This is an appeal under section 15 (4) of the West Pakistan Urban Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance) wising out of the judgment dated 15-12-67 by the learned Vth Additional District Judge, Karachi, as appellate Authority under the Ordinance, ,whereby the order of ejectment against tae appellant passed by the Real Controller was affirmed and his appeal was dismissed.
2. The respondent Mrs. Mumtaz Zohra Rizvi, the landlady of the premises in dispute seeks the ejectment of the appellant who is the tenant in the premises, on the sole ground of bona fide personal requirement. The appellant is the tenant of the respondent in respect of one out of the three tenements in the house owned by the respondent at Firdous Colony. Karachi. The tenancy seems to have commenced in 8969 at the agreed rental of Re. 450 per month. The respondent had sought the ejectment of the appellant in the year 1972 on the ground of personal need but according to her the proceedings were dropped as her husband who is Deputy Director in the Survey of Pakistan was transferred to Rawalpindi. According to the respondent when her husband was transferred back to Karachi in 1974, the present proceedings for ejectment were recommenced on the same ground. Indeed proceedings have been filed for possession of the entire house against the tenants in all the three tenements on the same ground. The reasonableness of the ground was supported try pleading the fact that the family of the respondent consists of 8 members Include the landlady's husband, her aged father-in-law and her five school and college going children.
3. The appellant resisted the application and contended that the premises were riot required by the respondent in good faith as the 1970 proceedings were dropped "by enhancing the rent of the premises fromRe. 450 to Re. 500 per month" and before the institution of the present proceedings the respondent had again "enhanced the rent of the premises from Re. 400 to Re. 550 per month".
According to the appellant. Therefore, the present proceedings were filed with the intention to further enhance the rent as had happened previously.
4. The learned Controller by his order dated 11-8-76 accepted the application and ordered ejectment of the appellant. On appeal by the present appellant, the learned Vth Additional District .Fudge, Karachi affirmed the finding of the learned Controller and dismissed the appeal. Hence the present second appeal.
5. Mr. Khalid Jamil, learned counsel appearing for the appellant sought to impeach the concurrent findings of the two Courts below and invited me to re-examine the evidence adduced by the parties. In order to overcome the hurdle of concurrent finding, learned counsel first contended that the findings of the two Courts below cannot be deemed to be a concurrent finding of fact. He argued that the question of good faith of the landlady for seeking the order of eviction on the ground of personal need was not gone into try the two Courts below inasmuch as the effect of the admitted fact of enhancement of the rent on two occasions was not considered at all.
6. Before examining this contention, it will be pertinent to briefly summarise the evidence and the reasons which prevailed with the two Courts below in support of the finding sought to be impeached. The evidence adduced by the respondent landlady consisted of two witnesses, namely, herself and her husband Mr. Asghar Nawab Rizvi. In rebuttal the appellant himself appeared as his sole witness. On the main question pertaining to the requirement for personal use, the evidence of the respondent largely remained unrebutted. The respondent's evidence amply established that her husband has been transferred from Rawalpindi to Karachi, and .That upon arrival at Karachi the family was provided with temporary government accommodation of which however, they were deprived on the ground that the respondent owns her own house at Karachi.
Having been thrown out from the Government accommodation, the family of the respondent consisting of 8 members, have sought shelter in a single room lent to them by a friend. The appellant in his evidence, when questioned about the correctness of these cots, replied in the following words :- "I do not know that the husband of tine applicant has now `eon trans--feered to Karachi from Rawalpindi. I have not verified whether the applicant has been transferred from Rawalpindi to Karachi. I do not know that the applicant's husband had been dispossessed from the bungalow which was given to him in his official capacity by tie Government . . . . . . . . .I do not know about the number of the family members of the applicant." if this had been the only evidence, obviously there would be no room for questioning the correctness of the finding of the Courts below. However, the increase in the monthly rent on two occasions before the eviction proceedings, has been praised into service strongly by the appellant.
In this connection the facts on record are that at the commencement of the tenancy in 1969 the agreed rate of rent vas Re. 450 per month. Then in the year 1972 the respondent sought the aviation of the tenant on the ground of personal need but two years thereafter the proceedings were withdrawn. According to the respondent, this was done on account of transfer of her husband to Rawalpindi. The appellant showed ignorance about these facts but his case wan that respondent asked him to increase the rent and continue to occupy the premises. Accordingly the rent was increased to Re. 300. Once agar:) in July, 1974 a notice way served on the appellant demanding the possession of the premises as the same were required by the respondent on account of transfer of her husband back to Karachi. However, once again the respondent increased the rent to Rs. 550 and accepted the same for two months on 24-2-75 for the period between 6-12-1974 to 5-2-75 (Bah. D-2). Then the eviction proceedings were instituted on 15-3-1975.
7. The learned Controller rejected the plea of the appellant on the ground that mere oral assertion to the effect that the respondent had brought the eviction proceedings mala fide for enhancement of rent-, was insufficient as there is no allegation that further enhancement of rent was demanded by her. This reasoning eras affirmed in lot Appeal by the learned Additional District Judge.
8. The contention that the evidence regarding enhancement of rent or its effect has teen overlooked by the Courts below, in therefore unfounded. Learned counsel however, contended that no sanctity attaches to the .Concurrent finding of fact in this case as it was based on misreading and mis-interpretation of evidence and accordingly as postulated by their Lordships of the Supreme Court in Bibi Jan v. Habib Khan PLD1975SC295, the inference of proper legal effect is necessarily a question of law on which a second appeal is competent. There can be no quarrel with the principle enunciated in the cited decision. It was observed in Madon Gopal v. Maran Depahri P LD 1969SC617 that the legal position does not admit of any doubt that a concurrent finding of fact reached by the lower Courts will not be disturbed by the High Court in a second appeal even if it disagrees with that finding on its own view of the evidence, although the concurrent finding of the lower Courts may appear to be grossly erroneous, unless, as laid down in subsection (c) of section 100, the error or defect discovered is of a substantial character pertaining to the procedure as provided by the Code or by any other law for the time being in force which may possibly have produced an error or' defect in the decision of the same upon its merits. In the light of these principles it seems that the concurrent finding in this case is not open to challenge, merely because this Court can be persuaded to take a different it view of the evidence on record.
