2003 PLP 205 (MLD)

1990 MLD 1009; PLD 1993 Kar. 300; 1994 CLC 1982; 2001 SCMR 338; 2000 CLC 1206; 2000 SCMR 1292 and 1997 SCMR 1062 ref. Partab Rai for Petitioner. Rashid Anwer for Respondent No.2. Dates of hearing: 4th and 5th September, 2002. Through this Petition the petitioner has impugned judgment dated 31‑10‑2001 of the learned District Judge, Karachi East, passed in First Rent Appeal No.472 of 2001 whereby he allowed the Ejectment Application of respondent No.2 by reversing the findings of the VIth Rent Controller, Karachi East, who had dismissed the Ejectment Application. Brief facts as stated in the petition are that respondent No.2 is the landlord of the petitioner in respect of property situated on Plot No.200/C, Commercial Area, PECHS, Karachi (hereinafter referred to as the property"). On 16‑8‑1967 the mother of respondent No.2 had let oat the property to the petitioner. The mother of respondent No.2 died in Karachi on 21‑2‑1977 whereafter the respondent No.2 started collecting rent and issuing rent receipts. It has been averred in the petition that earlier the brother of respondent No.2 filed an Ejectment Application against the petitioner on the ground of default, nuisance, addition and alteration which was dismissed on 13‑10‑1988 against which an appeal was preferred to this Court which too was dismissed by judgment dated 30‑1‑1995. It has been further stated in the petition that after dismissal of the appeal the respondent No.2_ on 16‑1‑1996 filed an Ejectment Application No.31 of 1996 before the VIth Rent Controller, Karachi East, seeking ejectment of the petitioner on the ground that she requires the property for her personal bona fide use and occupation in order to establish her business/work of boutique. The petitioner filed his written statement. The respondent No.2 filed her affidavit‑in‑evidence and was cross‑examined at length by petitioner's counsel. The petitioner, however, did not appear in the witness‑box after filing his affidavit‑in- evidence whereafter the. Rent Controller vide his judgment dated 14‑5‑1998 dismissed the Ejectment Application holding therein that the relationship of landlord and tenant .did exist between the parties but according to the Rent Controller the respondent No.2 has not been able to produce any evidence on record to satisfy him regarding running of her business, the funds for running such business, experience, etc. He further observed in his judgment that it was mere wish of the respondent No.2 to seek ejectment of the petitioner, which he found was hardly a ground for ejectment. The Rent Controller further took note of the fact that earlier the brother of respondent No.2. had filed Ejectment Application against the petitioner on the ground of default, addition, alteration and nuisance which was dismissed against which an appeal was preferred before this Court but that too was dismissed and therefore, ejectment application by the respondent No.2 was a mala fide attempt to eject the petitioner. Aggrieved by the judgment of Rent Controller the respondent No.2 preferred First Rent Appeal before this Court (F.R.A. No.417 of 1998) which by virtue of amendment in law was transferred to the learned District Judge, Karachi East and was renumbered as F.R.A. No.472 of 2001. The learned District Judge after hearing the counsel of the respondent No.2 reversed the findings of the Rent Controller to the extent that respondent No.2 has proved her personal bona fide requirement. The petitioner and/or his counsel did not appear before the appellate forum. Against the judgment of the learned District Judge present petition has been filed. I have heard Mr. Partab Rai, learned counsel for the petitioner and Mr. Rashid Anwer, learned counsel for respondent No.2. It is urged by learned counsel for the petitioner that the impugned judgment is based on misreading of evidence and the learned District Judge has failed to take note of the difference be4ween the meanings of words "landlord" and "owner". He has contended that under section 2(g) of Sindh Rented Premises Ordinance, 1979, the word "personal use", has been defined as "use of the premises by the owner thereof or his wife (or husband), son or daughter". According to him the respondent No.2 never pleaded herself as the owner and she in her Ejectment Application as well as in the affidavit‑in‑evidence has stated that she is landlord of the property and used to collect rent after the death of her mother. He, therefore, submits that as the respondent No, 2 has not pleaded herself as owner, therefore, she cannot seek ejectment of the petitioner on the ground of personal bona