1997SCMR1169 (PLP)

MIR HAZAR KHAN KHOSO, J. ‑‑‑Petitioner, Syed Abdul Rauf, tenant, seeks leave to appeal against the judgment dated 21‑12‑1994 passed by a Judge in Chamber of the High Court of Balochistan Quetta, whereby appeal filed by him challenging the ejectment order passed by the Rent Controller, Quetta, on 30‑4‑1994 was dismissed.

2. The facts giving rise to this petition are that Abdul Sattar tiled ejectment application against petitioner Syed Abdul Rauf before the Rent Controller, Quetta, on the ground that he needed the shop for his personal bona fide use. Petitioner Syed Abdul Rauf contested the application. Five issues were framed. The parties led evidence. However, on 30‑4‑1994 the learned Rent Controller accepted the application and ordered for ejectment of the petitioner from the shop in question. The petitioner filed appeal before the High Court of Balochistan, Quetta, which was dismissed on 21‑12‑1994. Hence this petition for leave to appeal.

3. The learned counsel for the petitioner inter alia contended that to prove the bona fide respondent Abdul Sattar had not examined himself before the Court, hence the ejectment order passed by the two Courts below were not maintainable. He relied upon the cases reported in:‑‑ (i) PLD 1976 Karachi 1231. (Soofi Muhammad Yasin and another v. Dr. Major Abdul Ahad Khan). (ii) 1981 CLC 327. (Muhammad Younus v. Dr. S. Muzammil Ali) (iii) 1982 CLC 1761. (Mst. Shaukat Sultana v. Mst. Zohra Bi) (iv) 1982 CLC 1807. (Mahmood Khan v. Naisma Khatoon) (v) 1979 CLC 367. (Muhammad Asghar and 5 others v. Mst. Jamila Khatoon)

4. In the case mentioned at (i) above the Court has taken the view:‑ "Ejectment on ground of landlord's requirement of property for his personal bona fide use ‑ Landlord giving impression that extra accommodation was sought to accommodate his three children (2 daughters and one son), all Doctors ‑ Omission ‑to examine two daughters holding independent employment ‑ Held, fatal, to landlord's case."

5. In the case reported in 1981 CLC 327 the Court has held that:‑ "If a landlord without any plausible reason fails to appear as witness before Rent Controller in support of his application for ejectment on ground of personal requirement in good faith, this will be fatal to his application. "

6. In the case of Shaukat Sultana v. Mst. Zohar. Bi (1982 CLC 1761) the Court has observed:‑ "Examination of witnesses ‑ Decision of question whether non?-examination of landlord and his son fatal to case, held, depends on facts of each case ‑ Sufficient reasons for non‑appearing available (applicant a widow)‑‑Failure to appear personally in such case not fatal."

7. In the case reported in 1982 CLC 1807 (Mahmood Khan v. Nasima Khatoon) the Court has taken the view:‑ "Bona fide personal requirement ‑ Respondent landlady not coming to witness‑box to support her claim for ejectment of tenant ‑on ground of her personal and bona fide use and offering no explanation for not doing so ‑ Plea of bona fide personal requirement held not established."

8. In 1979 CLC 367 (Muhammad Asghar and 5 others v. Mst. Jamila Khatoon) it has been observed:‑ "Landlord seeking ejectment of tenant for personal need‑‑To enter witness‑box if not disabled to appear due to reasons beyond his control or for physical or mental disability‑‑Avoiding entering into witness‑box without such reason, held, a circumstance detracting from his bona fides‑‑Such circumstance together with other circumstances of case. held further, to be taken into account for deciding question of personal need."

9. The learned counsel for the Caveator/respondent contended that Abdul Sattar was very weak and short structure man of 3‑1/2 feet. He was confused man and could not have been in position to speak before the Court, hence his brother Abdul Manan, who held power of attorney on his behalf, appeared and proved his bona fide, hence the impugned judgments/orders did not suffer from any infirmity. The authorities relied upon by the learned counsel for the petitioner thus have no bearing.

10. It may be observed that no material was produced by 'the respondent/landlord to show that he was handicapped and not in position to appear in the witness‑box. On mere assessment of his counsel we cannot be led by surmizes and conjectures.

11. However, we have gone through the authorities relied upon by the learner' counsel for the petitioner. They support the contentions of the learned counsel for the petitioner that it was obligatory upon the landlord to have appeared in person in witness‑box to prove his bona fide requirement. No Ay citation was referred to by the learned counsel for the Caveator/respondent to rebut the contentions raised by the learned counsel for the petitioner, The points raised by the petitioner's counsel indeed require consideration of this Court. We are, therefore, inclined to grant leave, to appeal. Leave to appeal is granted accordingly.

12. The stay order passed earlier shall remain enforce till final disposal of the appeal. A.A./A‑1381/S??????????????????????????????????????????????????????????????????????? ?????????? Leave granted.