1994 PLP 2210 (MLD)

This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, arises out of an application under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959, filed by the petitioner on 12th March, 1983, against respondent No.l, seeking his eviction from shop bear08 No.2/172, situated in Nia Bazar, Kharian, District Gujrat, on the ground f default in payment of rent, damage to the property and reconstruction.

2. This application was contested by respondent No.1 by filing a written reply in which apart from controverting the allegations m the application, some preliminary objection were also raised. On the pleadings of the parties, the learned rent controller framed the following issues. (1) Whether the respondent is rent defaulter from October, 1981? OPA. (2) Whether the respondent has impaired value of the suit property? OPA. (3) Whether the applicant requires the suit shop in good faith and bona fide for reconstruction? OPA. (4) Whether the applicant requires the suit shop for his bona fide personal requirement in good faith? OPA. (5) Whether the ,ejectment application is not maintainable under section 14 of the West Pakistan Urban Rent Restriction Ordinance? OPR. (6) Whether this application is mala fide? If so, its effect. OPR. (7) Relief. In order to prove his case, the petitioner examined P.W.1 Ghulam Sarwar, P.W.2 Riasat Ali, P.W.3 Muhammad Khan and appeared himself as P.W.4.

3. On the other hand, the respondent produced 3 witnesses, namely, Fazal Karim R.W.1, Naseer Ahmad R.W.2, Muhammad Farooq R.W.3 and himself appeared as R.W.4.

4. It appears that the petitioner had also produced in evidence the building plan sanctioned by the Town Committee, Kharian as Exh.Pl. Later on, on an application filed by him, he was allowed to produce another plan as Exh.P2.

5. The application for eviction was dismissed by the Rent Controller on 27th July, 1987, who found that respondent No.1 was neither a defaulter nor had he impaired the value and utility of the shop. It was also found that the premises were not required by the petitioner bona fide and in good faith for his on use or for reconstruction. These findings were affirmed in appeal by the Additional District Judge. Hence this petition.

6. Before this Court, the learned counsel for the petitioner has only pressed the ground of requirement of the premises in dispute for the purposes of reconstruction. It was submitted that the refusal of the Rent Controller as also the Additional District Judge, to order the eviction of the respondent on this ground, was contrary to the law declared by the superior Courts, of the country besides being conjectural. The learned counsel for the respondent has been heard in reply.

7. From a perusal of the judgment of the Additional District n becomes evident that he has failed to apply his own mind to the dispute before him and has disposed of the matter mechanically while upholding the order of the Rent Controller. Such a disposal of a cause involving valuable rights of the parties and especially when at the relevant time the District Court was the final Court of, appeal, cannot be countenanced. It was obligatory upon the appellate Court to have made an independent assessment of the evidence and to have decided the appeal by giving howsoever reasons in support of the findings recorded by him. The Additional District Judge has dealt with the issue of reconstruction in paras. 9 and 10 of the judgment. If these two paras, are compared with para. 18 of the order of Rent Controller, it shall be found thai they are just reproduction of what was stated by the Rent Controller in para. 18 of his order. It is thus evident that the appeal filed by the respondent has not been decided in accordance with law.

8. There is also merit in the contention of the learned counsel for the petitioner that while deciding the issue, the law declared by the Superior Courts have been ignored. However, as the matter is being remanded to the Additional District Judge, no further comments be made on this aspect lest the cause of any of the parties is prejudiced. For the reasons aforesaid, this petition is allowed, and the impugned judgment of the Additional District Judge, Gujrat, is declared to be without lawful Authority and of no legal effect, with the result that the appeal filed by the petitioner shall be deemed to be pending before the Additional District Judge, Gujrat, and shall be decided afresh. As the ejectment petition out of which this petition has arisen was filed as far back as 1983, it is directed that the appeal shall be decided before 31st January, 1993 positively. This direction shall be reported to the Registrar of this Court. There shall be no orders as to costs. H.B.T./M-1735/L Petition allowed.