1991 PLP 1231 (CLC)

Akhtar Mehmood for Respondent. Dates of hearing: 4th and 7th October, 1990. This first rent appeal is directed against the judgment passed on 30-5 1990 by the Vth Senior Civil Judge and Rent Controller in Rent Case No.4342/1980. The Rent. Controller by his said order has ordered that appellant Anwar Ali the tenant of Shop No.2 in the building situated on Plot No.115/C, Central Commercial Area, Off Allama lqbal Road, P.E.C.H.S., Karachi be ejected from the said premises as it is needed by Mrs. Aleema Ahmed the landlady and respondent in this appeal for her personal bona fide use. The appellant Anwar Ali admittedly is the tenant of the said premises on agreed rent of Rs.250 per month. Mrs. Aleema Ahmed the respondent herein riled an application under section'15 of the Sindh Rented Premises Ordinance, 1979 in the Court of First Rent Controller, Karachi seeking ejectment of her tenant from the said shop. Her case was registered as Case No.4342/80. She had claimed the ejectment of her tenant as according to her she needed it for her personal bona fide use as she intended to run a Ready Made Garments shop. The case proceeded before the 15'th Senior Civil Judge and Rent Controller, Karachi, who accepted the ejectment application by his order passed on 29-3-1982. The appellant then riled an appeal (F.R.A. No.516/1982). During the pendency of that appeal it was pointed out that the respondent landlady had Succeeded in getting adjoining shop vacated from the other tenant and, therefore, her need of the premises in dispute was satisfied. The High Court by consent of the parties framed an issue, "whether after getting the adjacent shop vacated from the other tenant, the appellant still needs the disputed shop" and remanded the case to Rent Controller for decision after allowing the parties a chance to lead evidence. After recording evidence the Rent Controller came to the conclusion that the landlady after obtaining the possession of the adjacent shop no more required the premises in dispute for her personal bona ride use and passed order on 25th August, 1985 dismissing (lie application. The landlord then preferred an appeal, (F.R.A. No.537/1987) before this Court. By consent of the parties a judgment was passed in that appeal on 5-11-1989 where both the parties were permitted to file additional affidavits-in-evidence before the Rent Controller and it was directed that the Rent Controller should decide afresh-after considering all the aspects of the case. After the case of the respondent was remanded to the Rent Controller for fresh decision on the basis of the pleadings and evidence brought on record the Rent controller formulated the following points for determination:-- "(i) Whether the applicant after getting vacant possession of the adjacent shop from the other tenant still requires the demised premises for her personal use bona fidely? (ii) What should the order be?" The Rent Controller decided point No.1 in affirmative and allowed the application after hearing the Advocates for the parties at great length. Mr. Khalid M. Ishaque, learned counsel appearing for the appellant contended that the judgment impugned in this appeal has been passed on the facts and evidence beyond the scope of the pleadings. According to him it could only be done so after the respondent had amended her pleadings. In support of his such contention he referred to cases reported in P L D ' 1971 SC 192: P L,D 1976 SC 469; 1989 C L C

732. He next contended that the respondent even otherwise had failed to prove that the premises in question were needed by her for her personal bona ride use in view of the scanty evidence led by her in support of her case. He also contended that the burden of proving the case heavily lay oil the respondent who has not been able to discharge such burden. In support of his second contention he referred to cases reported in P L D 1985 Kar. 624 and 639; P L D 1988 Kar. 369; 1988 M L D 1009. Oil the basis of. the above lie claimed that the appeal deserves to be allowed. Mr. Aklitar Melimood, learned counsel appearing for the respondent contended that orders were passed by High Court in tile two appeals mentioned hereinabove by consent of the parties. Under such circumstances the respondent was not required to amend the pleadings. The additional evidence was also recorded under orders of the High Court passed in the two appeals on the basis of the consent of the parties. The appellant under tile circumstances cannot be permitted to raise such objections at this stage of the case. lie further contended that sufficient evidence was adduced by the respondent to prove tile requirement of the shop in question in spite of the ejectment of the tenant from the other shop. Both the parties were permitted by the High Court by order passed in the two appeals to lead additional evidence and both the parties in fact had led the same. Since the appeals were allowed on the basis of a consent order no exception can be taken on this as well. Certain circumstances had cropped during the pendency of the litigation and, therefore, evidence was required to be led on such grounds as well. Mr. Akhtar, Mchmood to support his contention referred the cases reported as P L D 1976 Kar. 832; 1986 C L C .395; 1980 S C M R 593; 1985 S C M R 1769 and P L D 1982 Kar.

552. The first objection advanced by Mr. Khalid M. Ishaque Advocate for the appellant is that the ejectment of the tenant from the shop has been ordered on the facts not pleaded in the original application and without making the same as its part by amending it. According to him it could not be (lone so. It is true that normally a party prosecuting his case cannot fish Out an additional or extra ground to support his pending case during [lie prosecution of the original cause without first amending his pleading. A pleading as a matter of practice or procedure can be amended through a formal application made in writing to a Court of law but there is no legal bar in seeking amendment through an oral request if it is permitted by such Court. In this case both the parties consented that additional facts arising in the case after it was filed be considered by the Rent Controller after allowing them to have additional evidence recorded in support or in rebuttal of such ground. Additional issue every time was actually framed by the Appellate Court and case remanded to the Rent Controller to be decided after recording additional evidence. Objection to such a procedure was never taken by the appellant who actually participated further in such proceedings and he cannot be permitted to raise such an objection after an order adverse to him has been passed. Cases referred to by Mr. Khalid M. Ishaque are based on facts materially different from the facts of the present case. In view of above there is no force in the arguments advanced by him on this point. The respondent landlady has been able to prove her requirement of the shop in dispute and the shop she has already succeeded in obtaining its possession. Mr. A.S. Sadiq on examination of the evidence of the parties recorded in the case was a worker working for the landlady its a dyer for her ready-made Garments and has since abandoned the job. He was, therefore, never let out the other shop as was alleged by the appellant. She has given sufficient particulars of her requirement of both the shops. The cases relied upon by Mr. Khalid M. Ishaque on the second point too have no application. Due to foregoing reasons I do not rind any merit in this appeal which is hereby dismissed. Since the dispute relates to a commercial premises I allow the appellant to vacate the premises within six months from today subject to his payment of rent regularly to the respondent. In case he fails to hand over possession on expiry of six months the Rent Controller shall then issue a writ of possession without any notice to appellant. H.B.T./A-1022/K Appeal dismissed.