' By this common judgment I propose to dispose of F.A.O. Nos. 103 of 1999 and 104 of 1999 as both the appeals arise from a consolidated order.
2. Briefly stated the facts are that the appellant filed two eviction applications in the Court of Senior'
Civil-Judge-cum-Rent controller, Quetta on 24-2-1997 which were registered as Eviction Applications Nos. 2 of 1997 and 3 of 1997 in respect of shops bearing Municipal No, 1-19/36 and 1-19- 37 situated at Shahrah-e-Iqbal (hereinafter referred to as the shops in dispute) on the ground of personal requirement of his son Mehmood Ahmad. It is averred in both the Eviction Applications that initially the shops in dispute were one unit and by raising a partition wall the said unit was bifurcated. It was further averred that the son of the applicant Mehmood Ahmad discontinued his studies after 9th class and is jobless; thus the appellant wants to establish business for him in the shops in dispute.
3. The respondents herein filed their rejoinder and resisted both the eviction applications. It was stated in the rejoinder that previously also an eviction application was filed by the appellant in respect of the shops in dispute and the said eviction application was contested up-to the Hon'ble Supreme Court, and ultimately dismissed. Out of the pleadings following issues were framed in both the applications:-- "(1) Whether the eviction application is not maintainable in view of legal objections "A" to "C" raised in W/S?
(2) Whether the shop was converted into two by raising an intervening wall an separately let out to the respondents?
(3) Whether the disputed shop is required by the applicant for use and occupation of his son after removing the intervening wall?
(4) Whether the applicant is entitled for the relief claimed for?
(5) Relief?
' It may be mentioned that both the cases were consolidated and common evidence was led in both the applications. The appellant produced A.W.1 Mehmood Ahmad, A.W.2 Shaukat Hussain, A.W.3 Ali Muhammad and Jahangeer Ahmad was examined as Attorney of the appellant.
' In rebuttal the respondents produced R.W.1 Bismillah R.W.2 Mehrban, R.W.3 Abdul Sattar, R.W.4 Ghulam Rasool and Muhammad Rafique appeared as attorney for Chaudhry Abdul Karim in F.A.O.
No, 104 of 1998 and Ghulam Sarwar appeared for himself and for Kalam Khan in F.A.O. No, 103 of 1998.
6. After assessm ent of the evidence on record, the learned Senior Civil Judge-cum-Rent Controller dismissed the eviction applications vide order dated 30-7-1998; hence the aforesaid appeals.
7. Mr. Tariq Mehmood Advocate for the appellant in both the cases contended that the learned Senior Civil Judge has dismissed the Eviction Applications on grounds not tenable under the law and further contended that the impugned order is based on misreading and misappreciation of evidence where the appellant had independently proved personal bona fide use and occupation of his son Mehmood Ahmad.
8. Syed Ayyaz Zahoor, Advocate for the respondents contended that as the appellant had suppressed the material evidence from the Courts; thus, his eviction application has rightly been dismissed. He further contended that the learned Senior Civil Judge has properly appreciated the evidence in its true perspective; thus no interference was called for in the impugned Order.
9. I have heard the learned counsel for the parties and with their assistance have also perused the record.
10. It may be noted that it is mentioned in the eviction application that the son of the applicant Mehmood Ahmad discontinued his studies after 9th class in 1995 and is jobless; thus, the shops in dispute were required by the appellant to establish business for him. The respondent tenants, through their evidence have brought on record that the son of the applicant had passed Matriculation Examination in 1997 and has taken admission in College. The learned Controller has held that the son of the appellant Mehmood Ahmad passed his matriculation and is studying in F.Sc. Thus, has concealed the fact that he is studying in F.Sc. Which negates his personal bona fide use, and the evidence produced by the appellant is inconsistent with the eviction application. Mr. Tariq Mehmood Advocate for the appellant argued that after filing of the eviction application, the landlord cannot be expected to sit idle during the pendency of the eviction proceedings. He further contended that during such period the landlord or for whose benefit the rented premises is required, employees himself in a gainful occupation such as getting admission in college, etc. It would not negate his personal bona fides. Mr. Tariq Mehmood, Advocate further contended that the landlord seeking ejectment of this tenant from the non-residential premises was only required to prove that he requires the premisses in good faith for his own use or use of his children. He or his said child is not occupying any building situated in the same urban area where the rented premises sought to be vacated is situated and has not vacated any building in the same urban area.
11. I have given my anxious considerations to the arguments advanced by the learned counsel. It may be observed that Eviction Applications were filed in February, 1997. It was averred therein that the shops in dispute are required by the appellant for personal bona fide use and occupation of his son Mehmood Ahmad who had discontinued his studies in 1995. Mehmood Ahmed himself appeared in support of his contention and contended that he had no interest to study further and wanted to do business in the premises in dispute. His personal bona fide use and occupation was not challenged in cross-examination. In rebuttal R.W.3 Abdul Sattar stated that Mehmood Ahmad had passed his Matriculation Examination, and R.W.5 stated that Mehmood Ahmad has taken admission in F.Sc. Pre-medical. Be that as it may, even if the son of the appellant has passed his Matriculation Examination in 1997 and has taken admission in F.Sc. Pre-medical, this fact alone would not cast any doubt on his personal bona fide use and occupation of the shops in dispute.
