This appeal is directed against the order dated 23-7-2001 passed by learned Additional Controller of Rents, Peshawar Cantonment, Peshawar through which the ejectment petition filed by respondent for eviction of appellant from the shop in question, was allowed and appellant was directed to vacate the rented premises within 60 days of the said order.
2. Briefly stated the facts are that Mst.Surrayya Jabeen respondent, instituted an application on 11- 1-1997 under section 17 of Cantonments Rent Restriction Act (XI of 1963) for ejectment of Manzoor Elahi appellant from the suit-shop bearing No,1354-A/2, opposite old State Bank Building, Saddar Road, Peshawar Caiitt., on the ground of personal bona fide requirement and reconstruction. In reply submitted by appellant claim of respondent was denied and the ejectment petition was alleged to have been filed malafidely to fetch higher rent. Out of the pleadings of the parties, ten issues were formulated for trial. For the purpose of this appeal, I am concerned with Issues Nos. 1, 2, 6, 8 and 9 which are reproduced bellow:--
(1) Whether the petitioner has got cause of action?
(2) Whether the petition is based on mala fide under greed to fetch higher income?
(6) Whether the petitioner is hit by section 6 (a) of the Cantonments Rent Restriction Act, 1973?
(8) Whether the petitioner requires the suit-property to demolish and construct the same in accordance with the sanction granted and site plan approved by the Cantonment Board?
(9) Whether petitioner requires the property in question for her own use and occupation?
3. After hearing the arguments from both sides in the light of the material available on the record, learned Additional Controller of Rents, Peshawar proceeded to hold that respondent requires the suit-shop in good faith for her personal use and she intends to demolish and reconstruct the same in accordance with the sanction granted and site plan approved by the Cantonment Board, Peshawar. Having held so, he accepted the petition and granted ejectment of appellant.
4. In support of appeal, Syed Asif Shah, Advocate contended inter alia, that the findings returned on Issues Nos. 8 and 9 suffer from the vice of misreading and non-reading of the evidence on the record and the learned Rent Controller erred in law and misdirected himself to hold that the rented premises are required in good faith by respondent for her personal use and occupation. He maintained that respondent totally failed to establish good faith by producing tangible evidence and a mere bald statement by the attorney of respondent, to the effect that the demised premises are needed for bona fide personal use by respondent to run a business, is not a sufficient ground to satisfy such need. The learned counsel also contended that respondent owns shops, markets and plazas in Peshawar Cantonment and City areas and most of the shops are suitable for the requirement of respondent and that the ejectment petition has been moved with sole purpose to pressurise the appellant and enhance rent. The learned counsel submitted that the material brought on the record by the appellant was completely overlooked and ignored by learned Rent Controller which has affected the decision of the case. The learned counsel further submitted that respondent failed to appear in person in Court without any justifiable reason and the failure on her part is fatal to the case. It was also submitted by the learned counsel that some evidence should have been forthcoming by way of details of the business which is to be set up in order to satisfy Appellate Court or the trial Court that the premises are needed for bona fide personal use by respondent which latter has failed to adduce. The plea of reconstruction raised by the respondent was also controverted by learned counsel for the appellant and it was maintained that in fact respondent does not want to demolish and reconstruct the suit premises and plea of reconstruction has been raised to justify a ground for ejectment. The learned counsel also asserted that there is no independent purpose of reconstruction and issue of personal need having failed, the plea of reconstruction has become redundant and of no significance. To substantiate the contention, reliance was placed on an unreported judgment of this Court announced on 13-12-1999 in First Appeal from Order No,110 of 1998 titled Fazal Qadir v. Mst.Shamim Sardar etc. Concluding the arguments, learned counsel for the appellant contended that the appellant has been a tenant from the year 1960 and has invested huge amount on establishment of business, which has earned good-will and that hardship of the tenant has not been taken into account while passing an order of ejectment.
5. Mr.M. Zahid Aman Khan, Advocate, for the respondent, on the other hand, supported the impugned order and reiterated that learned Rent Controller was quite justified to observe that suit premises are required by respondent in good faith for personal use and that no specific instance of misreading or non-reading of the evidence has been quoted, affecting the decision of the case.
