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Writ Petition No.10135 of 1980, decided on 12th October, 1983.

---S.13(3)(a)(ii)--Constitution of Pakistan (1973), Art. 199 Eviction sought on ground that property was required for petitioners personal use and for use of his son--Petition rejected by Courts below that son was not produced in support of petitioner's case--Held, impugned orders of lower courts were result of misreading of evidence and non-consideration of material on record--Landlord had no other shop except disputed one and his son was also working with him Landlord requiring shop in dispute for his own use--Son's evidence was not needed in support of his case--Case remanded to Rent Controller to re-hear parties and re-decide petition in light of, evidence already on record.

Khan Abdul Ghaffar Khan and Saif Niaz for Petitioner.

Nemo for Respondents.

Date of hearing: 12th October, 1983.

This writ petition is directed against order dated 2-4-1980 passed by the learned Additional District Judge, Sheikhupura Whereby he dismissed petitioner's appeal against the order dated 24-11-1979 of the learned Rent Controller, Sheikhupura and also against the order dated 24-6-1980 whereby he dismissed petitioner's review petition against the order dated 2-4-1980.

2. The facts of the case are that the petitioner sought ejectment of the respondent No.1 from the shop in dispute on the ground that he required the same for his use and for the use of his son and further that the respondent had committed default and damaged the shop.

The petition was resisted by the respondent. The learned Rent Controller framed following issues:-

(1) Whether the respondent has failed to pay or tender rent of the disputed shop since the month of December, 1976 OPP.

(2) Whether the respondent has impaired the value of the disputed shop OPA.

(3) Whether the shop in dispute is needed by the petitioner for his personal bona fide use OPR.

(4) Relief.

The learned Rent Controller vide his order dated 24-11-1979 decided all the three issues against the petitioner and dismissed the ejectment petition. The petitioner unsuccessfully assailed the aforesaid order in appeal. Hence this petition.

3. Learned counsel for the petitioner contended that the learned Additional District Judge as well as the learned Rent Controller decided issue No.3 wrongly by misreading evidence on the record. It was submitted that non-appearance of the petitioner's son before the Rent Controller for evidence was of little consequence in the circumstances of the case.

4. None has appeared on behalf of respondent No.1 to oppose this petition.

5. I have gone through the record and documents on the file with the assistance of the learned counsel for the petitioner. The perusal of ejectment petition shows that the petitioner in para 4 of the petition stated that the shop in question was required for his personal use and also that the petitioner and his son Irshad Hussain were doing business in a rented shop and that they wanted to carry on the same business in the shop in dispute. The petitioner while appearing as AW 3 stated that .the rented shop in which he was working with his son was got vacated by the landlord, and that he required the shop in dispute for his personal use. It would show that learned Additional District Judge misread the evidence to consider that there was some discrepancy between the statement of the petitioner and the contents of the application on this point. It was evident on the record that the shop in which the petitioner had been working was got vacated by the mosque management from him and that he had no other shop except the shop in dispute where he would do repairing work of tractors and trollies. Admittedly the petitioner had a vacant plot situated close to the disputed shop. The possibility that he would utilise that plot together with the shop for doing repairing work could not be also ruled out. The learned Additional District Judge ignored that the shop in dispute was situated on Lahore-Sargodha Road and adjoining to the same was a welding shop which would be useful to him if repairing of tractors and trollies is done in the shop.

6. The petitioner had no other shop except the one in dispute and 'his son was also working with him. He needed the shop in question for his own use. It was, therefore, not necessary to produce Irshad Hussain his son in support of his case. The petitioner's testimony was corroborated by the evidence of Dost Muhammad (AW.2) and Khadim Hussain (AW 1).

7. The critical appreciation of evidence established that the impugned orders of the learned Rent Controller as well as the learned Additional District Judge were result of misreading of evidence and non-consideration of important material on the record besides being contrary to law and pronouncements of the superior Courts, the same are, therefore, declared to be of no legal effect.

8. In the result the case is remanded to the learned Rent Controller with a direction to re-hear the parties and re-decide the ejectment petition in the light of the evidence already on record and observations made by this Court.

9. As nobody has appeared to contest this petition there shall be no order as to costs.

M.A. K./3267/L Case remanded.

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