1989 PLP 80 (MLD)

2. The brief background is that predecessors‑in‑interest of the petitioner, Umar Hayat had filed an ejectment petition against respondent No. 3 in the Court of Rent Controller at Chunian who dismissed it vide his order dated 12‑2 1980. The predecessor‑in‑interest of the petitioners felt aggrieved with the dismissal of the eviction application and filed an appeal in the Court of respondent No. 1 who dismissed the same and upheld the order of the Rent Controller.

3. It may be mentioned here that eviction application was filed on the ground of default, personal need and damage to the property. As to the ground of damage to the property no evidence was led. In the matter of default, the Rent Controller had observed that the landlord had not specified the period for which the default had been committed and that the respondent tenant had produced photostat copies of the rent receipts. As regards the ground of personal need, the Rent Controller had taken the view that the petitioner landlord had been previously asking for enhancement of rent, therefore, ejectment petition appeared to be mala fide. The ground which weighed with the learned Rent Controller was that the petitioner had not produced his son to discharge the onus of personal need and thus the issue was decided against him.

4. The appellate Court who happened to be a learned Additional District Judge vide his impugned order dated 5‑1‑1984 dismissed the appeal.

5. I have heard the learned counsel for the parties and perused the record with their able assistance.

6. Learned counsel for the petitioner has argued that the appellate Court has decided the appeal without conscious application of his mind to the factual position as well as the law which governed the rights of the parties. According to the learned counsel, it is a perfunctory disposal of an appeal which is a valuable right of a party being the first appeal in the course of which the whole matter becomes reopened and sub judice before the Court.

7. The learned Additional District Judge as appellate authority appears to have been influenced by the reply of the landlord in his cross‑examination to the effect that he had admitted that his one son was cultivating the land whereas the other son was selling utensils by pheri for the last many years. A further admission in the course of examination was pressed into service wherein the landlord had stated that he had asked the tenant for enhancing the rent of the disputed shop from Rs. 40 per month to Rs. 00 but the tenant only enhanced it to Rs. 45 per month from 1st January, 1979. From the above circumstances the inference drawn by the appellate authority was that it appeared obvious to him that the landlord had got 14 acres of land which was being cultivated by his son, namely, Ghafoor and the other son of the landlord was earning livelihood by pheri for the last many years. He also upheld the view of the Rent Controller to the effect that the landlord had miserably failed to produce his sons in the witness‑box for whom the disputed shop was required. In the view of the learned Additional District Judge, it was incumbent upon the petitioner landlord to produce his sons in Court and they should have offered themselves for cross- examination to meet the requirements of law. The factum of enhancement of rent from Rs. 40 to Rs. 45 per month was also taken into consideration by the learned Additional District Judge.

8. I need not dilate on the matter any further for the short and simple reason that the view of the learned Additional District Judge is contrary to the dictum of the Supreme Court in the case of Arshad Umar and another v. Begum Nazrul Askari (P L D 1985 SC 38) wherein it has been held that where in a case ejectment was sought on the ground of bona fide personal need of the landlord and her children, the failure of the landlady and her sons to appear before the Rent Controller and offer themselves for examination was not fatal to their plea that they required the premises in good faith for their personal occupation and use. Reliance may also be placed on the judgment of the Supreme Court in re: M. Muhammad Sharif v. M.S. Sultan (1981 SCMR 844), and in particular on following enunciation of law: "There is no requirement of law that the person for whose benefit the premises are required to be vacated must be produced in support of the ejectment application." In the impugned order, the learned Additional District Judge has taken the contrary view. To the same effect is the dictum of the Supreme Court in the case of Dilshad Muhammad v. Mst. Zubaida Begum (1981 SCMR 895). In the precedent case it was hold that where an application had been filed for the bona fide personal need of the son of the landlady, non‑appearance of the son in the witness‑box was not fatal to the claim of the landlady as to the requirement of shop for use of her son.

9. I have deliberately desisted from recording any views in respect of the manner in which inferences have been drawn by the learned Additional District Judge as appellate authority lest the case‑of any party may get prejudiced because I am proposing to remand this case for a lawful disposal m accordance with law. It is quite possible that proper assistance was not tendered to the appellate authority or he was acting on his own notions which did not fall in line with the binding dicta of the superior Courts which by itself is sufficient to render the order liable to be declared as without lawful authority and of no legal effect.

10. The matter having come up in Constitutional jurisdiction, if the order is found to be unsustainable on one of the grounds for the decision, the whole order is to be struck down. This is the elementary difference between the appellate jurisdiction and the Constitutional jurisdiction of this Court, which is not akin to appellate jurisdiction. This does not mean that this Court is blessing any other aspects of the matter which are to be decided by the appellate authority afresh in remand. For what has been stated above, this writ petition is accepted, the impugned order of the learned Additional District Judge as appellate Authority under the Rent Restriction Ordinance is declared to be without lawful authority and of no legal effect and the case is remitted to him for fresh disposal of the appeal in accordance with law and after conscious application of his mind to the matters arising for decision before him. The learned Additional District Judge shall decide the appeal within a period of three months after the receipt of copy of this order. There shall be no order as to costs. H.B.T./A‑503/L Case remanded.