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‑‑ Ss. 13 &‑ 15‑Ejectment‑Personal requirement‑Appellate Court not adverting to and applying its mind to evidence produced by petitioners‑tenants‑Such decision held, arbitrary‑Order set aside and case remanded to appellate Court for rewriting judgment after taking into consideration such evidence and hearing parties‑Cons titution of Pakistan (1973), Art. 199.

S. Murtaza Ali Zaidi for Petitioners.

Muhammad Akram Sh. for‑ Respondents.

Date of hearing : 24th March, 1982. .

This is a petition under Article 199 of the Constitution of Islamic Republic of Pakistan, whereby Sheikh Muhammad Anwar and Muhammad Humayun petitioners vivant this Court to declare the order dated Ilth February, 1980 passed by the learned Additional District Judge, Multan to be. without lawful authority and of no legal effect.

2. The facts leading, up to this petition in brief are that the petitioners are the tenants of the disputed shop under Sheikh Ata Muhammad and Muhammad Gulzar respondents Nos. I and 2 who moved an application for the ejectment of the petitioners on the ground of default in payment of rent and requirement for own use and occupa tion. The learned Rent Controller framed the following issues :‑

(1) Are the respondents the defaulters in the matter of payment of rent O. P.

(2) Whether the disputed shop is required by the petitioners for their own use and occupation O. P. P.

(3) Relief.

The learned Rent Controller found the issues in favour of the applicants/respondents Nos. 1 and 2 and accepted the application.

Feeling aggrieved the petitioners/tenants filed an appeal and the learned Additional District Judge respondent No. 3 vide impugned judgment while reversing the finding on issue No. 1 affirmed the finding of the learned Rent Controller on issue No. 2 and as a result of these findings he dismissed the appeal of the petitioners. Hence this petition.

3. On 20th July, 1980 on the contention raised by the learned counsel for the petitioners that the appellate authority‑respondent No. 3 did not examine the evidence and record and that the evidence led by the petitioners has totally been ignored, this petition was admitted for regular hearing by my learned brother Abdul Shakoorul,Salam, J.

4. Before me, the learned counsel for the petitioners has vehemently contended that the learned appellate authority has not even touched the evidence led by the petitioners to rebut the proof of the respon dents/applicants and as such he has not exercised the authority vested in him for the just decision of the case. As against this learned counsel for the respondents has defended the judgment by submitting that the finding on issue No. 2 being a finding on fact, shall not be interfered with in writ jurisdiction.

5: After hearing the learned counsel for the parties and going through the record. I find that the petitioners examined RW‑3, Abdul Wahid, RW‑4 Muhammad Naeem and RW‑7 Muhammad Anwar (peti tioner himself) to rebut the bona fide need for personal use of respondents/ applicants. These witnesses have categorically deposed that the respondents /applicants, in fact, wanted to enhance the rent. Muhammad Anwar P. W. 7 has stated that the respondents applicants did not bona fide require the shop for use and, in fact, wanted the rent to be enhanced.

6. I have gone through para. No. 5 .wherein issue No. 2 has been discussed. I find that the appellate authority has not adverted to the evidence of the abovementioned witnesses at all. The appellate autho rity has not applied its mind to the abovementioned evidence adduced by the petitioners/tenants and without having considered their evidence has decided the issue against them and as such the decision can b termed as an arbitrary one.

7: For what has been stated above I accept the writ petition and declare the impugned order of the learned Additional District ,fudge, dated 11th February, 1980 to be illegal and without lawful authority set aside the same with the direction that the learned Judge who is posted at Multan would .rewrite :the judgment after taking into consideration the evidence of the petitioners and hearing the parties. The learned appellate authority shall dispose of the appeal as early as possible preferably within two months. The parties are, however, left to bear their own costs.

M.Y.H. Petition accepted.

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