' The petitioner filed an ejectment petition against respondent No,2 for ejectment in respect of Shop No,4 New Market, Mandi Bahauddin. The ejectment was sought on the grounds of default, damage, personal use and violation of terms and conditions of lease. The respondent No,2 resisted the petition. The learned Rent Controller seized of the matter accordingly framed following issues:-- "(1) Whether the respondent has defaulted in the payment of rent?
(2) Whether the respondent has damaged the disputed shop?
(3) Whether the petitioner No,1 needs disptued shop for her own personal use?
(4) Whether the respondent has violated the conditions prescribed in the agreement, if so its effect?
(5) Relief."
2. The petitioner examined Abdul Khaliq as AW 1, Muhammad Ashraf as AW 2 and petitioner No,2 appeared for himself and as special attorney of petitioner No,1 as AW 3. The respondent No,2 tenant in rebuttal examined Mirza Manzoor Ahmad as RW 1, Muhammad Khan RW 3, Bashir Ahmad RW 4 and himself appeared as RW 2. The learned Rent Controller after hearing the arguments decided issues No,1, 2 and 4 against the petitioners while issue No,3 was decided in their favour and in view of the findings on this issue the ejectment petition was allowed vide order dated 2-4-1988. The respondent No,2 alone assailed this ejectment order through an appeal before the appellate Authority who accepted the same vide order dated 15-2-1989. The result was that the ejectment petition of the petitioners was dismissed. The petitioners have now assailed the order of appellate Authority through this Constitutional petition, which was admitted to regular hearing and notices were issued to the respondents.
3. The respondent No,2 tenant has appeared and contested the petition. The learned counsel for the petitioners in support of the petition has argued that the learned appellate Authority wrongly and illegaly drew adverse inference from the non-appearance of petitioner No,1 as her witness. It is added that it was not the requirement of law that the petitioner must appear as a witness. In this behalf learned counsel has referred to the cases of Muhammad Umar and others v. Dr. Amina Ashraf 1982 CLC 410 and Abu Bakar v. Mst. Sadaqat Begum PLD 1983 Lah.
320.
4. On the other hand, learned counsel for the tenant has argued that the petitioners miserably failed to prove issue No,3 relating to personal use and her non-appearance as a witness is fatal to her claim for personal use. The learned counsel in this behalf has referred to the case of Ghulam Mohy-ud-Din v. Soba Khan PLD 1977 Lah.
1094. It is further added that personal requirement is not bona fide as another shop owned by her father petitioner No,2, is lying vacant.
5. I have given my anxious considerations to the arguments of the learned counsel for the parties and gone through the record. The appellate Authority although Court of law and facts yet failed to render speaking judgment. The learned Appellate Authority after giving a resume of the facts and evidence proceeded to record following findings:-- "As Mst. Naeema Tabassam landlady had neither appeared in the witness-box nor had presented proper witnesses to establish her personal requirement regarding the shop in question, therefore, under the circumstances of the present case, as aforementioned, the bona fides of the landlady have not been proved on the record. A mere desire on the part of the landlady to evict her tenant on the fictitious ground of personal use cannot be attached any weight.
' For all the foregoing reasons, finding of lower Court on issue No, 3 is reversed, and the same is decided in favour of the appellant/tenant."
6. This is whole of the finding of the learned appellate Authority. The same cannot be considered judgment in the eye of law. It is clear from the above quotation that finding of the learned Rent Controller has been, reversed on issue No,3 mainly on account of her non-appearance as a witness. The appellate Authority failed to appreciate that it is not one of the requirements of the law that a landlord seeking ejectment of his tenant on ground of personal deed must appear in the witness-box. The learned counsel for the petitioner rightly referred to the cases of Muhammad Umar and others and Abubakar. Even in the case relied on behalf of the respondent-tenant it was only held that the statements of the landlord and person for whose behalf premises sought to be vacated are relevant. This was in the context that it was for the landlord to show reasonable cause for occupying a 'particular' property for personal use. In the present case the petitioner No,1 admittedly owns only the shop in dispute, therefore, there was no choice with her.
7. The learned appellate Authority has brushed aside the evidence produced by the petitioners for artificial reasoning. The statement of Abdul Khaliq A.W.2 was rejected because he failed to depose as to the metal status and other private matters of petitioner No,1 while the statement of A.W.2 was excluded that he is not related to the landlady and her father. While he just referred to two portions of the statement of Khair Muhammad A.W.3 petitioner No,2, father and special attorney of petitioner No,1, he has not given any reasons why the statement of A.W.3 should be excluded? Even if the statements of A.W.1 and A.W.2 are excluded still statement of A.W.3, who is father and special attorney of petitioner No,1 landlady, was sufficient to answer the issue in favour of the landlady.
8. The statement of the petitioner in an ejectment petition moved on ground of personal use is essential only to prove the exact requirement of the petitioner. If somebody else like father, husband, brother can depose in respect of all matters and supply all information sought to be from the petitioner to prove the requirement of bona fide personal use, then non-appearance of the petitioner will be of no legal consequences and not fatal to the claim of the petitioner. In this case Khair Muhammad, who is father of landlady and fully conversant with the facts and the basis of the claim of the landlady appeared as her special attorney, therefore, statement made by him will be deemed to be statement of the landlady. It is clear from the statement of Khair Muhammad that he answered all the questions and queries made on behalf of the tenant in the cross-examination in order to expose the bona fide personal requirement. He has made clear and categorical reply to all the questions. There was not a single question to which he has replied that he is not aware and landlady may be knowing. In this view of the matter the learned appellate Authority wrongly insisted for the appearance of the landlady as her own witness. It is noteworthy that even the learned appellate Authority did not discuss and rely on the evidence of the tenant to reverse the finding of Issue No,3. It is probably for the reason that the evidence of the tenant is not creditworthy and does not rebut the evidence produced on behalf of the landlady.
9. The legislature has duly safeguarded the interest of the tenant while enacting provisions of section 13 subsection (4). In case the landlady fails to occupy the shop within one month of the date of obtaining possession, the tenant may apply to the Controller for an order directing the restoration of possession of the shop to him.
10. The upshot of the above discussion is that this Constitutional petition succeeds and the order of respondent No,1 dated 15-2-1989 is declared illegal and is hereby set aside. The result is that the order of the Rent Controller dated 2-4-1988 is restored and ejectment petition of the petitioner is accepted. However, there is no order as to costs and the tenant is allowed one month's time to vacate the premises.