2015 PLP 1009 (CLC)

MUHAMMAD FARRUKH IRFAN KHAN, J.

Through this second appeal the appellant calls in question the validity of impugned order/ judgment dated 18-7-2011 and 27-2-2012 passed by the learned courts below. Through the former learned Rent Controller while accepting eviction petition of the respondent directed the appellant to vacate the demised shop within 30 days and through the latter the learned lower Appellate Court dismissed his first appeal against the judgment of the learned Rent Controller.

2. Facts of the case in brief are that respondent filed an ejectment petition against the appellant for his eviction from the demised shop fully described in para No.1 of the petition inter alia on the grounds of wilful default, breach of terms and conditions of tenancy agreement and personal bona fide need. The appellant contested the said ejectment petition by filing written reply. Out of divergent pleadings of the parties, learned Rent Controller framed necessary issues, recorded evidence of the parties thereupon and proceeded to accept ejectment petition vide impugned order dated 18-7-2011. Being aggrieved the appellant filed appeal before the learned First Appellate Court which was dismissed vide impugned judgment dated 27-2-2012. Hence, this second appeal.

3. Learned counsel for the appellant submits that the impugned order/judgment of the learned courts below are based on surmises and conjectures and result of misreading and non-reading of the evidence; that the learned courts below passed the eviction order on the ground of personal bona fide need despite the fact that neither any issue on this ground was framed nor the parties adduced evidence on this point; that the respondent filed eviction petition in accordance with the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959, whereas, the learned Rent Tribunal decided the matter in accordance with the provisions of Punjab Rented Premises Act, 2009 which was not in vogue at the relevant time; that this factum shows the learned Rent Tribunal did not apply its judicial mind; that the learned Appellate Court without adverting to the aforesaid proposition of law mechanically dismissed appeal of the appellant; that the respondent has certain other properties and he remained unable to prove that the demised premises were required for his personal bona fide need; that evidence in this case has not been properly appreciated and the conclusions arrived at by both the courts below are liable to be set aside.

4. Conversely, learned counsel for the respondent submits that the impugned order/judgment of the learned Rent Controller as well as the learned lower Appellate Court are well reasoned; that the respondent had taken the plea of personal bona fide need in his eviction petition as such non-framing of issue in this regard was not fatal; that tenancy period had already expired and the appellant had failed to pay the rent well in time as such he was liable to be evicted on these grounds also; that provisions of C.P.C. are not stricto sensu applicable in rent matters and the Rent Controller may evolve its own procedure for complete justice; that both the courts below after due appreciation of the material available on record have passed eviction order of the appellant and no occasion arises for this Court to intervene with the same in this second appeal.

5. I have heard the arguments advanced by the learned counsel for the parties and gone through the record.

6. The appellant has attacked the validity of the impugned order/ judgment of the learned courts below on two counts. So far as objection of the learned counsel that ejectment petition was filed under the old law i.e. West Pakistan Urban Rent Restriction Ordinance, 1959, whereas, the learned Rent Tribunal proceeded to decide the same in accordance with the provisions of Punjab Rented Premises Act, 2009 is concerned, no doubt in the impugned order the learned Rent Tribunal discussed the provisions of Punjab Rented Premises Act, 2009 but record shows that all the proceedings were conducted in accordance with the old law. Record further shows that an issue was framed whether the tenant breached the terms and conditions of rent agreement and the learned Rent Tribunal recorded its findings on this issue, therefore, in no manner it can be said that the learned Rent Tribunal passed the eviction order by applying the provisions of Punjab Rented Premises Act, 2009.

