This writ petition assails the judgment dated 29-11-1984, passed by a learned Addl. District Judge (Appellate Authority under the Rent Restriction Ordinance), Gujranwala.
2. A shop situate in Sitara Cloth Market, Gujranwala is owned by Ghulam Nabi petitioner herein and is in occupation of Muhammad Amin respondent No.1, hereinafter referred to as the respondent as tenant. The rent admittedly is Rs. 200 per month. In March, 1979, the petitioner filed an eviction application seeking ejectment of the respondent on the grounds of default in payment of rent since August, 1977 and bona fide personal need.
3. The respondent, of course, resisted the ejectment application. In the light of the parties pleadings, they were put to trial on the following issues:--
(1) Whether the respondent has not paid rent since July, 1977?
(2) Whether the petitioner requires the shop in question in good faith for his personal need?
(3) Whether the respondent has been served with a notice under section 13-A.
(4) Whether the property number of the shop is not mentioned, if so, its effect?
(5) Relief.
After recording the parties' evidence and after hearing them, the learned Rent Controller ordered the eviction of the respondent on 24-9-1980.
3. The respondent went in appeal and the learned District Judge, Gujranwala remanded the case vide order dated 15-10-1981, directing the learned Rent Controller to decide, whether the tenant has violated the order made under section 13(6) of the Rent Restriction Ordinance, 1959, and should give specific findings on the question of default.
4. Pursuant to the order of remand, the learned Rent Controller framed the following additional issues:-- 4(A) Whether the respondent complied with the order under section 13(6)?
4(B) Whether the petition is bad for non-joinder of necessary parties?
The learned Rent Controller recorded his findings on all the above issues. He found that the landlord needed the shop for his bona ride personal need. Consequently, he directed the eviction of the respondent vide judgment dated 1--2-1984.
5. Being aggrieved from the order passed by the learned Rent Controller, the respondent preferred an appeal before the learned Addl. District Judge, Gujranwala who vide the impugned judgment dated 29-11-1984, concluded that the landlord had failed to prove bona fide personal need.
Consequently, he accepted the appeal, set aside the Controller's judgment and dismissed the eviction application filed by the petitioner. Thus the present writ petition.
6. It has been mainly contended on behalf of the petitioner that the findings recorded by the learned Rent Controller on the question of default in payment of rent and non-compliance with the order made under section 13(6) were erroneous. Objection in this behalf was raised on behalf of the petitioner before the learned Appellate Authority but the said authority did not consider the petitioner's plea solely on the ground that no written cross-objections were filed and that verbal cross-objections could not be considered. Regarding the question of default also it has been averred on behalf of the petitioner that the findings recorded by the learned Addl. District Judge were based on mis-reading or non-reading of evidence and thus were erroneous.
7. About the question of bona fide personal need the learned Addl. District Judge 'has observed: "While deposing as his own witness, in post remand proceedings, he deposed in cross-examination that he had got vacated another shop from one Siraj Din also, for his bona fide personal need, but he explained that in that shop his second son ran business. He admitted that a shop in which his son Iftikhar ran business, was in his possession at the time of institution of ejectment petition, but he did not get this recorded in the ejectment petition. He deposed in the very examination-in-chief that the shop which he vacated during the pendency of this petition, was insufficient for his personal need---.The file shows that the respondent was interested in getting the ejectment orders against all his tenants and to achieve the purpose, he has all along been changing his stand point. The averments in the petition, his deposition as PW3, his replication and his deposition in post-remand proceedings, are quite different from one another on material particulars, in their contents with regard to the alleged bona fide personal need of the respondent. In this view of the matter, I am of the considered opinion that the finding recorded by the learned Rent Controller on issue No.2, is not sustainable in law."
8. The learned counsel for the petitioner has not been able to point out to what portion of the evidence has not been read or has been misread. The findings recorded by the learned Appellate Authority, a tribunal of competent jurisdiction on the question of bona fide personal need are based on evidence available on the record of the case and do not appear to suffer from any infirmity like mis-reading or non-reading of evidence. No interference in regard to these findings in exercise of constitutional jurisdiction is, therefore, warranted.
9. About the question of default, of course, the learned Additional District Judge has not recorded any finding simply on the assumption that since no cross---objections were filed, therefore, the question of default was not required to be considered. An affidavit sworn by Syed Muhammad Aslam Tirmazi, Advocate, who represented the petitioner before the learned Addl. District Judge has been filed. Its contents indicate that Syed Muhammad Aslam, Advocate, raised the cross- objections verbally that the respondent has failed to comply with the order made under section 13-
(b) of the Rent Restriction Ordinance, 1959, and that he also defaulted in payment of rent since August, 1977. This objection has not been considered by the learned Addl. District Judge. Legally a verbal cross objection should have been attended to and a finding in that behalf was required to be recorded by the learned Appellate Authority. Needless to add that before the learned Rent Controller, it was specifically alleged that the respondent had defaulted in payment of rent anal that he has also failed to comply with the order made under section 13(6). Issues covering these objections were also duly framed. Findings on these issues were also recorded by the learned Rent Controller against the petitioner but since the eviction application, as a whole, was decided in favour of the petitioner on the plea of bona fide personal need, therefore he was not required to challenge the order made in his favour by the learned Rent Controller. The appeal having been filed by the respondent, verbal cross objections submitted on behalf of the petitioner regarding the issues of default and non-compliance with the order made under section 13(6) should have been discussed and disposed of by the learned Appellate Authority.
10. It is note-worthy that in this Court, through C.M. Application No. 1156/89, it has been prayed by the petitioner that the respondent be directed to file the receipts of payment of rent for the period from August, 1977 till November, 1979. In reply to this application it has been urged on behalf of the respondent that receipts regarding payment of rent amounting to Rs. 5600 had already been f- sled by him in the Court of the learned Rent Controller and that those receipts were exhibited in that Court on 9-9-1980 as Ex.R 1 to Ex.R 30.
11. In the light of conflicting pleas raised on behalf of the parties in regard to C.M. No. 1156/89, it has been directed that this C.M. Application would also be disposed of with the main case.
12. As already observed, the learned Addl. District Judge has taken an erroneous view in not entertaining the cross-objections raised on behalf of the petitioner about his pleas of default in payment of rent and failure of the tenant to comply with the order made under section 13(6). This lapse on the part of the learned Appellate Authority has led to the failure of justice culminating into the impugned judgment which, in the circumstances, amounts to an order without lawful authority.
13. In this view of the matter, the writ petition is allowed and the impugned judgment is declared to be without lawful authority and of no legal effect. Resultantly, the case is remanded to the learned Addl. District Judge, Gujranwala with the direction that he shall decide the appeal afresh after recording his findings on the pleas of the petitioner-landlord regarding default in payment of the rent and the failure of the tenant to comply with the order made under section 13(6) of the Rent Restriction Ordinance. 1959. Since it is an old matter in which the eviction application was filed as lack as March, 1979, it is further directed that the appeal shall be re-decided by the learned Addl.
District Judge, Gujranwala, within three months effective from today. There shall, however, be no order as to costs.
H.B.T./G-280/L