1988 PLP 2238 (CLC)

2. On lst .of September, 1980, the petitioner filed an application for the eviction of respondents No.l to 4 from Shop No.47, Muslim Bazar, Gujrat alleging that his sons had grown young and he required the shop bona fide for use by them for their business. According to him, he did not own any other shop whereas the respondents were owners of another shop in the vicinity.

3. The respondents opposed the application controverting the averments of the petitioner. They alleged that the petitioner was not possessed of sufficient means to start any business and he had filed the application mala fide merely to enhance the rent.

4. The Rent Controller framed the following issues:‑ (1) Whether the applicant requires in good faith the shop in question for his sons? OPA (2) Whether the respondents owned any shop in the bazar, if so its effect? OPA. (3) Relief.

5. In support of the issues the petitioner examined five witnesses including himself and Waqar Ahmad, his son. In rebuttal the respondents produced three witnesses including Sardar Khan, one of them. After appraising the evidence, the Rent Controller found both the issues in favour of the petitioner and consequently accepting his application passed an order of ejectment against the respondents vide his judgment dated 8th of May, 1982.

6. Feeling aggrieved, the respondents preferred an appeal which was heard by the Addl. District Judge, Gujrat who vide his judgment dated 22nd of December, 1982 affirmed the finding of the Rent Controller on issue No.2 but reversing his finding on issue No.l accepted the appeal, set aside the order of ejectment and dismissed the ejectment application filed by the petitioner. The petitioner has challenged the legality of the judgment of the Addl. District Judge, Gujrat in this writ petition.

7. Learned counsel for the parties addressed their arguments on 4th of May, 1988. However, on the request of Mr. Pervaiz I. Mir, learned counsel for the respondents, the writ petition was adjourned to today as he wanted to address some further arguments. He has not appeared today. On his behalf Mr. Sohail Chaudhary, Advocate, his junior, has put in appearance and sought another adjournment on the ground that Mr. Mir has gone outside Lahore. There is no justification for another adjournment, especially when the writ petition was adjourned to today on his request.

8. It is an admitted position that the petitioner does not own any other shop except the shop in dispute. It is also not controverted that the four sons of the petitioner have become young and they too neither own nor occupy any shop.

9. The petitioner deposed as P.W.3 that his sons were jobless and he alongwith them wanted to start their own business in the shop. Waqar Ahmad, a son of the petitioner, appeared as P.W.4. He too deposed that he had three brothers. All of them were idle and they wanted to carry on the business of hardware in the shop. Their statements were corroborated by two other witnesses namely Nazir Ahmad and Fazal Elahi who appeared as A.W.1 and A.W.2 respectively. In rebuttal Sardar Khan, one of the respondents, entered the witness box as R.W.3. He stated that the petitioner did not require the shop for himself or for his sons. According to him, one of the sons of the petitioner was a student and the others were doing jobs in some factory. However, he could not point out the factory where they were employed. Muhammad Din who appeared as a witness of the respondents as P.W.2 expressed ignorance as to whether or not the petitioner required the shop for himself or for his sons. Muhammad Bashir, R.W.1., who is related to the respondents stated that the sons of the petitioner were doing work in a fan factory. In cross‑examination, however, he said that he was not aware as to in which factory, the petitioner and his sons were working. This evidence establishes beyond any iota of doubt that the petitioner requires the shop bona fide for himself and his sons for starting their own business. The learned Addl. District Judge found the issue of personal requirement against the petitioner in view of his statement in his cross‑examination that after the shop was vacated by the respondents, he would think as to what business should be started by them. According to him, this statement of the petitioner ran counter to his plea for the eviction of the respondents which for the present did not appear to be bona fide. Actually what was stated by the petitioner in cross‑examination was that he would ask his sons to start the business of paints or hardware, adding that after the shop was vacated they would deliberate as to which business be started. If the Addl. District Judge had read the whole of the‑statement of the petitioner carefully, he would definitely have arrived at a different conclusion. It is, therefore, obvious that the finding of the Addl. District Judge suffers from a fallacious approach and misreading of material evidence.

10. Learned counsel for the respondents has argued that assertion of bona fide requirement is a question of fact and finding given thereon by a competent tribunal is not open to question in writ jurisdiction. He has cited Noorul Islam Siddiqi v. Mst. Haidri Begum and others 1983 S C M R 18, Abbul Ghani v. Mst. Zahida Begum and others P L D 1982 Lah.

401. Pakistan International Airlines Corporation v. Mst. Safooran Khanum 1981 C L C 1636 and Fazal‑ur‑Rehman v. Ghulam Habib and 2 others 1980 C L C

887. No doubt if a finding on a question of fact is given after due appraisal of evidence, it cannot be challenged in a writ petition. However, if the finding on a question of fact is vitiated by a fallacious approach, violation of some fundamental legal principle in the matter of appreciation of evidence, omission of evidence or misreading of evidence, the same can legitimately be interfered with by this Court in writ jurisdiction. For this 1Aew reliance may be placed on Messrs A. C. E. Enterprises through Khalid Pervez v. Additional District Judge, Lahore and others 1987 SCMR 1174, Ghulam Dastgir v. Muhammad Zakria Javed and others 1987 S C M R 796, Allah Rakha v.Muhammad Shafi 1978 S C M R 437 and Sh. Khushi Muhammad v. Kh.. Muhammad Rashid Wain 1968 SCMR 1158. In the circumstances, therefore, I reverse the finding" of the learned Addl. District Judge on issue No.l and hold that the petitioner bona fide requires the. shop for use by him and his sons.

11. During the pendency of this writ petition, the respondents filed an application for a further inquiry in the matter alleging that on 9th of August, 1987, the petitioner had executed an agreement to sell the shop in dispute to one Asad Hussain. The petitioner in his reply stated that he had executed the agreement but contended that the same was revoked subsequently. There is nothing on record to controvert the contention of the petitioner. Moreover, as rightly argued by learned counsel for the petitioner, this circumstance by itself does not react on the plea of the petitioner that the finding of the Addl. District Judge on the question of personal requirement is vitiated by misreading of evidence.

12. The respondents filed yet another application stating that two of them had gifted to the other two their share in the shop situate in the vicinity of the shop in dispute. It is intended to convey by this application that out of the four respondents, two do not now own any shop in the locality of the shop in dispute. Even if it were so, it would not recoil on the plea of the petitioner that he requires the shop in dispute bona fide for use by him and his sons.

13. For the foregoing reasons, I accept this writ petition and declaring the order passed by the Addl. District Judge, Gujrat as without lawful authority and of no legal effect restore the order of ejectment passed by the Rent Controller, Gujrat in favour of the petitioner and against the respondents. The respondents are, however, allowed a period of four months from today to vacate the shop in dispute and deliver its possession to the petitioner. The parties are left to bear their own costs. A. A . /A‑348/L Petition accepted.