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Civil Appeal No. 51‑t1 of 1984, decided on 16th December,1985.

(On appeal from the judgment, dated 30‑4‑1983 of the Lahore High Court Rawalpindi Bench in Writ Petition No. 1 of 1983).

‑‑‑Art. 199‑‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13 (3) (a)(i)‑‑Ejectment‑‑Bona fide personal need‑‑Question of fact‑‑Interference by High Court in its Constitutional jurisdiction‑ Ejectment on plea of personal need‑‑Order reversed in appeal on ground that landlord had got two other houses in locality with similar facilities, vacated‑‑Appellate authority relying upon material which was not before Rent Controller and on certain facts with which landlord was not confronted‑‑There being no pleadings with regard to other two houses to the effect that they were suitable for needs of landlord nor explanation of landlord obtained on this aspect during cross‑examination, appellate authority misdirected itself in law in relying upon said material‑‑High Court, in circumstances could have justifiably interfered in this matter in exercise of its constitutional jurisdiction‑‑Order of High Court as well as that of appellate authority set aside‑‑Case remanded for decision afresh, after taking further evidence.

Muhammad Younis Malik v. District Judge, Lahore etc. 1982 SCMR 834 rel.

Ch. Sadiq Muhammad Warraich, Advocate Supreme Court and Khan Imtiaz Muhammad Khan, Advocate‑on‑Record for Appellant.

Hafiz S.A. Rehman, Advocate Supreme Court and M.A. Siddiqi, Advocate‑on‑Record (absent) for Respondent No. 2.

Date of hearing: 16th December, 1985.

‑This appeal, by leave of this Court, is directed against the judgment, dated 30‑4‑1983 passed by a learned Single Judge of the Lahore High Court sitting at Rawalpindi (in Writ Petition No. 1 of 1983).

The relevant facts are that Muhammad Habib, respondent No. 2 herein, is a tenant in House No. L‑307 Qasimabad (Dhoke Khabba), Rawalpindi City under the appellant. The landlord filed a petition seeking the ejectment of the tenant before the Rent Controller, Rawalpindi on the ground that he needed the house for his personal use and for the occupation of his son who was shortly to be married. The ground of damage to the property was also taken in the petition, but not pressed at the trial.

The learned Rent Controller found the plea of personal need, raised by the landlord to be well‑founded and he allowed the ejectment petition. The respondent No. 2 was, accordingly, directed to hand over the possession of the disputed premises to the appellant vide order, dated 17‑11‑1981.

Feeling aggrieved, the tenant appealed against this order. His appeal was heard by Mr. Abdul Razzaq Sheikh, Additional District Judge, Rawalpindi. The learned appellate authority, while disposing of the appeal, observed that the appellant owned a large number of other houses in Rawalpindi and that he had also filed ejectment petitions for the eviction of at least two other tenants of two neighbouring houses and that the tenants of these two houses, which enjoyed similar facilities, viz. Muhammad Alam and S.R. Khan had been got ejected in pursuance of these petitions. In this background when houses with similar facilities, as the house in dispute, had been got vacated and one was actually lying vacant, which the landlord could very easily occupy, his demand for the disputed premises could not be considered a bona fide requirement. The Additional District Judge, accordingly accepted the appeal of the tenant and dismissed the ejectment petition of the landlord vide order, dated 13‑7‑1982.

The appellant, thereupon, moved the Lahore High Court by a writ petition (W.P. No. 1 of 1983) but the learned Judge hearing the petition refused to interfere observing that the finding of the appellate authority that the need of the appellant was not bona fide was a finding of fact which could not be interfered with in the constitutional jurisdiction. Hence this appeal, by leave of this Court.

Ch. Sadiq Muhammad Warraich, learned counsel for the appellant, submitted before us that the ejectment application filed by the landlord for the ejectment of the tenant from the disputed premises was filed on 11‑12‑1979 and the evidence of the landlord was recorded on 4‑1‑1983. By that date, however, the two other houses owned by the landlord, which were occupied by S.R. Khan and Muhammad Alam had not fallen vacant. In fact, no question was asked from the appellant in cross -examination as to why any of the said two houses were not regarded as suitable by him for his son presumably because the said two houses had not yet fallen vacant. Indeed, it was only on 18‑9‑1981 and 20‑1‑1981 that the ejectment proceedings in respect of these two tenants (namely, S.R. Khan and Muhammad Alam) had resulted in their eviction, as a result of a compromise between the parties and the houses in their occupation got vacated. Moreover, the ejectment petitions against the said two tenants were not filed on the ground of personal need, but on the ground of non‑payment of rent.

Learned counsel for the appellant further submitted that the learned Additional District Judge had overlooked this aspect of the matter and had also relied on certain material viz. a site plan (which purported to show that the accommodation of all the houses were similar and enjoyed similar facilities) which was not on the record of the trial Court. It was also submitted that the High Court erred in considering that the matter stood concluded by a finding of fact. Actually, the learned Additional District Judge had misdirected himself in law in relying upon the material not before the Rent Controller and on certain facts with which the landlord was never confronted.

The learned counsel for the respondent‑tenant has also been heard.

We find there is merit in the submissions of the learned counsel for the appellant. In Muhammad Younis Malik v. District Judge, Lahore etc. 1982 S C M R 834 the situation was somewhat similar and this Court observed:‑

"At no stage during the examination of the witnesses it was elicited from the landlady that the accommodation which had become available to her during the pendency of those proceedings was suitable, adequate and capable of meeting her requirement. This being primarily a question of fact had to be established either by evidence or by pleadings not controverted. "

In this case there was no pleadings with regard to the other two houses, which were got vacated by the landlord to the effect that they were suitable for the needs of the landlord's son nor was the explanation of the landlord obtained with regard to this aspect of the matter during the cross‑examination while the landlord was in the witness box. The High Court, in these circumstances, could have justifiably interfered in this matter, in the exercise of its constitutional jurisdiction and the learned Additional District Judge had, in relying upon the above material, misdirected himself in law.

We would, accordingly, accept this appeal, set aside the order' the High Court as well as that of the Additional District Judge and remand the ‑case back to the appellate authority for decision afresh, taking further evidence in the case.

We are informed that the learned Additional District Judge, who heard this matter, has since been transferred. The case is, therefore, remanded to the District Judge, Rawalpindi for disposing of this matter himself or assigning it to another Additional District Judge for decision afresh in accordance with law.

The appeal is accepted in the above terms with no order as to costs.

M.I. Appeal accepted.

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