7. Second objection of the appellant is with regard to non-framing of proper issues. According to the learned counsel for the appellant no issue with regard to personal bona fide need was framed but the learned Appellate Court passed the eviction order on this ground. It is apparent from the record that the respondent in his eviction petition besides raising other grounds also took up a ground of personal bona fide need. The appellant in his affidavit tendered as Exh.R1 had categorically denied personal bona fide need of the respondent. Similarly, respondent as well as his witnesses while appearing in the witness-box reiterated the stance taken in the eviction petition. It is thus evident that appellant was abreast of the ground of personal bona fide need raised by the respondent and he also tried unsuccessfully to rebut the same by producing evidence. Furthermore, throughout the proceedings, the appellant never objected to non-framing of proper issues. It is also evident from record that respondent's earlier eviction petition was allowed by the learned Rent Controller vide order dated 19-12-2009. Being aggrieved the appellant had filed appeal before the learned lower Appellate Court which was accepted vide order dated 1-3-2010 on the ground that the affidavits tendered by the respondent were not duly attested by the Oath Commissioner. The matter was remanded to the learned Rent Tribunal with a direction to decide the same afresh. Even at this later juncture the appellant again failed to raise objection as to the non-framing of a further issue regarding personal bona fide need. Even otherwise, non-framing of an issue on bona fide personal need is not fatal to the respondent's case as both the parties adduced evidence in accordance with their pleadings. It is settled principle of law that provisions of C.P.C. are not stricto sensuo applicable in rent matters. Reliance is placed in case reported as Muhammad Farooq v. Abdul Waheed Siddiqui (2014 SCMR 630) where there was no specific prayer of the landlord in the ejectment petition seeking enhancement in the rent but all the three courts awarded the same and the Hon'ble Supreme Court of Pakistan while refusing leave to appeal of the tenant observed as under:

"The rent matter being in a nature of quasi judicial proceedings and the provisions of C.P.C. being not strictly applicable, therefore, the technicalities cannot be allowed to come in the way in granting relief in such proceedings. In any case respondent No.1 in the prayer as noted above has specifically prayed for fixation of fair rent and it was not incumbent that the specific rent as claimed by respondent No.1 ought to have been mentioned in the prayer clause when the amount of rent, which is sought to be enhanced and claimed by the landlord can validly be found from the body of the rent application." 7.(sic) Seeking guidance from the above esteemed judgment, this Court is of the considered view that even if the issue with regard to personal bona fide need was not framed but the parties adduced evidence on this point which is available on record, then the courts below have not committed any illegality or jurisdictional defect while passing eviction order on this ground. Non-framing of proper issue is a technical flaw which if not agitated at the relevant time can be overruled in rent matters for advancement of justice. The respondent filed eviction petition in the year 2006 and is unable to get it finally concluded even after elapse of more than eight years. Therefore, merely on the basis of technicalities, the parties cannot put to another round of litigation in particular when sufficient material is available on record to decide the matter on merit.

8. Scanning of the evidence makes it abundantly clear that respondent is a businessman and he while appearing in the witness box categorically stated that he needed the demised premises for his office and display of products. His witnesses Muhammad Saeed and Sajjad Ahmad while appearing in the witness box as AW2 and AW3 also unflinchingly supported the version of the respondent. All the witnesses were subjected to lengthy cross-examination but nothing favourable to the appellant's version could be elicited therefrom. The appellant has failed to controvert them by producing any counter evidence. Therefore, the learned courts below were fully justified in arriving at a conclusion that respondent required the demised premises for his personal bona fide need in good faith and no exception can be taken therefrom.

9. So far as contention of the learned counsel that respondent has certain other properties is concerned, it is well established principle of law that it is the choice of the landlord to point out what particular property is required for his personal bona fide need. It is his sole prerogative to decide which premises is suitable for his requirements. Reliance is placed on case reported as Asmat Ullah Butt v. Kamran Javaid and 2 others (2008 CLC 136) wherein it has been laid down as under:

"The basic law of pleadings is that, evidence could not be mentioned therein, therefore, the landlord was not obliged under the law to mention detail of every property that he owns or occupies the same. It is the prerogative of the landlord to select any one of his properties for his own use and neither the learned Rent Controller nor the learned lower appellate Court has any right to insist that, he occupy some other property."

10. Similarly, according to the rent deed it was settled between the parties that no alteration would be made in the demised premises without prior permission of the landlord. The appellant while appearing in the witness box admitted that for doing construction of bathroom he did not obtain any permission of the respondent. Therefore, it has been established on record that the appellant has breached the terms and conditions of the rent deed.

11. Learned counsel for the appellant has failed to point out any misreading and non-reading of the evidence in the impugned order/judgment warranting interference by this Court. Resultantly, this second appeal being without any substance is dismissed with costs. AG/I-32/L Second appeal dismissed.