' This Second Appeal impugned the order dated 24-5-2001 of the learned Additional District Judge, Lahore, whereby he accepted the appeal of the'landlady Mst. Fehmida Sultana and directed the ejectment of the appellant reversing the order dated 30-5-2000 passed by the learned Rent Controller, Lahore, through which he proceeded to dismiss her ejectment petition under section 13 of the Land Restriction Ordinance.
2. The brief facts of the case are that respondent Mst. Fehmida Sultana being the landlady of Shop No,15 Patiala Wakeel Khana, Link McLeod Road, Lahore, on 28-6-1999, filed an application of ejectment against the appellant on the ground of bona fide personal need asserting that the shop in dispute is required by her bonafidely for opening a tuition centre.
3. The ejectment petition was contested by the appellant, who contended that the petition has been filed by the respondent-petitioner with mala tide intention and ulterior motive just to unnecessarily harass the appellant in order to blackmail him and for extorting the money from him illegally and without just any cause,
4. From the divergent pleadings of the parties, the following issues were framed by the learned Rent Controller:--
(1) Whether suit premises is bonafidely and in good faith required to the petitioner for her personal need? OPA.
(2) Relief.
' The following additional issues were also framed:-- (1A) Whether petitioner intentionally and malafidely mentioned her wrong address in the ejectment petition, if so, its effect? OPR.
(1B) Whether ejectment petition is based on mala tide, in view of Preliminary Objection No,3 of written reply, if so. Its effect? OPR.
(1C) Whether the site plan annexed with the plaint is incorrect, if so, its effect? OPR
(2) Relief.
5. Both the parties led evidence in support of their ease. The learned Rent Controller decided Issues No,1 against the respondent landlady on three grounds, by observing that:
(i) "Vide her petition she narrated that respondent was the tenant under her since 1-7-1988, whereas respondent succeeded to prove that he is tenant under the petitioner since 1992 when Khalid Bhatti went abroad.
(ii) She also failed to prove that rented premises is most appropriate and suitable place for tuition centre as it has been proved that rented premises is situated at a place which is totally a commercial area, there are all the shops of Electronics and there are neither residences nor any residential area near the rented premises.
(iii) She also failed to prove that previously when she got vacated the rented premises, she established tuition centre. She failed to produce any sufficient cause as to why she closed tuition centre and rented out the demised premise to Khalid Bhatti."
6. Issue No,1-A was decided in favor of the appellant and it was found that the respondent was not residing at the address given by her in the petition which shows mala fide on the part of the respondent. On Issue No,1-B, it was held by the learned Rent Controller that the respondent failed to prove her bona fide in filing of the ejectment petition. Regarding Issue No,1-C the finding was that the site plant annexed with the petition is incorrect and, therefore, Issue No,1-C was decided against the appellant. The appeal filed by the respondent-landlady was accepted by the learned Additional District Judge by reversing the finding on Issue No,1 vide order dated 24-5-2001, ejectment petition was accepted and the appellant was granted 4 months time to vacate the demise premises.
7. The learned counsel for the appellant contends that the learned Additional District Judge has not considered the conduct of the respondent-landlady which militates against the bona fides. He has referred to the illegal attempts which were made by the respondent through the intervention of various personalities to get the rent enhanced or in alternative to get a shop vacated. Adds that respondent had given a wrong address of residence was sufficient to establish the mala fide of the respondent-landlady. Further contends that the area around the shop in dispute is a commercial area totally covered by trade of electronics which can hardly be a place to be conducive for the opening of tuition centre. Further, he has argued that the respondent earlier got the shop vacated on the ground of personal need and yet did not occupy the same which tells upon the bona fide requirement of the landlady. Finally it has been contended that well-reasoned judgment of the learned Rent Controller which was passed on correct reading of evidence has been illegally reversed by the learned First Appellate Court by misreading of evidence and without any cogent reason.
