' FAKHRUDDIN H. SHAIKH, J.-Petitioner Muhammad Ibrahim has filed this petition to challenge the order of learned District Judge, Hyderbad, dated 28th February, 1979 whereby he had reversed the order of Controller of Rents, Cantonment Area, Hyderabad dated 7th February, 1978 and dismissed the ejectment application of petitioner Muhammad Ibrahim filed under the Cantonment Rent Restriction Act, 1963 against the respondents Nos. 2 to 4 (as legal heirs of the original tenant Abdul Latif deceased).
2. The premises in respect of which ejectment application was filed by Muhammad Ibrahim was a house bearing No, 87 situated in Soldier Bazar, Hyderabad within the limits of Hyderabad Cantonment. This house originally belonged to Muhammad Ismail, the father of petitioner Muhammad Ibrahim. Muhammad Isma il had gifted this house to his son Muhammad Ibrahim. The later filed an ejectment application through his father and Attorney Muhammad Ismail on the ground that he required it for his own bana fide use. It was stated in the ejectment application that he was residing with his father Muhammad Ismail which house was insufficient for the requirements of the members of Muhammad Ismail's family which consisted of three sons. The marriage of Muhammad Ibrahim was also postponed because of non-availability of the house.
Abdul Latif, since deceased (whose legal representatives are respondents Nos. 2, 3 and 4) had two houses which he had rented out to different tenants. Muhammad Ibrahim had been insisting upon Abdul Latif to vacate the house in question, whereupon deceased Abdul Latif used to hold 'out promises that as soon as he obtains possession of any of his houses from his tenants, he will vacate the house in dispute. It is admitted that one of the houses of deceased Abdul Latif was rented out to Mst. Mumtaz and Abdul Aziz. Deceased Abdul Latif had filed ejectment application against Mst. Mumtaz and Abdul Aziz and had succeeded in evicting them from the house. But instead of shifting in that house, deceased Abdul Latif sold that house to somebody and continued residing in the same house of the petitioner. Another house of Abdul Latif was rented out to one Mohan Lal. Deceased Abdul Latif had filed ejectment application against Mohan Lal also. These facts are not disputed. After the decision of the appeal by the District Judge by the impugned order, the L. Rs, of Abdul Latif had succeeded in evicting even Mohan Lal from their house. In spite of this, the L. Rs, of deceased Abdul Latif are refusing to vacate the applicant's premises although they have got their own house which has been vacated by Mohan Lal. The petitioner has also filed an affidavit of Mohan Lal alongwith this petition which is to the effect that the house of Abdul Latif, which was on rent with him, has been vacated by him and possession thereof given to the L. Rs, of deceased Abdul Latif.
3. The learned Controller of Rents, Cantonment Area, Hyderabad recorded evidence of the parties on the question of bona fide requirement of the petitioner. In support of his claim, the petitioner had examined his father and attorney Muhammad Ismail and his neighbourer Qazi Amir Ali, while in rebuttal there was evidence of deceased Abdul Latif only. Muhammad Ismail, the father of the petitioner had completely supported his case by stating that his son Muhammad Ibrahim was living with him in his house which was too small to accommodate his entire family and that the house in dispute was required for the purposes of the petitioner, as he was shortly going to be married. He specifically deposed that his marriage was being postponed simply because of lack of accommodation. This version has been fully supported by the petitioner's neighbourer Qazi Amir Ali. Relying upon their statements, the learned Controller of Rents accepted the ejectment application and directed the L. Rs, of deceased Abdul Latif to vacate the premises in dispute within one month.
4. Against the said order, the L. Rs, of deceased Abdul Latif namely respondents Nos. 2, 3 and 4 filed appeal before the District Judge, Hyderabad, who allowed the appeal mainly on two grounds namely, that Muhammad Ibrahim himself, for whose bona fide use the premises were required, was not examined as a witness and secondly that there was no evidence to the effect that the petitioner was residing with his father. He, therefore, concluded that the bona fide requirement of the petitioner was not proved. In view of these findings, he dismissed the ejectment application.
5. We have gone through the two orders namely, that of the Controller of Rents and of the District Judge and also perused certified copies of the various documents produced by the petitioner in support of the petition and are constrained to observe that the findings of the learned District Judge are based not only on misreading of evidence but also on misapplication of law.
6. So far as the fact of petitioner Muhammad Ibrahim residing with his father Muhammad Ismail is concerned, it has not been denied by the opposite party. Muhammad Ismail stated in his deposition that ten members of his family including three sons are residing with him. This fact has not been challenged by Abdul Latif who was alive at the time when Muhammad Ismail was examined. Moreover, Abdul Latif deceased, who had examined himself in his defence, has also admitted that Muhammad Ibrahim is residing in the house which is situated opposite to the disputed house and there is no dispute on the point that the house opposite to the disputed house is the same where Muhammad Ismail, the father of the petitioner, is residing with the petitioner. The learned District Judge has, therefore, erred in holding that there was no evidence on the record to hold that Muhammad Ibrahim was living with his father Muhammad Ismail. It was no body's case that Muhammad Ibrahim was residing in any house other than that of his father. If this had been so, then Abdul Latif deceased would have raised such plea in his written statement and would have contested the claim of Muhammad Ibrahim on that score. But Abdul Latif did not raise any such plea. On the contrary his plea was that the house of Muhammad Ismail was quite sufficient to accommodate Muhammad Ibrahim and his other sons. The finding of the learned District Judge, therefore, that there was no evidence to suggest that Muhammad Ibrahim was living with his father cannot be sustained. Moreover, even if Muhammad Ibrahim was not residing with his father, it would not follow from this that Muhammad Ibrahim did not require the house in dispute for his bona fide use.
