' This second appeal, under section 15 of the Punjab Urban Rent Restriction Ordinance No,VI of 1959, is directed against the judgment dated 7-5-1994 passed by Additional District Judge, Lahore, whereby the appeal of the appellant/ landlord against the order dated 15-5-1991 passed by Rent Controller, Lahore, dismissing the appellant's ejectment petition for eviction of respondent, was dismissed, leaving the parties to bear their own costs.
2. The relevant facts are that the appellant instituted an ejectment petition against the respondent, on 8-2-1988, for the ejectment of the respondent from Shop No,4 (ground floor) situated in Al- Rafique Auto Market, 10-Montgomery Road, Lahore, on the ground of bona fide personal need in good faith, to be able to earn his (appellant's) livelihood, as the rent received by him was insufficient for his needs due to high prices of the necessities. The respondent resisted the ejectment petition. The rate of rent and tenancy was admitted. However, the bona fide personal need of the appellant was disputed.
3. The learned Rent Controller, Lahore, framed the, following necessary issues:--
(1) Whether the application is based on mala fide intention? OPR
(2) Whether the petitioner in good faith, requires the rented shop for his personal use and occupation? OPA
(3) Relief.
4. In order to prove his case, the appellant produced four witnesses: ' A.W.1 Abdul Hameed stated that the appellant had no shop in his possession. In his cross- examination, he admitted that appellant had constructed two Khokhas alongwith the shop of Sheikh Motors. He also admitted that there existed one upper storey of the market and in front of the shop in dispute there was another shop, which was in possession of Taufeeq Anwar son of the appellant but stated that Taufeeq Anwar was running his independent business.
' A.W.2 Mushtaq Haider and A.W.3 Saleem Chughtai deposed to the similar effect.
' The appellant Muhammad Rafique Anwar himself appeared as A.W.4. He stated that he was not in possession or occupation of any other shop in the market in which shop in dispute was situated and the location of the shop in dispute, as urged by him in his ejectment petition as well (para.9), was better than other shops and that he wanted the said shop in a bona fide manner for his personal use. He further stated that his son Taufeeq was in possession of one shop but he had a separate business. In the cross-examination, he stated that the market was a three-storeyed building. On the ground floor there were 14 shops, on the first floor there were godowns and the third floor also consisted of godowns and that Muhammad Sajjad was in possession of two godowns. He denied the suggestion that he was in possession of a shop on the first floor and that after partitioning the same, one portion of the shop had been given to Akbar Autos in the year 1988 on rent. He also admitted that respondent had moved an application to Additional Deputy Commissioner (G), Lahore, in which he maintained that the construction of Khokhas were interfering in his business and denied the suggestion that the present ejectment petition was a counterblast of the application filed by the respondent before A.D.C.(G).
5. The respondent, on the other hand, produced five witnesses including himself and the documentary evidence.
' R.W.1 Shaif-ur-Rehman stated that one month prior to the renting out of the shop in question to respondent, the appellant had rented out one shop to Faisal Autos, that on the first floor there was a big shop in possession of the appellant, which was subsequently partitioned and half of it was rented out to Akbar Autos, that son of the appellant had also one shop in his occupation and that one month prior to the institution of the present ejectment petition, one shop on the first floor was given on rent by the appellant.
' R.W.2 Mirza Afzal Baig deposed to the same effect as R.W.1.
' R.W.3 Hassan stated that he had been tenant of the appellant in Shop No,3 (Ground Floor) for about 12/13 years and that he vacated the said shop in 1990 and the same had been rented out by the appellant to someone else with whom he had no business, link or partnership.
' R.W.4 Muhammad Fayyaz Bedar stated that he was tenant of the appellant, that the shop of Hassan (R.W.3) was opposite the shop in dispute, it was vacated by Hassan in April, 1990 and the same was rented out by the appellant to someone else who was running the business in the name and style of Decent Motors and that both the shops are similar ( (real). He further stated that one shop on the first floor was vacated about two months back and the same had been given on rent, that the appellant had one office in his possession at the first floor, which was adjacent to Akbar Autos and that during the pendency of the ejectment petition the appellant had constructed the third floor, which consisted of 14/16 shops and all those shops had been rented out.
' The respondent Habib-ur-Rehman appeared as R.W.5. He stated that appellant had constructed two Khokhas, which were a hindrance in his business, the dispute between them arose in February, 1988, when he moved an application before A.D.C.(G), Lahore, against the appellant, which annoyed the appellant and due to the same, the appellant had instituted the present ejectment petition against him. He further stated that the appellant, during the pendency of the present ejectment petition had rented out two shops to Sajjad Motors on the first floor, which were vacated two months back and the same had been further rented out. It was also stated by him that a big shop (first floor) in possession of the appellant was partitioned and half of the same was given on rent to Akbar Autos and that appellant had his office on the first floor and Telephone No,222990, was also installed in that office. The appellant's son, who was living with the appellant, was occupying one shop at the ground floor, during the pendency of the ejectment petition in July, 1989, one shop was rented out to Waheed Autos and that during the pendency of the ejectment petition the appellant had constructed 16 shops on the third floor and all of them had been rented out.
