' This writ petition is directed against the order dated 7-5-1981 of the Additional District Judge, whereby he dismissed the appeal of the petitioner-tenant Rana Abu Bakar and affirmed the order of ejectment passed by the learned Rent Controller on 2-4-1980.
2. The facts of the case are that the respondent-landlady Mst. Sadaqat Begum filed an application under section 13 of Punjab Urban Rent Restriction Ordinance, 1-.19, for ejectment of the petitioner- tenant from a portion of Property No, 54, Block B, Model Town, Lahore, on the ground of her personal need. The averments made in the ejectment petition were controverted by the petitioner-tenant on the ground that she had filed the application in order to enhance the rent and the premises were not required by her bona fide.
' On 14-10-1978, the petitioner-tenant filed a list of witnesses which he wanted to produce in rebuttal and deposited their diet money and the expenses with the Rent Controller.
2. The evidence of the respondent-landlady started on 17-11-1978. She produced Shafaat Ahmad as P. W. 1, Muhammad Bashir as P. W. 2, Mirza Hafeez-ur-Rehman, Advocate, as P. W. 3 on 18-11-1978.
Her husband and Special Attorney Muhammad Yousuf appeared on 20-12-1978 as P. W.
4.
Thereafter the petitioner-tenant started producing his evidence. He produced Syed Muhammad Tayyib Zaidi P. W. 1 on 10-3-1979. After that instead of producing remaining evidence, the petitioner- tenant filed an application on 24-3-1979, for summoning other witnesses, namely. Begum Fazal Mahmood, Muhammad. Ashraf and the respondent landlady. It was alleged in this application that respondent-landlady had not herself appeared in evidence and only her special attorney had appeared and that bona fides of the personal need is positively to be proved by the respondent- landlady and there are other important and essential matters which are to be asked from her in order to arrive at the right conclusion. The respondent-landlady contested this application by the reply submitted by her. The Rent Controller by his order dated 9-7-1979, rejected the said application on the ground that the special attorney, husband of the respondent-landlady had appeared as a witness and his evidence is as good as that of the respondent-landlady in the eye of law and that the application was without any substance. Thereafter the petitioner-tenant started producing his remaining evidence. He produced Ghulam Sarwar as P. W. 2 on 4-10-1979. His father and special attorney Fazal-ur-Rehman appeared as P. W. 3 on the same. Day. His counsel on the same day made a statement closing his evidence. He also affixed his signature to the said statement.
' The Rent Controller by his order dated 2-4-1980, accepted the ejectment application and directed the ejectment of the petitioner-tenant from the premises of the said house on the ground that personal need of the respondent-landlady from a portion of the house in question had been established.
' The petitioner-tenant then, filed an appeal on 27-4-1981, against the said ejectment order. It appears that before the appellate authority, the petitioner-tenant filed on 6-5-1981, an application under section 15(3) of the said Ordinance, requesting him to make further enquiry in the case either himself or through the Rent Controller. This application was, however, dismissed by the learned Additional District Judge by his order dated 6-5-1981, on the ground that the appeal had been filed on 27-4-1980, while this application which was ambiguous had been filed after a period of one year and the only purpose of filing this application was to prolong the case in question. It is specifically given in the order sheet that when the application was given, the counsel for both the parties were present before the Additional District Judge and he had directed the counsel for the respondent-landlady to file the reply to the application within half an hour. However, when the question of consideration of this application came up before the Additional District Judge after half an hour after the reply was submitted by the learned counsel for the respondent-landlady, as recorded in the order sheet none was available on behalf of the petitioner-tenant. Thereafter, there is an order recorded on the order sheet that the arguments in the appeal bad been heard and the same be fixed for pronouncement of the decision on the next day i. e. 7-5-1981. On 7-5-1981, the Additional District Judge dismissed the appeal.
3. The first point argued by the learned counsel for the petitioner-tenant is that appeal had been decided by the appellate authority without giving the counsel for the petitioner-tenant a reasonable opportunity of being heard. He has pointed out to me that description in the interlocutory order dated 6-5-1981, in which after dismissing the application for further enquiry in the case in the absence of the learned counsel for the petitioner-tenant, the learned District Judge wrote that arguments in the appeal had been heard and the case be fixed for tomorrow for announcement of order while in para. 6 of the final judgment dated 7-5-1981, disposing of the appeal he had stated that despite the case having been put in waiting none had come to argue the appeal. He submits that the description is different in two different places and is clearly contradictory and, as a matter of fact, no arguments had been heard in the case and, therefore, the judgment of the Additional District Judge was without lawful authority.
