1994 PLP 1552 (MLD)

In this Constitutional petition, the legality of order, dated 14-4-1993 passed by the learned Additional District Judge, Lahore by which he accepted the appeal filed by respondent No.1 against order, dated 14-7-1991 passed by learned Rent Controller, Lahore dismissing the eviction petition of the respondent No.1 seeking ejectment of the petitioner from the premises in dispute and an order of eviction was passed, has been called in question.

2. The facts giving rise to this Constitutional petition are that the property in dispute is a residential property which was dedicated by the petitioner to respondent No.1. He continued occupying the same as tenant under respondent No.1 and had been paying the rent regularly as his eviction was not sought on the ground of default in the payment of rent.

3. Respondent No.1 filed an ejectment petition against the petitioner seeking his eviction:

(a) "To establish a Madrassa for the promotion of real purpose of Waqf in good faith and bona fidely." (b) "That the petitioner without prior written consent of respondent No.1 has made certain additions alterations in the property damaging the same which had the effect of materially impairing the value and utility of the building."

4. The petitioner contested this petition by filing written-statement in which it was specifically pleaded that respondent No.1 had a building at Rasool Park which was sufficient for Madrassa and the property in dispute was not needed for further opening Madrassa. It was specifically pleaded in defence that a residential property could not be got vacated for the purpose of establishing (running a Madrassa). The allegations regarding damage to the property was also denied.

5. The learned Rent Controller after framing issues and recording evidence decided issue No.1 regarding establishment of Madrassa against respondent No.1. It was held that in the evidence the case made out by respondent No.1 was that the property in dispute was required for residential purposes of the students of the Madrassa and not for establishing Madrassa itself, therefore, the ground as urged in the ejectment petition to seek eviction had not been proved. According to the view taken by the Rent Controller the plea of establishment of Madrassa was meant and understood that classes for the teaching the students would be held in the property. As regards damage, it was held that the same had not been established. The ejectment petition was dismissed through order dated 14-7-1991.

6. In appeal filed by respondent No.1 before the learned Additional District Judge, Lahore the lower appellate Court took the view that to use the property for residential purposes of the students of Madrassa was as much part of the Madrassa itself, therefore, even if no classes were to be held for teaching in the property, the residential purposes for which the same was to ~e exclusively used, it shall be deemed as if the Madrassa was to be established as urged. The appeal was accepted through order, dated 14-4-1993 and order of eviction passed. 7. 1 have been taken through the evidence produced by both the parties and in particular the evidence of witnesses examined by respondent No.1 A.W.1 and A.W.3 in the cross-examination categorically admitted that the present building in which Madrassa was being run was sufficient for that purpose and the property in dispute was not required for running Madrassa itself but the same was required for residential purposes of the students of the Madrassa. In the ejectment petition a specific plea was raised that the house in dispute was required to establish a Madrassa. There may be more than one purposes of the Waqf but the tenant must have a due notice as to for which purpose the landlord (Waqf) wanted to get the property vacated so that the case could be defended from that point of view for it had been specifically pleaded that the property was needed for only residential purposes of the students of the Madrassa which was also one of the purposes of the Waqf, the petitioner would have had a right to defend the petition by saying that sufficient accommodation was available in the building in which the Madrassa was being run at Rasool Park and the need of the property as alleged for residential purposes of the students of Madrassa was neither bona fide nor the same was actually needed. Instead of taking a specific and express plea in the ejectment petition that property was required for residential purposes, it was pleaded that the same was required to establish Madrassa. In the written statement, the petitioner defended the case from this point of view as if the same was required for teaching purposes/holding classes because Madrassa would mean that classes were to be held, therefore, it was urged that residential property could not be got vacated for opening Madrassa under the law. It was proved through the evidence of 'A.W.1 and A.W.3 in cross examination that actually the property in dispute was not needed for opening Madrassa i.e. holding classes but in the evidence a case was attempted to be made out that the same was required exclusively for residential purposes of the students regarding which a plea should have been raised and the petitioner should have notice to defeat the same accordingly. It is well-established law that a case not pleaded in the pleadings cannot be allowed to be established through evidence and no evidence contrary to pleas raised in the pleadings could be allowed to be produced.

8. Learned counsel for respondent No.1 faced with this situation attempted to argue on the strength of judgments reported as Baladin v. Lakhan Singh AIR 1927 Ali. 214, Institute of Radio Technology and others v. Pandurang Baburao AIR 1946 Bom. 212, Agha Muhammad Ilyas v. Masjid Committee, Rahimyar Khan PLD 1968 Lah. 863, Muhammad Saeed v. Anjuman Jamia Hanfa (Regd.) Al-Minar Mosque PLD 1982 Lah. 657, Mst. Shamim Akhtar v. Minhajul Abidin Khan and others 1990 SCMR 777, Haji Mohibullah & Co. and others v. Khawaja Bahauddin 1990 SCMR 1070, Mrs. Frenia A. Cavina v. Mrs. Dhunmai Phiroze Dalai PLD 1991 SC 265 and Lala Niaz Ahmad v. Malik Ishtiaq Ahmad and others 1991 MLD 1655 that the expression "his own occupation" should be given liberal interpretation and since use of property for residential purposes of students of the Madrassa falls within the scope of one of the purposes of Waqf, therefore, should be allowed to be got vacated on that ground.

9. The rule laid down in these reported judgments in any manner does not advance the case of respondent No.1. I am not holding that the respondent No.1 is debarred from getting the property in dispute vacated for residential purposes of students of Madrassa but the ejectment petition must plead distinctly in clear terms of the purposes for which the same was required to be vacated so that the tenant should have notice of the ground for his eviction so that he may defend the same accordingly. As observed above, had it been pleaded that the property was required for residential purposes it was open to the petitioner to lead evidence that residential premises in the Madrassa already occupied by respondent No.1 was sufficient for this purpose also.

10. The learned Additional District Judge, Lahore in my view has made out a case for respondent No.1 which was not pleaded by it in the pleadings and according to pleadings the property was sought to be vacated to establish Madrassa i.e. for holding classes for teaching purposes and the same having not been proved, rather admittedly it was not needed for that purposes, therefore, no ejectment order could be passed on the ground of need for residential purposes. I am not called upon to express any opinion whether the need for residential purpose has been established or not so that it may not prejudice the case of respondent No.1 in case it files fresh petition for eviction of petitioner on the ground that the same was required for residential purposes which if filed shall be decided expeditiously by the Rent Controller on its own merits after giving opportunity to the parties to lead evidence.

11. For the foregoing reasons, the order, dated 14-4-1993 passed by the learned Additional District Judge, Lahore is not sustainable. The writ petition is accepted. The said- order is hereby declared to have been passed without, lawful authority and of no legal effect and quashed. The order passed by Rent Controller, Lahore dated 14-7-1991 stands restored. The parties are left to bear their own costs. AA./S-449/L Petition accepted.