8. Conversely, the learned counsel for the respondent contends that there was no male fide on the part of the landlady as after getting the possession on 26-2-1984 in compliance with the eviction order dated 22-6-1983 passed by the learned Rent Controller on the ground of her personal bona fide need. She establishes his tuition centre and due to illness of her daughter could not manage the same and re-let on 26-11-1991 to Khalid Mehmood Bhatti. Further contends that ejectment petition has been filed on the ground of personal requirement for doing business by opening a tuition centre which she left some years ago with her daughter who fell ill. Neither it can be a mala fide on the part of the landlady nor there was any legal hurdle in the way of the landlady to rent out it. Further contends that the present ejectment petition was filed on 29-6-1999 which is to beadjudged. On its own merits irrespective of the fact that the petitioner got the possession on 26- 2-1984 of the demise premises through an eviction order dated 22-6-1983 passed by the learned Rent Controller on the ground of personal need. Further argued that it is choice of the landlady to run any business in the premises after its eviction and it cannot be argued that the premises are commercial in nature and, therefore, are not conducive in the running a tuition centre. Further contends that there is no male fide on the part of the respondent when she has given the address of 15 Patiala Ground. It has been denied by the learned counsel for the respondent that an attempt was made to eject the appellant through Personal Secretary of the Prime Minister without due process of law. The learned counsel states that appellant on his own accord with having any cause of action filed the writ petition in the High Court and the suit for permanent injunction (Exh.74 and Exh.75) and mere filing of the same does not create any doubt on the mala fides of the respondent as the respondent always adopted legal course in the ejectment of the tenant.
9. 1 have given my conscious consideration to the arguments advanced by the learned counsel for the parties and gone through the record. The only question needs examination is whether the suit premises is required in good faith for the bona fide personal use and occupation of the respondent and that previously instituted eviction petition which was accepted on 22-6-1983 by the learned Rent Controller, Lahore, against Telefax Electronics and getting its possession on 26-2-1984 tells upon the mala fide of the respondent or not. The case of the respondent is that she intends to establish a tuition centre in the rented premises so same is required in good faith for her personal use. To substantiate her claim the respondent produced her affidavit (Exh.P/1). The affidavit of Mst.
Zakia Sultana is also on the record who appeared as A.W.2. One Mir Muhammad Azam appeared as A.W.3, produced his affidavit. The respondent-landlady in her ejectment petition has stated that she is widow and a retired teacher having two unmarried daughters. It is also stated that other daughter of the respondent also happened to be a School Teacher, who has promised to extend her service and to give assistance to the respondent. Consequently, the Petitioner requires the premises in good faith for her bona fide and personal use for opening a tuition centre. In the written statement it has not been denied that the respondent-landlady and her daughters are not retired teachers. The landlady respondent and her daughters appeared in the witness-box. They have been cross-examined at length. They have not been shaken in course examination. Her statement is to be accepted under the law as held in the case reported in PLD 1976 Karachi 832 wherein it has been held that: "Section 13.--Ejectment on ground of requirement for personal use--Assertion or claim on oath by landlord that he required premises for his personal use found to be consistent with his averments in his application and not shaken in cross-examination of disproved in rebuttal--To be accepted by Rent Controller as bona fide".
10. Much stress has been given by learned counsel for the appellant on the vacation of the shop by her previous tenant for establishing a tuition centre. In the written statement,,the appellant has not mentioned that fact that the respondent got the suit premises vacated from her previous tenant namely Telefax Electronics for the personal use for the purpose of establishing a tuition centre. The order of the learned Rent Controller dated 25-6-1983 and the warrant of possession dated 26-2- 1984 Exh.A-1 and (Exh.A/11) were not confronted or produced during the'course of examination of the A.W,1, The ejectment order and the report of the Bailiff was marked as (A/1) and (A/2) when the same was confronted to Amir Azam Khan A.W.2. It is however, correct, that she stated that the suit property was got vacated on her retirement for opening of a tuition centre. She denied the suggestion that the tuition centre was not opened and the premises was remained locked and thereafter the premises was rented out to Khalid Mehmood. The warrant of possession and the report of the Bailiff Exh.A/1 and 2 do not show that the premises was got vacated for the personal .Bona fide use and occupation of the respondent, but however, it is correct that the respondent got the possession of the premises through the bailiff on 26-2-1984. Rent Note. Dated 26-11-1991 between Mst. Fehmida Sultana and Khalid Mehmood Bhatti shows that the premises was rented out to Khalid Bhatti on 26=11-1991. The premises was got the vacated from Telefax Electronics through Managing Partner Mrs. Zahid Mir.