' I have considered the point raised. It is no doubt true that the Additional District Judge had in his interlocutory order dated 6-5-1981, observed that arguments in the appeal had been heard but this interlocutory order had to be read in the light of the previous order of the same day in which Additional District Judge had clearly observed that reply to application for making further enquiry had been put up but nobody on behalf of petitioner-tenant was present. That clearly meant that though the learned counsel for the petitioner-tenant was absent, learned counsel for the respondent-landlady was present. If this circumstance is taken into consideration then the observation of the Additional District Judge that he had beard the arguments in the case becomes clear as he must have heard arguments from learned counsel for the respondent-landlady alone.
There was nothing wrong in the circumstances of the case in his having heard the arguments from whoever out of the two counsel of the parties was present. This is also consistent with the observation of the Additional District Judge in his final order dated 6-5-1981, in which he had observed that though the case had been kept in waiting, none had come to argue the appeal. The appeal was surely by the petitioner-tenant and it is clear that it was his counsel who was to argue the appeal while counsel for respondent-landlady was only to answer and reply. Seen in that light there was no incongruity between the observation made in interlocutory order passed on order sheet on 6-5-1981 and observation made in final ejectment order passed on 7-5-1981.
Even assuming that interlocutory order dated 6-5-1981 reciting hearing of arguments (from the opposite counsel) is incorrect on factual place and no arguments had been heard by learned Additional District Judge from any quarter, his order disposing of the appeal on merits is not vitiated by any jurisdictional defect. Section 15 of Punjab Urban Rent Restriction Ordinance, 1959, has laid down a duty on the appellate authority to give an opportunity of being heard to the appellant and in case that opportunity is not availed, the law ordains that appellate authority shall decide the appeal. This decision of the appeal is obviously to be on merits as it is to be done by Deferring to the record of Rent Controller. Relevant provision is sub section (3) of section 15 of the said Ordinance. It reads as below:- "(3) The appellate authority shall decide the appeal after sending for the record of the case from the Controller and after giving the parties an opportunity of being heard and, if necessary after making such further inquiry as it thinks fit either personally or through the Controller."
There is nothing in the Ordinance making it incumbent for the appellate authority to dismiss the appeal in default or for non-prosecution as there is no provision like Order XLI, rule 17, C. P. C. In relation to an appeal before B appellate authority in the Punjab Urban Rent Restriction Ordinance, 1959, allowing District Judge or Additional District Judge as an appellate authority to dismiss the appeal in default. On the other hand, the word 'shall' in subsection (3) of section 15 of the said Ordinance contemplates that in case the appellant in an appeal does not avail of opportunity of being heard afforded to him, then in that case the District Judge or Additional C District Judge as appellate authority is bound under the command of law to proceed to determine the appeal on merits in the light of facts available on the trial Court record. The said provision seems to exclude the power to dismiss the appeal in default.
' As for the objection that appeal of petitioner-tenant was decided without affording an opportunity of being heard to his counsel, that too, has no substance in it. The petitioner-tenant has himself stated in para. 11 of his writ petition that the appeal was fixed for arguments on 6-5-1981. It appears from the interlocutory order dated 6-5-1981 (on which date the application was filed by the petitioner-tenant moving the appellate authority for making D further enquiry) that he was not prepared to adjourn the case even for reply to the said application and had accordingly directed that its reply be submitted within half an hour. It is clear that he wanted the parties to come before him then. After half an hour, the learned counsel for petitioner-tenant was not present. The Additional District Judge rejected the application for further enquiry. The moment he did that, he was free to hear arguments in appeal. The learned counsel for petitioner-tenant bad prior notice that the case which stood fixed for arguments would be taken up for actual arguments after half an hour in case application for further enquiry is rejected. Even then he chose to remain absent.
Even the petitioner-tenant was not present to seek time to produce his said counsel. The appeal was pending for the last one year or more. The Additional District Judge was, therefore, within the bounds of his power in not adjourning the case unnecessarily and. In reading through the record himself and deciding the appeal on merits after going through the trial Court's file in the light of grounds of appeal submitted by the learned counsel for the petitioner-tenant. The appeal having been fixed for actual arguments on that day and the Additional District Judge having clearly shown his unwillingness to adjourn the main appeal, it was the duty of the counsel for the petitioner- tenant to appear in the Court after half an hour and address his arguments in case E application for making further enquiry is not accepted. There is, therefore, no jurisdictional defect in the act of Additional District Judge in proceedings to decide the appeal. In view of this, there appears to be no merit in the objection and the same is repelled.
