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Writ Petition No.450 of 1982, heard on 27th September, 1986.

‑‑‑Ss.13 & 15‑‑Constitution of Pakistan (1973), Art. 199 Ejectment order‑‑ Appeal‑‑ Improper examination of evidence‑‑Effect Constitutional jurisdiction, exercise of‑‑ Failure of both Rent Controller and Appellate Court to examine properly evidence adduced by parties and failure to take note of important material facts, held, would render trial and decision of Court below improper and unjust, particularly when such decision was based on wrong inference of evidence‑‑High Court in exercise of constitutional jurisdiction, in order to avoid injustice to either party and to make correct and just decision, would remit case to Appellate Court to re‑decide same after recording further evidence of parties if necessary in circumstances.

M . Bilal for Petitioner.

Ch. Muhammad Gulzar Khan for Respondents.

Date of hearing: 27th September, 1986.

In an application addressed to Rent Controller, Rawalpindi Urban Area, Mst. Rehmat Jan 'applied for ejectment of Malik Muhammad Aslam, her tenant from shop Survey No.I/650‑1, Taili Mohallah, Rawalpindi, on the grounds of default in payment of rent and personal requirements of her son, namely, Zahid Khurshid. In defence, default as also the personal need were denied. Rent Controller, on pleadings of the parties, framed following two issues:‑‑

(1) Whether the respondent has committed default in payment of rent O.P.A.

(2) Whether the petitioner requires the disputed shop for the use of her son in good faith O . P . A .

Default was not found proved. However, ejectment of the tenant was ordered by the Rent Controller, on 15‑10‑1981, on the ground that personal need for Zahid Khurshid was established on record. Against the ejectment order, tenant Malik Muhammad Aslam went up in appeal. Learned Additional District Judge-examined the evidence afresh, differed with the conclusions of the Rent Controller and finding some discrepancy in the statements of both mother and son concluded that need expressed was not found proved. Accordingly, appeal was allowed, ejectment order passed by the Rent Controller was set aside and ejectment petition was dismissed. Against the reversal order, Mst. Rehmat Jan preferred this petition in constitutional jurisdiction. It was admitted to hearing on 29‑3‑1983 and has come up for hearing today. Counsel have been heard and the record examined.

Mst. Rehmat Jan deposed that shop in question was required for use of her son Zahid Khurshid and that the latter was not in possession of any shop. In cross‑examination, it was stated that she owned three shops, one in possession of Anwar (tenant) was vacated 1 years before and was re‑let to Dr. Faiz at monthly rental of Rs.300. At the time the shop was given to Dr. Faiz, it was deposed by her, that her son, namely, Zahid Khurshid, was receiving education. However, in course of cross‑examination, the land lady conceded that her son had completed his course six months prior thereto. Zahid Khurshid as A. W. 2 also admitted that he had completed his course from Poly Technic but had earned compartment. As regards number of shops, it was deposed by him that here are three shops owned by his mother and all were occupation of tenants. The tenant in his defence rebutted what was brought on record by the landlady as to the self‑requirement and default. In this state of record, learned Additional District Judge found that the evidence led in support of the issue of self‑requirement was not only discrepant but was not reliable also and consequently it did not adequately prove the bona fide need for the use of shop by Zahid Khurshid.

Mr. Bilal, learned counsel for the petitioner, in an elaborate address with reference to the evidence on record, vehemently argued that the discrepancy highlighted by learned appellate Judge was more imaginary than real. It was strenuously argued that when the statements of the landlady and her son are examined together, the discrepancy pointed out by the learned appellate Judge totally disappears. One thing‑‑that emerges from the record he argues, is that by the time the statements were made in Court, Zahid Khurshid had acquired sufficient proficiency to run the proposed business in the shop in dispute. As against this, Ch. Muhammad Gulzar, Advocate appearing for the respondent, defended the impugned order and submitted that the evidence was properly examined by the learned appellate Judge, who came to the correct conclusion and the same cannot be interfered with in constitutional jurisdiction.

In course of hearing of the writ petition, Zahid Khurshid, for whose benefit the shop in question was required to be vacated, admitted that Mst. Rehmat Jan, his mother owned two shops only viz. 1/650‑1 and 1/650‑2. It was further admitted that shop No.I/650‑1 was in possession of the respondent, whereas the other shop viz. 1/650‑2 was in possession of his younger brother Shahid, who was doing his business there. As regards the third shop, he stated that it bore Survey No.I/730, and was owned by his brother Ishtiaq Akhtar. This shop was in possession of Zahid Khurshid allegedly as tenant of Ishtiaq Akhtar on payment of Rs.600 rent per month for the last two years. These facts are available in his statement recorded by Court toddy. In the evidence led before the Rent Controller, Mst. Rehmat Jan had deposed that she owned three shops. Zahid Khurshid also testified to the same effect and went a step further to say that all the shops were with the tenants. However, it transpired from his statement recorded by me today that Mst. Rehmat Jan has two shops, one in possession of Shahid, her son, and the other in possession of respondent/ tenant. It has further transpired that Zahid Khurshid was already in possession of one shop under Survey No.I/730, though allegedly as a tenant of Ishtiaq Akhtar. In the circumstances, I feel that the rent case has not been properly tried and adjudicated upon. Not only that the evidence led was not examined properly and wrong inferences were drawn therefrom, certain important facts such as number of shops and in whose possession these were, escaped the notice of the Courts below. In the circumstances, to avoid injustice to either party and to make a correct and jus decision I find that this case requires remit so as to enable both the parties to lead more evidence and have their contentions properly an judiciously adjudicated upon. Accordingly, writ petition is allowed, case is sent back to learned District Judge, Rawalpindi, who shall re‑decide the appeal, in the light of already available material plus what the parties may bring forth in support of the issue of self‑requirement. As the matter is fairly old learned District Judge shall see that the appeal before him is disposed of preferably before the Court closes for winter vacation this year. Parties have been asked to appear before District Judge, Rawalpindi, on 4‑10‑1986.

H.B.T. Petition allowed/order accordingly.

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