Be that as it may, the question that arisen is Whether the Courts below erred in property drawing the inference of tack of male fides on the part of the respondent from the absence of a demand for further enhancement of rent. This brings me to the consideration of the question of 'good faith' which is invariably material in case of an action for eviction on the ground o! Personal need.
9. Subsection (3), clause (a) of section 13 of the Ordinance lays down that a land), rd may apply to the Controller for an order directing the tenant to put the landlord in possession in the case of residential building, inter alia, if he requires it in good faith for his own occupation or for the occupation of any of his children. Clause (b) of this subsection, then lays down that the Controller shall, if he is satisfied that the claim of the g landlord is bona fide. Make an order directing the tenant to put the landlords in possession in the building. Accordingly the jurisdiction of the Controller tai order eviction on this ground is depended on his satisfaction that the claim of the landlord is bona fide and his requirement is in 'good faith'. The term 'good faith' Gas not been defined in the Ordinance but it has been defined in section 2(27) of the West Pakistan General Clauses Act, 1956 as follows :- "A thing shall be deemed to be done in "good faith" where it is in fact done honestly, whether it is done negligently or not."
This definition of the expression 'good faith' necessarily, therefore, implies that the demand for possession of the rented premises must be honestly made. Honesty is a state of mind and is therefore. a psychological fact capable o proof or disproof only by evidence or conduct. The word 'bona fide in the context of the provision in question would also appear to mean the same as 'good faith'. Male fides, conversely means "in bed faith". It bas been held that action taken for collateral purposes not authorised by the law under which, the action is taken or actions taken in fraud of the law are Mala fide. It is necessary, therefore, for a person alleging that an action has been taken mala fide to show that the person responsible for taking the action has been motivated by any one of the considerations mentioned above (PLD 1974 SC 151). In actual practice a landlord would be deemed to have satisfied the aforesaid conditions by leading evidence of the reasonableness of his needs and if he succeeds in doing so, the onus would shift to the tenant to prove facts which militate against the existence of good faith or 'which positively establish the dishonesty of purpose on the part of the landlord to claim possession of the premises on the ground of personal need. If therefore, the circumstances brought on record are capable of being explained consistently with an honest claim for possession to satisfy personal need, they will in no way be construed to have discharged the onus of the tenant referred to above. In the instant case, as pointed out earlier, there is no reason to disbelieve the claim of the respondent that the premises in question are required reasonably by her. But the contention is that the past conduct of the respondent in enhancing the rent twice, tends to reflect upon the bona fides of the claim. 1n the narration of the facts I have shown above that the appellant did not allege in his pleadings that he was compelled to increase the rent as a result of threat of eviction, nor in the evidence any such assertion has been made. In Federation of Pakistan v. Saeed Ahmed PLD1974 S C151 it was observed teat mala fides must be pleaded with particularity, and once one kind of male fides is alleged, no one should be allowed to adduce proof of any other kind of male fides nor should any enquiry be launched merely on the basis of vague and indefinite allegations. It will therefore tie reasonable to inter that the rent was enhanced without compulsion and the previous proceedings were dropped as the respondent no longer required the promises for personal use on account of the transfer of her husband to Rawalpindi. The fact of enhancement of rent would have assumed significance if the allegation lead been that in the past, the respondent extorted the agreement to enhance the rent under compulsion and that before the present proceedings a further enhancement v as sought by her. The facts on record are however, that the respondent accepted the rent at enhanced rate of Rs. 550 only about 20 days before the institution of the present eviction proceedings. If the landlady had been dissatisfied with the increase of Rs. 50, she might ass well have refused to have accepted the same and carried out her threat of eviction. The provisions of the Ordinance cannot be used as a penalty for increase of rent as such unless that fact tends to show the lack of good faith on the part of the landlord with reference to the claim for personal use. I am therefore, unable to find fault with the reasoning of the Courts below that in absence of an outstanding demand for enhancement of rent, the bona fides of the claim cannot be doubted. 1n this view of the matter I am of the confirmed opinion that the concurrent finding arrived at by the Courts below is not open to question in the present appeal.
10. It was next contended on behalf of the appellant that although according to the case of the respondent the premises were required by her in July, 1974, yet the proceedings for eviction were commenced in March, 1975. There is no substance in this submission as it overlooks the fact that after the transfer of the respondent's husband to Karachi in July, 1974 for sometime he was provided with Government accommodation which was .Taken away subsequently.
11. Lastly the learned counsel for the appellant urged that the respon--dent having sought eviction of all the three tenants on the ground of personal need, it was incumbent upon her to prove the reasonableness of her requirement in respect of the entire accommodation comprised in all the three tenements. However, as pointed out earlier, the appellant dial not seriously dispute the reasonableness of the demand as he showed total ignorance about the members of the family of the respondent and other circumstances in that behalf. At any rate, the present proceedings, as the pleadings clearly show, are confined to the premises in the occupation of the appellant and the questions pertaining to accommodation in occupation ,of other tenants which are subject- matter of separate proceedings, would not be germane to the controversy herein. The argument is therefore irrelevant and merits no consideration.
12. For the foregoing reasons, this appeal, fails and is accordingly dismissed with no order as to costs. The appellant shall have 4 months to hand over possession of the premises to the respondent.