1980 PLP 829 (CLC)

2. The precise reason for which the learned Additional District Judge had non-suited the appellant was that he required the shop not for himself or his children but for the children of his brother who had died. Learned counsel for the appellant contended that with a view to feeding the destitute widow and orphan children of his deceased brother the appellant planned to run the shop himself, with the help of a salesman, but his plea was not correctly understood by the learned Additional District Judge. In this connection, he invited my attention to his following averment in the ejectment application :-- Learned counsel for the appellant maintained that it was also in the evidence of his four witnesses, including the appellant, that the appellant wanted to get the shop for the aforesaid purpose but the evidence was misread by the learned Additional District Judge.

3. In reply, the learned counsel for the respondent submitted that the appellant was a Government servant and, therefore, could not run the shop himself. He also submitted that the appellant had not been able to establish that he would do business at the shop through an employee.

4. It is not denied that the brother of the appellant had died leaving behind a widow and some children. It is also not the contention of the respondent that they are earning hands. The plea that the appellant required the shop for the sake bf the wife and children of his deceased brother is not an afterthought inasmuch as it finds mention in the ejectment petition itself. The evidence supporting his plea consists of the statements of the appellant (A. W. 1), Ferzand Ali (A. W. 2) and Abdul Aziz (A. W. 4). That the appellant intends to run the shop himself by employing somebody is clear from his following depositions :- The relevant protion of the statement of Ferzand Ali (A.W.2) is as follows:__ As for Abdul Aziz (A.W.4) ,he said that:__ The appellant's witness Muhammad Akbar (A.W. 3), however, made somewhat different statement which is reproduced below :- The above statement of Muhammad Akbar is not in tune with the testimony of three other witnesses of the appellant. It was, however, deposed by him also that the appellant is providing maintenance to the widow and children of his brother. His statement that the children of his brother might left out the shop is neither here nor there because it is not even the case of the respondent that the appellant intends to let out the shop to some one else after getting it vacated by the respondent. It can hardly be denied that the appellant is the best person to state as to what he intends to do with the shop is question. In the circumstances, it is not possible to discard his (appellant's) testimony and that of his two other witnesses in regard to his future plans merely for the reason that the statement of one of his witnesses, namely, Muhammad Akbar is not on all fours with their deposition. What I feel is that in view of the over whelming evidence of the appellant in support of his plea that he wanted to do business through an employee, to feed the widow and children of his deceased brother, the statement of his witness Muhammad Akbar that he planned somewhat differently pales into insignificance.

5. There is no good rebuttal of the appellant's evidence. The respondent examined three witnesses out of whom Muhammad Ilyas (R. W. 1) did not know whether the appellant required the shop with a view to providing maintenance to the widow and children of his brother. This is also true of his second witness, namely. Amir Afzal (R.W. 2). Muhammad Jameel respondent appeared as R. W. 3 and stated that be did not know that the appellant was responsible for maintaining his brother's widow and children. He admitted that the appellant had another shop in which he was doing business through an employee.

6. In view of what has gone above, I am inclined to agree wit the learned Rent Controller that the appellant personally needs the shop in dispute for the purpose of earning livelihood for the widow and children of his brother who have since become his dependents. He wants, to run the shop himself through an employee. Admittedly, he is already running a shop in the like manner. It has been unanimously stated by all the witnesses of the appellant, including Muhammad Akbar, that it is the headache of the appellant to feed the widow and children of his deceased brother but being a petty financial he finds it difficult to provide maintenance to them. It is not the respondent's case that they or anyone of them is an earning hand. 1, therefore, on the issue of personal need of the appellant, reverse the finding of the learned Additional District Judge and affirm that of the learned Rent Controller.

7. In result, I accept the appeal with costs, set aside the order of the learned Additional District Judge and direct that the respondent shall vacate the shop in dispute within four months. M. A. K. Appeal accepted.