1. The brief facts out of which the present appeal arises are that the respondent had taken the property in question No.13, Patiala Vakil Khana, Link McLeod Road, Lahore, from the appellant on rent in the year 1965. The existing rate of rent is admittedly Rs.720 per month. The appellant tiled an ejectment petition before the learned Rent Controller, Lahore on 26-1-1997 on the ground of personal need in good faith for her children who are not doing any business- and that the respondent has caused damage to her property. The respondent tiled written reply, controverted the allegations levelled in the ejectment petition. Out of the pleadings of the parties, the learned Rent Controller, Lahore, framed the following issues:--
(i) Whether the petition is based on mala fides? OPR
(ii) Whether the ejectment petition is barred by the principle of res judicata under section 11 of C.P.C.? OPR (i.e) Whether the plea of damage to the property in dispute is vague and false? OPR
(iv) Whether the petitioner is entitled to an ejectment order in his favour against the respondent on the basis of the averments of the petition concerning the property which has been described in para. 1 of this petition? OPP
(v) Relief.
2. The learned Rent Controller, Lahore accepted the ejectment petition vide order dated 17-11-1998.
2. The respondent being aggrieved preferred an appeal before the learned Additional District Judge, Lahore, who accepted the same vide judgment dated 7-4-2000 hence, the present appeal.
3. The learned counsel of the appellant submits that the judgments of the Courts below are at variance and the impugned judgment of the First Appellate Court is based on misreading and non-reading of the record and even the evidence of P.W.1 Fayyaz Bukhari and P.W.2 Farid Ikhlas have been misconstrued. He further submits that the First Appellate Court decided the appeal without adverting to the reasoning of the Rent Controller and in violation of the law laid down by the superior Courts. He further urges that when the premises are required for personal use by the landlady, it is not necessary .For her to appear in person and even her attorney can make statement on her behalf. In support of his contention, he relied upon Gohar Rashid v. Fazal Hasan Mazhar (PLD 1995 Lahore 469). He further urges that it is not necessary for the' landlord to mention the particulars of business in contents of ejectment petition. In support of his contention, he relied upon the following judgments:-- Lahore Diocesen Trust v. Messrs Glaxo Laboratories (1996 MLD 1825).
3. Qamaruddin v. Hakim Mahmood Khan (1988 SCMR 819).
4. Haji Mohibulah & CO. And others v. Kh. Bahauddin (1990 SCMR 1070).
5. He further urges that the landlord has the prerogative to select any of the premises owned by him for his personal use. He further urges that sons of the appellant had no experience in the business, has no ground to dismiss the ejectment petition. He further urges that it is also no ground that sons of the appellant have settled in outside the country. The First Appellate Court accepted the appeal of the respondent in violation of the law laid down by the superior Courts. In support of his contentions, he relied upon the following judgments:-- Ch. Nazir Ahmad v. Mrs. S. Mariam Salah-ud-Din (1994 MLD 1809)
6. Muhammad Yousaf v. Phool Muhammad (1994 CLC 1205).
7. Allah Rakha Sajid v. The Settlement Commissioner (PLD 1973 Note 80 at p. 113)
8. Taj Muhammad Abbasi v. M/s. Ferozesons Pvt. (1996 SCMR 97).
9. Bashir Ahmad Munir v. Mrs. Tahira Qureshi (1997 MLD 29).
10. He further submits that physical involvement for doing the business is not a condition precedent, therefore, the First Appellate Court erred in law to accept the appeal of the respondent in violation of the law laid down by the superior Courts. In support of his contentions, he relied upon the following judgments:-- Muhammad Jameel v. Zahoor Ahmad (1986 SCMR 1088).
11. Sabu Mal v. Kika Ram alias Heman Das (1973 SCMR 185).
12. He further submits that the appellant had filed the ejectment petition bona fide, therefore, the First Appellate Court erred in law to accept the appeal of the respondent in violation of the law laid down by the superior Courts. In support of his contention, he relied upon Ghulam Muhammad v.
