MALIK MUHAMMAD QAYYUM, J:- This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 arises out of a petition under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959 filed by the petitioner against respondent No.2 in respect of a shop bearing No.8/21, situate in Bohar Bazar, Lala Musa on the grounds of default in payment of rent; impairing the value and utility of the shop and personal need. The application was contested by respondent No.2 by filing a written statement which led to the framing of the following issues:-
1. Whether the respondent has impaired the value of the suit property? OPP.
2. Whether the respondent is rent defaulter from January 1983?OPA
3. Whether the applicant requires the suit property for his bona i.e personal requirement?OPA
4. Whether the application is bad for nonjoinder of Ghulam Fatima, if so its effect?OPR
5. 4 What is the rate of rent of the suit property?OPR
6. Relief.
The Rent Controller on 19.3.1988 decided the issues relating to default and personal need in favour of the petitioner and accepted the ejectment petition. However, on an appeal filed by respondent: No.2 this order was reversed and the Addl. District Judge, who was seized of the matter, proceeded to hold that neither personal use nor default has been proved. As a consequence of this finding the ejectment petition was dismissed. The petitioner has now invoked the constitutional jurisdiction of this Court.
2. The learned counsel for the petitioner contended that while deciding the issues of personal ise as also default, the Addl. District . Judg has not only mis-read the evidence
3. As already indicated, the Rent Controller found substance in the two pleas of the petitioner/landlord that the premises were required by him for his personal use and secondly that the respondent has defaulted in the payment of rent. A perusal of the impugned judgment of the Addl. Dislrict Judge on both these issues shows that it is far from satisfactory. As regards personal need, it was observed by the Addl. Dislrict Judge that:- ".... Now I advert to issue No.3. Respondent as well as his witnesses have stated that he is runnings business of cement and he requires the disputed shop for his personal use. Respondent while appearing as RW.3 has admitted in cross-examination that appellant is selling vegetables in the shop and the other shops around the disputed shop are also of vegetables. Respondent has further admitted that in Bohar Bazar there are shops of vegetables, meat, general stores, shops for crockery and of tailors and there is no shop of building material in this bazar. Thus in view of his own statement, business of Cement is not possible in the disputed shop. He is already doing his business on Mall Godam Road, Lala Musa which is a business centre of building material. Thus the disputed shop is not required by the respondent for personal use. Hence the finding on issue No.3 is also reversed and issue is decided against the respondent..."
4. From the above, it is quite obvious that neither the evidence produced by the petitioner nor that of the respondent except the cross-examination of respondent No.3 was adverted to. The Addl.
District Judge was reversing the findings of the Rent Controller and it was, therefore, his duty under the law to have dealt with the reasons which prevailed with the Rent Controller for taking a contrary view and to have also appraised the entire evidence on the record. Further more, the two grounds on which the petitioner has been non-suited are that he was ajrcady carrying on business on Maal Godam Road, Lala Musa and, secondly, that there was no shop of building material in the locality.
Both these grounds, to say the least, are absolutely untenable and contrary to the law declared by this Court as also the Supreme Court of Pakistan. It has on more than one occasions been pointed out that the Rent Controller or the Addl. District Judge, as the case may be, cannot assume the role of a gratuitous Adviser and take upon itself to decide as to whether or not a particular business should be run by the landlord and in what locality. Similarly, the fact that there was no building material shop in the vicinity was of no relevance at all. It need also be noticed that while holding that the petitioner was already carrying on his business on Maal Godam Road, Lala Musa, the statement of the petitioner as AW-3 to the effect that the shop in his possession was a rented shop was neither adverted to nor considered, It is thus evident that the decision of Addl. District Judge on the issue of personal need is not correct. Similarly, the finding of the Addl. District Judge on the issue of default also suffers from misreading of record and appears to be conjectural. The same error that the reasons for which the Rent Controller had decided the issue against the respondent were not taken into consideration by the Addl. District Judge? Has been crept into his judgment, while, deciding this issue also.
For the foregoing reasons, this petition is accepted, the impugned judgment of the Additional District Judge dated 22.4.1990 is declared to be without lawful authority and of no legal effect, with the result that the appeal filed by respondent No.2 shall be deemed to be pending before the District Court and shall be decided afresh in accordance with law. The parties shall appear before the District Judge, Gujrat on 28.11.1990, who may either hear the appeal himself or entrust the same to some other Addl. District Judge.
No order as to costs.