' MAULVI ANWARUL HAQ, J.---On 4-6-2006 the respondent filed an application for ejectment of the appellant from the building located in Lahore urban area and described in the ejectment petition.
The ejectment petition was sought on the ground of default in payment of rent with effect from 14- 3-2004.According to the petition the rate of rent with effect from said date was Rs,93,500 per month. The bona fide need for personal use and occupation of son of the respondent was also pleaded. Following issues were framed by the learned Rent Controller on 4-11-2004.
(1) Whether the respondent is willful defaulter in payment of rent, if so for what period and for what amount? OPA
(2) Whether the disputed premises is required in bona fide by the petitioner for her personal need?
OPA
(3) Relief.
' The case was adjourned to 8-12-2004. The witnesses of the respondents were present and their affidavits were filed. The case was adjourned for cross-examination for 8-1-2005. On this date the witnesses were present but the case was adjourned on joint request to 27-1-2001. On this date again witnesses were present but an adjournment was sought by the appellant and the case was adjourned to 23-2-2005 subject to cost of R3.500 with warning that this will be the last opportunity.
On 23-2-2005 the witnesses were present. However, the appellant again made a request for adjournment it was disallowed and right of cross-examination was closed. The documentary evidence was recorded on 10-5-2005. I may note that a document which was a power of attorney Exh.A1 was produced by attorney of the respondent on oath. The request was made and he was cross-examined by the appellant. A witness for appellant was also examined by tendering of affidavit and the cross-examination. The remaining evidence was closed on 23-1-2006. Vide order dated 5-5-2006 learned Rent Controller answered both the issues against the respondent and dismissed the ejectment petition. A first appeal filed by the respondent has been allowed by a learned Additional District Judge, Lahore, on 10-5-2007 who has reversed findings on both issues and passed an ejectment order.
2. Learned counsel for the appellant contends that the impugned order is against law inasmuch as although it has been observed that the finding on issue No,1 pertaining to the default is reversed yet no reasons have been stated as to how the appellant is guilty of default in payment or tendering rent. In the matter of bona fide personal requirement he urges that neither the learned Rent Controller had recorded any finding nor the learned Additional District Judge has said a word as to how the said issue stands proved. Learned counsel for the respondent has made a clean breast of the matter. He concedes that the rent had been regularly paid or tendered. As to the matter of bona fide personal requirement he states that the learned Additional District Judge ought to have decided the matter on the basis of evidence on record. At this stage learned counsel for the appellant rejoins to contend that the right of cross-examination was illegally closed and that affidavits cannot be read into the evidence.
3. I have gone through the records of the learned lower courts with the assistance of the learned counsel for the parties. I have already reproduced above the entire proceedings, which took place before the learned Rent Controller, and as noted by me above, the affidavits were duly filed and the witnesses were present in Court on all said dates of hearing but they were not cross-examined. Not a single reason is forthcoming as to why the witnesses were not cross-examined when the respondent was producing her witnesses on every date, so fixed for the purposes. No procedure is prescribed in the matter of ejectment petition under the West Pakistan Urban Rent Restriction Ordinance, 1959. Under Order 19, C.P.C. Evidence by affidavits is permissible subject to the option of the opposite party to cross-examine the witnesses. In the case in hand the learned Rent Controller proceeded in the manner ordained by the Hon'ble Supreme Court in the case of Barkat Ali v.
Muhammad Ehsan and another 2000 SCM R 556. The learned Rent Controller had, therefore, erred in law while refusing to read the said evidence in the form of affidavits, as the respondent had complied with directive of the Hon'ble supreme Court and had made her witnesses available.
4. However, I do agree with the learned counsel for the appellant that whereas the learned Rent Controller had not stated a word as to why he is answering the issue pertaining to personal requirement against the respondent. The same is case with the learned Additional District Judge while answering issue in favour of the respondent. The matter of default has already been conceded. Only objection is that before depositing rent in Court, the appellant ought to have tendered the rent to the landlady. This objection, however, has no force, as section 13 of the said Ordinance, 1959 recognizes deposit with the learned Rent Controller as valid tender of rent. I, therefore, affirm finding of the learned Rent Controller on issue No,1 pertaining to default. So far as issue No,2 pertaining to bona fide personal need is concerned, it does require a speaking finding by the learned first appellate Court in the light of evidence available on record. S.A.O. Is accordingly allowed. The result would be that the first appeal filed by the respondent lady shall be deemed to be pending. The parties shall appear before the larded District Judge, Lahore, on 4-3-2008. The records shall also be immediately remitted to the learned District Judge. The learned District Judge shall himself proceed to decide the first appeal or to entrust it to a learned Additional District Judge, who shall decide the appeal after hearing the parties and examining the evidence available on record. No order as to costs. A copy of this judgment be also remitted to the learned District Judge.