6. It may further be mentioned here that during the pendency of the ejectment petition on 20-1- 1991, the respondent moved an application for the amendment of the written reply and addition of the facts, which had cropped up during the pendency of the ejectment petition and also for the permission. To produce additional evidence. It was stated in the application that during the pendency of the application, the appellant/landlord had further raised one storey on the market in which the shop in dispute is situated and as such, the appellant's market had become a three- storeyed building and had further constructed 16 shops on it, which had been rented out to different tenants, that the landlord had got vacated two shops on the first floor from Sajjad Motors about 20 days back and the same had been rented out to other tenants, that the appellant had got vacated another shop from one Muhammad Hassan in April, 1990 and the same was rented out to another tenant. In his written reply, the appellant maintained that third floor was the property of his son M. Taufeeq Anwar, the second floor belonged to his other son M. Atique Anwar, the first floor belonged to Mst. Razia Sultana, and ground floor belonged to him and that he had no concern with the construction of third floor and of letting out the shops on the same and similarly shops vacated by Sajjad were the property of Mst. Razia Sultana and he had no concern with the letting out of the same. In regard to Shop No,3 previously in possession of Muhammad Hassan, he admitted that the same was under his ownership/share but maintained that there were some arrangements between the former tenant Muhammad Hassan and the present occupants who were his partners.
7. The aforesaid application instituted by the respondent, was allowed by the learned Rent Controller, Lahore, and the respondent accordingly filed the amended written reply.
8. It may be mentioned here that the appellant's assertions that first floor, second floor and the third floor of the market did not belong to him, were not believed by the Courts below. It was held by the First Appellate .Court that the said assertions were not supported by the record because in para.6 of the ejectment petition the appellant had specifically maintained that he was owner of whole of the market.
9. It may also be mentioned here that the aforesaid Muhammad Hassan while appearing as R.W.3, had categorically stated that he had vacated the shop in his possession (Shop No,3) in April, 1990 and that he had no concern with the subsequent occupant/tenant.
10. The learned Rent Controller, Lahore, vide his order dated 15-5-1991 decided Issues Nos. 1 and 2 in favour of the respondent and rejected the ejectment petition, leaving the parties to bear their own costs. The reasons given by the Rent Controller were that appellant was in possession of a shop/office on the first floor, his son was in possession of one shop on the ground floor, that the appellant's assertion that his son was running an independent business was not proved because the same son of the appellant had been pursuing the present case, that ejectment petition had been filed in a mala fide manner as the appellant felt insulted due to respondent's agitation (Exh.R.2) before the A.D.C.(G), Lahore, for the removal of the Khokhas -constructed by the appellant.
The Rent Controller concluded that the appellant had made the respondent a scapegoat in a mala fide manner and his demand for eviction of the respondent was not bona fide.
11. The appellant's first appeal, as mentioned above, was dismissed by the Additional District Judge, Lahore, on 7-5-1994. The reasons given by the First Appellate Court are that the appellant had failed to establish his bona fide personal need, that "neither in the petition nor in the evidence, the appellant had uttered a single word as to the nature of the business he wants to start in the disputed shop or of the steps he had taken to establish the business. Mere will and wish of the landlord to start business cannot be treated as his bona fide need. Something positive should have been brought by him on the record as to the nature of business and as to the steps he has taken in establishing such business", that his silence about the construction of shops-on the third floor and the eviction from various shops and the renting out of the same, immediately before the institution of the present petition (details narrated above) cast serious doubt in regard to the bona fide of the appellant, that the appellant as A.W.4 had admitted that the respondent had moved an application against him before A.D.C.(G) for the removal of Khokhas constructed by him in February, 1988 and therefore, it appeared that the present ejectment petition had been moved with a mala fide intention, that the evidence produced by the respondent was trustworthy and that the appellant did not require the shop in dispute in a bona fide manner for his personal need.
