JAVED IQBAL, J.---These appeals by leave of the Court are directed against judgment dated 30-9- 1998 passed by learned Single Bench of High Court of Balochistan whereby the appeals preferred on behalf of the appellants under section 15 of the Balochistan Urban Rent Restriction Ordinance (VI of 1959) (hereinafter referred to as the Ordinance), have been dismissed and order dated 24-1- 1998 passed by learned Civil Judge-II/Rent Controller, Quetta, has been kept intact passed against all the appellants. We, therefore, intend to dispose of the above-titled appeals by this common judgment.
2. Leave granting order dated 2-6-1999 is reproduced hereinbelow to appreciate the legal and factual aspects of the controversy:-- "By this common order, we intend to dispose of the above eleven petitions for leave to appeal, which are directed against a common judgment dated 30-9-1998 passed by a learned Single Judge of the High Court of Balochistan in petitioners' F.A.O. Nos. 47 to 56 and 65 of 1998, filed against a common ejectment order dated 24-1-1998 of the learned Civil Judge-II/Rent Controller, Quetta, under section 13 of the Balochistan Urban Rent Restriction Ordinance, 1959, on the ground of personal requirement of the respondent's son Dr. Karim Bakhtiar, dismissing the same and affirming the above ejectment order of the learned Rent Controller.
2. The brief facts are that the respondent owns the building named 'Bakhtiar Building' situated on Jinnah Road, Quetta comprising a number of shops and offices (hereinafter referred to as the building). He filed eviction application No,39/94 for ejecetment of the petitioners on the ground that his son Dr. Karim Bakhtiar on having qualified M.B.,B.S. Examination from Pakistan had proceeded to America for acquiring specialty in Pathology and Medicine. It was further contended that after the completion of his studies, Dr. Karim Bakhtiar was due to return to Pakistan. It was further contended that Dr. Karim Bakhtiar intended to establish a hospital in the building because he was not in possession of any other such building in the area which could meet the requirement of his son for establishment of a hospital. It was further averred that the petitioners were apprised by the respondent about his above requirement by sending legal notices with the request to vacate the premises in their respective possession, but they refused to accede to his above request except two tenants, namely, Ahmed son of Haji Abdul Samad occupant of Rooms Nos.9, 14 and 15, and UBL, Circle Audit Office tenant of Rooms Nos.18 and 19 vacated the same. It appears that the break-up of the building and the tenants is as follows as reflected in the impugned judgment: S.No.Name Private No. Rent P.M.
1. Khawaja Ghulam Rabbani Shop.No. 1 Rs.5000
2. Mohsin Dass Shop.No. 1 Room No. 2Rs.635
3. Bazi Dr. Rehman Shop.No. 3 Room No. IIRs.844
4. Syed Abdul Ghaffar Shop.No. 4 Rs.500
5. Muhammad Arif Shop.No. 5,6 Room No. 7 Cabin Nos.1,2.Rs.1812.50
6. M/S. Salam Traders Shop.Nos. 1,8 Rs.687
7. Muhammad Qasim Khan Shop.No. 3 Rs.375
8. Shafiq Ahmed Khan Shop.No. 4 Rs.375
9. Mst. Anisa Begum Shop.No. 5 Rs.375
10. Haji Abdul Bari Shops.No.s 6,10 Rs.687
11. Ahmed s/o Abdul Samad Shops.Nos. 09,14,15 Rs.1250
12. Haji Abdullah Shops.Nos. 12,13 Rs.687
13. Seth Mangal Dass Shops.Nos. 16,17 Rs.562.50
14. U.B.L. Shops.Nos. 18,19 Rs.750
15. Haji Ahmadullah Shops.Nos. 20,21 Rs.750
16. Manhorar Laal Cabin No. 3 Rs.125 The above application was resisted by the petitioners/tenants, inasmuch as detailed written statements were filed. A number of preliminary objections were raised including the factum that the respondent's brother Haleem Bakhtiar, who originally owned the building, had obtained lacs of rupees as security/Pagri. It was also pleaded that the real intention of the respondent was either to pressurize the petitioners to enhance the rent of the premises in dispute exorbitantly, or to lease out the same to some other persons after vacation on the higher amount of Pagri or rent. It was further pleaded that the application for ejectment was filed malafidely and that the building was consisted of a number of rooms and shops which could not have been used as a hospital without demolishing it and reconstructing it for the purpose of a hospital. On merits it was denied that the respondent's son intended to come back from the USA or intended to establish a hospital. The learned Rent Controller after framing issues, recording evidence and hearing the parties allowed the above rent application by his aforesaid order. The petitioners/tenants filed the above F.A.Os., which have also been dismissed by the impugned judgment. The petitioners have therefore filed the present petitions for leave to appeal.
