' This appeal impugns the order, dated 21-11-2000 passed by the learned Additional District Judge, Lahore, whereby he accepted the appeal of the respondent Safeer Ahmad by setting aside the order dated 3-2-2000 of the learned Rent Controller, Lahore through which, he accepted the ejectment petition of the appellant against the respondent under section 13 of the Rent Restriction Ordinance and directed him to vacate the Shop No,9-E, Main Market, Gulberg, Lahore.
2. Brief facts giving rise to the filing of present appeal are that Dr. Amir Ahmad Khan appellant filed the ejectment petition under section 13 of the Rent Restriction Ordinance, against Safeer Ahmad respondent on the ground of personal need to establish a clinic for his own use being a Doctor and also for the use of his sons namely Dr. Sajid Khan, Dr. Abid All Khan and Dr. Wajid Ali Khan. It was also asserted that the appellant's wife was also a doctor and that appellant's sons are gone abroad, who want to come back and settle in Pakistan.
3. The respondent Safeer Ahmad resisted the ejectment petition by filing the written reply. It was asserted that the ejectment petition was mala fide and had been launched to exert pressure so that the rent can be enhanced. It was further contended that the appellant's sons had gone abroad for higher studies and had permanently settled there alongwith their family and that the appellant and his wife are all alone living in 9-E, Main Market, Gulberg, Lahore which was sufficient for their need.
4. From the divergent pleadings of the parties, the learned Rent Controller, framed the following issues:-- Issues
(1) Whether the petitioner required the disputed shop for his personal bona fide use in good faith?
OPA
(2) Whether the application has been filed with mala fide intention? OPR
(3) Whether the petition is not maintainable? OPR
(4) Whether the petitioner is estopped by his own words and conduct to file this petition? OPR
(5) Whether the petitioner has no cause of action? OPR (5-A) Whether the disputed property has not been properly described? If so, what is its effect? OPR
(6) Relief.
5. The appellant examined Sharafat All P.W.1, Mian Jehangir Bashir P.W.2 and also appeared himself in the Court. Site plan produced by the appellant was as Exh.P.1. The respondent examined Muhammad Yousaf R.W.I. His own statement was recorded as R.W.2.
6. The learned Rent Controller decided Issue No, 1 of personal need in favour of the appellant and observed:-- "It is strange that the petitioner's sons should be asked to come Pakistan even without any established business or at least before making some arrangement in this regard. Even if they are settled in England or America or they are doing any job (if assumed for the sake of arguments), even then, they have a right to come to Pakistan and settle here. It is quite natural that any man of ordinary prudence would like to make arrangements for starting or establishing some business before he permanently comes back to Pakistan, so that he might be in a position to earn his bread.
Even otherwise, at least it is established that the petitioner does not have any proper job after his retired life. It is the privilege and prerogative of the petitioner/landlord to decide to use his own property in a way he likes. If he wants to establish a clinic in the demised premises and his other shops this is his right, especially when the respondent has not been able to show as to what is motive or mala fide in filing this petition."
' The remaining issues were decided against the respondent as he could not prove any mala fide against the appellant and it was observed that the appellant had the cause of action to file the ejectment petition and he is not estopped by his words and conduct to file the ejectment petition against the respondent. Resultantly, ejectment petition was accepted by the learned Rent Controller vide his order dated 3-2-2000 and the respondent was directed to hand over the vacant possession of the demised premises within two months from the date of the order.
7. The respondent Safeer Ahmad filed an appeal against the order dated 3-2-2000 of the learned Rent Controller, which was accepted by the learned Additional District Judge vide his order dated 21-11-2000. The learned Additional District Judge was of the view that the petitioner's two sons were settled in U.K. With their respective wives and children, and were doing jobs and running clinics. The third son was settled in Chicago with his family. None of the sons of the petitioner had appeared as a witness in support of the demand. The petitioner admitted that he forget the names due to old age and Sharafat Ali dealt with these matters. The statement of the respondent was confidence- inspiring that the petitioner lived on the remittances of his sons and saw a few patients at home or in the dispensary of the main mosque. The petition lacks bona fide. The impugned order is the result of misreading of evidence.