13. Khan Muhammad Sabar Lal (PLD 1969 Lahore 327). He further submits that the principle of res judicata is not applicable qua the personal needs as the first ejectment petition filed by the appellant against the respondent was on the ground of default in payment of rent. In support of his contention, he relied upon Abdul Qadir v. Sh. Muhammad Idris (1975 SCMR 183). He further urges that investment of the respondent over the property in question is no ground to accept the appeal of the respondent. In support of his contention, relied upon Messrs F.K. Irani & Co. v. Begum Feroze (1996 SCMR 1178). He summed up his argument that the property in question is required for personal need. The statement was made on behalf of the appellant by her attorney on oath, therefore, the judgment of the First Appellate Court is not sustainable in the eyes of law.
4. The learned counsel of the respondent submits that the judgments relied upon by the learned counsel of the appellant based on principles. The controversy between the parties has to be decided by the Courts on the basis of the evidence on record. The appellant filed the ejectment petition against the respondent on the ground of default on merits on 7-12-1994. The appellant did not agitate the matter before the higher forum, therefore, the order of the Rent Controller is final between the parties, therefore, the second ejectment petition filed by the appellant on 26-1-1997 on the ground of personal need and damage to the property, is hit by the principle of constructive res judicata as is envisaged in section 14 of the Punjab Urban Rent Restriction Ordinance, 1959. He further urges that on the basis of the evidence on record the appellant's witnesses admitted the personal need before filing the first ejectment petition. He further urges that this Court has no jurisdiction to set aside the judgment of the First Appellate Court on reappraisal of the evidence on record taking a different view of the evidence on record. He further urges that the Preamble of the Rent Restriction Ordinance, clearly reveals to restrict the increase of rent of certain premises within the limits of Urban Areas and the eviction of tenants therefrom in the Province of Punjab. He further mentioned the following sections of the Rent Restriction Ordinance:--
5. On the basis of the aforesaid provisions of Ordinance, he submits that the Rent Restriction Ordinance was promulgated beneficial to the tenants. The learned First Appellate Court, keeping in view the scheme of the Ordinance, decided the appeal in favour of the respondent whereas the Rent Controller, did not advert to the aforesaid provisions of law. He further urges that on the basis of the evidence on record that dispute arose between the appellant and respondent on the basis of the double payment of rent by the respondent to the appellant for the months of April, 1992 to September, 1992 on the basis of which the landlord filed the earlier ejectment petition which was dismissed on merits by the Rent Controller, on 7-12-1994, therefore, the learned First Appellate Court was justified to accept the appeal of the respondent. He further urges that non-appearance of the landlord be taken into consideration coupled with the other circumstances and the learned First Appellate Court was justified to accept the appeal of the respondent by considering the other relevant circumstances as is evident from the findings of the First Appellate Court on Issue No.4. In support of his contention he relied upon Muhammad Asghar and 5 others v. Mst. Jamila Khatoon (1979 CLC 367). He further urges that it is the duty of the appellant to show that the other property which was in possession of the landlord/appellant was not suitable for the personal use of the appellant for the business of her sons. In support of his contentions, he relied upon Qamaruddin v.
14. Hakim Mahmood Khan (1988 SCMR 819). He further submits that the landlady did not mention particulars of business in her ejectment petition whereas P.W.1 admitted in examination-in-chief that the premises in question required for personal use to the appellant for medical business whereas it was also admitted by the P.Ws.1 and 2 that the sons of the appellant are Engineers by profession and settled in America and Kuwait. They further admitted in cross-examination that they did not know qua their arrival in Pakistan for the said business.
6. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
7. The question of personal need is considered in the reported case of Abdul Ghafoor v. Abdul Qadir (1986 MLD 1636) and observed as under:-- "That the balance of authority is that the statement of the landlord showing personal need should prima facie be a good ground for ejectment of the tenant unless the tenant succeeds in creating doubts in the story of personal need either by cross-examining the landlord or by producing evidence in rebuttal. As owner of the property, it is the right of the landlord to use its property in the manner he chooses."
15. The Honourable Supreme Court had also considered this proposition of law in case Qamar-ud- Din's case (1988 SCMR 819) and observed as under:-- "Wherein subject shop was required for personal bona fide use of the landlord and his son. In the said case also the landlord had stated 'want to run a general store in the disputed shop to earn my livelihood. I have two grown up sons also I want to engage one of my sons in the business'.
16. Statement was not challenged in the cross-examination not rebutted by any evidence produced by the respondents as such. Appeal was allowed.
