P L D 1994 Lahore 252 (PLP)

(a) Cantonments Rent Restriction Act (XI of 1963)‑‑ ‑‑‑‑S. 24‑‑‑Civil Procedure Code (V of 1908), Ss.96, 107 & O.XLI, R.4‑‑‑Appeal against order of Rent Controller‑‑‑Scope of such appeal‑‑‑Such appeal being first appeal has to be heard and decided as an appeal from the original decree‑‑‑Appellate Court while hearing appeal against order of ejectment (or dismissal of application for ejectment) being Court of law and fact, all questions involved therein should be decided keeping in view provisions of Ss.96, 107 & O. XLI, R.4, C.P.C. Dr. Shaukat Bokhari v. Shabih Fatima 1986 MLD 1803; Karimuddin Shad v. Mst. Fatima Mian Ahmad 1989 CLC 545; Muhammad Ilyas v. Mst. Khursheed Begum 1989 CLC 506; Abdul Qudus v. District Judge, Sialkot and others 1982 CLC 2355(2); Naimuddin Siddiqui v. S.M. Ahmed Habibur Rehman 1983 CLC 1378; Mushtaq Ahmad Khan v. Khawaja Mustafa‑ul‑Hasan 1984 CLC 3093; Mst. Musarrat Amin v. Muhammad Mobin 1985 CLC 2033; Messrs Mian Brothers v. Suleman 1989 CLC 494; Muhammad Hanif v. Ahmad Hussain 1979 SCMR 118; Nazar Muhammad Butt and another v. Fateh Muhammad 1974 SCMR 322 and Muhammad Ayyub and another v. Muhammad Yaqoob and another PLD 1975 Lah. 445 ref. (b) Cantonments Rent Restriction Act (XI of 1963)‑‑ ‑‑‑‑S. 17(4)‑‑‑Ejectment of tenant on ground of personal bona fide need‑‑ Essentials‑‑‑Landlord can apply to Rent Controller for an order directing tenant to put him (landlord) in possession if; he/she required it in good faith for his/her own occupation or for the occupation of any member of her family; that landlord/landlady or any member of her family was not presently occupying any residential building in said cantonment area or any local area in the vicinity suitable for his/her needs; and landlord/landlady had not vacated any such premises in the said area or the vicinity thereof without sufficient cause after commencement of the Act (Cantonments Rent Restriction Act, 1963). (c) Cantonments Rent Restriction Act (XI of 1963)‑‑ ‑‑‑‑S. 17(4)‑‑‑Ejectment of tenant‑‑‑Bona fide personal need of landlord‑‑‑Bare statement of landlady that she needed premises in question for personal need, would have shifted the onus to tenant but landlord in order to succeed should plead and prove all the three ingredients provided in S.17(4), Cantonments Rent Restriction Act, 1963 viz. that landlord required such premises in good faith for his own occupation or any member of his family; that landlord or member of his family was not presently occupying any residential building in concerned cantonment area or in any local area in its vicinity suitable for his needs; and landlord and said member had not vacated any such premises in said area without sufficient cause. (d) Cantonments Rent‑Restriction Act (XI of 1963)‑‑ ‑‑‑‑S. 17(4)‑‑‑Civil Procedure Code (V of 1908), O.VI, R.17‑‑‑Amendment of ejectment application‑‑‑Essential requirements of S.17(4), Cantonments Rent Restriction Act, 1963, having not been incorporated in ejecement application due to faulty drafting by the counsel, landlady was allowed to amend her ejectment application for further proceeding in the matter. ORDER "(1) Whether the respondent is a rent defaulter? OPP (2) Whether the rented premises is bona fidely required by the petitioner in good faith for personal use and family members use occupation? OPP (3) Whether the petitioner has been filed with mala fide intentions? OPR" The respondent in order to prove issues Nos.l and 2 appeared herself as P.W.1 and examined Muhammad Amin as P.W.2. She produced rent note dated 9‑6‑1985 as Exh.P.l, notices for vacation of the premises as Exh.P.2, Exh.P.3 and 9Exh.P.4, the copy of the passport as ExhJP.5 and general power of attorney as Exh. P.6. The appellant in rebuttal appeared himself as R.W.1. He also produced a letter from the father of the landlady as Exh.R.l, receipt of Rs.13,000 as Exh.R.2, Counterfoil of cheques Exh. R.3, letter dated 10‑9‑1992 as Exh.R.4, Bank Certificate dated 26‑1‑1993 as Exh.R.5 and other documents etc. The Additional Rent Controller after hearing the arguments proceeded to decide issue No.l against the landlady while issue No.3 was decided against the appellant and issue No.2 was decided in favour of the landlady. The petition was accepted vide order, dated 21‑7‑1993 in view of the finding on issue No.2. The appellant has now assailed this order through the present appeal. The same was admitted to hearing and notice was issued to the respondent and record was requisitioned:

2. The learned counsel for the appellant in support of the appeal has argued that the respondent is living with her husband and children in U.S.A. since 1985. It is added that it is not possible for her husband to come to Pakistan at least till 20‑5‑1994 when his contract is expiring while the children are also studying in U.S.A. and the plea of the respondent does not inspire any confidence that she and her children are to come immediately to Pakistan and to settle permanently at Lahore. It is argued that the merit of the plea can be imagined' from the fact that no effort has been made for admission of the children in any of the institutions at Lahore. It is submitted that it is proved on record that the sole purpose of this ejectment petition is to get the premises vacated and let out at a higher rate of rent. The arguments are concluded with the submission that the respondent in order to successfully claim the order had to establish that: Firstly, that she bona fide requires the premises; Secondly, that she is not in possession of any residential premises; and Thirdly, that she has not vacated any such premises. In this behalf, the learned counsel has referred to section 17(4) of the Cantonments Rent Restriction Act, 1963 (hereinafter to be referred as Act, 1963) and relied on judgment in the case of Dr. Shaukat Bokhari v. Shabih Fatima (1986 MLD 1803).

