' Brief facts out of which the present second appeal arises are that the appellant filed an ejectment petition for ejectment of respondent from the disputed shop No,1 situated in P-79, Taj Market, Street No,5, Anarkali Bazar, Faisalabad on the ground of personal bona fide business/use of his son (Tahir Mehmood) and subletting the disputed shop by the respondent to other person on 28-7-1991 before the Rent Controller, Faisalabad. Respondent submitted the written reply and controverted the allegations levelled in the petition.
2. Out of the pleadings of the parties the learned Rent Controller framed the following issues:---
(i) Whether the petitioner requires the premises in dispute for his personal use and occupation in good faith? OPP.
(ii) Whether the respondent sublet in the premises in dispute? OPP.
(iii) Whether the petitioner received s.30,000 as "Pagri" and it was agreed that the petitioner shall not eject the respondent; if so, whether the petitioner is estopped to bring this petition? OPR
(iv) Whether the petitioner has no cause of action or locus standi to bring this petition? OPR.
(v) W hether the petition is not maintainable in view of preliminary objection No,4 of the written statement? OPR.
(vi) Relief.
' The learned Rent Controller after recording the evidence dismissed the ejectment petitio vide judgment and decree dated 24-i0-1993. The appellant being aggrieved filed appeal before the District Judge, Faisalabad who dismissed the same vide judgment and decree dated 24-6-1994.
Hence the present second appeal.
3. Learned counsel for the appellant only pressed the ground of personal need and slated that both the Courts below misread the evidence on record and decided the same against the appellant without any justification. He further stated that both the Courts below did not appreciate the evidence in true prospective. The appellant appeared in the witness-box and opposed the contents of the plaint that the disputed premises required for personal need for establishing the business of his son Tahir Mehmood who failed 2/3 times in B.A. Examination. He further stated that Tahir Mehmood also appeared in witness-box and approved the contents of the plaint. He also corroborated the statement of his father on all the material points. He further stated that the other witnesses are also corroborated the statements of appellant and his son. He further stated that both the Courts below erred in law to discord the evidence of the appellant and accepted the evidence of the respondent. He summed up his argument that it is choice of the landlord to select any of the premises for the business of his son but both the Courts below decided me case against the petitioner in violation of the principles laid down by the superior Courts. He relied upon the following judgments:---
(i) 1986 SCMR 1981; (ii) PLD 1997 SC 564; (iii) 1993 SCMR 2354.
4. Learned counsel for the respondent contended that it is settled proposition of law that parties are bound to adduce evidence in accordance with their pleadings. The appellant did not mention specific shop number in his ejectment petition. Therefore, judgments of both the Courts below are valid. He relied on AIR 1946 PC 97. He further stated that both the Courts below after proper appreciation of evidence have given concurrent finding of fact against the appellant. Therefore, this Court has no jurisdiction to disturb the finding of fact while exercising the power under section 100, C.P.C. He relied upon judgments:--- (i) PLD 1955 the FC 38 following (Abdul Majeed's case); (ii)
PLD 1965 SC 134 (Pathana's case); (iii) AIR 1950 PC 28 (Misri Lal Nayak's case) and (iv) PLD 1973 Lahore 47 (Murptaz's case).
' He further stated that concurrent finding recorded by the Courts below cannot be interfered by the High Court while exercising jurisdiction under section 100, C.P.C., howsoever erroneous that fnnding may be. He relied upon Haji Sultan Ahmad's case (1996 SCMR 1729). He further stated that R.W. 2 Qamar Munir stated in his examination-inchief that Tahir Mehmood did not require the shop for personal need but appellant did not cross-examine this witness on this, material point.
Therefore, both the Courts below have rightly come to the conclusion that the appellant did not require the premises for personal need in good faith. Since the appellant did not cross-examine R.W.2, Qamar Munir on that material point. Therefore, this portion of statement of R.W.2 shall deem to be admitted by the appellant. He relied upon 1991 SCMR 2300 (Mst. Noor Jehan's case) and PLD 1967 Lahore 1138 (Syed Iqbal Hussain's case).
5. Learned counsel for the appellant in rebuttal stated that in the title of the ejectment petition specific number of the shop which clearly reveals that the appellant filed ejectment petition for ejectment of the respondent from the specific shop. He further stated that present second appeal arises out of the proceedings and the Rent Restriction Ordinance. Therefore, provision of section 100, C.P.C. Is not applicibk in the proceedings out of the Rent Restriction Ordinance.
6. I have given my anxious consideration to the contention of the parties and perused the record myself. It is better and appropriate to reproduce me portions of the plaint, written statement, evidence of both the parties to resolve the controversy between the parties. i. Title of plaint. {{URDU TEXT}} ii. Para. 3 of the plaint. {{URDU TEXT}} iii. Prayer of the plaint. {{URDU TEXT}} iv. Para. 3 of the written statement on merits. {{URDU TEXT}} v. Statement of appellant/petitioner. {{URDU TEXT}} vi. R.W.2.