7. The other ground which weighed with the learned District Judge in dismissing the claim of the petitioner was that the petitioner himself did not appear in the witness-box to prove his bona fide requirements. In taking this view, the learned District Judge has relied on the decisions in the case of Ghulam Muhammad v. Abdul Qadir (1) and MI s. Honest Trading Co. v. Mst. Muhammad Nisa (2).
In the case of Haji Ghulam Muhammad a Single Judge of Lahore High Court has held that eviction of a tenant on ground of landlord's personal requirements cannot be based on mere expression of desire by landlord and that the landlord should also prove his good faith and bona fides. It was further held that the claim of bona fide personal need must be made by landlord in his statement on oath and that absence of such statement by landlord would reflect upon other various evidential factors in proof of reasonableness of landlord's requirement. This case did not involve the question that the evidence of the person for whose benefit ejectment was sought, is mandatory.
' In the other case namely, that of M/s. Honest Trading Co. It was nowhere held by this Court that the personal requirement of the landlord should be proved by the landlord himself. This question, in fact, was not at all for consideration of the learned Judge who decided the above case. The question that fell for consideration in that case was whether the children of the landlord should be proved to be economically dependent upon the landlord in order to maintain an ejectment application by the landlord for bona fide use of the children 7 It was held by the learned Judge that the law does not require that such male children should be economically dependant upon the landlord. The learned District Judge has quoted an extract from this judgment which appears to be out of context from which it cannot be concluded that the intention of the learned Judge who decided the case of MIs. Honest Trading Co. Was to lay down that the bona fide requirement of the landlord should be proved by the landlord himself by stepping into the witness-box. The relevant extract upon which the learned District Judge has relied is to the following effect :- "Their first contention was that the applicant landlady had not been examined. However, her attorney has been examined and that to my mind was adequate. I have not been referred to any decision holding that landlord himself must go in the box. That question perhaps arises in a case where the landlord claims the premises for his own use which is not the case here."
' From the above extract it would appear that the learned Judge simply stated that 'perhaps' the examination of the landlord might be necessary in case where the ground of ejectment was his bona fide requirement. These observations were in the nature of obiter dicta which is evident from the word 'perhaps' appearing in the last sentence. Thus, none of the cases relied upon by the learned District Judge was attracted to the facts of the present case. .
8. The latest law in this connection is laid down by the Supreme Court in the case of M. Muhammad Sharif v. M. S. Sultan (1) and Dilshad Muhammad v. Mst. Zubaida Begum (2). It has been categorically laid down by the Supreme Court in the above two cases that if a landlord requires the premises for the bona fide use of his son, then examination of the son in witness-box is not necessary and that evidence of tenant cannot be challenged on the ground of failure to examine the son if the bona fide requirement of the son was otherwise proved by the evidence of the father or by other evidence. In the case of Dilshad Muhammad the Supreme Court held that non- appearance of the son of landlady in the witness-box would not be fatal to the claim of landlady as to requirement of the premises (shop) for use of her son.
9. In yet another case of Karim Bakhsh v. Haji Arthi Khan and others (3) Supreme Court observed as under : "The learned counsel for the petitioner that the landlord had not himself appeared to state about his bona fide need or his intention to reconstruct the property. His attorney appeared and made a statement and that should not be considered sufficient. It was also said that reliance should not have been placed on the first round of litigation wherein the application of the landlord for evicting the petitioner was held to be premature.
' As regards the personal need of the landlord we find that a finding of fact has been recorded by the Rent Controller that the family of the landlord-respondent consists of three wives, fourteen daughters and three sons and that he had no house to live in Dera Ismail Khan proper, though he was conducting his business there. It was also found on good evidence that by installing oil extracting machines in the premises and making alterations its utility had been impaired. The plan duly sanctioned by the local authority for its reconstruction was also placed in record and duly proved. In the circumstances the evidence on record was sufficient to warrant the findings of fact recorded by all the authorities and the mere fact that the landlord did not appear in the witness- box was no ground for ejecting the claim. Leave to appeal is, therefore, refused."
10. In view of the above legal position we are of the view that the learned District Judge has committed error of fact as well as of law in dismissing the appeal of Muhammad Ibrahim. Another factor which needed consideration by the learned District Judge was that Abdul Latif and his present L.Rs, have other houses which they got vacated from their own tenants most probably on the ground of their personal requirements. It was admitted by Abdul Latif that one of his houses was got vacated from Mst. Mumtaz and Abdul Aziz which house he has sold away. He also admitted that he had filed another ejectment application against Mohan Lal who was his tenant in another house. That case was prosecuted by the L. Rs, of deceased Abdul Latif who had succeeded in obtaining possession of the house from Mohan Lal. Affidavit of Mohan Lal to this effect has been filed by the petitioner alongwith this petition. This fact would show that the L.Rs, of deceased Abdul Latif will not be inconvenienced if they are ejected from the house in question.
Consequently we allow this petition, set aside the order of the learned District Judge, dated 28th February, 1979 and remand the appeal to him to decide it afresh in the light of the legal position mentioned above. The parties shall be entitled to produce further evidence in respect of judgment in the case of Mohan Lal, the tenarat of deceased Abdul Latif, which was decided after the impugned judgment of the learned District Judge. There shall the no order as to costs.