17. Honourable Supreme Court has also considered this aspect of the, case S.M.D. Noor-ud-Din's case (1998 SCMR 2119) and observed as follows:-- "Once the landlord has duly acquitted himself by stating on oath that this requirement is in good faith as understood in law, he should normally be deemed to have discharged his burden, which thereupon shifts to the tenant for whom it remains initially, to cross-examine the landlord and, that being done, lead his own evidence in rebuttal. "
18. The Honourable Supreme Court came to the conclusion while deciding Jehangir Rustam Kaka's case (1992 SCMR 1296) and laid down the following principle:-- "In the impugned judgment while discussing the evidence on the question of proof of bona fide requirement, reliance is placed on the case of Hassan Khan v. Ms. Munawar Begum reported in (PLD 1976 Karachi 832) which view was subsequently confirmed in case of Ms. Taheed Khanam v.
19. Muhammad Shamshad reported in 1990 SCMR 593."
20. The aforesaid proposition of law is also considered and upheld by the Honourable Supreme Court in the following judgments:-- Muhammad Akhtar Saleem v. State Life Insurance Corporation of Pakistan and another (2001 SCMR 1314).
21. Mst. Hajiyani Ayesha Bai v. Zahid Hussain (2001 SCMR 1301).
22. Syed Jan Muhammad and another v. Syed Abdul Khair (2001 SCMR 1287).
23. Iqbal Book Depot v. Khatib Ahmed and 6 others (2001 SCMR 1197).
24. Rule laid down in the case mentioned above is that on the issue of personal need, assertion or claim of other by landlord if consistent with his averments in his application and not shaken in the cross-examination or disproved in rebuttal is sufficient to prove that need is bona tide. Ratio of the above mentioned case is' the principle which is now time honoured. It is for the landlord to establish his bona fide need and assign reasons for such need. If need of the landlord is mentioned in the application and duly established through evidence, for which the landlord must enter in the witness-box and depose on oath about the personal bona fide need and assign reasons for such need, the Court would normally not question such need as was held by the Honourable Supreme Court in the aforesaid case of Jehangir Rustam Kakalia's case. The aforesaid proposition of law, is also supported by the judgments of the Honourable Supreme Court (PLD 1997 SC 564) (National.
25. Development Finance Corporation's case) and 1986 SCMR 1981 (Warwar Khan's case)."
8. In the present case, it is, no doubt that the landlady or her sons did not appear in the witness- box. The attorney of the landlady entered appearance in the witness-box who was also her son-in- law and was fully conversant with the facts and circumstances of the case and was deposing about the requirement of the landlady from his own knowledge, therefore, the First Appellate Court erred in law to accept the appeal of the respondent on this ground coupled with the other circumstances as per law laid down by the Honourable Supreme Court in Muhammad Iqbal's case (1993 SCMR 1559). The landlady had established her bona tide personal need qua the premises in question. The principle of constructive res judicata is not attracted in the present case as the law laid down by the Honourable Supreme Court in Abdul Qadir's case supra (1975 SCMR 183). Similarly, the learned First Appellate Court erred in law to accept the appeal on the ground that sons of the landlady are not residing in Pakistan, in violation of the law laid by the superior Courts in Ch. Nazir Ahmad's case supra (1994 MLD 1809).
9. In view of what has been discussed above, this appeal is accepted and the order of the Rent Controller is upheld. However, since the respondent is running his business in the premises since long, I allow him one year's time to vacate the premises in question subject to the condition that the respondent shall deposit all rent due against him and also future rent for one year in advance in the Court as per principle laid down by the Honourable Supreme Court in Mrs. Yasmeen Riaz's case (1999 SCMR 832) and in Civil Appeals Nos. 1627 to 1652, decided on 4-1-2001, Al-Karim (Pvt.)
26. East and West Insurance Company Ltd. And hand over a vacant possession of the shop in question to the appellant on 21-1-2003.
27. Section 4.Fair rent.
28. Section 5.Further increase in fair rent.
29. Section 6.Landlord not to claim anything in excess of fair rent.
30. Section 7.Fine or premium, etc. Section 8.
31. Section 9.Increase in rent on account of payment of rent etc. Section 10.No interference with amenities.
32. Section 11.Conversion of a residential building into non-residential building.
33. Section 12.Failure of landlord to effect repairs.
34. Section 12-A.Reimbursement of expenses incurred for repair under orders of local authority.
35. Section 13.Eviction of tenant.