Qamar Munir examination-in-chief {{URDU TEXT}} It is admitted fact that Qamar Munir R.W.2 was not cross-examined by the appellant about the aforesaid petition. It is settled proposition of law that if a specific assertion made by the witness material to the controversy of the case is not challenged in cross-examination by putting contrary suggestions then the same is to be given full credit and usually accepted as true unless displayed by reliable cogent and clear evidence as pef pronouncement of the Supreme Court in case of Mst.
Noor Jehan Begum (1991 SCMR 2300). Reliance is also placed on case of Luqman reported in 1985 CLC 2327 but the question arises whether that portion of the examination-in-chief of R.W.2 is material to come to the conclusion that the appellant does not require the shop in good faith for personal need for establishing business of his son or not.
' R.W.2 stated in the aforesaid portion of his statement that Tahir Mahmood did not need the shop for personal need according to his view. Therefore, respondent did not discharge through onus to rebut the stand of the appellant or contradicted the statements of the appellant and his son. The question of personal need is considered in the reported case of Abdul Ghafoor and Abdul Qadir 1986 MLD 1636 and observed as under: ' That the balance of authority is that the statement of the landlord showing personal need should prima facie be a good ground for ejectment of the tenant unless the tenant succeeds in creating doubts in the story of personal need either by cross-examining the landlord or by producing evidence in rebuttal. As owner of the property it is the right of the landlord to use its property in the manner he chooses."
' The Hon'ble Supreme Court had also considered this proposition of law in case Qamar-ud-Din's case 1988 SCMR 819 and observed as under:--- "Wherein subject shop was required for personal bona fide use of the landlord and his son. In the said case also the landlord had stated 'want to run a general store in the disposed shop to earn my livelihood. I have two grown sons also I want to engage one of my sons in the business'. Statement was not challenged in the cross-examination not rebutted by any evidence produced by the respondents as such. Appeal was allowed."
' Hon'ble Supreme Court has also considered this aspect of the case S.M. Noor-ud-Din 1998 SCMR 2119 and observed as follows: "Once the landlord has duly acquitted himself by stating on oath that this requirement is in 'good faith' as understood in law, he should normally be deemed to have discharged his burden, which, thereupon shifts to the tenant for whom it remains initially, to cross- examine the landlord and, that being done, lead his own evidence in rebuttal."
' The Hon'ble Supreme Court came to the conclusion while deciding Jehangir Rustam Kaka's case 1992 SCMR 1296 and laid down the following principle:--- "In the impugned Judgment while discussing the evidence on the question of proof of bona fide requircment, reliance is placed on the case of Hassan Khan v. M.S. Munawar Begun[ reported in PLD 1976 Karachi 832 which view was subsequently confirmed in case of Ms. Taheed Khanam's v.
Muhammad Shamshad reported in 1980 SCMR 593."
Rule laid down in the case mentioned above is that on the issue of personal need, assertion or claim on oath by landlord if consistent with his averments in his application and not shaken and the cross-examination or disproved in rebuttal is sufficient to prove that need is bona fide. Ratio of the abovementioned case is the principle which is now time honoured. It is for the landlord to establish his bona fide need and assign reasons for such need. If need of the landlord is mentioned in the application and duly established through evidence, for which the landlord must enter in the witness-box and depose on oath about the personal bona fide need and assign reasons for such need, the Court would normally not question such need as was held by the Hon'ble Supreme Court in the aforesaid case of Jehangir Rustam 'Kakalia's case. The aforesaid proposition of law is also supported by the judgments of the Hon'ble Supreme Court PLD 1997 SC 564 (National Development Finance Corporation's case) and 1986 SCMR 1981 (Sarwar Khan's case). Para 3 of the plaint clearly reveals that the shop in question needs for personal business of appellant's son Tahir Mehmood which is duly supported by the statements of appellant and his son. They are consistent in their statements. Respondent failed to shake their statements even in cross-examination. Statements of the appellant and his son are also corroborated by the statements of Manzoor Ali and Abdul Majid A.W.1 and A.W.2, whereas respondent failed to produce any independent evidence to show that the said son was employed or was running any independent business to earn his livelihood.
Respondent also failed to prove any mala fide in filing of ejectment petition.
Considering the evidence produced by the parties, it reveals to me that the appellant has sufficiently established the requirement of the premises for the personal bona fide use of his son but both the Courts below misread the evidence on record and decided the case in violation of the principle laid down by the superior Courts in the aforesaid cited cases. Judgment cited by the learned counsel for the respondent is distinguished on facts and law as both the Courts below have given fnnding of fact against the appellant by misreading of evidence on record, by ignoring of material piece of evidence on record as mentioned above. Therefore, I came to the conclusion through perverse appreciation of evidence- in violation of the principles laid down by the super ,l Courts.
7. In view of what nas been discussed above I allow the appeal and set aside the impugned judgments and direct the respondent/tenant to hand over a vacant possession of the shop to the appellant.
' However, since the appellant is running his business in the premises since long, allow him nine months' time to vacate the premises subject to the condition that respondent deposits all rent due and also future rent for nine months in advance in Court as the principle laid down by the Hon'ble Supreme Court in M/s. Yameen Ayaz's case 1999 Supreme Court judgement 403 and hand over vacant physical possession of the same to the appellant.