1991 PLP 782 (CLC)

Abdul Haq v. Mst. Zubaida Khatoon 1969 S C M R 222 ref. Rana Muhammad Sarwar for Petitioners. Mian Khurshid Alam Ramay for Respondent No.3. Date of hearing: 3rd March, 1991. This Constitution petition arose out of an eviction petition filed by the petitioners against Dr. Mian Muhammad Jameel, respondent No.3, seeking his eviction from the two shops in dispute. These shops are located in one and the same building owned by the petitioners, which were rented out by the two sisters/petitioners by getting executed two separate rent documents from respondent No.3/tenant. The learned Rent Controller framed necessary issues arising out of the pleadings of the parties and after recording the evidence of the parties, dismissed the eviction petition vide order dated 20‑2‑1982. This order of dismissal of eviction petition was challenged in appeal but the same was also dismissed by the learned Appellate Court vide judgment dated 29‑3‑1983.

2. The issues respecting which both the learned counsel for the parties addressed arguments, are as follows:‑-- "

2. Whether the ejectment petition in respect of two shops is competent?

4. Whether the premises are required for personal use? Learned Appellate Court was of the view that the petition filed by the petitioners was not competent as one landlady cannot apply for an order of ejectment in respect of the other shop. In respect of other issue, the learned appellate Court held that the finding recorded by the learned Rent Controller is misconceived. He was of the view that a female can run a business as effectively as a male and that a female can require non‑residential property as was observed by the Supreme Court in the case of Abdul Haq v. Mst. Zubaida Khatoon 1969 S C M R

222. The learned Appellate Court, however, refused to direct eviction of the respondent/tenant despite expressing the aforenoted view on this issue observing that, in this case none of the landladies appeared as her own witness to prove their case and as such adverse presumption would go against the landladies. The order of the learned Rent Controller dismissing the petition and the judgment of the learned Appellate Court dismissing the appeal were then assailed in the present Constitution petition.

3. Learned counsel for the petitioners argued that one petition is competent as no prejudice was caused to the respondent/tenant by filing the joint petition by the two sisters/petitioners. It was pointed out that the shops are located in one and the same building owned by the petitioners and that the mere fact that two tent deeds were executed by the respondent in favour of two sisters/petitioners would not, in any way, prejudice the proceedings initiated by moving one joint petition. Learned counsel for the respondent has not been able to point out any specific circumstance which would show accrual of prejudice to the respondent/tenant in defending the petition. Both the petitioners seek eviction on joint personal need as they require the shops for running a joint business. Reference may be made to Ahsanul Haq and others v. Abdul Rahim 1979 S C M R 338 wherein the basic factor considered was that the Code of Civil Procedure being not applicable, causing of prejudice is to be shown. It was observed in this precedent that the learned counsel was not able to show how the merits of the case against the petitioners had been affected, much less affected adversely, by the fact that the respondent had filed a joint eviction application. It is not disputed that even if two petitions had been filed, the 6oth would have been tried jointly in the facts and circumstances of the present case. In this view of the matter, I am not persuaded to give effect to hyper technical objection. The finding of the learned appellate Court on this issue thus suffers from arbitrariness and is thus illegal.

4. As regards issue No.4, it is to be noted that the learned Appellate Court decided this issue against the petitioners/landladies by drawing adverse inference against them on account of their not entering the witness‑box themselves as their own witnesses. Firstly, the law allows a party to be represented through an attorney. This facility provided by law can, therefore, be availed of by a party and adverse inference can only be drawn if despite objection and in the face of other relevant circumstances brought on record, there is refusal on the part of the landladies to enter the witness‑box. In this case there is another circumstance which in my view, is fatal to the objection raised by the learned Appellate Court and now by the learned counsel for the respondent during arguments. It will be I recalled that the learned Appellate Court had called the ladies for the purpose of ascertaining their ages, their physical capability to conduct the business themselves. This direction which was duly complied with, was in the nature of holding further inquiry in the matter. If in respect of one matter further inquiry could be held in which the ladies did appear, to ascertain other aspects inquiry could also be held and the learned Appellate Court as well as the respondent/tenant could examine them on the question of bona fide personal need. They having thus appeared, no adverse inference could be drawn against them. In the circumstances, the inquiry could not be limited to the ascertainment of the ages of the ladies only. Further inquiry for a just decision of the case should have been conducted in respect of the bona fide personal need as well especially when adverse inference was sought to be drawn on account of their non appearance.

5. For the reasons given above, the judgment dated 29‑3‑1983 of the learned Additional; District Judge is hereby declared to have been passed without lawful authority and is hereby quashed. The net result of the above discussion is that the appeal shall be deemed to be still pending. Further inquiry, on the question of bona fide personal need, will be conducted and the petitioners will be provided opportunity to appear and make statements if so desired. Issue No.4 will be decided afresh on the basis of the evidence and other material available on record. All the pleas available to the parties in this respect shall be allowed to be taken. The petition is accepted with no order as to costs. The appeal shall be decided within a period of three months. H.B.T./M‑2675/L Petition accepted.