' This second appeal is directed against the judgment of a learned Additional District Judge at Gujranwala whereby he concurred with the views of the learned Rent Controller and dismissed the eviction application of the appellant-landlord.
2. The brief facts giving rise to this S. A.
0. Are that the appellant Rehmat Ullab filed an application for the eviction of his tenant Nazir Ahmad respondent on the grounds that the house was reasonably and bona fide required by him for his personal use and also for willful default in the payment of Ant. The Rent Controller framed three issues which were as follows :- (1)Whether the house is reasonably and bona fide required by the petitioner for his personal use ?
0. P. P.
(1-A) What is the rate of rent ? 0. P. P.
(2)Whether the respondent made a wilful default in making the payment of the rent of the building to the petitioner ? 0. P. P.
2. The Rent Controller came to the conclusion that requirement of the appellant-landlord with regard to the property in dispute was knee they bona fide nor in good faith. He also refused to exercise discretion against the tenant on the ground of willful default. As regards issue No. 1-A as to the rate of rent it was held that it was Rs, 50 p. In. The Rent Controller accordingly Dismissed the eviction application by his order dated 22-12-1976.
3. Dissatisfied with the decision, the appellant filed an appeal which came up for hearing before a learned Additional District Judge Mr. Ghulam Sarwar Sheikh. He dismissed the appeal by his order dated 14-1-1979 but spared the appellant the costs in order to promote healthy relations between the parties;
4. The learned counsel appearing on behalf of the appellant strenuously argued that there has been a gross failure of justice inasmuch as the appellate authority had refused to scrutinize the findings, evaluate the evidence and decide the matter after conscious application of mind in a judicious manner. The precise grievance of the learned counsel for the appellant is that the most vital issue in the case was that of bona fide personal need. On this issue learned Additional District Judge has merely contented himself by observing that the arguments advanced by the learned counsel for the appellant were devoid of substance and force and that the rejection of the petition was based on very sound order passed by the learned Rent Controller. It did not depict any legal infirmity and accordingly no exception could be taken to it. It was further recited that the question of bona fide personal need stood exhaustively dealt with by the learned Rent Controller. The learned counsel submitted that this was all the more serious in view of the fact that the learned Rent Controller in his impugned order had acted rather whimsically in ignoring from consideration material pieces of evidence and exhibited a one-sided visible trend in appreciation of evidence.
5. In reply to this objection, the learned counsel for the respondent argued that no fault could be found with the order of the appellate authority on account of the fact that it had not given elaborate reasons for concurring with the orders of the Rent Controller. It was argued that in view of the fact that the parties had been heard and record was before the appellate authority it could be presumed that the Court had applied its mind in reaching its decision notwithstanding the fact that express reasons for the same have not been given in the judgment. Learned counsel for the respondent relied on a decision of the Supreme Court in re : Muhammad Rafique v. Mehr Din in Civil Appeal No, 121 of 1982 decided on 3-11-1982 to support his submission.
6. I have respectfully perused the precedent judgment of the Supreme Court which arose out of High Court's refusal to interfere in its writ jurisdiction with the order of eviction from a shop passed by Rent Controller and maintained in appeal. The facts of the precedent case were that the landlord bad urged default in payment of rent, requirement in good faith for personal use and damage to the property but had succeeded only on the ground of personal use. The tenant who filed a writ petition in the High Court attacked the decision of the appellate authority on the ground that it lacked reasons. In that case, the appellate authority after having recorded the arguments of both sides straightaway concluded the matter in the following words :"The upshot of the above discussion is that the appeal is without force and the same is dismissed."
The appellate Court had not at all discussed the contentions put forth before it. Nevertheless, since the parties had been heard and the record was before the appellate Court, the High Court came to the conclusion that the requirements of section 15 (3) of the Urban Rent Restriction Ordinance had been met and in view of the concurrent finding on a question of fact it declined to interfere.
' In appeal before the Supreme Court, the judgment of the first appellate Court was criticized and it was urged that the matter should be remanded to the appellate Court for rewriting the judgment.
