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Writ Petition No.2507 of 1983, decided on 7th April, 1984.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)--

---S.13--Ejectment--Evidence--Placing of affidavit on record as piece of evidence--Such affidavit having been admitted without notice to opposite-party--Effect--Petitioner, held, was justified in raising plea that such affidavit being piece of-evidence had been introduced illegally--Appellate Authority, clearly relied on evidence other than affidavit to come to conclusion that premises were required bona fide for personal occupation of landlord--Appellate Authority was not at all influenced by affidavit in coming to conclusion--Petitioner could not raise any objection on such ground regarding appellate judgment--By admitting affidavit, held, no illegality had been committed by Rent Controller to warrant interference by High Court, particularly when Appellate Authority had come to its independent conclusion on basis of evidence which was legally introduced.

Malik Muhammad Qayyum for Petitioner.

Abid Hassan Minto for Respondent.

Date of hearing: 7th April, 1984.

Muhammad Aslam respondent lives in Germany. He sent a written application from Germany seeking ejectment of Rafiq Muhammad petitioner from a shop on the ground that the landlord wishes to start his own business at Lahore after it is vacated by the petitioner. Muhammad Ashiq A.W.1, Tariq Mahmud A.W.2 and Miraj Din A.W.3 who is also the general attorney deposed in favour of the landlord in order to show the bona fides of his need of personal occupation. The tenant also produced some witnesses including himself, but their testimony was rejected for the reason that they had no personal knowledge regarding the allegations that the landlord wanted to get Pagri for the property in dispute. The solitary statement of the tenant which still remains in the field was, however, not considered sufficient to rebut the contention of the landlord. Mr. Muhammad Irshad Sipra, the learned Rent Controller, Lahore vide his order dated 16-2-1983 ordered the ejectment of the petitioner. This order was confirmed in appeal by Mr Muhammad Naveed-uz-Zafar, the learned Additional District Judge, La6ure, who dismissed the appeal on 8-5-1983. The tenant has brought a writ petition challenging the orders of the two Courts below on the ground that the judgments of the Courts below are based on the evidence which was illegally entertained.

2. After the parties had closed their evidence an application was moved on behalf of the landlord praying far an opportunity of additional evidence and permitting the landlord to appear in his own behalf, who at that time was still in Germany. This application was rejected but on 27-1-1983 an application alongwith an affidavit signed by the landlord was produced and the learned Rent Controller vide order dated 29-1-1983 ordered that the affidavit be placed on record. It is this affidavit which was brought on record without notice to the tenant that has caused grievance to him. The learned counsel has argued that this affidavit could not have been adduced into evidence without notice to the petitioner/ tenant and without giving him an opportunity to rebut it. The learned counsel has also argued that this affidavit was actually used by the Rent Controller as a material piece of evidence to come to a conclusion that the need of personal occupation was bona fide.

3. I have gone through the orders passed by the learned Rent Controller as well as the Appellate Authority. The Rent Controller has faithfully recorded the events and it is correct that the affidavit was allowed to be placed on record without notice to the opposite party. Since the affidavit was allowed to be placed on record and read as piece of evidence, the petitioner is justified in raising a plea to the effect that this was a piece of evidence which has been introduced illegally. The question, however, remains, that, even if, the affidavit is excluded, would there be sufficient evidence to come to a conclusion that the need for personal occupation of the landlord was bona fide. The Appellate Authority has clearly relied on the evidence other than the affidavit to come to the conclusion that the premises are required bona fide for the personal occupation of the landlord. The Appellate Authority, therefore, was not at all influenced by the affidavit in coming to the conclusion. The petitioner cannot raise any objection on this ground regarding the appellate judgment. As regards the orders of the learned Rent Controller the order on issue No.3 shows that the Rent Controller came to the conclusion that the landlord required the premises bona fide even without the affidavit. He has no doubt used the affidavit as a piece of evidence but this is a circumstance which finds as an additional piece of evidence to support the evidence which was already on record to show that the premises were required by the landlord bona fide. I, therefore, do not think that any illegality has been committed by the Rent Controller which warrants interference by the High Court particularly when the Appellate Authority has come to its independent conclusion on the basis of the evidence which was legally introduced. There is, therefore, no merit in the writ petition. It is dismissed, but there shall be no order as to costs.

A. A

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