3. On the other hand, the learned counsel for the respondent has argued that admittedly the visa of the respondent is expiring on 20‑5‑1994 and she has categorically stated that she wants to come to settle at Lahore immediately. It is submitted that the statement on oath is sufficient to prove the personal need. In this behalf, the learned counsel has referred to Karimuddin Shad v. . Mst. Fatima Mian Ahmad 1989 CLC 545 and Muhammad Ilyas v. Mst. Khursheed Begum 1989 CLC

506. It is added that the persons living abroad are not debarred from getting their premises vacated to personally occupy the same. The learned counsel, in this behalf, has referred to Abdul Qudus v. District Judge, Sialkot and others 1982 CLC 2355(2), Naimuddin Siddiqui v. S.M. Ahmed Habibur Rehman 1983 CLC 1378, Mushtaq Ahmad Khan v. Khawaja Mustafa‑ul‑Hassan 1984 CLC 3093 and Mst. Musarrat Amin v. Muhammad Mobin 1985 CLC 2033. It is added that even the premises can be got vacated for ‑temporary use by the landlord putting up abroad. In this behalf, he has referred to Messrs Mian Brothers v. Suleman 1989 CLC

494. It is argued that it was for the appellant to bring in evidence on record to prove that the respondent is in possession of some other property or that she had vacated some other premises. It is added that in any case it is not the case of the appellant that either the respondent owns another premises at Lahore or she had let out the same recently. The arguments are concluded, with the submission that this was not the case of the appellant in the written reply or in the evidence. Even there is no question about these matters in the cross‑examination. It is, therefore, clearly afterthought and cannot tie given any serious consideration. The learned counsel for the respondent in this behalf, has referred to Muhammad Hanif v. Ahmad Hussain 1979 SCMR 118 and Nazar Muhammad Butt and another v. Fateh Muhammad 1974 SCMR 322.

4. I have given my anxious considerations to the arguments of the learned counsel for the parties. The controversy is restricted to finding on issue No.2. The first and foremost question which arises for determination in this behalf, is whether the petitioner‑landlady was to plead and prove all the three ingredients of section 17(4) of the Act or not? The learned counsel for the respondent has argued that it was for the appellant to prove that the respondent‑landlady is in possession of other premises sufficient for her needs. He has relied on the cases of Muhammad Hanif and Nazar Muhammad Butt and another which are not attracted in the present situation because this is first appeal and the same is to be heard and decided by this Court as an appeal from the original decree under section 96, C.P.C. I am fortified in my view by the case reported as Muhammad Ayyub and another v. Muhammad Yaqoob and another PLD 1975 Lah.

445. It is Court of law and fact. Therefore, all questions are to be decided keeping in view the provisions of sections 96 read A with 107 and Order XLI, Rule 4, C.P.C. It is relevant, before proceeding any further, to refer to the provision of subsection (4) of the section 17 of the Act, which reads as under:‑ "(4) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession,‑‑ (a) in the case of a residential building, if. (i) he requires it in good faith for his own occupation or for the occupation of any member of his family; and (ii) he or the member of his family, as the case may be, is not occupying any other residential building suitable for his needs at the time, in the Cantonment area concerned or in. any local area in the vicinity; thereof; and (iii) he or the said member has not vacated such a building in the said area or vicinity without sufficient cause after the commencement of this Act; and ..... It is clear from the Clause (a) that a landlord may apply to the Controller for an order directing the tenant to put the landlord in possession if: Firstly, that she requires it in good faith for her own occupation or for the occupation of any member of her family; Secondly, that she or the member of her family as the case may be is not presently occupying any residential building in the said cantonment area or any local area in the vicinity suitable for her needs; and Thirdly, she or the said member has not vacated any such premises in the said area ,or the vicinity thereof without sufficient cause after the commencement of this Act. The text of section 17(4) of the Act does not support the contention of the learned counsel for the respondent. On the other hand, the landlord in order to successfully claim direction to the tenant has to satisfy all the three ingredients which are condition precedent for accepting his application under section 17(4) of the Act. The learned counsel for the appellant has rightly referred to the case of Dr. Shaukat Bokhari. It is needless to, add here that it was a case under Sindh Rented Premises Ordinance. The provisions of both the enactments are similar.

5. It is true that the bare statement of the respondent would have shifted the onus to the appellant but the basic question remains the same that the C respondent in order to succeed should plead and prove all the three Punjab (Falak Sher, J) ingredients. It seems that the learned counsel, who drafted the ejectment petition, did not care to have a look at section 17 in order to incorporate the C conditions precedent for seeking a direction to the tenant to put the landlady m possession of the premises. Although it is a basic principle of pleadings that the same should be drafted in accordance with the provisions of the relevant law yet it is a matter of great regret that by and large the learned Advocates do not care to look at the relevant provisions whether it is a Constitutional petition, ejectment application bail matter petition for condonation of delay or restoration of a cause dismissed for non‑prosecution. The result is that on account of counsel's negligence the litigants looses a cause. The judicial educationist should pay special attention to teach principle of pleadings and the learned counsel should be very careful because may be some litigant elects to sue his Advocate for damages or proceed for professional misconduct.

6. Now coming to the case in hand. There is no way out except to allow the respondent to amend the ejectment petition and then call for a written reply from the appellant. It would be them decided whether the case should be D remanded to the Rent Controller or this Court should proceed with the matter itself in accordance with the provisions of section 24(3) of the Act. Order accordingly. AA./N‑220/L Order accordingly.