The learned Supreme Court was pleased to hold as under :- "Since the parties had heard and the record was before the appellate Court, it can be presumed that that Court had applied its mind in reaching its decision, notwithstanding the fact that express reasons for the same have not been given in the judgment. However, we do not approve of a judgment by a trial or appellate Court which does not reflect a proper application of mind to the case of the parties and record the reasons for the decision. It was for this reason that leave was granted in the case."
' Thereafter, the Supreme Court after examining and appreciating the evidence itself came to the conclusion that the landlord had brought ample evidence to support the relevant issue. On that evidence, it was held that the issue must be held to have been correctly decided. It was then observed that- "A remand for the purpose of rewriting the judgment by the appellate Court, therefore, would be nothing but an exercise in futility."
' The obvious from the above is that the Supreme Court in the precedent judgment has in very strong terms disapproved writing of such judgments by a trial or an appellate Court as do not reflect a proper application of mind to the case of the parties and fail to record the reason for the decision. The Supreme Court in the circumstances itself appreciated the evidence and found the decision to be justified and in this view of the matter it was held that a remand would be an exercise in futility.
7. Keeping in view the above enunciation and the distinctive attendant circumstances of the present case I am of the view that the objection of the appellant merits to be sustained. The first appellate Court's judgment does not reflect a proper application of mind to the case of the parties nor records, the reasons for the decision. The order of the Rent Controller also settlers from serious legal infirmity. In such like cases, the objection of the kind that has been raised by the learned counsel for the appellant assumes serious proportions. A Court of appeal, therefore, which content itself by making observations of the nature that were made by the first appellate authority in this case would be failing to exercise jurisdiction vested in it by law. The precedent case of Muhammad Rafiq relied upon by the learned counsel for the respondent would in fact support the case of the appellant and go against the respondent.
8. Adverting now to the order of the Rent Controller in the present case, the respondent tenant had undertaken to summon and examine as his own witness the father of the appellant Haji Muhammad Ibrahim son of Muhammad Din as R. W.
2. This witness while appearing as respondent's witness had made very significant depositions. He had in fact supported the case of the appellant in material respect. Therefore, being a witness of the respondent, the evidence given by him had to be viewed with a degree of seriousness which it deserved and any deposition made by him which was prejudicial to the party which examined him had to be attended to. He had fully supported the bona fide personal need of the landlord by giving elaborate reasons. For instance, he stated that the children of the landlord now wanted to get Urdu education whereas there was no facility for such education in Kuwait. The children had also to be married. Due to absence of proper house, the marriage of the daughter of the landlord was also held up. He also stated that the respondent-tenant had demanded an alternate house and for this purpose a house had been purchased for Rs, 14,000 but after it had been purchased the respondent refused to occupy it. As regards the other house it was deposed that the karkhana was not a residential house. A perusal of his evidence would show that he also deposed about many other aspects.
9. From a perusal of the order of the Rent Controller it would be seen that the material evidence of the father of the landlord was left out of consideration after observing that the respondent has also taken the risk of producing the petitioner's father as his witness. It was partially noticed to the extent that he stated as R. W. 2 that the petitioner has five children out of whom only one daughter is major and all the other are minors. He corroborated R. W. 1 that two of the petitioner's sons had been studying in Murree and his eldest daughter had been getting education in some institution of Karachi. The evidence of R. W. 2, it appears, was dealt with rather cursorily and major part of it was kept out of consideration, which if considered, may have led the Tribunal below to an opposite conclusion. After having done so, the learned Rent Controller then relied upon Exh. R/11 regarding the purchase of a house during the pendency of the eviction application and observed that the landlord had been unable to prove that it had been purchased for the occupation of the respondent. This was hardly a satisfactory way of dealing with the evidence of the father of the landlord.
10. After considering the overall facts and circumstances of the case. I have been left with the irresistible impression that there has been no fair trial of the pleas of the appellant at the hands of the learned Additional District Judge. By failing to give reasons and attending to the material on the record in order to render a judicial finding the appellate authority appears to have failed to exercise jurisdiction vested in him by law. The appeal is accepted and the case is found fit for remand to the appellate authority for disposal of the appeal of the appellant in accordance with law. There will be in the circumstances no order as to costs. . Case remanded.