JUDGMENT.
Respondents/predecessors filed an ejectment petition against the appellant seeking his eviction from the Shop No. 3, situated in Plot No. C-113, Awan Market, Sector II, Khayaban-e-Sir Syed, Rawalpindi, on the sole ground of personal requirement. This ejectment petition was resisted by the appellant and after recording of evidence, learned Rent Controller, vide order, dated 4-7-1991, allowed the same.
2.Against the above, the appellant filed an appeal which was dismissed on 6-2-1994, by the Appellate Court. Hence this second appeal.
3. Learned counsel for the 'appellant has submitted that during the pendency of the appeal, the appellant had filed two applications for additional evidence to show that the respondents after the ejectment order, dated 4-7-1991, of the Rent Controller, has got vacated two shops adjacent to the shop in dispute, which have been relet. This has serious reflection on the requirement of the respondents.
4. The Appellate Court on these two applications did not pass any separate order. However, while passing first impugned order observed in paragraph No.7 as follows:-- "Before me, it was vehemently argued that this requirement of Shahid Nadeem was not bona fide. It was asserted on the ground that had this requirement been bona fide, the landlord Shahid Nadeem could have made use of any of the other two shops got vacated and let out after passing of the impugned order. I do not subscribe to this view of the learned counsel, because it is a settled law that it is choice of the landlord to have any of the premises for his requirements as per his needs. Otherwise, the order of ejectment was already passed in favour of the landlord when the two other shops were vacated. By occupying any of the other two shops, he would have lost the fruits of litigation, which he had earned after years. He, therefore, could have preferred to stick to the shop, the ejectment from which had been ordered earlier in his favour and against the tenant.
This does not in any case reflect adversely any bona fides of the landlord who was seeking ejectment for personal requirement. Admittedly, the other two shops are not vacant now and in case on the basis of vacation and reletting of two other shops, this order is reversed, it will be an absolutely an illegal order and will be against all propriety because the landlord would be deprived of his legal right to get a shop vacated for his personal bona fide requirement."
5. The analysis of the above part of the impugned order shows that the Appellate Court disallowed additional evidence for the reasons (i) these shops had fallen vacant after passing of ejectment order by the learned Rent Controller (ii) if respondents had occupied these shops, they would have lost fruits of the litigation in their favour; (i.e) is the choice of the landlord to seek the ejectment and to occupy any particular property; (iv) admittedly, the shops were not vacant at the time when order was passed by the Appellate Court.
6. On the last date of hearing, when the case was being argued by learned counsel .For the appellant, I had asked the respondent No. l present in the Court, as to whether two shops did fall vacant, he categorically denied and stated that in fact the tenants of such shops had only changed their business name and the shops continue to be in possession of the same tenants.
Today, the same question was repeated to the learned counsel appearing on behalf of the respondents, who after consulting respondent No. 1, has admitted the vacation of the shops, however, maintains that these were not suitable for the needs of the respondents, thus, were not occupied. It may be pertinent to mention that the above fact has been separately recorded in the order sheet and signature of respondent No. l has also been obtained.
7. In view .Of above admitted position, I do not find the necessity of remanding the case for the recording of additional evidence, rather myself intend to examine the effects of the above, on the "personal bona fide requirement" of the respondents. It may be advantageous to state that subsequent events can always be taken into account by the Court in appeal, especially when such events are undisputed.
8.I have heard learned counsel for the parties, particularly, in view of the situation which has emerged now.
9. It has been contended by the appellant's side that on account of above position, the personal requirement of the respondents has diminished; the object of Rent Laws is not to oust the tenant but to provide him protection. The ejectment of tenant would only be allowed if the landlord makes the demand in good faith and is not in occupation of any other building, suitable to his needs. It is not enough that the landlord should not be in possession of any property at the time of filing the ejectment petition, rather if he subsequently gets the possession of some building, it shall be a relevant fact and shall reflect upon his bona fide requirement, unless prove that such building is not suitable to his requirement.
10. Conversely, the respondents' counsel submits that the above situation would have no bearing or reflection on- the bona fide needs of the respondents, for the reasons (i) it is the choice of the landlord to occupy any particular property; (ii) two shops mentioned above, had never come in occupation of the respondents, but were relet; (i.e) in second appeal, the Court is only confined to examine the legality of the decision arrived at by the Courts below and not decision can be made on the basis of the some material which was not on the record and before the lower Courts. In other words, it is submitted that the subsequent events cannot be taken note by the Court in second appeal.
