GHULAM ALI AND 4 OTHERS vs MUHAMMAD SHAFI AND 2 OTHERS

' This is a petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, whereby Ghulam Ali and 4 other petitioners want this Court to declare the judgments and decrees dated 7th October, 1980 and 14th December, 1980 passed by the Rent Controller, Sahiwal and the appellate Authority, respondents Nos. 2 and 3 respectively, to be without lawful authority and of no legal effect.

2. The facts leading up to this writ petition in brief are that Ghulam Ali and 4 others, the petitioners herein, moved an application under section 13 of the West Pakistan (Punjab) Rent Restriction Ordinance, 1959 for the ejectment of Muhammed Shafi tenant on the grounds of bona fide personal need and damage to the property. The application was contested by the respondent by raising preliminary objections and denying the averments in the application. On the pleadings of the parties, the learned trial Court framed following issues Issues :

(1) Whether the petitioner No, 1 requires the shop in dispute bona fide for self use and occupation ?

O. P. P.

(2) Whether the respondent has impaired the utility of the shop in dispute ? If so, with what effect ?

O. P. P.

(3) Whether the petition has not been verified ? If so, its effect ? O. P. R.

(4) Relief.

2-A. The Rent Controller found issues Nos. 1 and 2 against the petitioner/landlonds. Issue No, 3 was, however, disposed of as having not been pressed. In view of the findings on issues Nos. 1 & 2, the learned Rent Controller dismissed the application. Feeling aggrieved, the petitioners' appeal which was also dismissed by the learned Additional District Judge, Sahiwal on 14th December, 1980.

Hence this writ petition.

3. Before me the learned counsel for the petitioners has challenged the findings of the learned Courts below on issue No, 1 alone. He contends that the findings are based on misreading of material evidence, the relevant provisions of law have been flouted and the case law laid down in Hassan Khan v. Munnawar Begum has not been followed.

4. Before entering into discussion I would like to mention that since in rent matters there is no appeal and revision against the order of the appellate authority, this Court would only interfere when it is satisfied that the findings suffer from material misreading and either some relevant law has been flouted or the case law laid down by the superior Court has not been followed.

5. Keeping this in my mind, 1 find that to prove issue No, 1 Ghulam Ali and others, petitioners/landlords produced four witnesses namely Muhammad Irshad A. W. 1, Qamar Din A. W.

2, Said Rasool, A. W. 3 and Ghulam Ali, petitioner, himself, A. W.

4.

6. As against this Muhammad Shafi, respondent, besides as R. W. 1, examined Muhammad Jaffar, R.

W. 2 and Muhammad Tufail R. W. 3, No documentary evidence has been produced by either side.

The operative part of the judgment of the appellate authority may be reproduced with some advantage :- "12. In order to correctly appreciate the bona fide need of a landlord it is always his statement coupled with the averments made in the eviction petition. The proved facts of this case are that previously a shop had been in possession of Ghulam Ali, one of the appellants but he closed his business and vacated it on account of illness. It is also in evidence that he had been working with his brother in his workshop. The son of appellant No, 1 has been out of country but if there has been any need for the premises for his son he has not been produced in the evidence. For all the aforesaid facts and circumstances I am convinced that the appellants failed to prove their bona fide need for the premises in dispute. This was therefore rightly decided against the appellants. I see no cogent reason to disagree with the finding of the learned Lower Court and the same is, hereby affirmed."

7. After having examined the order as reproduced above in the light of the evidence, 1 find that the same really suffers from misreading inasmuch as there is nothing on record to show that Ghulam Ali, petitioner, has been working with his brother in his workshop and as for the shop previously occupied by the petitioner it is very much in the evidence of Muhammad Irshad, that the same had been got vacated by its owner from Ghulam Ali, petitioner but this part of the statement has not been properly read by the learned appellate authority inasmuch as in the order it has been stated that Ghulam All had closed his business and B vacated it on account of his illness. The evidence on record rather shows that the shop had been got vacated from him by its owner and thereafter he could not do business on account of his illness. As for the other reasons given in para. 12 to find issue No, 1 against the petitioners I am afraid that these hardly are grounds to test the bona fide need of the landlord. It is now well-established that the assertion on oath by the landlord that he requires the premises for his own use should be accepted as bona fide if such assertion is consistent with his averments in application and not shaken in cross-examination, as laid down in case law reported as Hassan Khan v. Munnawar Begum. In the case in hand find that assertion of Ghulam Ali as A. W. 4 is very much consistent with the anverments in the application and has not been shaken in cross-examination. The evidence adduced by the respondents is, therefore, not sufficient to rebut the claim of the petitioners. To my mind the provisions of section 13 (3) of the Punjab Rent Restriction Ordinance stand fully proved by the evidence produced by the petitioners.

It is proved on record that the petitioner was not having any shop in the locality and that he1 requires the shop in question bona fidely and he had not vacated any shop earlier without sufficient cause.

' For what has been stated above I am convinced that the judgment and decree of the appellate authority suffers from misreading and that the relevant provisions of law have been flouted and case law laid down by the superior Courts, as referred to above having not been followed, the judgments and decrees are without lawful authority. Since this Court normally does not substitute its own orders for the orders of the subordinate Courts even in those cases where it does interfere, therefore, I remand the case to the learned Additional District Judge, Sahiwal, for fresh decision of the appeal according to law. The record should be sent to the learned Additional District Judge, Sahiwal through special messenger immediately who would dispose of the appeal within two months positively under intimation to the Additional Registrar of this Court. This writ petition is accepted, leaving the parties to bear their own costs. PLD 1976 Kar. 832