1997 PLP 3248 (MLD)

(4) The deponent of the affidavit‑in‑evidence did not state that the contents of the application were correct. According to him this creates a ground which may suggest that no evidence is existing on which may warrant ejectment.

6. Opposing the above contention of the learned counsel for the appellant, Mr. Arshad Iqbal, learned counsel appearing for the respondent contended that the requirement of the landladies have been specifically mentioned in the, application. Once the landlord appears in the witness‑box and deposes about his/her need, which is unshaken in cross‑examination (as in this case) the Courts ought to have given weight to such deposition. Since the impugned order reflects so, no exception could be taken against the order. In any event in case if the premises are not occupied by the landlord who obtains such order the legislature in section 15‑A of the Ordinance of 1979, has provided relief which will take effect. 6‑A. Dealing with the first contention of the learned counsel for the appellant that the application was not maintainable, the crux of his argument was that. in the power of attorney the attorney‑holder was empowered to file cases and applications but not "rent applications". According to him by doing so the power of attorney‑holder has exceeded his authority.

7. The power of attorney is a general power of attorney which is also registered document. If the power of attorney‑holder is empowered to file the unspecified cases and applications that would impliedly mean and include rent cases and rent application. The landladies were examined and were in witness box but no question was asked from them that they have authorised the power, of attorney‑holder only to file applications and no questions were put pertaining to the validity of the power of attorney to the applicants. In my humble view technicalities, unless they pose insurmountable difficulties in administration of justice, are not to be looked into. The Courts always assess the application and the documents/instruments in support of the application, as a whole, I am afraid there is no substance in the first contention urged by the learned counsel for the appellant. Consequently, the legal objection urged by the learned counsel for the appellant is not apt, therefore, overruled.

8. Reverting to the second contention of the learned counsel appearing for the appellant that nothing turns on the use of third person instead of first person in the evidence affidavit‑in‑evidence. The Courts are concerned with the pith and substance of the evidence adduced before a Court. If the pith and substance of evidence is clear and leads to a particular fact, then technicalities of English grammar which do not govern judicial proceedings can be ignored as the jurisdiction of the Court is governed by law and not by the use of good English grammar.

9. Regarding the characteristics shown in the application and supported by the evidence, for which it is contended do not speak about the personal needs but only speak about the community needs, suffice to say that it is the landlord who has to assess as to how he would put his premises in any use. In this case it has been specifically pointed out by the landladies that they need the premises for establishing maternity home and hospital. Their such requirement in the application is supported by evidence on record. Exception to such needs has been taken by the learned counsel appearing for the appellant that in cross- examination it has been stated by the applicant No.2 that she wants to open a maternity home and not child welfare institution, and according to learned counsel it would lead to abortion hospital and not maternity home. I am unable to find any nexus between the abortion centre and the maternity home in absence of child welfare programme. Maternity home has no connection with the child welfare. It may cater for the care of infants. There is word of difference between the infant and child. Such arguments by the learned counsel for the appellant which are based upon the child welfare and its connection with the maternity home are not apt. In a maternity home a nursery, (for the new born infant while the mother is hospitalized for recovery) is established which is a part of maternity home. In the entire evidence led before the trial Court no question regarding establishment of nursery was posed. As such no exception could be taken to the averments in the application and the evidence in support thereof, or the admission of the respondent No.2 relating to child welfare in cross -examination.

10. Learned counsel for the appellant has opposed the personal need of landlord in his affidavit‑in‑evidence and more specifically pointed out in paragraph No.8 of his affidavit‑in‑evidence which reads as follows:‑ "(8) I say that according to their admission the two landladies/applicants do not need the Shop No.2 together with the entire property, because: (a) They want to establish a maternity home without the welfare of the child. Such a maternity home could at best be an abortion theatre without the welfare of child. (b) Applicant Mst. Aasia Khalid has no basic knowledge or requisite experience to run or establish a maternity home for want of qualifications. She would be a dangerous woman to start a well -accommodating Hospital and Maternity Home (Para. No.3 of the application and para. No.2 of her own Affidavit‑in‑evidence refers) (c) The applicants want to serve the mankind. It portays that the two Applicants do not need the demised premises in good faith for their own benefit save for visionary satisfaction of their intutive programme. Provided the word 'Mankind' is placed in Juxtaposition to the word 'Womankind' the concept and applicability of the legal maxim 'nositure a socie' is bound to be jeopardised. (d) The applicants is/are in possession of spacious accommodation in Nazimabad and P.E.C.H.S. where a Hospital and Maternity Home can comparatively be founded for the better service of the mankind. (e) The applicants have no instruments and no viable provisions/equipments to start a hospital and maternity home. They do not possess Surgical Theatre, Experts in anaesthesia, X‑Ray Plant, Cardio Vascular facilities, Lifts, Nurses to run a hospital and maternity home in the building except that they may play a mock with the live of mankind. (f) Even otherwise the rooms in the building and the capacity of the accommodation do not warrant commencement of a maternity home and hospital on account of insufficiency and dearth of space. (g) The applicants want vacation of my shop and other premises for reconstruction, innovation and renovation purposes and until such time no service and succour can be expected to be provided to the poor mankind. (h) The concept of no profit and no Loss basis is merely a sordid slogan for the advancement of acrasy (sic). (i) The applicants were invigilant and did not know uptil now the size and position of their own building. Demand of vacation of the building including my shop is an excuse simplictor for no purpose to avail. " Against this statement made in examination‑in‑chief, in cross‑examination the witness has deposed as follows:‑ "I do not know whether applicants have got any other property for the purpose of opening the Hospital and Maternity Home . .......... It is fact that there is necessity of Maternity Home and Hospital in the area ........ Mst. Qudsia might run the Maternity Home and Hospital as she is M. B.B.S. I do not know whether sister of applicant No. l is the half of the owner in the disputed building. I do not know whether applicant No.2 can assist the applicant No. l in running the Maternity Home. It is fact that applicant No.2 can assist the applicant No. l as applicant No.2 is B.Sc. passed. It is fact that financial position of applicant is sound and they can start Maternity Home and Hospital."

11. In view of the above position obtaining on record the appellant failed to establish any cogent grounds regarding personal need of the landlords which was established by them in their evidence.

12. The legislature has taken care to regulate the conduct of landlord ‑by enacting section 15‑A of the Ordinance, 1979 through an amendment. If crafty landlords obtains the order of possession on the grounds of personal need, do not occupy and convert the premises for such need the tenant can apply for restoration of the premises. Since the legislature has taken care relating to misuse of the orders, if any, by the landlord after ejectment order on personal need is obtained and has provided machinery and mechanism, the provisions are mandatory and provide complete check on the landlord, and, guarantee to the tenant to apply for restoration of possession and penalty for the landlord.

13. No other point was urged and no exception can be taken against the impugned order, consequently this appeal fails which is dismissed with no order as to costs.

14. After the orders were dictated learned counsel for the appellant requested for time for ejectment and/or to avail other legal remedies. It is ordered that the appellant shall vacate the premises by 30th September, 1997. In case the premises are not vacated by him then writ of possession will issue without notice. H.B.T./A‑126/K Appeal dismissed.