8.Learned counsel for the appellant contends that well-reasoned judgment of the learned Rent Controller has been reversed by the First Appellate Court without any cogent reasons. Further contends that the statement of oath of the landlord in conformity with the averments made in the ejectment petition and not shaken during the cross-examination, was sufficient to establish bona fide need of the appellant. Reliance has been placed on PLD 1976 Kar.
832. Further contends that the learned First Appellate Court fell in error when the relief has been denied to the appellant on the ground that sons of the appellant are settled in England and America and had not appeared as witnesses in support of their demand. Further contends that till some arrangement is made in Pakistan and the shop is vacated, sons of the appellant cannot sit idle in England or America. Further contends that findings on Issues Nos. 1 and 2 by the First Appellate Court are result of misreading of evidence on the record, because it is privilege and prerogative of the landlord to use his own property in a way he likes. This right could have not been denied by the First Appellate Court by accepting the appeal of the respondent.
9. Conversely, learned counsel for the respondent contends that the appellant's sons are residing abroad. They are not intending to run the business in Pakistan. If they come to Pakistan and remain here for at least two years, the respondent shall hand over the possession of the demised premises. Further contends that sons of the appellant have not appeared in the witness-box to show their bona fide to establish their business.
10. The crucial issue in this case is Issue No,1, which is whether the petitioner required the disputed shop for his personal bona fide use in good faith. Onus of proving of this issue was on the appellant.
He has appeared in the witness-box and made the statement on oath. Neither his statement has been shaken in cross-examination, nor it has been shown by the learned counsel for the respondent that the plea taken by the appellant is inconsistent with his pleadings or that the application for ejectment has been filed with mala fide. While adjudging the personal bona fide need of the landlord, statement on oath of the landlord and consistent with the ejectment petition which is not shaken during the cross-examination, has to be accepted. In case reported as Hassan Khan v. Munawar Begum PLD 1976 Kar. 832 it has been ruled:-- "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 or disproved in rebuttal to be accepted by Rent Controller as bona fide."
'The appellant's sons could have not been asked to come Pakistan even without any established business or at least before making some arrangement in this regard. Even if they are settled in England or America or they are doing any job, even then, they have a right to come to Pakistan and settle here. In the similar circumstances, the Honorable Supreme Court in case reported as Fazal Aziz and another v. Tariq Mahmood and another PLD 1982 SC 218 held that "landlord seeking eviction on ground of personal requirement, cannot be expected to sit idle for periods of time during pendency of eviction proceeding. Landlord during such period employing himself in a gainful occupation (such as going abroad for earning) such fact cannot negate assertion of bona fide on his part". In case of Musarrat Amin v. Muhammad Mobin 1985 CLC (Karachi) 2033, requirement of the landlady for premises was held as bona fide and genuine when she proved that she wanted to come back from abroad and to reside in Pakistan and non-examination of landlady was not considered fatal.
11. The learned First Appellate Court has accepted the appeal of the respondent on the ground that none of the sons of appellant has appeared as a witness in support of the demand. It is not the requirement of law. The landlord can file an ejectment petition against the tenant on the D ground that the demised premises is required for his personal use or for the use of his children in good faith. The learned Additional District Judge reversed the findings on Issue No,1 by misreading of the evidence. There is no proof of the fact on the record that ejectment petition has been filed with mala fide. The learned Rent Controller, on the basis of correct reading of evidence and interpretation of law has accepted the ejectment petition, directing the respondent to vacate the disputed shop, which order has been illegally set aside by the learned Additional District Judge.
Even otherwise, assertion of the landlord that he required the premises for his personal use should be determined in the context of the provision contained in subsection (4) of section 13 of the Ordinance, which enables a tenant to regain the possession from his landlord who had obtained it on a fake plea of bona tide personal need, but he had failed to occupy the premises within one month of the date of obtaining possession or who re-let it within two months of the s_aid date to any person other than the tenant. Reliance is placed on the case of Muhammad Siddique v. Mistri Muhammad Aslam PLD 1975 Lah.
308.
12. In the light of above, this appeal is accepted. The impugned order dated 21-11-2000 passed by the learned Additional District Judge, Lahore is set aside. The order of ejectment dated 3-2-2000 passed by the learned Rent Controller is restored. The respondent Safeer Ahmad is directed to hand over the vacant possession of the shop to the appellant within four months from today.
Parties to bear their own costs.