1992 PLP 306 (CLC)

This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, calls in question the judgment of the District Judge, Kasur dated 16th of December, 1987, whereby he set aside the order of the Rent Controller dated 11th of May, 1987, and dismissed the application for ejectment filed by the petitioner against respondents Nos.2 to 5 herein.

2. The ejectment petition was instituted by the landlady on 22nd of April, 1985, seeking the eviction of respondents Nos.2 to 5 from property No.B‑IV 8R‑39 situated in Gandam Mandi, Kasur, on the allegation that respondent No.2 was a tenant in respect of the property under her at a monthly .rent of Rs.500 and that he was a defaulter in payment of rent; and sublet the premises to respondents Nos.3 to 5 and also that the premises were required by the petitioner bona fide and in good faith for her use. This application was contested by respondents Nos.2, 3 and 5 by filing written statement. The Rent Controller, after framing the necessary issues, recorded the evidence of the parties and by means of his order dated 11th of May, 1987, came to the conclusion that the property in question was required by the petitioner bona fide and in good faith for the use of her son. As a consequence of this finding, an order of ejectment was passed against the respondents.

3. Aggrieved by this order, an appeal was filed by respondents Nos.2 and 3 before the District Judge, who reversed the finding of the Rent Controller on issue No.6, and held that the petitioner had failed to prove that the property was required by her for the use of her son bona fide and in good faith. Therefore, while accepting the appeal, he dismissed the petition for eviction.

4. This petition was on 11th June, 1991 allowed ex parte but on an application (C.M. No.1 of 1991) filed by the respondents, the ex parte order was set aside and the arguments of the learned counsel for the parties have been heard.

5. The learned counsel for the petitioner submitted that District Judge while reversing the finding of the learned Rent Controller on issue of personal use has acted contrary to law declared by the superior Courts and has also misread the record. It was further pointed out that the judgment of the District Judge is based upon conjectures and grounds which are wholly untenable. The learned counsel also argued that the lower appellate Court has failed to take notice of the reasoning which had prevailed with the Rent Controller for taking a contrary view of the matter.

6. The learned counsel for the respondents on the other hand stated that in the ejectment petition the petitioner had sought the eviction of the premises for her own use but during the course of evidence the need set up was for that of her son and in view of this contradictory stand the ejectment petition was liable to be dismissed. It was also contended that the property in question was non‑residential in nature having been let out to respondent No.2 as a shop and therefore, could not be got vacated for residential purposes. The next point urged by the learned counsel for the petitioner was that a finding of fact has been recorded by the District Judge by not believing the evidence led by the petitioner that the premises were required by her for the use of her son and such findings were not liable to be interfered with by this Court in exercise of its constitutional jurisdiction.

7. In support of her case that the property was required by her bona fide and in good faith for her own use, the petitioner had examined her brother and attorney Muhammad Afzal as A.W.3, who deposed that son of the petitioner had grown up and sitting idle and the premises were required by the petitioner for her use, both for the purposes of business as well as residence. The Rent Controller, while holding that the landlady had succeeded in proving her case, had relied upon the statement of this witness and also noted that there was no effective rebuttal. However, these findings were reversed by the District Judge mainly on the ground that neither the landlady herself nor her son, who had to use the property, had appeared as a witness. The insistence of the District Judge that the landlady and her son should have appeared as witnesses runs counter to the law declared by the Supreme Court of Pakistan in Arshad Umar and another v. Begum Nazrul Askari (PLD 1985 SC 38). It is also to be seen that Muhammad Afzal, who appeared as A.W.3, was not only the attorney of the petitioner but also her real brother and was, therefore, in a position to depose about the facts from his own knowledge.

8. A perusal of the judgment of the District Judge shows that he did not apply his mind to the facts of the case. The premises in question were required by the petitioner for the use of her son; both for residential as well as business purposes. The District Judge, while deciding the appeal, was oblivious of the fact that according to the petitioner, the property was needed not only for the residence of her son but also for his business. In these circumstances, the occupation of a part of another residential house was of no consequence. Furthermore, according to the finding of the District Judge himself, in the house occupied by the petitioner not only she but also the family of her brother, who is a co‑sharer with her, was living in house. In these circumstances, the assertion of the petitioner that a separate house was required by her for the use of her son cannot be said to be mala fide. It is thus obvious that the judgment of the District Judge is not sustainable.

9. So far as the contention of the learned counsel for respondents Nos.2 to 5 that the stand taken by the petitioner in the ejectment petition and during the course of evidence was contradictory is concerned, suffice it to say that this contention cannot prevail in view of the judgment in Zahoor Din v. Mirza Ayub Baig (1981 S C M R 1081), wherein it was held that the requirement of the children is really in the nature of extension of the personal requirement of the landlord himself and therefore even if in the ejectment petition it was not specifically stated that the requirement is for the occupation of any one of his children, the landlord would still be entitled to spell this need in evidence.

10. As regards the objection of the learned counsel for the contesting respondents that this Court cannot interfere with the findings recorded by the District Judge, as already held the judgment of the District Judge is contrary to law declared by the superior Courts and cannot be sustained. Even otherwise, the judgment is based upon consideration which has no relevance and therefore stands vitiated. It is also to be noticed that there is no finding recorded by the District Judge that the evidence led by the petitioner was not of any credit. On the other hand, he has merely observed that there was no corroboration of the statement of attorney of the petitioner. There is no legal requirement that apart from the statement of the landlord or his attorney, some other evidence must be led by the landlord to prove his personal use. If statement of the landlord or his attorney is confidence inspiring and is not rebutted by the respondents by leading any evidence, it is sufficient to sustain the finding on the issue of personal use. Muhammad Siddique v. Mistri Muhammad Aslam (PLD 1975 Lah. 308) refers). For the reasons aforesaid, this petition is allowed, the impugned judgment of the District Judge is declared to be without lawful authority and of no legal effect, with the result that the order of the Rent Controller dated 11th of May, 1987, stands restored, with no order as to costs. The respondents are allowed one month's time to vacate the premises in question. AA./M‑3122/L Petition accepted.