12. I have heard the learned counsel for the parties and have seen the record with their able assistance.
13. It is submitted by the learned counsel for the appellant that the ejectment petition was moved on 8-2-1988 whereas the application (Exh.R.2), before the A.D.C.(G), Lahore, for the removal of the aforementioned Khokhas constructed by the appellant, was moved by the respondent on 23-2- 1988 and therefore the forums below have acted illegally in holding and concluding that the ejectment petition had been instituted by the appellant in a mala fide manner because the appellant felt annoyed/insulted due to the aforesaid agitation of the respondent. It is submitted next that the learned Appellate Court has acted illegally in dismissing the appeal, on the ground that the appellant had not given the particulars as to the nature of business he wanted to start in the disputed shop. It is submitted that in law it is not necessary for the landlord to state particulars and nature of business intended to be established by the landlord, in the premises sought to be vacated. Reliance in this regard is placed on Qadir Bux Haji Nathu Khan & Co. v. Mst. Nawab Begum and another 1982 CLC 819 and Haji Mohibullah & Co. And others v. Khawaja Bahauddin 1990 SCM R 1070. It has also been argued that there is no allegation that the appellant is occupying another shop in the market, that the shop in dispute is situated on the ground floor, therefore, the construction of shops on other floors and the letting out of the same is not relevant, as the appellant is throughout asserting that the shop in dispute is better located and more suitable for his business, that the vacation of Shop No,3 by Hassan and letting out of the same is also not relevant, as the appellant has consistently maintained that Shop No,4 is better located and the law favours decision in accordance with the choice of the landlord, that mere letting out of other shops by a landlord either before or after the institution of the ejectment petition is no ground in itself to non-suit the landlord, that the respondent has failed to prove mala fide on the part of the appellant in moving the ejectment petition and that the appellant Is fighting for the last 13 years and the present appeal is pending in this Honourable Court for the last eight years and therefore, the letting out of the other shops long ago to others is no more relevant and has lost its significance. The learned counsel in support of the above contentions, has placed his reliance on Wilayat Shah v. District Judge, Kohat and 4 others 1997 CLC 1796, Muhammad Boota v. Haji Ghulam Mustafa and others 1991 M LD 2385, Sardar Khan v. Riaz Ahmad and others 1986 SCM R 1981, S.M.
Nooruddin and 9 others v. SAGA Printers 1998 SCM R 2119 and Muhammad Tayyub v. Syed Abdul Habib 2002 SCM R 1320. In the end, it has been argued that if it is argued, from the other side that the appellant merely wants to eject the respondent from the shop in dispute and does not want to occupy the shop himself and will let it out to some one else, the respondent, in that situation, has a protection under section 13(4) of the Punjab Urban Rent Restriction Ordinance, 1959 and he can apply to the Rent Controller for an order directing that possession be restored to him and, therefore, the relief cannot be refused to the appellant merely on this ground.
14. Learned counsel for the respondent while vehemently opposing the petition, has submitted that the Courts below correctly concluded that the ejectment petition was based on mala fide, the appellant was annoyed and felt insulted because the respondent had given an application to.
A.D.C.(G) for the removal of the Khokhas, that Shop No,3 vacated by the aforesaid Hassan, during the pendency of the ejectment petition is located at the ground floor and directly opposite the shop in dispute and it is similar as shop in dispute and the fact that the appellant rented out the same to another tenant, shows that the appellant is not in need of any shop and the ejectment petition is based on mala fide and the Courts below correctly dismissed the ejectment petition.
15. The appellant instituted the ejectment petition on 8-2-1988 whereas the application (Exh.R.2) before A.D.C.(G), Lahore, for the removal of the aforementioned Khokhas constructed by the appellant, was moved by the respondent on 23-2-1988. Both the Courts below have, therefore, drawn wrong conclusion from the facts found and established on the record through pleadings and evidence of the parties in holding that the ejectment petition was based on mala fides because the appellant felt annoyed and insulted because of the abovesaid move of the respondent. It is apparent that on the date when the ejectment petition was filed, no application of the respondent for the removal of the Khokhas was in field. The ejectment petition, therefore, cannot be held to be a measure to counter the respondent's application (Exh.R.2) before A.D.C.(G), Lahore. There is no evidence available on the record that there was any previous dispute between the parties.
16. The shop in dispute is situated at the ground floor. It is obviously better located than the shops situated on other floor. The Courts below therefore, illegally took notice and were illegally influenced by the vacation of the shops and the letting out of the same, before or during the pendency of the ejectment petition, situated on other floors.
17. In Qadir Bux Haji Nathu Khan & Co. v. Mst. Nawab Begum and another (supra), the landlord while applying for ejectment from the shop, on ground of personal use, did not state the nature of business initiated to be started and did not disclose the financial resources. It was held that it was not necessary for the landlord to state the nature of business or disclose the financial resources. In Haji Mohibullah & Co. And others v. Khawaja Bahauddin (supra), it was held by the Honourable Supreme Court that it was not a legal requirement for the landlord to disclose in his ejectment petition the nature of business for which he required premises in dispute.