' Under the law the cause of action was available to the earlier tenant namely Telefax Electronics from whom the shop was got vacated vide order dated 14-2-1984 and possession was taken on 26-2-1984 and it was rented to Khalid Mehmood Bhatti. It is the own case of the appellant in the written statement. In para 4 of the preliminary objection that he was running his business in the demise shop since 1991 in the partnership with Mr. Khalid Mehmood Bhatti. He has mentioned an agreement duly executed between him and Khalid Mehmood Bhatti dated 26-11-1992 through which Khalid Mehmood Bhatti was receiving Rs,10,000 per month as profit from the business of the appellant. It is the case of the appellant that Mr. Khalid Mehmood Bhatti decided to leave Pakistan permanently, therefore, on 29-12-1992 another agreement for cancellation of the previous one was executed between them and that Mr. Khalid Mehmood Bhatti receive a sum of Rs,2,00,000 from the appellant in lieu of handing over the demise shop permanently for executing its rent deed directly from the landlady to which the respondent agreed to, at the rate of Rs,3,000 per month. The rent deed showing the rate of rent at the Rs,4,000 per month was executed by the appellant on 21-5- 1998.
10-A From all the above-stated facts and evidence it is proved on the record that arrangement between Khalid Mehmood and the appellant to do the business in the rent premises was in partnership or their own arrangement nothing to do with the respondent as the rent was being paid by Khalid Mehmood. It is in the year 1998 when the relationship of landlady and the tenant was established between the parties when the parties signed the rent deed, therefore, the observation of the learned Rent Controller that the respondent appellant succeeded in proving that he was the tenant under the premises since, 1992, is incorrect and is not based on evidence.
10-B The case of the respondent as. Set out in the ejectment petition was that she will do the business by opening a tuition centre with the help of her daughter who is also a retired teacher. The education now- C adays has become almost a commercial event. It cannot be observed that the private schools, tuition centres and university are being run in the private sector in the residential building which is contrary to the law. The petitioner, if wants to do the business of opening a school or tuition centre in the commercial premises owned by her, it cannot be said that the rented premises is not suitable for the tuition centre as it is stated at a place which is totally a commercial area and there are shops of Electronics or there are any residences or any residential area near the rented premises. Law prefers choice of landlord and not of tenant nor of Rent Controller. The matter of choice came up for consideration before the Hon'ble Supreme Court in the case of Taj Muhammad Abbasi through legal heirs v. M/s. Ferzesons (Rawlapindi) Pvt. Limited.
' Rawalpindi through Managing Director (1996 SCMR 97), and their Lordship while interpreting the question of bona fide personal need of landlord under section 17 of the Cantonment Rent Restriction Act (IX of 1963), rule:-- "Commercial-cum-residential building.---Tenant cannot determine the suffering or otherwise of the requirement of landlord in such a building it is for the landlord to ruge and for the Court to determine as to the proprietary of requirement of the landlord--Objection that landlord was occupying a portion of the premises for his business and that, therefore, he did not require any more premises is not of any consequence".
11. No doubt the respondent had opened the tuition centre earlier and left the same but that was about 8/9 years ago. Moreover, the plea that her daughter fell ill and now she herself and her daughter are the teachers having special experience, training for conducting business of opening tuition centre are sufficient basis for holding that there was genuine need on the part of landlady.
The landlady having conducted the business herself can assist and guide her daughter in the business and no adverse inference can be drawn from the fact that the respondent had abundant her business 8 years ago. In the similar circumstances when the order of the ejectment passed by the learned Rent Controller on the ground of personal requirement of the landlord for doing the business with the help of his son was reversed by the learned First Appellate Court, the High Court in case of Abdur Rashid v. Sarfraz Arshad Khan and 2 others (1984 MLD 244) set aside the order of the Appellate Court by restoring the eviction order passed by the learned Rent Controller by observing that: "---Order of ejectment reversed by Appellate Court with observation that shop was required by landlord for business which he had left some years ago and that his son for whom shop also required had no experience or training to run said business--Observation of Appellate Court, held, contrary to law--Landlord having conducted business himself could assist and guide his son in business and no adverse inference could be drawn from fact that he had left business--Approach of Appellate Court totally erroneous and resulting in miscarriage of justice--Evidence on record having not been proved unworthy of credit, good faith of requirement of shop by landlord could not be said to have not been proved---Appellate Court also failing to give effect to safeguards provided in section 13(4)--Order of Appellate Court quashed and order of Rent Controller whereby tenant evicted, restored in circumstances."
12. The learned Rent Controller misread the evidence and not applied the correct law, therefore, fell in error while dismissing the application of ejectment filed by the respondent. The learned First Appellate Court reversed the finding of the learned Rent Controller by reading of the evidence correctly and applied correct law which needs no interference in the second appeal.
' Resultantly, this appeal fails and is dismissed. However, the parties to bear their own costs.