Sardar Bacha respondent No.1 filed eviction petition in the Court of learned Rent Controller Dir at Timargara against the appellant for vacation of shops Nos.16 and 17, Block 'B' situated at Riaz Market Timargara on the ground of personal need of his son. The said eviction petition was resisted by the appellant by filing written statement. The learned Rent Controller after framing issues, recording pro and contra evidence of the parties accepted the petition and ordered for eviction of appellant from the suit shops was passed on 26-4-2001. The appellant was directed to hand over the vacant possession within a period of sixty days. Feeling aggrieved with the said judgment and order passed by the learned Rent Controller, the appellant filed the appeal in the Court of learned District Judge Timargara, respondent No.3 which was also dismissed vide judgment/order, dated 14-11-2001. Being aggrieved with the said judgments and orders passed by the Courts below, the petitioner filed Writ Petition No.1502 of 2001, but it was on 9-1-2002 that on acceptance of C.M.
No.1900 of 2001 the writ petition was directed to be treated as second appeal subject to all legal objections available to the other side.
2. Mr. Javed A Khan the learned counsel representing the appellant argued that respondent No.1 has failed to prove that the shops in question were required for the business of his son bonafidely.
The evidence on record shows that his son namely Riaz Ahmad who was examined as P.W.3 was not in possession of any medicine licence or any technical diploma for running the said vehicle.
3. It was also argued that respondent No.1/landlord, it is on record, had many shops vacant lying in the said Market but he did not occupy the same if any property was required for personal use of his son. Moreover, during the pendency of the case on 11-9-2001 two shops bearing Nos.18 and 19 were given on rent to Muhammad Habib son of Khasita Muhammad the rent agreement has been placed on file with C.M. No.289 of 2001. Since many shops are still available and the respondent No.1 had failed to prove his bona . fide need, the learned Courts below did not , appreciate the evidence and material available on record.
4. On the other hand Mr. Mazullah "Barkandi the learned counsel for the respondent No.1 argued that there was nothing available on record to show that respondent No.1 was already in possession of shops which were sufficient for his requirements. If two godowns were lying vacant the same were not proper/suitable for the business of his son who needed shop in front of the Market.
5. It was also argued that the appellant could not compel respondent No.1 or his son to occupy other shops which were not proper for the business and use of respondent No.1' s son.
6. It was also argued that there is concurrent findings of the two Courts below and the same needed no interference in the second appeal.
7. I have heard the learned counsel for the parties and perused the record of the case.
8. The questions which requires consideration are:--
(i) Whether the respondent No.1 has proved that the shops in question are required bonafidely for the business of his son?
(ii) Whether respondent No.1 could choose to establish business for his son in particular shops when other shops were already lying vacant in the same market?
9. So far as the first question is concerned, the respondent No.1 has through cogent evidence proved that the suit shops are required bonafidely for the business of his son. In order to prove this fact respondent No.1 appeared himself as P.W.1 and stated on Oath that the shops in question were required by him for the business of his son. He admitted that he was owner of 22 shops in Riaz Market and there was only one Godown lying vacant in the said Market. He repelled the question that of vacation, he shall give the shops in question on rent after gaining huge 'Pagri'. His son Riaz Ahmad for whom the suit shops are required appeared as P.W.3 and stated that he is B.Sc. and is unemployed, therefore, he wanted to start Medicines business in the shops in dispute on their vacation. Sardar Ali, Munshi of respondent No.1 also appeared as P.W.2 and supported the case of respondent No. 1/landlord .
10. The argument of the learned counsel for the appellant that Riaz Ahmad, son of respondent No.1/landlord did not possess any diploma or certificate regarding medical technician course, therefore, he was A incompetent to start business of Medicines and hence the bona fide need is not proved. This argument has no substance at all because in order to start with the Medicines business, it is not the requirement of law that a person must possess a diploma or a Medicines Technician Certificate, he can employee a person having requisite qualifications to obtain licence for running a drug store. Even otherwise Riaz Ahmad (P.W.3) is B.Sc. and with the said qualification, he could easily obtain licence for running Medicines business.
11. Not only the respondent No.1/landlord (P.W.1) but Riaz Ahmad, his son (P.W.3) also made statement on Oath that the shops in question were required bonafidely for the business of Riaz Ahmad. Their statements were consistent with the averments of eviction petition and could not be shaken in cross-examination or disproved in rebuttal. This fact alone was sufficient to prove the bona fide of the landlord. In this regard reliance is placed on Jeharigir Rustam Kalia v. State Bank of Pakistan (1992 SCM R 1296), F.R. Irani & Co. v. Begum Feroz (1996 SCM R 1178), Muhammad Shauib Alam v. Muhammad Iqbal (2000 SCM R 903), Sardar Nabeel Wali v. Additional District Judge/Appellate Authority Sahiwal and others (PLD 2000 SC 829) and Iqbal Book Depot v. Khatib Ahmad and six others 2001 SCM R 1197).
12.So far as the other question is concerned, it is by now established law that the landlord has a complete option to choose from one of the several tenements occupied by tenant to avail of the personal requirement and the said discretion is not assailable, exception the rarest cases of bad faith. Wisdom in this regard has been taken from judgment passed in S.M. Nooruddin and 9 others v. SAGA Printers (1998 SCM R 2119), wherein it was held:-- "The law is too well-established on the point viz that a landlord has a complete option to choose from one of the several tenements occupied by tenants to avail of the personal requirement and the discretion is not assailable, except in the rarest cases of bad faith."
It was the onus of the petitioner to prove that the respondent No.1 or his son was in occupation of any shop or there was any shop lying vacant which was a proper for their business but he failed to prove on record this fact. No doubt respondent No.1/landlord is owner of 22 shops in Riaz Market. In his statement Sardar Ali (P.W.2) admitted that there were two Godowns lying vacant which were very small and were not sufficient and proper for the business of the son of respondent No. 1. The appellant in his statement vaguely stated that there were many shops lying vacant but he could not point out any shop which was lying vacant and was proper for the business of son of respondent No.1 when the tenant was unable to prove the occupation of any other shop by landlord sufficient for, his requirement, then he could not be allowed to say that a landlord should occupy other than one which he requires for his business. Reliance in this regard is placed on a dictum laid down in Shahzada Ayaz v. Zainab Bibi (2000 SCM R 485). It was further the pendency of this appeal that C.M. No.289 of 2002 was moved to seek permission to place on record certain documents alongwith the said C.M., photostat copy of an agreement, dated 11-9-2001 was placed on file showing that two shops bearing No.18 and 19 were vacated during the pendency of the eviction petition and given on rent to Habib Muhammad who has further sublet the same to someone else. This document produced by the appellant cannot be relied upon at this stage because of its inadmissibility.
13. Even otherwise if the landlord during the pendency of proceedings got certain shops vacated and re-let the same and if evidence shows that those shops were not suitable for the requirement of the landlord, in such circumstances, renting out the other shops cannot reflect on bona fide requirement of landlord. Landlord has a right to decide which portion he would retain with him for the business of his son and he could occupy those shops which suit his son for running his business. Reliance in this regard was placed on Dr. Fazalur Rehman v. Mst. Hanifan, etc. (NLR 1982 CLJ 209).
The net result of the above discussion is that the respondent No.1/landlord has proved that the suit shops were required by him for the business of his son who was jobless. In case of failure to occupy the suit shops, protection under subsection (4) of section 13 of the Rent Restriction Ordinance, 1959 has been provided to the tenant/appellant, I, therefore, do not find any reason to interfere with the concurrent findings of facts recorded by the Courts below. The appeal in hand is hereby dismissed with no orders as to costs.