then the bona fide is deemed to have been established. Reference can be made to M/s. F.K. Irani & Co. v. Begum Feroze (1996 SCMR 1178) and Jumma Sher v. Sabz Ali (1997 SCMR 1062). In this case the statements by the two appellants were consistent with the pleadings, material facts necessitating eviction of, the tenant were highlighted, particulars of the bona fide needs were given, the appellants were idle, had the experience in the business for which the shops were required and that their statements could not be shaken in cross- examination and therefore, the issue of bona fide was rightly decided by the learned Rent Controller which was illegally reversed in the appeal sy the learned Additional District Judge.
12. The argument as to the funds is wholly untenable, as in the present advance society where all the businesses are conducted with the active cooperation of financial assistance from Banking Institutions, the arrangement of funds can neither be a problem nor the landlord is expected to prove that he has already sufficient funds to run the business, inasmuch as the landlord, on vacation can arrange the funds necessary for the business, from his personal sources and also from the Banking Institutions. The, ejectment petitions cannot be thrown away on such plea.
13. The argument, that the previous ejectment petition was dismissed for non-prosecution, but the subsequent petitions were filed after more than two years was hardly of any relevance. It is a settled rule that the dismissal of ejectment petition for non-prosecution does not attract bar of section 14 of the Ordinance VI of 1959. Reference can be made to Ghulam Muhammad v. Khan Muhammad Sabar Lai (PLD 1969 Lahore 327) and Abdul Salam v. Banaras Khan (1989 SCMR 98).
Even the learned Additional District Judge as well as the learned Rent Controller repelled the objection as to the maintainability of the petitions due to the dismissal of earlier petitions for non- prosecution. Filing of the subsequent ejectment petition after two years stands explained in the evidence, as according to the appellants, the respondent had been promising to vacate the shop which were not vacated despite commitments. In any case, filing of the ejectment petitions after two years of the dismissal of earlier ejectment petition could not lead to any adverse inference against appellant. The facturn of bona fide needs has to be established on the existing evidence which as noted supra, proved beyond doubt, that the appellants are genuinely in need of the rented shops for their own business. The objection is, therefore, devoid of substance.
14. As to objection that one of the appellant has been visiting abroad frequently and that the lady appellant cod not run the business in Shad Bagh, Lahore, the same are wholly without merit. It is not necessary for the landlord, to stay in the country or to remain idle, during the ejectment proceedings and if he had been visiting abroad in the past or in the course of ejectment proceedings, it could not be inferred that he was not in need of the shop. All that the landlord is expected to do is that on vacation of the shop he should occupy it within one month, use it for the purpose for which the ejectment was obtained and not to rent it out to anyone else during the statutory period. If he fails to occupy, the tenant has right to seek restoration of possession in terms of section 13(4) of the Ordinance. In this view of the provision of law, there is no substance in the objection raised. Similarly, it is a common knowledge that most of the Botiques, Beauty Parlours and other business concerns are being run by the ladies in important markets of the city. Even in the villages womenfolk work side by side with the men. The shops in issue are located in Shad Bagh, Lahore and at a place which is commercial. There is hardly any bar or disability to run a botique by a lady in such-like place. Even otherwise, keeping in view the specific circumstances of this case, the objection becomes immaterial. The landlady, has proved to be working in Norvey and running a garments shop for about 15 years. In these circumstances, it is immaterial for her whether she works abroad or in her own home town. The objection is totally devoid of consideration.
15. Regarding plea of alleged demand for the increase of rent, the witnesses of the appellant admitted that no notice for increase of rent was issued by the landlord/landlady after 1991. Even the evidence is indicative of the fact that the previous increase was proportionate to the increase permissible in law. Be that as it may, the plea of alleged increase in rent or demand of Pagri cannot reflect adverse to the plea of bona fide if bona fide need is established independently. Reference can be made to Shamsul Islam Khan v. Pakistan Tourism Development Corporation Ltd. (1985 SCMR 1996) and Nisar Ahmad Khan v. Noor Muhammad Khan and 6 others (1990 SCMR 544). In this case, the bona fide need has been independently established and, therefore, the plea taken by the tenant was unworthy of consideration.
16. Regarding the fording of fact by the appellate Court, it is true that the findings of the Appellate Court have to be given preference but if the findings are perverse, suffer from legal infirmities, based on conjectures and surmises, recorded by totally misreading and non-reading of the record and are contrary to the provisions of the Ordinance and the rule laid thereunder, then the same cannot be approved and cannot be treated to be sacrosanct. In this case, as observed hereinabove, the learned Additional District Judge, proceeded on illegal assumptions, highly conjectural basis, misreading of the record and against the provisions of law and that his findings are contrary to the evidence and facts proved on the record, hence the order passed in appeal cannot be approved.
17. For the reasons above these appeals are allowed with cost throughout, orders, dated 15-4-1998 of the learned Additional District Judge in the two appeals are set aside, the orders of ejectment, dated 17-6-1997 of the learned Rent 'Controller are restored and respondents are directed to vacate the shops within four months.