BASHIR AHMAD vs DISTRICT JUDGE, MALAKAND And Other
This petition for leave to appeal arises from an order of the Peshawar High Court dated 30-9-1984, which set aside the appellate order of the District Judge and remanded the ejectment matter for re-examination of the landlord's personal need. The petitioner, a tenant of a shop, faced an ejectment application filed jointly by the original owner and his son, to whom the shop was transferred via a partition deed. While the Rent Controller ordered ejectment on the ground of personal need, the District Judge reversed it, holding the transfer to be a device. The High Court interfered in writ jurisdiction and remanded the matter. The core legal question concerns whether the validity of a property transfer between a father and son impacts the ground of personal need for ejectment, and the effect of the landlord's non-appearance before the Rent Controller. The Supreme Court held that the High Court's interference was justified as the District Judge misdirected himself regarding the relevance of the property transfer, affirming the remand to examine personal need and permitting the examination of the landlord.
- Whether the validity of a property transfer from a father to a son is relevant to the ground of personal need for ejectment?
- Can a father seek ejectment of a tenant on the ground of the personal need of his son without transferring the property to him?
- Does the non-appearance and failure of the landlord to personally testify before the Rent Controller affect the proof of personal need?
ORDER
M.S.H. QURAISHI, J.-- Leave to appeal is sought from the order of the Peshawar High Court, dated 30-9-1984, quashing the order of the District Judge and remanding the matter to him to examine the question of the personal need of the landlord.
2 The petitioner is tenant of a shop owned by Torsam Khan respondent No.3 (since dead and represented by his heirs). Torsam Khan transferred the shop in favour of his son Shamsul Haq (respondent No.4) by a partition deed. They then moved a joint application for ejectment of the petitioner on the grounds of (1) default in payment of rent and (2) personal need of Shamsul Haq and succeeded on the second ground. The District Judge who came to the view that the transfer made by the father favour of his son was a device to deprive the tenant of the shop and that accepted the appeal of the petitioner; therefore, their requirement was not in good faith for personal use. He accordingly, set aside the ejectment order. Shamsul Haq challenged the order before the High Court in writ jurisdiction, resulting in the passing of the impugned order.,,
2. A perusal of the judgment of the learned District Judge shows that he devoted himself mainly to the question of the validity of the transfer of the shop, although the transfer had little relevancy to the question of personal need. A father, even without transferring the property in favour of one of his sons, could seek ejectment or the ground of the personal need of that son. The learned District Judge, therefore, clearly misdirected himself and as such the interference made by the High Court is not without justification. In regard to the personal need, it has been submitted that Shamsul Haq himself, for whose personal need the shop was required, did not personally testify but that his attorney had appeared on his behalf. Since the question of personal need of the landlord has been referred back to the appellate Court, it is for that Court to examine the effect, if any, of non- appearance of Shamsul Haq before the Rent Controller. Needless to add that it will be open to the appellate Court, if considered necessary to summon Shamsul Haq and examine him as a witness, With this observation the petition is dismissed.