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Writ Petition No. 7552 of 1980, decided on 20th May, 1981.
‑‑‑Ss. 13 & 15‑Ejectment proceedings‑District Judge failing to take into consideration evidence of petitioner that respondents ware persons of unsound mind and respondent's own evidence that earlier they had done business in disputed ‑ premises but then rented out same‑Impugned order set‑ aside in circumstances and case remanded for decision of appeal afresh.
Ghulam Mohyuddin v. Suba Khan P L D 1977 Lah. 1094 ; Ghulam Mohy‑ud‑Din Muhammad Ishaq and others 1980 C L C 241 ; Muhammad Siddique v. Mistri Muhammad Aslam P L D 1975 Lah. 308 and Muhammad Ali and another v. Maryam Bibi and another N L R 1980 Civil Lab. 242 ref.
Syed Zahid Hussain for Petitioner.
Nemo or Respondent No. 1.
M. Aslam Riaz for Respondents Nos. 2 to 8.
Date of hearing : 26th May, 1981.
Respondents Nos. 2 to 8, Shah Muhammad and others, hereinafter referred to as the respondents, made an application for ejectment of the petitioners, Muhammad Akram and another, from a shop, on the ground that they needed the shop for doing business. Their application was accepted by a Rent Controller with the result that the petitioners were ordered to vacate the disputed shop. They went in appeal before an Addi tional District Judge but m vain. Hence Constitutional petition by them.
2. Learned counsel for the petitioners contended that although the petitioners had produced evidence to show [bat two of the respondents, namely, Muhammad Iqbal and Muhammad Jamil, were of unsound mind yet the said evidence was not taken into consideration by the learned appellate authority while deciding the appeal. 1t was‑ maintained by him that since the averment ‑made by the respondents was that they wanted to do business in the disputed shop but: Muhammad Iqbal and Muhammad Jamil were not mentally fit to carry on any. business, their requirement was not bona fide. It was also pointed out by him that the said two respondents did not appear as witnesses to substantiate their plea of personal needs. 1n this connection reliance was placed on Ghulam Mohyuddin v. Suba Khan (P L D 1977 Lah. 1094), Ghulam Mohy‑Din v. Muhammad Ishaq and others (1980 C L C 241), Muhammad Siddique v. Mistri Muhammad Aslam (P L D 1975 Uh. 308). As for the other respondents it was urged by learned counsel that since they were employed at different places they did not need the shop in question. Additionally, it was submitted by learned counsel that although it was stated by Shah Muhammad respon dent as A. W. 2 that the respondents had abandoned their business before letting out the shop to the petitioners yet his statement in this behalf was not taken into consideration by the learned Additional District Judge.
2. While replying to the arguments advanced by learned counsel for the petitioners it was not denied by learned counsel for the respondents that the respondents other than Muhammad Iqbal and Muhammad Jamil were employed. It was, however, denied by him that Muhammad Iqbal and Muhammad Jamil were mentally unstable and, therefore, did not need the shop for their own occupation. As for their omission to appear as their own witnesses the plea raised by learned counsel for the respon dents was that it was not fatal to their case. He relied on Muhammad Ali and another v. Maryam Bibi and another (N L R 1980 Civil Lah. .242) to support his submission.
3. I have gone through the judgment of the learned Additional District Judge which shows that while deciding the appeal he did not take into consideration the evidence of the petitioners that Muhammad Iqbal and Muhammad Jamil were persons of unsound mind. He had also failed to take into account the respondents' own evidence that earlier they had done business in the disputed premises but had then rented out the same. Thus. material pieces of evidence were overlooked while decid ing the appeal. The order of the learned appellate authority, is, therefore, open to interference by this Court.
4. Resultantly, I accept the petition, set aside the order of the learned appellate authority and direct him to re‑decide the appeal after taking into consideration the entire evidence on the record. The per ties are directed to appear before him on 29th June, 1981.
Petition accepted.
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