The arguments of Mr. Tariq Mehmood Advocate has substance that during the pendency of the eviction application, the landlord or his son during the pendency of the eviction application have employed themselves in gainful occupation, that would not negate the assertions of bona fides on their part. In this regard reliance is placed on Saeed Ahmad V. Tariq Nazeer Butt and another, 1987 SCM R 220.
12. Coming to the next limb of arguments advanced by Mr. Tariq Mehmood, Advocate that in the case of personal requirement for the premises, the landlord has to prove the following factors:--
(a) That the premises are required by him or by his male children in good faith;
(b) That the landlord and his children are not occupying any building in the same area where the required premises is situated;
(c) He has not vacated any such building in the same urban area.
13. It is pertinent to note that Mehmood Ahmad in his statement stated that he is jobless and not in occupation of any such building in the same urban area where the premises in dispute are situated and has not vacated any such building. He was cross-examined at length and even Attorney Jahangeer Ahmad also corroborated the statement of Mehmood Ahmad. The respondents in cross-examination tried to bring on record that two other eviction applications were also filed against different tenants to which the Attorney replied that the said eviction applications are pending and the same have been filed for his own personal use and for the use of his father i,e, appellant who wants to open a medical store. There is nothing on record to show that the appellant is in possession of vacant shop in the same vicinity or has vacated any shop in the past. The learned Rent Controller has dismissed the eviction application on the ground that the witnesses who appeared on behalf of the appellant are interested and further observed that Mehmood Ahmad for whose requirement the shop in dispute is required and the attorney being son of the appellant have materially suppressed the facts as mentioned above. Mr. Syed Ayyaz Zahoor, Advocate supported the Nervations of the learned Rent Controller. It may be observed that the learned. Rent Controller has dealt with the issue of personal requirement in a very careless manner and the learned Rent controller has misread the statement of Mehmood Ahmad and that of attorney and has based his findings on material which is not recognized in the Rent Restriction Ordinance, thus are not tenable.
14. Syed Ayyaz Zahoor, Advocate tried to argue that previously also the eviction application was filed which was dismissed but soon'after the dismissal of the previous application, the instant applications were filed which shows mala fides of the landlord. It may be mentioned that previous applications were filed by the appellant on the ground of default which was contested upto the Hon'ble Supreme Court and ultimately the applications were dismissed. Suffice it to observe that there is no bar on filing subsequent eviction applications on different grounds from the ones raised in the previous eviction applications Admittedly the previous eviction applications were filed on the ground of default whereas the instant applications were filed on the ground of personal requirement; thus, the argument that ground of personal requirement could have been raised in the previous applications even before Supreme Court, is devoid of force. Even the finding of the learned Rent Controller regarding the previous applications are also misconceived and not tenable under the law. It may be observed that once ground of personal requirement is proved independently, then other irrelevant contentions raised by the tenant such as landlord employing himself during the pendency of eviction application and his previously filing on Eviction Application on a different ground, would become completely immaterial. Ejectment of the tenants falls within the four corners of section 13 of Balochistan Urban Rent Restriction Ordinance and provides specific grounds on which the landlord could seek eviction. Once such ground is proved, the contentions raised by the tenants as mentioned above would be of no significance. In this regard I am fortified with the view taken in M/s. F.K.Irani & Co. v. Begum Feroz, 1996 SCM R 1178. In the case in hand as observed above, the question of personal bona fide use and occupation was independently proved by the appellant that he required the premises in dispute for his personal use and occupation and for his son Mehmood Ahmad, thus, during the pendency of the eviction application, if Mehmood Ahmad got admission in college and the appellant had also filed an eviction application on the ground of default which was dismissed, would not negate the assertions of bona fides on his part. Thus in my considered opinion, the findings arrived at by the learned Rent Controller regarding question of personal requirement of the son of the appellant are not based on proper appreciation of evidence and the learned Controller has not appreciated the relevant law in its true perspective; thus the impugned order is not sustainable under the law.
15. Regarding the argument of the respondents that the applications are based on mala fides, suffice it to observe that if the landlord fails to occupy the rented premises, the tenant who has been evicted may apply to the Rent Controller that the possession of the premises be restored to him; thus, under section 13(4), C.P.C., interest of the tenant has been safeguarded.
16. Syed Ayyaz Zahoor, Advocate attempted to argue that the appellant has sought eviction of two shops which are separate units and cannot be bifurcated. It may be mentioned here that the appellants produced certificate Exh.A/1 from Municipal Corporation wherein permission has been granted to them for removing the intervening wall. However, it may further be observed that there is no bar if the landlord requires more than one shop. A.W.1 Mehmood Ahmad in his statement stated that the entire area of both the shops is about 780 sq.Ft, thus, both the shops would be sufficient for his use for business of wholesale of flour. The said statement of the landlord has not been rebutted by the respondnets. It may be mentioned that the law gives the landlord choice that if he says that he needs two shops at the same time, his statement has to be given due weight if confidence inspiring. In this regard I am fortified with the view taken in Dildar Hussain Nayyar v Niaz Muhammad Dar and another, 1985 SCM R 1769.
17. Consequently as a result of the above discussion the appeal is accepted and the eviction applications filed by the appellant are allowed. Respondents are directed to vacate the shops in dispute and hand over vacant possession of the same to the appellant within a period of four months. Parties are left to bear their own costs.