6. It needs no reiteration that good faith has to be proved by clear and definite evidence which can inspire-confidence and it is the primary duty of landlord to establish that suit premises are required by him in good faith for personal use and occupation and ejectment petition has not been filed for extraneous consideration.
7. In the instant case, ejectment is sought on the grounds of personal requirement of respondent landlady and reconstruction of the demised premises. In support of the claim of respondent landlady, Shakeel Ahmed her son as well as special attorney appeared in Court as. P.W.3 and stated in clear terms that suit-shop is required by respondent-landlady for her personal use and that after demolition and reconstruction, she will occupy the same and start business through him.
For this purpose, she has already obtained necessary sanction (Exh.PW.1/1) and site plan (Exh.PW.1/2) from the Cantonment Board, Peshawar. The other two witnesses namely Muhammad Israr, Survey Draftsman, Cantonment Board, Peshawar and Shahzad Elahi, examined as P.W.1 and P.W 2 respectively also supported the claim of respondent- landlady. As against this Manzoor Elahi appellant in his statement recorded as RW.1, repudiated the claim of respondent-landlady and reiterated that the eviction petition has been filed with mala fide intention and that respondent- landlady is in the habit of making such application with sole purpose to enhance rent. He also maintained that the shop in question is not required by respondent-landlady in good faith and the same is not in dilapidated condition requiring demolition and reconstruction. He further stated that as the suit-shop is a portion/unit of four shops, the question of its reconstruction does not arise. He further stated that Shakeel and Farooq sons of respondent are engaged in import-export business in Nimak Mandi/Jehangirpura, Peshawar City and suit-shop is not required by them.
8. Having heard the arguments of learned Advocates of the parties with reference to the material on file and the case-law cited at the bar, I find that the rented premises are required by respondent-landlady in good faith for her personal use and occupation and she has succeeded to prove that her demand is genuine, reasonable and sincere. It may be pertinent to mention here that Shakeel Ahmad Attorney of the landlady appeared in Court and fully substantiated the claim of landlady. He was subjected to the test of lengthy and searching cross-examination to shatter his testimony but nothing favourable could be elicited from him. The other two witnesses examined on behalf of landlady have also supported her claim. The evidence on the record is by all means sufficient to prove the genuine demand of respondent-landlady. There is evidence qualitative in nature to establish that rented premises are required by respondent-landlady in good faith and her demand is genuine. It hardly needs to be emphasized that the burden to prove the bona fides in good faith is clearly upon the landlord. Such burden, it appears, has been discharged by the landlady to the satisfaction of Court. The evidence of the witnesses on the material point of personal need and reconstruction remained almost unrebutted and uncontroverted. Omission to cross-examine a witness on the material part of his evidence gives rise to inference that truth of his statement has been accepted. Such unchallenged statement of witness should be given full credit and usually accepted as true unless displaced by reliable, cogent and clear evidence. Stress has been made on the point that landlady has not appeared in witness-box in support of her claim though she had been appearing before the Sub-Registrar in connection with her property matters.
It is not necessary for the landlady to appear in person and even her attorney can make statement on her behalf as held in Gohar Rashid v. Fazal Hassan Mughal (PLD 1995 Lahore 469). The non- appearance of the landlady in the witness-box would not reflect adversely on her claim for possession. No absolute rule has been laid down that in every case landlord must appear in person in support of his claim because exceptions could always be there when on account of some unavoidable circumstances it was not possible for the landlord to enter in the witness-box to support his plea. There could be legitimate causes and reasons for a suitor to give for non- appearance in the case meaning thereby that some reason was required to be offered by the landlord as to why he himself was abstaining from appearing in Court. Admittedly, respondent is a "Pardahnashin" lady of advance age having grown up sons. She has appointed one of them as her attorney. The mere fact that landlady had been appearing before Sub-Registrar in connection with her property matters but she has opted not to appear in Court, by itself, creates no hurdle in her way to make an application for ejectment. It was next argued by the learned counsel for the appellant that respondent in her application has not stated the nature of the business for which the shop is required. The submission is misconceived. Regarding the non-mentioning of the nature of the business in the application it may be observed that the applicant has to state in his application, the material facts which constitute a cause of action. In a case of present nature the applicant has to state those facts which prima facie show that the requirement is according to law, and is made in good faith. This has been so stated in the application. It is not essential as it is not part of the cause of action to state the nature of business which the applicant intends to carry on 1980 SCMR 593 and 1998 MLD 1765.