3. In support of the above petitions Mr. S. Ayaz Zahoor, learned counsel appearing for the petitioners has vehemently urged as follows:--
(i) That the two Courts below erred in holding that the respondent was able to prove personal bona fide requirement of his son Dr. Karim Bakhtiar on the basis of the material on record;
(ii) That there was no reliable evidence to conclude that the building in its present position can be converted into hospital, and that the entire building was needed for the hospital; and
(iii) that there was no reliable evidence to conclude that in fact Dr.Karim Bakhtiar intended to return to Pakistan as he is a Green Card holder and has been permanently settled in America.
4. On the other hand, Mr. Akhtar Zaman, learned counsel for the respondent/caveator has urged as under:
(i) that there was a concurrent finding of the two Courts below on the question of personal requirement and, therefore, it is not a fit case in which this Court should grant leave;
(ii) that even otherwise on merits there is reliable evidence to support the above concurrent finding of fact;
(iii) that the building was constructed in such a way that it can be used for a hospital without making any material alterations; and
(iv) that there is reliable evidence on record to conclude that factually Dr. Karim Bakhtiar intends to return to Pakistan upon the vacation of the building.
5. We are inclined to grant leave to consider the question as to, whether without having any plan indicating the particulars as to the area available in the buidling and without having particulars as to how the present building will be utilized as a hospital without carrying out material alterations or reconstruction, the learned two Courts below were justified in granting the ejectment in respect of the entire building on the ground of personal requirement of Dr. Karim Bakhtiar who admittedly had been residing in the U.S.A. For over a decade.
Leave is accordingly granted. The petitioners shall not be ejected till further orders, subject to payment of rent. The appeals arising from the above petitions may be fixed at an early date as there is a concurrent finding on the question of personal requirement."
3, It is mainly contended by Syed Ayaz Zahoor, learned Advocate Supreme Court on behalf of the appellants that the evidence which has come on record has not been appreciated in its true perspective which resulted in serious miscarriage of justice. In order to elaborate his contention he argued that the documents (Exh.A/1 to Exh.A/9 and Exh.A/11) relied heavily by the learned High Court were not admissible under the relevant provisions of Qanun-e-Shandat Order, 1984, and accordingly the same could not have been considered and relied. It is next contended that the son of respondent namely, Dr. Karim Bakhtiar had no intention to come back to Pakistan which aspect of the matter escaped notice and resulted in serious prejudice. It is urged with vehemence that the opportunity of leading additional evidence has not been afforded to the appellants in spite of the fact that the proper application was moved in this regard which was neither dilated upon nor decided and on this score alone the impugned judgment is liable to be set aside. It is contended that the non-appearance of the son of respondent for whom the building is required speaks about the mala fides on the part of the respondent and eviction application has been moved for the sake of eviction and the building in question would never be utilized for the purposes as enumerated in the eviction application. It is further argued that had it been the reality the son of the respondent would have appeared in person to explain his need and requirements. Syed Ayaz Zahoor, learned A.S.C. Also argued that the building in question in its present form cannot be utilized for establishing a laboratory and clinic. He also made distinction inbetween a clinic and that of hospital and according to him the building in question was not fit to be utilized as hospital and for the purposes of setting up a clinic a few rooms were more than sufficient. Syed Ayaz Zahoor, learned A.S.C. Argued that the eviction application was not moved with good faith but on the contrary it is based on mala fides.
4. Mr. M. Riaz Ahmad, learned A.O.R. On behalf of respondent supported the impugned judgment being free from any illegality or serious irregularity. It is contended that all the contentions as agitated before this Court were dilated upon and decided with diligent application of mind and the conclusion drawn by the learned High Court is based on proper appreciation of evidence and in accordance with settled norms of justice and thus hardly calls for any interference as no lawful justification is available for it.
5. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of relevant provisions of the Ordinance and evidence which has come on record. The impugned judgment has been perused with care and caution. The entire evidence has been scrutinized with the eminent assistance of learned counsel for the parties. It is worth-mentioning that the prime contention as agitated on behalf of appellants seems to be devoid of merit that Exhs.A/1 to A/9 and Exh.A/11 being inadmissible should not have been considered for the reasons that authenticity and genuineness of the said documents were never challenged before the learned trial Court and, in our considered opinion, it is too late to challenge the admissibility of the said documents which could have been conveniently challenged at the opportune moment. No suggestion whatsoever was made to challenge the authenticity of Exh.A/11 or its contents. We are afraid at this belated stage no objection regarding the authenticity of said documents can be raised. A similar proposition was discussed in case Gulzar Hussain v. Abdur Rehman 1985 SCMR 301 and relevant portion is reproduced hereinbelow:-- "10. Section 67 of the Evidence Act lays down the mode of proof of the execution of a document. As a general proposition it is correct to say that every document given in evidence must be proved in the mode prescribed by this section and if it is not so proved it will be inadmissible in evidence. But this is subject to the exception in cases where proof of a document is dispensed with under some special provision. However, the mode of proof of a document is a question of procedure and is accordingly capable of being waived. Thus where objection as to the manner of proof of a document is not taken at the time the document is sought to be proved in the lower Court and the document is exhibited and referred to, no such objection can be allowed to be raised in appeal or revision. This Court had occasion to pronounce on this legal aspect in several decisions.
