1980 CLC241 (PLP)

This is an appeal from an order of Sardar Muhammad Amir Akbar Khan, District Judge, Gujrauwala elated 17-10-1970, affirming an order of Mr. Ahmad Nawaz Malik, Rent Controller, Gujranwala dated 31-7-70, whereby after accepting the respondent's application fir ejectment under the provisions of West Pakistan Urban Rent Restriction Ordinance, he ; had directed the appellant to vacate the shop in dispute.

2. The facts of the case are that Muhammad Ishaq, whose legal representatives have been impleaded during the pendency of this appeal, was transferred the shop in .dispute as evacuee property. A. P. T. O. (Exh. P. 1) dated 6-7-60 was issued in this -behalf. Later on a P. T. D. (Exh. P. 9) dated 6-9-63 was also issued in the name of the respondent. After giving a notice under section 30 of the Displaced Persons (Com pensation and Rehabilitation) Act (Exh. P. 7), the respondent filed an application for ejectment . against the appellant on the ground that he required the shop in dispute for his personal need. Only the following two-issues were framed in the case :- (1) Whether a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was served upon the respondent on 14-10-1960 ? O. P. P. (2) Whether the petitioner requires the shop in dispute in good faith for his personal use ? O. P. P. The learned Rent Controller found both the issues in favour of the res pondent, and ordered the appellant's ejectment, The learned District Judge also decided both the issues in favour of the respondent while affirming the order of the Rent Controller.

3. On issue No. 1, it is contended on behalf of the appellant that the finding of the Courts below is erroneous, because the record shows that the respondent had neither' sent a notice under section 30 of the Dis placed Persons Act to the appellant, nor had he a right to do so, and not was he authorised under the law to initiate proceedings for tide appellant's ejectment.

4. There is- a concurrent finding of the Courts below that a notice under section 30, (Exh. P. 7) has been sent to the appellant. The finding has been arrived at on the basis of the testimony of the Advocate's clerk who had sent the notice. Postal receipt (Exh. P. 3) and acknow ledgement due receipt (Exh. P. 4) leave no room for doubt that the notice had indeed been served. The fact that the respondent bad not appeared as a witness himself to assert the sending of tire notice, or that the Advocate who had drafted the notice on behalf of the respondent was not examined as a witness, does not detract from-the value o other evidence, on the basis of which the concurrent finding has bee arrived at.

5. On the question of the respondent's right to send the notice or to apply for ejectment, it is contended that the P. T. O. (Exh. P. 1) bad been issued in the name of Muhammad Siddiq and not Muhammad Ishaq the respondent. Reliance is placed on Bashlr Ahmad v, Mst, Meharun-Nisa (P L D 1975 S C 58) to submit that a person who is not a P. T. O. holder, cannot initiate ejectment proceedings against a tenant in respect of evacuee property which may have been ordered to be transferred to him.

6. P. T. O. (Exh. P. 1) has been issued on a printed form. On the front page of the document the name "Muhammad Siddiq through Muhammad Ishaq" is entered, creating the impression that Muhammad Siddiq was the transferee of the property. Actually Muhammad Siddiq as throughout been acting as the attorney of the respondent before t each :Settlement Authorities, and that he has been so acting even in these ejectment proceedings. Actually the entry should have been Muhammad shad through Muhammad Siddiq. In any case the correct name is entered on the back page of the P. I!". D. under the heading "Schedule of Transferee". It is therefore obvious that the entry on the front page is a mere clerical error. In fact a P. T. D. dated 6-9-1963 (Exh. P. 9), had also been issued, in which the respondents name had correctly been recorded, and who therefore could on the basis of that document, initiate ejectment proceedings against the appellant. The respondent however had also approached the Settlement authorities for the correction of the clerical error. The mistake was ordered to be corrected through order dated 6-4-1967 (Exh. P. 2) in which it was held to the effect that the entry on the front page of the P. T. O. was an obvious error, and that a P. T. D, had been issued already in the correct name. There is therefore, no merit in the submission that the respondent was not authorised to give the notice or to eject the appellant. The appellant however, has raised weighty objections about the findings of the Courts below on the issue about the landlord's require ment of the shop for his personal use. It may be mentioned here, that the learned counsel for the respondent, who had not appeared to argue this case on 26-5-1979, stated on 28-5-1979 that on that date he had been busy arguing a case before some other Bench, and requested that he may be heard in support of the respondent's case. He was heard. The sum and substance of his contentions is that there is a concurrent finding of the Courts below that the respondent required the shop for his personal needs and in good faith, and that this finding was binding on the Court-in second appeal.

8. The finding of the learned District Judge, on this issue is based on the statements of Muhammad Siddiq (P. W. 1), the respondent's general attorney, and Muhammad Akram P. W

2. Both these witnesses deposed in general terms' that the respondent required the shop in Gujranwala for his personal use. The general attorney also stated that the respondent was living with his son at Karachi. None of the two wit nesses gave any details of the use to which the shop was to be put by the respondent. The appellant had also placed on record a notice (Exh. R. 1) which the respondent had sent to him before the institution of the eject ment proceedings. He had stated in this notice that he required the shop for his personal needs. The learned District Judge found that the statements of the general attorney (P. W. 1) and of Muhammad Akram (P. W. 2), read with notice Exh. R. 1 were sufficient to prove that the requirement of the respondent was genuine and good faith.

9. It is contended on behalf c the appellant that the non-appear ance of the respondent as a witness in this base, to dispose about his requirement and to stand the test of cross-examination, was fatal for his case. He has relied in this behalf on Ghulam Al-Mihy-ud-din Khan (1). It is also submitted that the Court had not considered the statement of the general attorney which he had made before issues, and in which he had stated that the respondent was an old man of 75 years, in the year 1967, and was residing with his son at Karachi. The counsel has also referred to the general power of attorney, in which the appellant has stated that the reason why he was appointing at attorney was that he was a sick man, and was not able to personally pursue his matters. It is contended that there is no evidence on record to show that the respondent was able to come to Gujranwala, leaving his son at Karachi, and start a new business at Gujranwala, when he was already a sick old man.".

10. It is indeed. difficult to assess the `requirement of a landlord as being in good faith, unless he himself appears as a witness, and gives expression to his desires, intentions as well as requirements, and also submits himself to cross-examination, and present the basic facts, per taming to his requirement, for scrutiny. Not only has the respondent failed to appear as a witness, but his attorney has disclosed facts which make it improbable that he would ever use the shop himself. The Court below have not considered all these relevant factors while arriving at their conclusions. In fact the learned District Judge has observed that ; "There is specific provision in the Rent Restriction Ordinance which safeguards the interests of persons who are ejected from the shops on the ground of personal necessity, if it is subsequently found that the shop has not been put to the use for which the ejectment was ordered and has concluded that in these circumstances the requirement of the respondent was bona fide. Actually it is necessary that an objective assessment of the requirement be a landlord being in good faith should be made, which the learned lower Court has not done. He did not take into consideration the relevant material on, record while arriving at his conclusion.

11. The respondent having failed to appear as a witness, and he being a sick old man, living with his son at Karachi, and having appointed an attorney because he could not attend personally to his affairs at Gujranwala, cannot be said to be in a position to start a new business at Gujranwala therefore decide issue No. 2 in favour of the appellant, and in consequence accept this appeal, and set aside . the orders passed thy the Courts below, and dismiss the application for ejectment filed by the respondent. M. A. K Appeal accepted