MALIK MUHAMMAD QAYUM, J, - The dispute in this petition arises out of a suit for recovery of dower Filed by Mst. Mubin Khanam petitioner against Javed Ahmad Khan, respondent No.2, which was dismissed for non-prosecution by the Family Court on 18th June, 1989. On an application Filed by the petitioner, this suit was restored and was later on decreed ex parte against the respondent No.2 on 5th November, 1989. Thereafter on 13th November, 1989, an application was presented by respondent No.2 for setting aside the ex parte decree on the ground that after the dismissal of the suit for non-prosecution on 18th June, 1989, he was not served with any process and had no knowledge of the restoration of the suit or the ex parte against him. The application was contested by the petitioner and was dismissed by the Family Court on 27th Feb. 1990. Aggrieved by this order, the respondent No.2 Filed on appeal which was accepted by the Additional District Judge, Lahore, on 9th December, 1990 and the ex parte decree was set aside.
2. Sh. Khalil-ur-Rehman, Advocate, has raised the following contentions:-
(i) That the order passed by the Family Court dismissing the application for setting aside the ex parte decree was not Final but was interlocutory in nature and was, therefore, not appealable under Section 14 of the Punjab Family Court Act, 1964.
(ii) That there was no justification for the Additional District Judge to have set aside the ex parte decree.
Both these contentions are devoid of any force. Under Section 14 of the Punjab Family Court Act, 1964, an appeal lies not only against the decree, but also against the decision of the Family Court it is correct, as has been contended by the learned counsel for the petitioner relying on Syed Muhammad Raza Shah Vs Sayeda Salma Gilani and another (PLD 1976 Lahore 1015) that the word 'decision' has to be construed ejusdem generis, and has reference to only Final decisions but this argument does not in any way advance the case of the petitioner. In the present case the order passed by the Family Court dismissing application for settling aside the ex parte decree was Final and not interim in nature. By decisions of the application and refusing to set aside the ex parte decree, the Family Court had disposed of the entire matter pending before it and there was nothing further left to be decided by it. It is thus idle on the part of the learned counsel for the petitioner to treat such an order to be interim or interlocutory in nature. Similar view was taken by this Court ir. Babu Vs District Judge Sahiwal and "another (PLD 1978 Lahore 85), which I respectfully follow.
3. The other case relied upon by the learned counsel in support of his objection as to the maintainability of the appeal was Mst. Rushda Zareen Vs. Muhammad Saleh (PLD 1976 Lahore 1327).
This case is, however, distinguishable as the question involved was as to whether the decision, in the Final decree regarding determination of Zare Khula can be appealed against in view of subsection (2) of Section 14 of the Punjab Family Court Act, 1964.
Establish the requirement in good faith provided for under Clause (vii) of sub-section (2) of Section 15 of the Ordinance and in this regard he refers to para 5 of the main application to show that a mere desire to carry on business in the premises has been expressed by the respondent without disclosing the nature of business and its details. A reference was also made to para 4 of the affidavit in evidence of the appellant wherein while denying that respondent required the premises for personal use he stated that "I say that husband of the applicant is running a general store in the name and style of "Haji General Store" in the same locality are the same is admitted by her son Mohammad Ayazuddin in his cross examination. I further say that said Mohd. Ayazuddin is also working in the said general store and as such their case of personal requirement of the shop in question is in fact fabricated with mala fide and dishonest intentions to evict me illegally". It was stated that the other two witnesses of the appellant had supported the assertion of the appellant.
Appellant's witness, Sajjad Khan, in para 2 of his affidavit-in-evidence, apart from staling that the respondent was running the Haji General Store, also stated that the respondent was a shareholder of Globe Travelling Agency and that three sons of the respondent had permanently settled in the United States of America from where they send substantial amount every month to the respondent and as such Shafiuddin Qureshi (respondent's husband) is not at all required to have any shop premises for running a general store. As regards Mohammad Ayazuddin, the son of the respondent, this witness stated that he is a full time student and has no time to carry on any business. The third witness of the appellant referred to by the learned counsel is Mohammad Ifrahim whose affidavit- in-evidence is almost verbatim repetition of that of Sajjad Khan.
6. Ln support of his contention that the respondent failed to give nature and details of the business to be carried on in the premises in question which were necessary in such cases the learned counsel has relied on the cases of Abu Bakar v. Ch. Mohammad Abdullah (1986 MLD 227), Samiullah v. Mst. Begum Jahan (1986 CLC 2628), and Anisur Rahman v. Mst. Sharifa Khatoon (1986 CLC 448), Mr. Abdul Latif A. Shakoor argued that the intention of the Ordinance was to protect the tenant from arbitrary eviction and, therefore, the provisions of the Ordinances have to be strictly followed and the conditions laid down for eviction on the ground of personal requirement have to be proved to the hilt.
7. Mr. Shafi Muhammadi, learned counsel for the respondent while supporting the impugned order staled that the respondent had established her -case in full, and the three conditions referred to by the learned counsel for the appellant have been met in the present case. The counsel stated that it was not at all necessary to give the nature and all the details of the proposed business in the main application. An assertion by the landlord to the effect that he required the premises in good faith for personal use with a general description of the proposed use at that stage would be sufficient.
Necessary details of the proposed use of the premises could be brought out in evidence so as to enable the learned Rent Controller to determine the bonafides of the landlord. It was argued that in order to gather the details one has not only to look at the application but also take into consideration the deposition of the witnesses and other material placed on record.