18. The learned First Appellate Court, therefore, illegally concluded that the appellant had failed to establish his bona fide personal need because neither in the petition nor in the evidence, he had disclosed the nature of business he wanted to start or establish in the disputed shop or the steps having been taken by him to establish such business.
19. The shop in dispute is situated on the ground floor of the market. There is no allegation that the appellant is occupying another shop in the market specially on the ground floor. The appellant for the last more than 15 years is asserting and agitating that the shop in dispute is better located and more suitable for his business and the learned lower Courts have not given due weight to the choice of the landlord and the suitability of the shop in question to his need. The Courts below have not given any lawful reasons for doubting the bona fide personal need of the landlord. They mainly held that the ejectment petition was based on mala fide of the landlord because of the tenant's/ respondent's agitation against the landlord/ appellant before the A.D.C.(G). This aspect has already been dealt with above and it has been held that since the application before A.D.C.(G) was moved by the respondent, after the institution of the ejectment petition, it cannot be held that the ejectment petition was based on mala fide of the appellant. Even the non-occupation of Shop No,3 by the appellant, situated on the ground floor, and vacated during the pendency of the ejectment petition or immediately before the filing of the ejectment petition and giving of the same on rent to another tenant, cannot lead to a conclusion that the appellant is not in personal need of the Shop (No,4) in dispute in a bona fide manner because it is for the landlord to determine that which shop is better suited for his needs. In Walayat Shah v. District Judge, Kohat and 4 others (supra), a Division Bench of Peshawar High Court held that the contention that landlord was owner of other shops also and previously he evicted tenants from shops but did not occupy the same, was no excuse against lawful object of personal need of landlord. In Muhammad Boota v. Haji Ghulam Mustafa and others (supra), a learned Single Judge of this Court, while upholding the eviction and while dismissing the Constitutional petition, gave weight to the choice of the landlord, although a shop in the same building was twice vacated by the tenants of that shop during the pendency of the ejectment petition and it was not occupied by the landlord. It may be mentioned here that the appellant in para. No,9 of his ejectment petition as well as in his statement as A.W.1 had stated that the location of the shop in dispute was better than the other shops. In Sardar Khan v. Riaz Ahmed and others (supra), it was held by the Honourable Supreme Court that the fact that the, landlord was carrying on business in partnership with his father-in-law in latter's shop and had another shop, which was let out to a tenant, was of no consequence as the matter of choice in selecting premises lies with landlord. In S.M. Nooruddin and 9 others v. SAGA Printers (supra), it was held by the Honourable Supreme Court that the mere letting out of other premises by a landlord either before or after the institution of the eviction proceedings, in itself is not enough to non-suit the landlord. It was further held that once the landlord had duly acquitted himself by stating on oath that his 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. It was also held that the landlord had a complete option to choose from one of the several tenements occupied by tenants to avail of the personal requirement and the discretion is not assailable, except in the rarest cases of bad faith. In Muhammad Tayyub v. Syed Abdul Habib (supra), a recent judgment delivered by the Honourable Supreme Court, the Courts below denied the eviction of tenant for the reason that the landlord had another vacant shop, which could be used by his son to establish his business. It was held that the prerogative was of the landlord to express suitability in respect of any shop, which was required to be occupied by him either for himself or for his children and his such right could not be curtailed under any flimsy consideration. It was also held that the occupation of non-residential building by landlord for his child was a question of fact and the same was to be decided on the basis of available material instead of denying relief to the landlord merely on the basis of surmises or conjectures as well as contrary to the facts available on record. The appeal of the landlord was accordingly allowed and the tenant was directed to hand over the vacant possession of the premises to the landlord. Similarly, in Sabu Mal v. Kika Ram alias Heman Das 1973 SCM R 185, the landlord was possessing more than one house in the same urban area. It was held that the choice as to house in which he would like' to live is matter within his prerogative and discretion.
20. In view of the above mentioned and keeping in view of the law discussed above, I am of the view that the appellant, who is not occupying any shop in the premises, especially on the ground floor, had produced overwhelming evidence to prove that the shop in occupation of the respondent was required by the appellant in good faith for running his business and the Courts below denied the relief to the appellant merely on the basis of surmises and conjectures as well as contrary to the facts available on record.
21. In view of the above mentioned, this appeal is allowed, order dated 15-5-1991, passed by Rent Controller, Lahore, and judgment dated 7-5-1994, passed by Additional District Judge, Lahore, are set aside, the eviction application filed by the appellant is accepted and the respondent is directed to hand over the vacant possession of the shop in dispute to the appellant, within a period of two months. There is, however, no order as to 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.