4. Learned counsel has next contended that the respondent-landlady bad not herself appeared to give evidence in the case and only her special attorney that he had been appearing in the Court in this case on previous occasions, a presumption had to be drawn against her on account of her nonappearance in the Court. Therefore, bona fide need for personal use had not been established.
There appears to be no merit in this objection as well, because Muhammad Yousuf P. W. 4 was the husband and special attorney of the respondent-landlady and all the facts which were known to the respondent-landlady were for obvious reasons equally well known to him. It cannot be said that there was anything within her exclusive personal knowledge which was not known to her special attorney and husband. According to section 2 of Power of Attorney Act, 1882 (Act VII of 1882) the statement of the special attorney Muhammad Yousuf is to be considered as the statement of the respondent-landlady. It is only when something which was not known to him and which was in the exclusive knowledge F of the respondent-landlady that such an objection can be considered to be valid. Furthermore, Muhammad Yousuf has clearly stated in his statement that the respondent- landlady is Pardah observing lady. He was not further cross-examined on that question. In respect of the statement made by him that it was correct that respondent-landlady, his wife, had been appearing in the Court on the previous dates of hearing in this case, learned counsel for the petitioner-tenant did not get it clarified as to whether she had been appearing in Pardah or without it. No benefit can, therefore, be drawn by the learned counsel for the petitioner-tenant from this admission of the special attorney. Neither the petitioner-tenant's special attorney nor any of his witnesses stated in rebuttal that respondent-landlady was not a Pardah observing lady. It, therefore, stood proved that she was a Pardah observing lady. Now, it is common knowledge that womenfolk of or country specially. Pardah observing ones normally entrust all their jobs in respect of their property to their husbands or other male members of the family and it is normally they who appear on their behalf to avoid unnecessary trouble to the womenfolk. When pre sumptions are to be drawn, they can be drawn consistent with the was of life of the inhabitants of the country. On account of the above said normal conduct of womenfolk of or country, no presumption can be drawn against the respondent-landlady, a Pardah observing female, merely on account of her non-appareance before the Rent Controller to support her case. In case of Muhammad Umar and others v. Dr. Amina Ashraf (1), it was observed:- "Even otherwise, a husband is a competent witness on behalf of his wife, even when a landlady files an application for ejectment for bet personal requirement, keeping in view the fact that among the Muslims in Indo-Pak. Womenfolk normally do not appear in person in the Court, but are represented by the male members of the family."
' In view of the above, no exception can be taken to the non-appearance of the respondent- landlady in evidence in her case and the mere fact that she did not appear does not militate against her bona fides in filing an ejectment application on the ground of personal requirement. It cannot, therefore, be said that the respondent-landlady had not proved the issue in respected of bona fide need merely because she did not appear as a witness in her case.
5. The next point submitted by the learned counsel is that the Rent Controller has dismissed the application for making further enquiry and summoning three witnesses arbitrarily and without applying his mind to it. Learned counsel had, however, in his said application only stated that he seeks to summon three more witnesses, namely, Begum Fazal Mahmood, Muhammad Ashraf and the respondent-landlady. There is no reason advanced in this application as to why after having submitted the list of witnesses already and after summoning the witnesses specified in the said list and also after one of the said witnesses had actually given his evidence, a fresh application was being filed for summoning fresh witnesses. Furthermore, there was no reason given in the application for summoning Begum {{FOOT NOTE}}
(1) 1982 CLC 410 {{FOOT NOTE}} ' Fazal Mahmood and Muhammad Ashraf. As for the request for summoning the respondent- landlady, the basis of this request was that personal use has to be positively proved by the respondent-landlady and there were other essential and important questions which were to be asked from her to arrive at the correct conclusion. There is no allegation that anything was in her exclusive personal knowledge, which her husband was not aware or had not been able to answer.
Moreover, the sole reason given in the application was relatable to summoning of respondent- landlady alone. The Rent Controller had dismissed this application on the ground that the husband of the respondent-landlady had appeared as a witness and his evidence was as good as that of the respondent-landlady. The said view of the Rent Controller was a possible view in the circumstances of the case. It cannot, therefore, be said that the order of the Rent Controller in rejecting the application was arbitrary and capricious or that the Rent Controller had not applied his mind to the facts of the application before he rejected the same.
6. It is next contended by the learned counsel that it has been proved on record that the requirement of the respondent-landlady was mala fide and actually she wanted to enhance the rent. I am afraid, this is a question of fact finally decided by the Additional District Judge and I cannot go into the same in the absence of any jurisdictional defect on the part of the Additional District Judge in coming to said finding. None has been pointed out to me by the learned counsel.
There is thus no substance in this objection too.
7. In view of the above, there is no merit in this writ petition which is dismissed with costs.