fide use in view of bar contained in section 2(g) of the Sindh Rented Premises Ordinance, 1979 He had relied upon the cases reported in 1990 MLD 1009 at 1015, PLD 1993 Karachi 300 and 1994 CLC 1982. In regard to the scope of writ Jurisdiction he has referred to the cases reported in 2001 SCMR 338 and 2000 CLC 1206. On the other hand, the learned counsel for the respondent No, has submitted that there is no misreading of evidence by the learned District Judge and findings of the Rent Controller were ex facie erroneous. He has relied upon 2000 SCMR 1292 and 1997 SCMR 1062 He invited my attention to the definition of "landlord" as given section 2(f) of the Sindh Rented Premises Ordinance, 1979, which mea: `the owner of the premises and includes a person who is for the tits being authorized or entitled to receive rent in respect of such premises He has submitted that in the Rent Application respondent No.2 has claimed to have acquired interest in the property upon death of her mother who had inducted the petitioner as tenant in 1967. He has further drawn my attention to the preamble of the Tenancy Agreement dated 16-8‑1967 entered into between the petitioner and mother of the responde: No.2 wherein it is stated that mother of the respondent No.2 was the owner. He has also taken me through the contents of affidavit‑in- evidence of the respondent'No.2 wherein it has been pleaded that she has acquired interest in the property upon the death of her mother and the petitioner has admitted this fact in his written statement. I have gone through the record and the case‑law cited by both counsel. At the outset, the findings of the Rent Controller were ex facie erroneous. He has erroneously taken .note of the earlier ejectment proceedings which were initiated on distinct ground by the brother of the respondent No.2. Besides this, the Rent Controller has failed to take note of settled principle of law that a party who has filed the written statement. if fails to appear in the witness‑box, the contents of such written, statement are ought to be ignored. The petitioner after filing the written statement and affidavit‑in‑evidence avoided/failed to appear in the fitness‑box, thus, has failed to place his defence before the Court. In the use of Mst. Khair‑ul‑Nisa and 6 others v. Malik Muhammad Ishaque and 2 others, reported in PLD 1972 SC 25, it has been observed by the Honourable Supreme Court of Pakistan that written statement filed by a party who failed to appear in the witness‑box is of no value. In the instant case, I am of the view that the defence based on such written statement cannot be looked into. Even otherwise, the pleadings of the parties cannot be equated as evidence. This view has been affirmed by he Honourable Supreme Court in the case of Malik Muhammad Ishaque Messrs Erose Theatre and others, reported in PLD 1977 SC

109. I lave also gone through the pleadings and the evidence of the respondent No.2. In the cross‑examination not a single question has been put to the respondent No.2 in regard to her status either as "landlord" or as "owner". I am unable to find any misreading of evidence and the findings of the learned District Judge are in accordance with the law and principles enunciated by the Honourable Supreme Court. The judgments cited by the learned counsel for the petitioner are site distinguishable on facts and has no application to the present case. The petitioner's counsel has failed to show that the impugned judgment perverse or erroneous on facts on record or there is misreading of evidence. This Court in exercise of its Constitutional jurisdiction cannot interfere in matters of the nature nor could I determine the status of the respondent No.2, which ex facie is a question of fact: Moreover, the reading of section 2(f) of the Sindh Rented Premises Ordinance, 1979, makes it clear that the word "landlord" also includes "owner", therefore, the contention of the petitioner's counsel that section 2(f) be ad as "Rent Controller" only in isolation from the other sentence. Rich includes the word "owner" is against the wisdom of Legislature which has included both categories in the definition clause of section 2(f) the Ordinance. The version of the respondent No.2 in regard to personal requirement was not only consistent with the averments made in the ejectment application but also the same has not been shaken by the petitioner in the cross‑examination leaves no room for me to intervene. For the foregoing reasons I had dismissed the above petition alongwith pending interlocutory application by the short order, dated 5‑9‑2002. S.A.K./S‑224/K Petition dismissed.