11.I have heard the arguments. The provisions of Rent Restriction Ordinance are not meant to simply oust the tenant at the whim or caprice of the landlord, rather a protection has been provided that until and unless a landlord is able to prove, one of the grounds mentioned in section 13 of the Rent Restriction Ordinance, he shall not be entitled to seek ejectment of his tenant.
Regarding "bona fide requirement" or the landlord, it is clear that he, in order to seek ejectment of his tenant, has to establish that his requirement is in good faith; he is not in occupation of any other property suitable for his needs.
However, if the landlord has more than one properties, which are in occupation is no other property suitable in his possession to cater for his requirement. Law definitely gives prerogative to the landlord to ask for the eviction of any of his tenants. A tenant against whom, he apply for the ejectment, obviously cannot take up the plea that the landlord should seek ejectment of some other tenant, as such property would be more suitable to his requirement. It is in such cases. The established rule is that the landlord is the best judge of the suitability of the building he requires.
And it is his choice in that behalf.
12. In the present case, the proposition regarding choice of landlord is absolutely irrelevant and inapplicable. In this case, the landlord wanted the shops in question for his personal requirement, alleging no other shop suitable for his need; but before the final culmination of the proceedings, he did come in possession of two shops. It was incumbent upon him, particularly when the other side had pointed out the above fact to appellate Court, to have conceded, to the additional evidence and could have shown to the Court, that though he has come in possession of the shops, but those, for certain valid reasons were not suitable, for nature of business, which he intended to carry. In the instant case, the respondents even uptil the last has been denying the fact of vacation of shop, which has serious reflection on their bona fides.
13. From the perusal of proceedings before the Appellate Court, it has transpired that applications for additional evidence were resisted by the respondents and in their reply the factum of vacation was vehemently denied.
14. Learned Additional District Judge, who was then seized of the matter, had asked respondent No. l to state whether shops did fall vacant. As envisaged in the order, dated 6-2-1994, he made contradictory statement, thus, show-cause notice for make false statement was issued to him, but was subsequently, withdrawn for certain technical reasons.
15. Be that as it may, a landlord is required to establish good faith for his requirement; he should approach the Court with clean hands; establish and throughout the proceedings till those are finally terminated, maintain the honesty of purpose; take the Court into confidence and then leave it for the Court to decide about his intention of requirement. This aspect is glaringly lacking in the present case, the respondents' attitude is most dubious and deceitful. He has denied of haring got vacated the two shops before the learned Appellate Court in the written reply to applications for additional evidence, but when confronted in the Court he first lied and then acknowledged as is clear from the order dated 6-2-1994. Even before this Court, on the last date he made a misstatement, but ultimately admitted to have got the shops vacated.
16. Learned counsel for appellant has relied upon PLD 1993 Kar. 300 to contend that in view of the respondents coming in possession of two shops, during the pendency of the appeals, their right to personal requirement stood extinguish. Contrarily in reply the respondents side has relied upon 1983 CLC 824, that the vacancy would not effect the personal requirement, because the shops so vacated were not suitable for the needs of the respondents. I am afraid that the facts of the case relied upon by the respondents are totally distinguishable and does not support their case.
17 The present case has special features and to my mind, the conduct of the respondents is of great significance, which is the determining factor for their good faith in demanding eviction of the appellant. The good faith and bona fide is seriously lacking in the instant matter.
18. As regards the submission of the learned counsel for respondents, that in second appeal the Court should only confine to the record and decision rendered by the Coams below is not well- conceived, the Court in second appeal Q can always look into the event which has direct nexus and bearing on the result and fate of the case. As the respondents, could only have cause of action qua disputed property, if they did not have possession of any other suitable premises. Once having come in possession of the shops; which were admittedly relet, not only the cause of action in their favour diminished, rather their good faith was also seriously impaired. ,
19. In view of the above. I accept this appeal set aside the impugned orders of ejectment passed by both the Courts below. Dismissed the ejectment petition filed by the respondents, with costs throughout the proceedings.