In this regard he referred to para 7 of the affidavit in evidence of Mohammad Shafiuddin, the husband and attorney of the respondent and stated that in this para the witness clearly stated that he was unemployed, that he had no other source of income, that he had no other source of income, that he had decided to start the business of general store in the premises in question, that his son Mohammad Ayazuddin was to help in this business and so also his wife, that he had no other shop in any locality in Karachi, that the premises in question was most suitable for his business as it was situated near his residence and that he had done similar business in the past in which he was assisted by his son, and, therefore, had necessary experience of the same. In his cross examination the witness had stated that previously he was working with his brother after whose death the business was wound up, He denied that he was still in occupation of the shop. The learned counsel also referred to para 3 of the business as it was situated near his residence and that he had done similar business in the past in which he was assisted by his son, and, therefore, had necessary experience of the same. In his cross examination the witness had stated that previously he was working with his brother after whose death the business was wound up, He denied that he was still in occupation of the shop. The learned counsel also referred to para 3 of the affidavit-in-evidence of the other witness of the respondent, Mohammad Ayazuddin, the son of the applicant who corroborated the statement of Shafiuddin Qureshi. In his cross examination he stated that he used to sit in his fathers shop in the name and style of Haji General Store and that the said shop was vacated about 3/4 years back.
8. Mr. Shafi Mohammadi, learned counsel for the respondent, submitted that as against cleat; and specific evidence of the respondent the evidence produced by the appellant is vague, unspecific and conflicting. He referred to para 4 of the affidavit-in-evidence of the appellant wherein he alleged that respondent's husband was running a general store in the name and style of Haji General Store in the same locality and respondent's son Mohammad Ayazuddin was also working at the said general store. However, in his cross examination on the point the witness stated that "I have not seen the store. Nor from my known persons has seen the said store. I do not know who is the owner of Haji General Store. I do not know where the shop is situated." Mr. Shafi Mohammadi, learned counsel for the respondent, submitted that appellants witnesses Sajjad Khan and Mohammad Ifrahim went further and alleged that in addition to the said Haji General Store the responding also had a share in Gabe Travelling Agency but in their cross- examinations they were not only unable to substantiate their allegations but showed ignorance of relevant facts and made conflicting statements. It was pointed out that the appellant in his cross examination had stated that the respondent had three sons of whom two were out of country but according to his witness, Sajjad and Ifrahim the respondent had four sons and these were settled in United Slates of America, who were earning handsomely and sending substantial sum to the respondent and therefore the respondent did not require any shop. These witnesses, however, failed to give details of the alleged business of respondent's sons in U.S.A, or the amount sent by them to the respondent. The two witnesses did not tally even on the names of these sons. Similarly, While the appellant in his deposition had stated that respondent's son Mohammad Ayazuddin was working at the general store of the respondent, appellant's two witnesses deposed that he was a full time regular student and had no time for doing business. Thus, it was stated that the evidence produced by the appellant was unworthy of belief.
9. As to the contention of the learned counsel for the appellant to the effect that the giving up some of the grounds originally taken would give rise to the presumption that all the grounds taken by the respondent in the eviction application were based on mala fide, the learned counsel for the respondent rightly submitted that no such presumption is called for if the ground of personal requirement is independently established and for this he relied on 1984 CLC 90 (para 9 at page 95).
10. It is true that in the main application the respondent had not given the details of the business proposed to be carried on in the premises in question but in para 5 had mentioned that her husband was unemployed, that there was no other source of income, that her sons had grown up and they intended to carry on business in the demised premises. In the affidavit of Mohammad Shafiuddin Qureshi the husband and attorney of the respondent sufficient details of the proposed use of the premises in question were provided. In para 7 of his affidavit- in-evidence Mohammad Shafiuddin Qureshi clearly stated that he wanted to start a general store in the premises where his son and wife would help him, that he had experience in that kind of business, that the premises was most suitable and that it was at a very short distance from his residence. In his cross examination Shafiuddin Qureshi remained unshaken and in fact most of his statement made in the aforesaid para 7 of his affidavit-in-evidence went unchallenged. The second witness Mohammad Ayazudding who happened to be the son of the respondent supported Shafiuddin Qureshi and in his cross examination, about the Haji General Store, he stated that he used to sit in the shop of his father run in that name which was vacated and the business wound up about 3/4 years back.
11. As against clear and convincing evidence of the respondent the evidence produced by the appellant does not inspire confidence and as tightly pointed out by the learned counsel for the respondent was conflicting on material points. There was nothing to substantiate the allegations that the respondent had any other similar premises or that her husband or son were running a general store or travelling agency.
12. The allegation that the respondent had not disclosed that her husband had been running a general store in the past is also not well founded for the affidavit-in-evidence and the cross examination both Mohammad Shafiuddin Qureshi and Mohammad Ayazuddin fairly disclosed that they had experience in running a general store but that general store had been closed about 3/4 years back after the death of Shafiuddin Qureshis brother, as such no adverse presumption can be drawn on this ground. If is no body's case that the premises in which the said business of Haji General Store was being done was owned by the respondent or that she had It it out prior to the filing of the eviction application.
13. All in all I am not impressed by the evidence of the appellant produced before the Rent+Controller and it seems to me that the respondent has been able to successfully establish that she required the premises in question in good faith for her own use and that of her husband and son.
14. In the result the appeal must fail and is hereby dismissed with no orders as to costs. However, in view of the fact that the premises in question is being used as a commercial premises, it would be fair to allow reasonable time to the appellant to vacate the premises, as such the appellant is directed to vacate the premises and handover possession thereof to the respondent within four months. The appellant is, however, directed to continue to deposit the monthly rent regularly in Court.