' The respondents, applied under section 13 of Punjab Urban Rent Restriction Ordinance, 1959 for eviction of appellant, from a godown, forming part of Property No,S-38-R-193/5 Panwali Gali, New Anarkali, Lahore, on the grounds of personal requirements of respondent and his son.
2. The plea did not find favour with the learned Rent Controller who dismissed the ejectment petition, on 9-6-1996. The appeal filed by the respondent, led to the reversal of the order of the Rent Controller, which was allowed on 19-11-1997. In consequence, an ejectment order was passed against the respondent, which has been assailed in this second appeal.
3. The order of appellate authority, has been vigorously challenged, on the ground, that the entire evidence was over looked, no reason whatsoever was recorded for reversing the findings of the learned Rent Controller, material evidence was over looked, inadmissible evidence was relied upon and that the order was violative of the provisions of Ordinance VI of 1959, and also the rule laid by the superior Courts.
4. Conversely, learned counsel for the respondent, argued, in support of the order passed in appeal, and maintained, that no ground had been made out for interference against findings of fact, recorded in appeal and that sufficient reasons had been recorded by the appellate authority, for reversal of the findings.
5. Having given due consideration to the points raised, in the light of evidence available on record, it is observed, that for the reasons hereafter, the order of learned Additional District Judge, cannot be approved.
6. The ejectment was claimed, on the ground that the respondent and his son, intended to run their own business, in the rented godown and that the premises was suitable for theft needs. While resisting the ejectment petition, the appellant, came up with the plea, that the ejectment petition was mala fide, as the respondent was not in need of the godown either for his own use or for the use of his son and that legal heirs of Nasir-ud-Din had entered into an agreement of sale, in regard to Property No,S-38-R-193/5, inclusive of the rented godown with their tenant Abdul Wahab and Ehsan Ali and in terms thereof, for the sale of property, in consideration of Rs,12 Lacs and received Rs,4 Lacs in cash as earnest money. It was alleged, that the sale-deed could not be executed, as the purchasers had demanded actual physical possession of the godown and for the purposes of facilitating the intending purchaser, the ejectment petition was filed, wherein the plea of personal use was raised as a device to disturb the appellant. It was also the case of appellant, that the respondents were occupying other premises suitable for their needs which reflected upon the plea of bona fide.
7. The learned Rent Controller, on consideration of the evidence, agreed with the appellant, and concluded, that the respondents had failed to prove plea of bona fide. Number of reasons was recorded for upholding denial of eviction. Amazingly, the learned Additional District Judge, without looking into the reasoning recorded by the learned Rent Controller or reappraising the entire evidence, proceeded to reverse the findings on the question of personal use. In doing so, a brief reference was made to the statements who had appeared before the learned Rent Controller and without considering, the text of their statements in cross-examination or appreciating the dents created therein, or considering the reasoning, which prevailed upon the learned Rent Controller, the plea of personal use was accepted, on assumption, as if everything was either admitted or proved.
The operative part of the order reads as follows:--- "Admittedly, the property in dispute is presently used as a godown but for the purpose of book binding the business can be carried there. The petitioners/appellants have shown their requirement by producing the evidence in the learned lower Court. The alleged agreement of sale does not exist any more. The petitioners/appellants have proved their requirement of carrying on their own business in the property in dispute. The findings recorded by the learned lower Court on this point are not based on sound reasoning. The petitioners/landlords have produced the possible available evidence to prove their version. The findings recorded by the learned Rent Controller, therefore, cannot be sustained and the same are hereby set aside."
8. The tenor of the order does not give any impression as to the application of mind, to the real facts and on the contrary, it leaves no room for doubt, in proving, that the learned Additional District Judge, accepted the appeal, being oblivious of the facts on record and also the provisions of the Ordinance. Without disclosing any basis, it was observed that the respondents had proved me requirements of their personal use, the agreement of sale did not exist and that the findings of the learned Rent Controller, were not based on any sound reasoning.
