1983 PLP 2090 (CLC)

On appeal taken by the petitioner, this order was upheld vide judgment dated 18th May, 1981. The learned Additional District Judge held that ‑it is the personal need of the landlady to run the shop through Manzoorul Haq and that the pleading of the landlady that she needed the shop for her personal use was appropriate." This finding was based on the following observations :‑ "It is her case that she wants the shop for her personal use and she would make her own son Suleman and Manzoor ul Haq both to run that shop. Even if she had wanted to have this shop for her personal need and had wanted to put only Manzoorul Haq her step‑son in occupation of this shop it was a valid ground for ejectment." After referring to the statements of the respondents' witnesses, it was observed :‑ "To my mind this need is not only need of the son but need of the landlady also and even when she needs the shop for running it through her step son this is a valid need of the landlady."

2. These orders of ejectment are under challenge in this constitution petition. Learned counsel for the petitioner has argued that the above quoted finding and the observations on which the same is based are the result of misreading and non‑reading of the evidence on record ; that the case .made out by the Appellate Court that the landlady wants to run her own business through her stepson was nowhere to be found in the pleading or in the evidence ; that the shop cannot be got vacated for a stepson as a stepson does not fall within the purview of section 13(3) (ii) (a) of the Rent Restriction Ordinance, 1959. Learned counsel for the respondent does not dispute the legal proposition that non‑residential premises cannot be got vacated for the use of husband's son. He, however, maintains that the respondent wanted to run her own business in the shop and that the fact that that business was to be managed by a step son is of no consequence or relevance.

3. In view of the respective positions taken before me, it is necessary to go through the pleadings and the evidence of the parties. I am conscious that in constitutional jurisdiction reappraisal of evidence cannot be done so as to form an opinion different from the one expressed by the Courts and tribunals of competent jurisdiction. The appraisal of evidence can only be for the purposes of finding out whether there was any mis reading or non‑reading of material evidence or whether the inferences drawn were available from the facts proved on record .or not. Even if there is some material from which inferences as have been drawn could be drawn, interference would not be called for. Keeping these principles in view, I have gone through the material on record. First thing to be noted is that in the eviction application the respondent asserted that the petitioner/tenant was in occupation of lower portion of the house and that she required in good faith the said portion for her personal use and occupation as well as that of her family members. Mst. Rahmat Bibi appearing as P. W. 3 stated. in examination‑in‑chief that she had asked the petitioner to vacate the shop for his son and that she needs the shop for his son. The words used were that :‑ In cross‑examination she stated as under :‑ She produced two witnesses, namely, Muhammad Rashid (P. W. 1) and Muhammad Akbar (P. W. 2) in support of her case. Muhammad Rashid (P. W.‑ I) stated as under in cross‑examination he stated that the respondent needs the shop for her husband and children and that, she has two step‑sons. Anwarul Haq runs a shop. He denied the‑ suggestion that Manzoorul Haq the other son runs the shop. along with his father. Muhammad Akbar (P. W. 2) also stated that the respondent requires the shop for personal need and that she wants to get the shop‑ vacated for his son Manzoorul Haq. In cross‑examination he admitted that the respondent is issueless and that she has step‑sons.

4. In view of the above‑noted state of pleadings and evidence the learned counsel for the petitioner was right in asserting that no Court or tribunal applying judicial mind could record conclusion that the shop was proved to be required for the personal need of the landlady and that Manzoorul Haq was to run the shop for and on behalf of the landlady. No doubt the respondent introduced the name of Suleman when pressed in‑cross‑examination as the one who would also join Manzoorul Haq in the shop and that said Suleman was her son but that son was admittedly residing in Karachi and was not available at Lahore. It was nowhere stated that said Suleman wanted to shift to Lahore.

5. Mst. Rahmat B'ibi also sought permission to make submissions personally. She was given opportunity to address the Court. She in her address tried to show that she needs to be treated with compassion as she is a poor lady and her second husband is not properly maintaining her. She, however, admitted that her son Suleman has not come to Lahore and is presently living at Quetta.. With reference to the question whether Suleman is her real son, there is nothing on record‑except the statement of respondent herself. As against this there is in the evidence of her own and of Muhammad Akbar (P, W. 2) that she has no issue of her own. Be that as it may, the fact remains that from the pleadings and evidence on record reasonably it cannot be inferred that a case of bona fide personal requirement of the landlady .was made out. The findings recorded in the impugned orders thus stand vitiated as material pieces of evidence were ignored. Theshop was at best proved to be required for the use of the step‑son Manzoorul Haq. A step son does not fall within the purview of section 13'(3) (ii) (a) of the Ordinance and as such the petittoner.was not liable to be ejected under the law.

6. In this view of the matter this petition succeeds. The impugned orders of eviction are hereby declared to have been passed without lawful authority and hence have no legal effect. There will be no order as to costs. K. M. A. Petition accepted.