1979 PLP 190 (CLC)

This is a petition filed by the tenant to challenge an order of his ejectment from a shop situated within the Cantonment area, at Sarwar Road, Cantonment Lahore.

2. The facts arc that respondent No. 1 filed an application for eject ment of the petitioner from the above shop on ground of requirement of the same for his personal use and default. The application was allowed by the Rent Controller on ground of personal requirement only. He found that no case of default was made out. He directed the petitioner to vacate the shop within one month vide his order dated the 12th October 1977. This order was maintained in appeal by the learned District Judge on 5th March 1979. According to the one portion of the evidence of the respondent the requirement was for his own use as also for his son. It was argued before the learned District Judge that section 17 A0 of the Cantonment Rent Restriction Act, 1963, did not recognize the ground of requirement for the use of son as a ground for ejectment of the tenant. The learned District Judge repelled this argument on the ground that personal requirement of the landlord includes his all general requirements and cannot be restricted to his own use only.

3. The learned counsel for the petitioner argued that it is clear from the evidence of respondent No. 1 himself that he required the shop not for his own business of Depot Holder which was carried on by him but for the business of his son. As such the principle which has been relied upon by the learned District Judge is not applicable.

4. The learned counsel for the respondents, on the other hand, submitted that according to the evidence relied upon by the learned counsel for the petitioner it is clear that the requirement was not only for the business of the son but also for the business of the petitioner since what the petitioner intends to do is to carry on his business in association with his son. In support of the plea that such requirement is recognized by the law, the learned counsel relied upon Abdul Salam v. Najam Parvez (1976 S C M R 52).

5. In that case the premises was required for personal need of the landlord as well as of his brother who depended upon him and was invalid. Their Lordships did not agree that the personal needs of the landlord would include the need of those dependent upon him but, since the landlord required the premises for his own occupation, it was held that it was a fit case for ejectment of the tenant.

6. The learned counsel also argued that the learned District Judge has arrived at a finding of fact which cannot be set aside in exercise of writ jurisdiction of this Court.

7. It is no doubt true that if it is found that the learned District Judge has arrived at a finding of fact it is not open to the High Court to interfere with that finding in exercise of writ jurisdiction. But the High Court has a right to interfere with such a finding where it is based on misreading of evidence or non-consideration of material evidence or erroneous facts. Allah Rakha v. Nawab (P L D 1967 Lah. 613) In Nawaza v. The Additional Settlement & Rehabilitation Commissioner, Gujrat and others (P L D 1970 S C 39) it was held that finding of fact if it is based on no evidence or based on misreading of evidence, can be interfered with but nevertheless proper course is to remand case back to lower Tribunal for decision, I do not agree with the argument that even in such a case where the evidence has been misread or material evidence has been ignored this Court cannot interfere with the finding of fact.

8. Now in the present case the learned District Judge has not taken into consideration the material portions of the statement of respondent No.

1. In his application for ejectment, respondent No. 1 based his case inter alia on the ground of requirement of the shop for his personal use. In his statement he changed his ground in examination-in-chief and though be 'stated at one place that he required the shop for his own use as well as the use of his son but he further stated that this shop was rented out to the petitioner on the consideration that when the son becomes an adult he will have to vacate the shop for his personal business. The petitioner had, however, said that he should be notified about, it a month earlier. When the petitioner was confronted with the situation that he was carrying on his business of Ration Depot he stated at the end of his statement that he wanted his son to carry on business in this shop. This material evidence has not been taken into consideration by the learned. District Judge. It is possible that if he had taken into consideration this aspect of the case he might have come to a different conclusion.

9. I agree with the argument of the learned counsel for the respondents that if it is held that respondent No. 1 required the shop for his personal use as well as for the use of his son, the use of his son would be ignored and the shop can be ordered to be vacated for the business of son; but the learned District Judge should first find out whether the shop is required only for the business of the son or for the joint business of the father and the son. The District Judge can uphold the finding of the learned Rent Controller on issue No. 3 only if he comes to the conclusion that the requirement is for joint business of the father and the son. Since the learned District Judge has not taken into consideration ire material portions of the evidence on record, I have no option but to quash the order dated the 5th March 1979, and remand the case to him for a fresh decision on the petitioners appeal. The parties shall, however, bear their own costs. M. A. K. Case remanded.