9. Under section 15 of Punjab Urban Rent Restriction Ordinance, the appellate authority, is required to decide the appeal, after sending for the record, giving opportunity of hearing to the appellant, by reappraising the entire evidence and with an order, supported by independent reasoning. The statutory right of appeal confirms right of rehearing of whole dispute. Unless expressly restricted, the appellate authority has to consider the controversy entirely afresh, both as regard facts and law and to substitute to its own judgment for that of the subordinate Courts. The Appellate Court, is duty bound, to consider the controversy afresh, reappraise the entire evidence, consider the points raised in appeal, and to decide the appeal with a judgment, supported by independent reasoning, giving an impression of independent application of mind. The order shall manifestly indicate, that the Court or the authority was conscious of the issues involved and perfunctory orders are never approved. A judicial order must be a speaking order, which shall indicate, application of mind to the resolution of issues involved for proper adjudication, as the litigants bring their dispute to the law Courts, with the incidental hardship and expense and they do expect application of judicial mind to their cases and determination thereof by proper orders.
10. In the case of "Mirdad Khan and another v. Muhammad Khan and another" (NLR 1979 Civil Lah.
540), it was observed, that the decisions of Appellate Court should be self-explanatory and in nature of a speaking order. It will not be enough merely to write that there was nothing wrong with the finding of the Trial Court. It was further observed, that short judgment on factual matters without discussing the entire evidence and grounds on which finding of Trial Court is based, does not fall within meaning of judgment and it is imperative on a Court of fact to set its independent conclusions so that parties may be enabled to decide whether to appeal against judgment and also enable High Court, to determine whether the lower Appellate Court properly understood the ease.
11. In "Trustees of the Port of Karachi and another v. Faquir Muhammad" (1992 M LD 1782), it was observed, that the Legislature had entrusted a very important duty to First Appellate Court and it was for the said Court to decide finally all questions of fact on which disposal of issues might depend. It was further observed, that the judgment of the First Appellate Court must show that it had made a sincere endeavour to make proper appraisement of merits of case put forward by the parties and in case of reversal, it is all the more important for Court of appeal, to consider evidence and reasoning of Trial Court and thereafter, to give its reasons for not agreeing with findings of the Trial Court. It was ruled, that the Court of appeal should take into consideration reasoning of Trial Court and evidence on record, especially when reversing its judgment and if the order of the First Appellate Court, does not give an impact of having adhered to such mandatory requirements of law, it cannot sustain.
12. In "Juma Khan v. Mst. Shamim and 3 others" (1992 CLC 1022), it was observed, that the Appellate Court, in its judgment, should set out points for determination; record its decision thereon and give reasons for decision. It was ruled, that the Appellate Court cannot run away from its onerous duties of recording findings of fact and discussing evidence and compliance to this rule was held to be mandatory.
13. The review of order passed in appeal, makes it obvious, that the learned Additional District Judge, without attending to the evidence, the reasons which prevailed upon the learned Rent Controller, the points raised by the other side, proceeded to reverse the findings, without recording any independent reasons therefor. It is not shown, as to the basis, which satisfied, the Appellate Court, in concluding, that the reasoning recorded by the Rent Controller, were not sustainable. So much so, the learned Additional District Judge was oblivious of the certain orders passed in the proceedings before the Rent Controller, whereby, some evidence was ordered to be excluded from consideration and in ignorance of these facts, the learned Additional District Judge, proceeded to bank upon the statement of AW-4.
14. The record indicates, that after the statement of AW-4 was recorded, he did not turn up for cross-examination and the respondent expressed his inability to produce him for cross- examination. In this view of the matter, the learned Rent Controller vide Order, dated 7-5-1996, directed, that the examination in chief of Abdul Wahab AW-4 would not be read in evidence. AW-4 was produced, with a view to counter the plea raised in the written statement about the execution of agreement of sale and in his statement, the agreement Exh.R-8 was exhibited and it was deposed, that the agreement was later cancelled. Since the statement was excluded from evidence due to refusal of the witness to appear for cross-examination, his statement could not be looked into. In the absence of his statement, the respondent, could possibly face difficulties, in proving, that the agreement of sale did not hold field. The learned Additional District Judge, on the assumption of the statement of AW-4, made a passing observation that the agreement of sale did not exist any more. Meaning thereby, that he relied upon inadmissible evidence because of the reason, that he had not taken pain, to look into the record of the learned Rent Controller. A little bit of care in attending the facts emerging on the record, could have saved such an error, as has been committed by the learned Additional District Judge. It is also observed, that the learned Additional District Judge, did not attend, to the points raised, on the basis of statement made in cross- examination by the witnesses of respondent. The learned Additional District Judge, in a mechanical manner, proceeded to accept the appeal by observing, that the findings of the learned Rent Controller, were not based on sound reasoning, without being conscious of the reasoning recorded by him. The order passed in appeal, therefore, cannot be termed as lawful order or proper disposal of the appeal. Suffering from perversity of reasoning, the impugned order, is untenable.
