'SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal has been directed against the judgment of the High Court, dated 10-11-2000, whereby accepting the writ petition filed by the respondent, the findings of the Rent Controller and the District Judge were set aside and the case was remanded to the Rent Controller after recasting the issue in terms 'whether the application filed by the appellants-owners to eject the respondent from the shops rented to him was bona fide'.
2. The brief facts of the case are that Dr. Zafar Iqbal, respondent, obtained two shops, one hall and five rooms, situate in Sector F/1, Mirpur, on rent from the appellants herein. The appellants, herein, filed an application for the ejectment of the respondent alleging that the respondent sublet and made alterations in the same in violation of the agreement between the panies. It was also alleged that the appellants, herein, wanted to construct a plaza after demolishing the shops standing over the site. After taking necessary proceedings, the Rent Controller passed the ejectment order holding that the respondent committed violation of the agreement between the parties by making alternation in the structure of the shops and by making further lease in favour of one Zaheer Ahmad. He further held and that the shops in dispute were needed by the appellants, herein, for the construction of a plaza after demolishing the old structure. An appeal filed by the respondent to the District Judge was also dismissed. However, on writ petition to the High Court, the case was remanded to the Rent Controller on the ground that it was necessary for the appellants, herein, to prove that their application for the ejectment of the respondent was bona fide. The learned Judge expressed the opinion that the onus of proof of Issue No,4 should have been placed on the appellants, herein, and not on the respondent. Thus, the learned Judge also recast the said issue.
3. Mr. Riaz Tabassum, the learned counsel for the appellants, has argued that the condition of proving the mala fides was only required so far as the stand of the appellants that they wanted to eject the respondent for construction of a plaza was concerned, and not regarding the other two grounds, namely, that the respondent committed violation of the agreement between the parties by making alteration in the structure of the shops and by subletting the same to a third person. The learned counsel has further submitted that even otherwise, the parties were alive to the subject- matter of Issue No,4. Therefore, even if it is assumed for the sake of argument that it was necessary to recast the issue, and change the onus of proof of the said issue, that would not necessitate the remand of the case because the parties have led evidence in support of their respective contentions. The learned counsel has argued that the onus of issue does not remain static rather that shifts during the course of trial and as such the burden of proof loses its importance; it is important only when the evidence on the point is equally balanced. The learned counsel has cited following authorities to prove his contention:-- ' In a case reported as Syed Afaq Hussain Shah v. Chaudhry Sadaqat Ali PLD 1998 Lah. 431, it has been held that the statement of the landlord was sufficient to prove the bona fides of the application under section 10 of the West Pakistan Urban Rent Restriction Act, 1959. It was further observed that the tenant did not insist on framing an issue either before the Rent Controller or the appellate forum, the point could not be raised for the first time in the second appeal.
' In a case reported as Dr. Hassan v. Additional District Judge 1983 CLC 2446, it has been observed that non-filing of the approved plan under section 13(2)(vi) with the ejectment application is merely an irregularity which stands rectified when the same is filed during the trial at a subsequent stage.
' In a case reported as Hanif v. Malik Ahmed Shah 2001 SCMR 577, it has been held that the provisions of Civil Procedure Code are not strictly applicable under the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959, but the same can be resorted to in the interest of justice and (airplay.
' In a case reported as Tariq Hussain Hashmi v. Master Ali Ammar '2001 SCMR 664, it has been held that the expression "in good faith" appearing in section 15(2)(vii) of he Sindh Rented Premises Ordinance, 1979, Could include the requirement of the parents if the applicant.
4. In reply, Mr. Liaquat Ali Khan, the arned Counsel for the respondent, has rgued that the bona fides or good faith were be proved by the appellants, herein, as quired under the provisions contained in 14 of the Azad Jammu and Kashmir ent Restriction Act, 1986. He has contended at Issue No,4 was not properly framed and, us, the High Court has right1y recast the me and remanded the case. He has further bmitted that the landlord is bound to prove at he requires the property in good faith and at his requirement was reasonable one. Ms. According to the learned counsel, the appellants, herein, failed to prove that they to eject the respondents in good faith reconstruction of the plaza on the site ere the structure of the rented shops stood structed. The learned counsel has referred to a case reported as Ghulam Nabi v. Mushtaq Ahmad PLD 1980 SC 206, wherein while discussing section 13(2)(vi) of the West Pakistan Urban Rent Restriction Ordinance, it has been held that the landlord was bound to prove that his requirement was reasonable and bona fide.
5. We have given due consideration to the arguments raised at the Bar. It may be stated at the very outset that the learned counsel for the respondent has failed to show as to how it was necessary for the appellants to prove the bona fides so far as the factum of subletting the rented property and making alteration in the structure of the same were concerned. The learned Judge in the High Court did not resort to the aforesaid two grounds and remanded the case on the question of establishing "good faith" which was only required for the construction of a plaza under section I4(2)
(vi) of the Azad Jammu and Kashmir Rent Restriction Act, 1986. Even if it is assumed for the sake of argument that there was no sufficient material on the record to prove the bona fides of the appellants regarding the said construction, the fact remains that none of the parties sought the recasting of the issues at any stage. It is well-settled principle of law that if the parties were alive of a point and led evidence in support and rebuttal of the same, the wrong framing of issue or even non-framing of the issue, would not justify the remand of the case. Similarly, the onus of proof of the issues is immaterial when both the contending parties were alive to the subject-matter of Issue No,4 and led evidence in support of their respective contentions. As has already been stated, the ejectment order passed by the Rent Controller and affirmed by the District Judge could be maintained even on one of the grounds which have been listed abo' e. Therefofe, we are of the consideree inion that the learned Judge in the High Court has committed an error by ordering the de novo trial of the issue which was recast.
' In the light of what has been stated above, we accept the appeal, set aside the impugned judgment of the High Court and restore the order passed by the Rent Controller and affirmed by the District Judge with amendment. In the circumstances of the case, we make no order as to the costs.
Appeal accepted/