TANVIR BASHIR ANSARI, J.--- This appeal filed under Section 24 of the Cantonment Rent Restriction Act, 1963 is directed against the order dated 23.7.2002 passed by the le?Learned Rent Controller, Rawalpindi Cantonment whereby he accepted the eviction petition filed by respondent No. 1 and directed the ejectment of the appellant from the shop in question.
2. Respondent No. 1 filed an ejectment petition under Section 17 of the Cantonment Rent Restriction Act, 1963 for eviction of the appellant and respondent No. 2 from shop No. 1, Commercial-7, Chakiala Commercial Area, Scheme-111, Rawalpindi Cantt on the ground of personal requirement.
According to the averments in the eviction petition, the suit shop was obtained on rent initially by Mehmood Ahmad Malik, respondent No. 2. Later, however, the appellant occupied the same as a tenant under respondent No. 1. The appellant attorney to respondent No. 1 who continued to receive the rent from the appellant.
3. The appellant contested the eviction petition and refuted the claim of respondent No. 1 that he, required the suit, shop in good faith for his on bona fide personal requirement.
4. The learned Rent Controller put the parties to trial on the solitary issue framed as under:-
(1) Whether the suit shop is required to the appellant for his on use and occupation in good faith?
OPP.
5. The respondent has appeared as his on witness as PW.1. According to his statement, respondent No. 1 is the owner of a basement, four shops and two Flats constructed on Commercial Plot No. 7, Commercial Plot No. 8 Chaklala Scheme No. III, Rawalpindi. He deposed that at the time of the filing of the ejectment petition, he was not in possession of any shop; that the income generated through rent was not sufficient for his requirement and that he wanted to occupy the shop in question for his on personal requirement. In examination-in-chief itself, he stated that in 1995, he filed an ejectment petition against his tenant on the. Ground of personal requirement which was decided in his favour. Thereafter, he conducted his business in that shop for sometime. However, he had to sell that shop to one Abaid-ur-Rehman's as he was obliged to complete construction of his residential plot, for which, he required resources. He also referred to the vacation of shop No. 2 Commercial Plot No. 7 which was ordered by' the learned Rent Controller on the basis of rent default.
6. Respondent No. 1 was cross-examined in detail. It may here be mentioned that in para 8 of the written reply, it was specifically averred that respondent No. 1 had obtained possession of two other shops through the learned Rent Controller and despite having obtained the possession of the said shops, respondent No. 1 did not occupy the same. The details of the cases ,have been given as under:-
(i) Case No. ARC/198/95, It. Col. (Retd.) M. Sanawar Chaudhry v. Asif Farooq in respect of shop No. 2 Commercial 8, Chaklala Scheme No. HI, Rawalpindi, decided on 2.7.1996;
(ii) It. Col. (Retd.) Sanawar Chaudhry v. Usman Chaudhry, etc. Decided on 18.9.1997 in favour of petitioner Col. (Retd.) Sanawar and the possession was handed over to It. Col. (Retd.) Sanawar Chaudhry in respect of shop No. 2 Chaklala-7 Chaklala Scheme No. Ill, Rawalpindi Cantt; (i.e) that the vacant possession of the same shop was taken by the petitioner in Dec., 2000 from world -vision and on 30th June, 2001 from Imran Furniture.
7. During cross-examination, he admitted that he has sold two shops for a sale consideration of Rs.26,00,000/-. He has also admitted the filing of two ejectment petitions against his tenants, one on the basis of personal requirement and the other on the basis of default. He admitted that during the. Pendency of the ejectment petition against the appellant, a shop fell vacant. After admitting this factum, respondent No. 1 volunteered that the shop so vacated was smaller in size which had three bath rooms and that the said shop was not suitable for his personal need and therefore, he rented out the said shop after offering the same to the appellant who refused the said offer. He admitted that the other shop was again vacated by the subsequent tenant which has been further let out for some reasons that it was not sufficient for his needs.
8. Apart from the foregoing, respondent No. 1 admitted that as FIR was lodged against him wherein it was alleged that respondent No. 1 had forcibly dispossessed one of his tenants. He admitted that he remained confined in jail in this connection. He also admitted that he was arrested after his pre- arrest bail was rejected by an Addl. Sessions Judge, Rawalpindi.