11. In Abdullah and 3 others v. Abdul Karim and others PLD 1968 SC 140 following the view taken in Gopal Das v. Shri Thakurji AIR 1943 PC 83 this Court referred to the rule laid down in the latter case as under: 'Where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. A party cannot lie by until the case comes before a Court of appeal and then complain for the first time of the mode of proof. A strictly formal proof might or might not have been forthcoming had it been insisted on at the trial.' On the basis of this rule this Court observed:-- The record in the present case does not also disclose that any objection was taken by the pre- emptors to the proof of this document when it was produced in Court by the counsel for the vendees and marked as an exhibit. The document not having been objected to must be deemed to have been admitted and, as such, the trial Court was clearly wrong in excluding it from consideration on the ground that it had not been formally proved. The document having been marked as an exhibit without objection became admissible in evidence and was rightly taken into consideration by the High Court. There can be no doubt as to the genuineness or admissibility of this document, for, it is not disputed that it forms part of the mutation record, and, indeed, was one of the documents upon which the mutation of sale was actually entered.'
Similarly in Malik Din and another v. Muhammad Aslam PLD 1969 SC 163 this Court reiterated the view and held that objection as to formality of proof must be taken at an earlier stage, and once thedocument is admitted in evidence such objection against admission cannot be allowed at appellate stage. This view has been followed in some recent decisions of this Court, namely Dr. Major Abdul Ahad Khan v. Soofi Muhammad Yasin and Brothers PLD 1984 SC 200 and Ghulam Muhammad and others v. Mehtab Beg 1983 SCMR 849.
6. We are not persuaded to agree with Syed Ayaz Zahoor, learned A.S.C. That his application for admission of documents and additional evidence was never considered and decided for the reason that no prayer for adducing any additional evidence was made in the said application and the prayer clause is silent in this regard which runs as follows:-- "It is, therefore, prayed that this Hon'ble Court may be pleased to give notice of the documents to respondents in the interest of justice."
7. How a Court can grant a relief which was never prayed for in a categoric manner. In our considered view proper application for producing additional evidence was never made. In such view of the matter the question of any discrimination does not arise.
8. We have also dilated upon the contention that the eviction application has been moved with mala fides and for the 'need' enumerated therein can be met in a few shops and eviction of entire building is not necessary. It is well-settled by now that "so far as Ordinance VI of 1959 is concerned there is a qualifying word attaching to the requirement and that is of good faith provided in the law itself. There is a penalty provision of restoration of the property in case there is failure on the part of the landlord. These qualifications, limitations and prescriptions clearly suggest the context by reference to which the law has to be interpreted and applied in a given situation. The requirement here does not mean the fancy, the desire, the fondness or the mere aspiration of an individual.
There has to be something more. It has not to be on the other extreme the need in the sense of survival or in the sense of continuing physical existence or a dire need without which the man cannot do. The meaning has necessarily to be fiked somewhere inbetween dependent on the facts of each case and the condition of the parties to the litigation and the nature of the property involved. A person may be very affluent and well to do may not need a property for his economic betterment. All the same he may want it to keep himself meaningfully preoccupied, to advance and fulfil his educational and cultural aspirations, to meaningly contribute in his own way to his social and intellectual betterment." We are conscious of the fact that "mere wish, convenience, whim or fancy of landlord, held, would not be enough to show that landlord 'requires premises in good faith'. Landlord must prove requirement of premises for reasonable needs and that he was not seeking eviction on pretext of requiring additional accommodation with oblique motive of realizing some extraneous purposes. Order of eviction would require satisfaction of Rent Controller that reasonable requirement of landlord would be met by occupation of premises. Eviction order could not be granted on vague allegations in eviction application. Mere ipse dixit of landlord that premises were required for accommodating of its senior staff was not enough. Plea of requirement would have to be supported by valid reasons as to how such requirement is genuine." PLD 1986 Kar.
