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‑‑ S. 24 (3) read with Civil Procedure Code (V of 1908), O. XLI, r. 31‑Decision in appeal‑Recording of reasons for‑Additional District Judge rejecting tenant's appeal but failing to record reasons for decision arrived at‑Provisions of O. XLI, C. P. C. made applicable to appeals under S. 24 (3)‑Held, judgment of Additional District Judge violative and in disregard of mandatory provisions a, of O. XLI, r. 31, C. P. C.‑‑‑[Judgment].

Mst. Malkhan Bibi v. Muhammad Wazir Khan P L D 1959 (W.P.) Lah. 710 ; Rahim Shah and another v. Ishaque and others P L D 1954 Pesh. 92 and Adamji Jute Mills Ltd. v. The Province of East Pakisean and others P L D 1959 S C 272 ref.

----‑ S. 17 (2) (iii) & (4) (a)‑Enquiry about damage and personal need‑Tenant's eviction, without‑Landlady seeking eviction of tenant on grounds of damage to premises and personal bona fide need‑Default in payment of rent neither alleged nor even stated in course of landlady's evidence or that of her mother‑No enquiry made as to damage to premises or personal need‑Held, tenant could not be legally evicted merely after recording finding that relationship of landlord and tenant subsisted between parties.

Abdur Rashid v. Muhammad Akhtar and another 1980 C L C 1141 gel.

Iftikhar Ullah Cheema for Petitioner.

Nemo for Respondents.

Date of hearing: 22nd November, 1982.:

This constitutional petition is directed against the orders dated 29th October, 1980 and 16th May, 1982 passed respectively by the Rent Controller. Cantonment (respondent No. 2) and the Additional District Judge, Lahore (respondent No. 1). directing the eviction of the petitioner under the provisions of the Cantonments Rent Restriction Act. .1963 from quarter No. 16, Kohinoor Building. Shahrah‑e‑Tufail. Lahore Can tonment, pursuant to an application filed by Mrs. Parveen Umar, respon dent No. 3.

2. Respondent No. 3, the contesting respondent. filed ejectment application before the learned Rent Controller. Lahore Cantonment seeking eviction of the petitioner from the tenanted premises on the grounds of damage to the said premises and the, personal bona fide need of the landlady. The petitioner of course raised the petition and pleaded inter alia that the relationship of landlord and tenant did not subsist between the petitioner and respondent No. 3 and that one Begum Kalsoom Mirza widow of Mirza Muhammad Ishaque had always been receiving rent from..; the petitioner claiming herself to be the landlady.

3. The learned Controller in view of the denial of the petitioner about the relationship of landlord and tenant between him and respondent No. 3 framed the following issues :‑

(1) Whether the relationship of landlord and tenant exists between the parties 7 O. P. P.

(2) Whether the petitioner has no cause of action against the respon dent. O.P.R.

The parties, viz. the petitioner and respondent No. 3 adduced evidence before the Controller and also submitted their written arguments. The learned Controller vide his impugned order dated 29th October, 1980,9 ordered the eviction of the petitioner from the demised premises holding that respondent No. 3 inherited this property after the demise of her father Muhammad Ishaque and that his mother used to receive rent from the petitioner as attorney of respondent No. 3 No finding, however, was recorded by the learned Controller to the effect that the premises were in damaged condition or that the same were needed for the personal bona fide need of the landlady.

5. The petitioner preferred an appeal and the learned Appellate Authority, i. e. the learned Additional District Judge, Lahore, vide his impugned order dated 16th May, 1982 dismissed the appeal without discussing the evidence of the parties produced before the Controller. The relevant portion of the judgment passed by the learned Additional District Judge reads :‑

"I have beard learned counsel for the parties and gone through the evidence on the record. Before discussing; the evidence in detail it will be appropriate to mention here that the appellant denied the relationship of landlord and tenant in the first instance but admitted the same in his statement recorded during the inquiry in the words that "he was a tenant under the respondent's father." On the other hand, there is sufficient material to prove the personal need of the property in dispute by the respondent. The appellant has not been able to controvert the assertion made by the respondent's witnesses with regard to the personal need. In this view of the matter, I am constrained to hold that the appellant has rightly been erected. Accordingly, the appeal fails which is hereby dismissed with the direction to the appellant to hand over the vacant possession of the premises to the respondent within one month. There will be no order as to costs."