9. The learned Rent Controller appreciated the aforesaid evidence, came to the conclusion that respondent No. 1 had been able to prove his bona fide personal requirement of the shop in question. According to the learned Rent Controller, respondent No. 1 intended to augment his income by running his on business in the suit shop. The learned Rent Controller was also influenced by the voluntary statement made by respondent No. 1 in cross-examination that he had offered a vacated shop to the appellant in lieu of the shop in question which offer was refused by the appellant. According to the learned Rent Controller, this fact also manifested the bona fides of respondent No. 1.
10. The learned counsel for the parties have been heard and record perused.
11. Respondent No. 1 have averred in his petition itself that he had filed an ejectment petition in respect of shop No. 2 Commercial Plot No. 8 on the ground of personal requirement. The said ejectment petition was allowed by the learned Rent Controller vide order dated 2.7.1996 and the tenant vacated the shop in the month of August, 1996. He has admitted to have sold the said shop to one Abaid-urRehman's although for the reason that he (respondent No. 1) wanted to raise construction on his residential plot. Respondent No. 1 has however, not elaborated as to when he had received the notice from the M.E.O. And during which period, he completed the construction of the residential plot. In fact, he had sold shops Nos. 1 and 2 located in Commercial Plot No. 8 Chaklala Scheme No. III for a sum of Rs.26,00,000/-.
12. Regarding the eviction of the tenant from shop No. 2, Commercial Plot No. 7, the respondent explained that the said shop was got vacated on the ground of rent default. Be that as it may, if respondent No. 1 had bona fide requirement for his self-occupation, nothing In law prevents a landlord from occupying an available shop although vacated on the ground of rent default.
Respondent No. 1 has not sufficiently explained as to how this shop No. 2, Commercial Plot No. 7 was not sufficient for his requirement.
13. The learned Rent Controller was also overly impressed by the volunteered statement suffered by respondent No. 1 wherein he stated that he had offered the vacated shop to the appellant which offer he had refused.
14. According to Article 133 of the Qanun-e-Shahadat Order, 1984, the order of examination of witnesses has been set down. The witnesses shall be first examined-in-chief and then if the adverse party so desires shall be cross-examined. The re-examination however, is limited to the explanation of matters referred to in cross-examination and if permission in this respect is granted by the Court. It would thus, be seen that the voluntary statement by a witness in cross-examination has no legal evidentiary value. It is not permissible for a .Witness to foist into his answer statement any material which is not in answer to or explanatory of his answer to the questions put to him. In Jurisprudence, such voluntary evidence is denominated as "irrespective" testimony and the introduction of such evidence shall be against the rule of re-examination as contemplated under Article 133 of the Qanun-e-Shahadat Order, 1984.
15. The learned counsel for the appellant has placed reliance upon the case of Nazar Hussain through Legal Heirs and another v. A.I Akbar (1995 CLC 452) wherein a landlord seeking business premises for his use had relet another such premises which was got vacated by him during the pendency of the current ejectment application was non-suited on the ground that the landlord had not proved his personal bona fide need in respect of the premises in dispute.
16. This would also lead us to the question whether the conduct of respondent No. 1 as, depicted, from his evidence had been bona fide. The admitted position that shops had been falling vacant and that respondent No. 1 did not occupy the same or had sold as many as two of such shops without occupying the same has not been suitably explained in evidence. #TBS (Para 1) #TBE 1 7. There is no cavil with the proposition canvassed by the learned counsel for respondent No. 1 that it is the choice of the landlord which should be the guiding factor of deciding as to which shop he wants to occupy. There is also no .Objection to the proposition that a landlord is not obliged to disclose the nature of business for which he wanted to utilize the premises. When however, it is found that it is not a question of mere exercise of choice but a landlord has been letting and re- letting his tenement on his whims which is not suitably explained through evidence, he is not entitled to an order of eviction in his favour.
18. The upshot of the 'above discussion is that the appeal succeeds and the eviction order dated 23.7.2002 of the learned Rent Controller, Rawalpindi Cantonment is set aside. The parties to bear their on costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.