9. Adverting to the plea of reconstruction, provisions of section 17(2)(vi), envisage a conditioned precedent for the eviction of tenant: the intention of landlord to demolish the existing building and construction of a new building on the same site for which the obtaining of necessary sanction from the Cantonment Board is a must. Therefore, landlord seeking eviction on ground of reconstruction has to prove only that he needs the site for reconstruction and necessary sanction has been obtained. The requirements of section 17, subsection (2), clause (vi) only are that the landlord who intends to demolish the building for constructing a new one on the site has to obtain necessary sanction from the Cantonment Board and it is not incumbent under the law that he should also attach approved plan in this regard with the application for ejectment. Approved plan from Cantonment Board for reconstruction of rented premises is sufficient to establish bona fide unless it is shown from evidence on record that the approved site plan has been produced as an excuse to deprive the tenant of possession of rented premises. In this regard I am fortified with the view taken in 1989 CLC 1662, 1988 SCMR 798, 2000 SCMR 1080 and PLD 1997 Peshawar 80 (DB). It may he observed here that necessary sanction and site plan from the Cantonment Board, Peshawar have already been obtained and placed on record. The submission of the learned counsel that site plan and necessary sanction were obtained collusively, is misconceived. The premises were inspected by the Station Commander and Executive Officer, Cantonment Board, Peshawar and thereafter the mentioned documents were issued. The plea of reconstruction is genuine and has rightly been taken into account. So far as the judgment of this Court relied upon by the appellant is concerned, same has no bearing on the facts of the present case and does not promote the case of the appellant in any manner. In the said judgment it was held that the building in question is a concrete building and it would not be possible to demolish and reconstruct only two or three shops on the ground floor and two rooms on the first and second floors, leaving the other shops in the building unaffected. In the present case the position of the shop in question is altogether different and nothing is available on the file to indicate that reconstruction is not possible or that in case of demolition the adjoining shops shall be badly affected. It is not denied that landlord may claim entire building or portion of building for reconstruction according to his needs. No restrictive provision that landlord could claim only one part of building and not the whole building or not more than one premises in building existed. When landlord needs whole building it G is seen in the context of requirement of reconstruction. Landlord, in order to prove demolition and reconstruction of building, is not required to show or prove that building is in any way dilapidated and required reconstruction, but he has to show only his intention to demolish and reconstruct it. 1989 CLC 1401 and PLD 1988 Peshawar 153.
10. The validity and correctness of the impugned order has been assailed mainly on the ground that eviction petition is the outcome of greed of landlady to fetch higher rent and that the demand is not genuine. There is nothing on the file in support thereof. The provision of section 17(9) of the Act affords sufficient protection to tenant in case landlord does not occupy premises after getting it vacated through eviction order under section 17(2) ibid. The tenant may have recourse to this remedy. 1996 SCMR 97 and 1996 SCMR 382.
11. My attention has been invited to Civil Miscesslaneous No,314 of 2003 moved on behalf of the appellant that relevant documents pertaining to Ejectment Petition No,99 of 2003 captioned Mst.
Surrayya Jabeen v. Shahzad Elahi having direct bearing on the present case may be allowed to be placed on the file in order to do complete justice between the parties. The request of the learned counsel cannot be granted. Respondent landlady is locked in litigation with appellant/tenant since 1997. I am sorry to hold that a period of about six years has passed by now and the respondent has not seen the result of her ejectment petition. The application appears to have been moved for no other reason but to prolong the matter as long as possible. The application is rejected accordingly.
12. No other point has been raised before me and rightly so.
13. In the wake of above discussion, finding no substance in this appeal I dismiss the same with no order as to costs and maintain the impugned order of ejectment. The premises in question being commercial premises, the appellant is directed to hand over vacant possession of the same to respondent-landlady within three months subject to payment/deposit of rent.