6. It would transpire that the learned Additional District Judge while passing the impugned appellate judgment has failed to record the reasons for his decision in regard to the points for determination in the case.1 Section 24 of the Cantonments Rent Restriction Act, 1963 provides that an appeal under this Act shall be beard and determined by the District Judge or Additional District Judge, notified as an Appellate Court ‑as an appeal from an original decree under section 96 of the Civil Procedure Code. It is further provided in subsection (3) of section 24, ibid that the provisions of part VII and Order XLI of the first Schedule to the Code of e Civil Procedure shall apply to such appeals. It is provided in rule 31 of Order XLI, ibid that the judgment of the Appellate Court shall be in writ ing and shall state :‑

(a) the points for determination ;

(b) the decision thereon ;

(c) the reasons for the decision ; and

(d) whether the decree appealed from reversed or varied the relief to which the appellant is entitled.

7. In the present case, as already observed the learned Appellate Court failed to record the reasons for the decision arrived to by it through the impugned judgment. The judgment of the Appellate Court is, there‑ c fore, violative of and in disregard of the mandatory provisions of rule 31 of Order XLI supra. In Mst. Malkhan Bibi v. Muhammad Wazir Khan (P L D 1959 (W. P.) Lab. 710) it was held that where the lower Appellate Court did not discuss the evidence produced by the plaintiff, nor did he discuss the so‑called contradictory evidence given by some of the witnesses produced by the defendant nor did he take the trouble of discussing one of the issues framed in the suit, the judgment of the lower Appellate Court suffered from inherent defects and the conclusions arrived at by it could not be regarded by the High Court in second appeal as conclusive. Similar view was expressed in Rahim Shah and another v. Ishaque and others (P L D 1954 Pesh. 92) and it was found that the judgment not complying with the provisions of rule 31 of Order XLI of the Code of Civil Procedure was bad and illegal In Adamjee Jute Mills Ltd. v. The Province of East Pakistan and others (P L D 1959 S C 272) by the Supreme Court of Pakistan in relation to the disposal of Writ Petition ruled that it was undoubtedly duty of the High Court to state what the precise point raised by the applicant was and the grounds on which it was rejected.

8. 1t is also noteworthy that in this case respondent No. 3 sought the eviction of the petitioner on the ground of damage to tenanted premises and the same being needed by her for her personal bona fide need. Default in payment of rent was nor at all alleged. Even during the course of D evidence, it has not been stated by respondent No. 1 or her mother that the petitioner defaulted to pay rent for even a single month. In such circumstances, ejectment of the petitioner could not be ordered merely after recording a finding to the effect that the existence of the relationship of landlord and tenant between the parties was proved. The ejectment. in the circumstances, could be ordered after the Controller enquired into the fact that if the damage was caused to the premises in question by the petitioner and that the same were needed by respondent No. 3 for her bona fide personal need. If as a result of his enquiry, these points were determined in favour of the landlady, the ejectment of the petitioner could be ordered. No enquiry in this behalf has obviously been made and no finding has also been arrived at by the Controller. The petitioner could not, therefore, be legally evicted merely after recording a finding to the effect that relationship of landlord and tenant subsisted between the parties. In Abdur Rashid v. Muhammad Akhtar and another (1980 C L C 1141) it was held that where ejectment proceedings were based on plea of default in payment of rent ejectment could be ordered as soon as tenancy was established between the parties but in ejectment proceedings based on the plea that the premises in dispute were needed by the landlord/landlady in good faith for the personal use, the Rent Controller, after holding that the relationship of landlord and tenant existed between the parties was required to record the evidence to satisfy himself about the genuineness of the need of the landlord. This was considered to be a requirement of law and unless it was fulfilled the ejectment of the tenant could not be ordered with reference to the provisions of any other law including the Transfer of Property Act.

9. In the light of what has gone above, it is concluded that the impugned judgment passed by the Appellate Court is illegal and defective for being in violation of the provisions of rule 31 of Order XLI of the Code of Civil Procedure and further that the impugned judgments passed by the Controller as also by the Appellate Court are wrongful because no enquiry has been held that if the premises were needed by the landlady for her personal use and no express finding ‑on this point has been recorded by the Controller.

10. In this view of the matter, the Writ Petition is allowed and the impugned orders are declared to be without lawful authority and of no legal effect. No order is made as to costs.

K.M.A. Petition accepted.

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