' MUHAMMAD ILYAS, J---Facts giving rise to this petition are that the respondent, Muhammad Saleem, made an application against the petitioner, Muhammad Abdul Karim for his eviction from a shop of Hall Road, Lahore, on the ground of personal need. A Rent Controller of Lahore, who heard the application, ordered ejectment of the petitioner. His order was challenged by the petitioner before the Appellate Authority (Additional District Judge, Lahore) but in vain. He then filed second appeal before the High Court but it was dismissed by a Single Judge thereof, namely, Mr. Justice Gul Zarin Kiani, as he then was. Hence this petition for leave to appeal against his order.
2. In this case, the respondent did not appear as a witness before the learned Rent Controller to depose that he required the shop in question, in good faith, for personal use. He, however, produced his brother, Muhammad Sharif, who was also his special attorney, to make statement in support of his plea.
3. At the time of arguments before the learned Single Judge, strong exception was taken by learned counsel for the petitioner to the failure of the respondent to enter the witness-box. This is discernible from the following portion of the judgment under challenge:- "Much stress was laid on the omission of the respondent to personally appear in the witness-boil for explaining his bona fide requirement of the shop for his self-use. It was strenuously alleged that his personal non-appearance at the trial was fatal to his case and the statement of his special attorney was not a proper substitute for proof of bona fide requirement of the shop."
4. In view of the above contention of the petitioner, the learned Judge in Chambers sent for the respondent who gave explanation in regard to his requirement. Relevant extract from the impugned judgment makes the following reading:-- "As the respondent was better Judge of his requirements and ordinarily he must appear to give evidence to convince the Court of the merits of his requirement. Since he had failed to record his personal statement and had chosen to appear through his brother, I sent for him to enter personal appearance in Court. He responded and attended the Court. He explained in fullness his requirement for shifting from Kahuta to Lahore for purposes of carrying on his business at the latter place. Part of his family had already shifted. At one stage, I was of the view to allow a chance to the respondent to record his own statement in support of his bona fide personal requirement of the shop as part of a further inquiry either by this Court or by the Court below but upon hearing of the respondent, the idea was dropped by me because it would entail unnecessary delay without bringing about a material change in the result."
5. The grouse of learned counsel for the petitioner, against the aforesaid explanation of the respondent before the learned Single Judge, was that he provided the respondent with an occasion to support his plea, at the stage of High Court, without affording an opportunity to the petitioner to cross-examine him. Argument of the learned counsel was that the procedure adopted by the learned Single Judge in this behalf was novel for which there was no warrant in law.
According to him, therefore, the judgment under challenge was not sustainable.
6. As we found force in the point canvassed by learned counsel for the petitioner, we decided to convert this petition into an appeal. On this, learned counsel for the respondent, who was present in Court, submitted that arguments on the appeal may be heard today with a view to avoiding delay in the finalization of the matter. Learned counsel for the petitioner had no objection in the matter.
We, therefore, converted this petition into appeal and proceeded to hear learned counsel for the parties thereon.
7. In reply to the argument advanced by learned counsel for the petitioner (who, though now appellant, will continue to be referred .To herein as A the petitioner), it was submitted by learned counsel for the respondent that the ejectment proceedings initiated by the respondent were of executive nature and it was not obligatory for the learned Single Judge to record the respondent's statement or allow the petitioner to cross-examine him. He was of the view that the learned Judge in Chambers decided the second appeal on the bail of evidence on the record and, therefore, the mere calling of the respondent by him did not expose his judgment to interference by this Court.
7. Portions of the impugned judgment reproduced above, clearly indicate that even according to the learned Single Judge, "the respondent was better Judge of his requirements and ordinarily he must appear to give evidence to convince the Court of the merits of his requirement". That is why the learned Single Judge summoned him and allowed him to explain why he needed the shop in question. If he was to decide the matter solely on the basis of the evidence on record, there was no need to call the respondent to enable him to explain his requirement. We have no doubt in our minds that although, while deciding the second appeal, the learned Single Judge had referred to the evidence on the record yet he was certainly influenced by the statement made by the respondent with regard to his plea of personal need. There is nothing on the record to show that the respondent made statement before the learned Single Judge on oath. Learned counsel for the respondent also did not say that oath was administered to the respondent prior to his explaining his need before the learned Single Judge. There is no dispute on the point that the petitioner was not allowed to cross-examine the respondent. It is, therefore, evident that the procedure adopted by the learned Judge qua the examination of the respondent was opposed to the rules of natural justice. He adopted an unusual course which has caused prejudice to the petitioner. Grievance voiced by the petitioner, therefore, calls for interference by this Court.
9. In this view of the matter, we accepted this appeal, set aside the judgment under challenge and remand the second appeal to the Lahore High Court. Since Mr. Justice Gul Zarin Kiani, who had passed the impugned judgment, has since retired, the appeal will now be placed before some other learned Judge who will record the statement of the respondent (landlord) on oath and allow the petitioner (tenant) to cross-examine him. He will then decide the appeal afresh after re- hearing the arguments. Needless to say that there will be no bar to his taking such other steps, before deciding the appeal afresh, as he may consider necessary and proper for doing justice in accordance with law.
10. Since the ejectment application was filed about seven years ago, we would like the second appeal to be re-decided expeditiously.