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Civil Petition for Leave to Appeal No. 466‑K of 1985, decided on 19^th March, 1986.

(On appeal from the judgment and order of the High Court of Sind, dated 17‑9‑1985, in F.R.A. No. 182 of 1984).

‑‑‑Art. 185(3)‑‑Sind Rented Premises Ordinance (XVII of 1979), S.21‑ Ejectment on ground of personal requirement‑‑Finding of Rcpt Controller upset by Single Judge in appeal‑‑Order impugned‑‑In re‑assessing evidence on record, rule that in civil cases it is preponderance of evidence which determined issue, apparently not adhered to‑‑Leave granted to consider whether Single Judge correctly applied principles of appreciation of evidence in civil cases to reach contrary finding in appeal.

‑‑‑Art. 185(3)‑‑Appreciation of evidence‑‑Reversal of finding in appeal‑‑Leave granted to consider whether Judge in High Court correctly applied principles of appreciation of evidence in civil cases to reach a contrary finding in appeal.

Akhlaq Ahmad Siddiqui, Advocate Supreme Court and M.A.I. Qarni, Advocate‑on‑Record for Petitioner.

Nemo for Respondent.

Date of hearing: 19th March, 1986.

By this petition for leave to appeal the petitioner seeks to call in question judgment, dated 17th September, 1985, by a learned Single Judge of the High Court of Sind, Karachi, whereby the petitioner's plea for eviction of the respondent from the disputed premises on the ground of personal requirement was rejected.

2. The disputed premises consists of two shops owned by the petitioner which are in the occupation of the respondents as tenant. In his application for ejectment the petitioner had stated that the petitioner's building consists of three shops and a residential portion. Two of the shops, as stated earlier, were on rent with the respondent while in the third shop the petitioner was running his own business consisting of hiring bicycles to his customers. According to the petitioner he required more space on account of his expanding business as a result of which he was in bona fide requirement of the premises. The respondent denied this allegation and contended that his plea was not bona fide, but was actuated on account of his demand for increase of rent which the respondent declined. The learned Rent Controller accepted the plea of the petitioner is respect of one shop which was adjacent to the shop already occupied by the petitioner for his business and in respect of the other shop he held that the petitioner's needs did not justify the ejectment of the respondent is respect thereto. Accordingly by order, dated 2nd January, 1984, the Rent Controller directed the respondent to hand over possession of the aforesaid one shop to the petitioner.

3. Being dissatisfied the respondent challenged the order in an appeal before the Sind High Court and a learned Single Judge by the impugned judgment accepted the same and set aside the order passed by the Rent Controller.

4. In support of the petition Mr. Akhlaq Ahmad Siddiqui, learned counsel made a grievance that the learned Single Judge upset the finding of the Rent Controller on palpably speculative grounds, which did not justify the reversal of the finding arrived at by the Rent Controller. We have carefully examined the impugned judgment of the learned Single Judge. We find that in reassessing the evidence on record the learned Single Judge apparently did not adhere to the rule that in civil cases it is the preponderance of the evidence which determined the issue, whereas the learned Judge, for instance rejected the testimony of two witnesses who were produced in support of the petitioner's case on the ground that their testimony was in identical terms and indicated that they were trying to improve the case of the petitioner and as such they were interested witnesses. Again the learned Judge came to the conclusion that the petitioner's need was not genuine because "the respondent is running shop for hiring the bicycles and in the normal course of business the bicycles would be hired and all the bicycles could not remain stocked all the day". It appears from the record that the petitioner is in occupation of a shop measuring 7 x 7 square feet, which was considered by the Rent Controller to be too small an area for the purposes of the business run by the petitioner.

5. After hearing the learned counsel we feel that the question whether the learned Single Judge in the High Court correctly applied the principles of appreciation of evidence in civil cases, to reach the contrary finding in appeal, requires consideration, leave is accordingly granted. Security Rs.50tl. The appeal shall be prepared on the present record with liberty to the parties to file additional documents if any.

M. I. Leave granted.

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