84. The eviction application and the evidence led by the respondent would reveal that his son is highly qualified in medicine and pathology and wants to establish a well-equipped laboratory and hospital at Quetta. He cannot be deprived simply for the reason that he is a green card holder or presently working in USA or is, at the moment, not in Pakistan as pressed time and again because "going abroad during pendency of ejectment petition by itself cannot be considered as showing lack of bona fide. It has been observed in a number of cases that the landlord seeking eviction on the ground of personal requirement would not sit idle for periods of time during pendency of eviction proceedings. If during such period he employes himself in a gainful occupation that as a general proposition would not negate the assertion of bona fide on his part". PLD 1982 SC 317 + 1987 SCMR 220 + PLD 1982 SC 218.
9. We have also considered the question as to whether the entire building would be needed or a part of and, we are of the view, it may be left to the discretion of landlord who alone has the authority to decide this aspect of the matter and no advice or suggestion can be made binding upon him as the tenants cannot act as gratuitous advisers. In this regard we are fortified by the dictum laid down in 1968 SCMR 1087. Let we mention here at this juncture that "the real test whether a premises is required for personal use is whether the need is based on good faith. This being a question of fact and finding on this subject cannot be taken exception to unless it is shown that it suffers from violation of some fundamental legal principle in the matter of appreciation of evidence or omission of evidence or misreading of evidence". 1978 SCMR 437. Nothing solid or convincing could be brought in rebuttal showing that the need as expressed by the son of respondent (in letter Exh.A/11) is imaginary or based on mala fide. We would like to reproduce a portion from the said letter, contents whereof went unchallenged which would depict the reality in a better way:-- "On the ground level we can have the laboratory but for several reasons it will not be possible to rent out any of the room in the entire building for example, the laboratory will require chemical storage and I must insist on an absolutely smoke-free environment for this as we cannot have a fire safety hazard immediately next to our house. Moreover the equipment is extremely sensitive and if there are vibrations smoke etc. From the adjoining rooms, that will affect the precision and accuracy of the machinery. Additionally I cannot tolerate any unconcerned persons anywhere in and around the laboratory as this causes too many risks, i,e, I do not want anyone wandering in off the street being exposed to possibly infections material needless etcetera. Also this violates patient confidentiality particularly for drug abuse testing. It is unethical for a Physician to have a drug store on the premises and use this for business. All medicines used should be only from the hospital pharmacy sold at reasonable prices, and approved by myself as Medical Director. We cannot tolerate the use of substandard generic products. In Pakistan it is common for unqualified persons, including owners of Pharamacies to prescribe medicines as though they were Physicians. This will affect the reputation of the hospital and compromise the strict standards of medical care I hope to achieve. Above the laboratory we can have the patient rooms, where complete privacy is essential particularly for obstetrics, Gynecology and female patients in general. One section will need to be completely separate for female patients and lady doctors. For this reason on the first floor above the ground we cannot have any business premises of any kind Ladies in Pardah will not be comfortable otherwise. We might need a storage area here for Medical Records and Intensive Care Supplies." A bare perusal would reveal that the respondent's son has a firm determination to utilize the building in question for the purpose as mentioned hereinabove.
10. There is no cavil to the proposition that establishment of a personal need in last analysis becomes a question of fact (1980 SCMR 506) as such "bona fide personal requirement being a question of fact, concurrent findings of Courts below appearing to be justified on record stand concluded and cannot be interfered". (1986 CLC 2098 + 1986 CLC 591 + PLD 1977 Kar. 460 + PLD 1977 Kar. 277 + PLD 1977 Lah. 110 + PU 1977 Lah. 78). It is well-entrenched legal position that "where there is no showing finding being vitiated by misreading or overlooking of material evidence, the Supreme Court declined to interfere in the concurrent finding of the courts below". (1983 CLC 241 + 1984 SCMR 1283 + 1980 SCMR 767 + 1980 SCMR 751). "It can be inferred safely that question of bona fide personal requirement being a question of fact and if stands concluded by concurrent findings of the two Courts below it is not open to challenge in absence of any omission or misreading of evidence or violation of any principle of law. A careful analysis of the impugned judgment would reveal that it does not suffer from violation of any principle of law applicable to case and almost all the arguments advanced by Syed Ayaz Zahoor, learned Advocate Supreme Court mainly pertains to appreciation of evidence and hardly calls for any interference with the concurrent findings and conclusion as drawn by the Courts below. In this regard reference can be made to 1981 SCMR 161.
11. The upshot of the above discussion would be that the impugned judgment being free from any illegality or infirmity does not call for any interference and resultantly the appeals being devoid of merit are dismissed. The appellants are directed to hand over the vacant possession of the premises to the respondent forthwith.