15. For seeking eviction, on the ground of personal use, one has to plead personal requirement, record statement, in support thereof and to prove the circumstances showing bona fide needs. In terms of provisions of section 13(3) of Ordinance VI of 1959, a landlord is entitled to the eviction of tenant, if he is able to establish that the rented premises is required in good faith and bona fide manner for his personal use. The appellate authority, without attempting to satisfy itself, as to the plea raised, proceeded to accept the appeal, in a casual manner.
16. While disagreeing, with the manner in which the appeal has been decided, it is also observed, that AW-4, was produced, before the Rent Controller, who subsequently did not appear for cross- examination. The respondent had expressed his inability to produce the witness for cross- examination, with the result, that the learned Rent Controller, excluded his evidence. Later an application was filed, for providing protection to the witness, for appearance before Rent Controller as it was alleged, that threats of murder had been extended to him. This application was dismissed by the Rent Controller on 10-4-1996 with the observation, that the witness should approach the police authorities for necessary protection. At the same time, request for summoning the witness through the process of the Court was declined. This order, does not appear to be justified, in the circumstances of this case. A serious objection has been raised by the appellant, to the effect, that the respondents have agreed to sell out the property and that the ejectment petition had been filed, to facilitate the intending buyer. The respondent has controverted this plea and produced AW-4, who did deose that the same stood rescinded and that there was no agreement of sale. His statement could not be looked into, as he did not reappeared for cross-examination. While deciding, the issue of personal use the allegations of contemplated sale may not be possibly over looked and, therefore, this controversy need to be resolved. It will be necessary to find out, if the agreement of sale, still subsists or has ended in termination by mutual consent of the parties. In case the agreement is found to be subsisting, it will create certain consequences, and in the event of findings otherwise, the results would be different. This being so, the issue has to be resolved one way or the other. One of the mode for resolving the issue would be, to conclude the cross- examination of AW-4, by ensuring his attendance, through issuance of coercive measures, Court.
This will be definitely in the principle of real justice and for the correct and effective decision of the case of course, the appellant can be allowed to lead evidence in rebuttal, if he so desire. The learned Rent Controller was not justified, in refusing issuance of process of Court for ensuring the attendance of witness. Once the witness had recorded his statement, and was allowed to leave without cross-examination then a responsibility to ensure appearance, to complete cross- examination, had shifted upon the Court, which could not be avoided, by taking hyper technical objection. To do complete justice between the parties, I am of the view, that the cross-examination of AW-4, should be completed, by making his appearance definite, through issuance of process of Court and if necessary by adhering to the coercive measures, with a view to consider his evidence, as a part of the evidence on record.
17. For the reasons above, this appeal is accepted, the order of learned Additional District Judge, is set aside and the case is remanded for fresh decision of the appeal. The appeal is entrusted to Mr. Badar-uz-Zaman Chattha, learned Additional District Judge Lahore.
18. The learned Additional District Judge will record the statement in cross-examination, of AW-4, by ensuring his attendance, through process of Court and also by coercive measures, with permission to the appellant, to lead evidence in rebuttal, if he so desires. After completing the additional evidence, the appeal will be decided, on its own merits and in accordance with law, within two months, with intimation to the Registrar of this Court.
19. A copy of this judgment shall also be sent to Ch. Saeed Ahmad, Additional District Judge Lahore for his future guidance.