2016 PLP 293 (YLR)

LAL JAN KHATTAK, J.

This appeal under section 24 of the Cantonments Rent Restriction Act, 1963 is directed against the order dated 19.11.2013 of the learned Rent Controller, Mardan, Cantt: whereby ejectment petition of the respondent against the appellant has been accepted.

2. Brief facts of the case are that respondent Dr.Umair Ikram filed an application against the appellant for his eviction from shop No.408 situated at Bank Road Mardan, Cantt: (hereinafter to be referred as the suit shop). The grounds urged for ejectment were default in payment of rent, subletting, impairing value and utility of the suit shop by the appellant and personal need of the suit shop for the respondent. The ejectment petition was resisted by the appellant by filing replication thereto wherein he refuted the respondent's case. On the case issues, parties adduced their respective evidence whereafter ejectment petition was accepted by the learned Rent Controller on 19.11.2013 but only on the ground of personal need of the respondent. Feeling aggrieved of the aforesaid order, the appellant has impugned the same through the instant appeal.

3. Learned counsel for the appellant contended that the very ejectment petition was not maintainable as the same had not competently been filed. Elaborating the ibid argument, it was contended that the suit shop was owned by Mst.Anwar Ikram who did not authorize the respondent to file the ejectment petition against the appellant. It was also argued that neither the owner-landlady nor the landlord appeared in person before the Rent Controller in support of the desired ejectment which non-appearance is sufficient to dismiss the ejectment petition. It was further argued that being doctor by profession the respondent cannot run a medicine store for which the suit shop was required, therefore, the plea of personal need was based on mala fide which indicates that the suit shop was not required in good faith to the respondent. It was lastly argued that keeping aside the above demerits of the case, the respondent has not proved his plea of personal bona fide need of the suit shop. The learned counsel placed reliance on 2001 MLD 1183, 2002 CLC 1391 and 2012 CLC 1282.

3. As against the above, learned counsel for the respondent defended the order impugned by the appellant.

4. I have heard learned counsel for the parties and also gone through the case record.

5. Perusal of the case record would reveal that on 20.03.2010 the appellant had filed an application against the respondent seeking permission from the Rent Controller to deposit monthly rent of the suit shop into court as the respondent had refused to receive the same from him. In ibid miscellaneous application, the appellant has admitted in unequivocal terms landlordship of the respondent over the suit shop for all purposes. Even para No.1 of the ejectment petition has not specifically been denied by the appellant wherein the respondent has averred that he is landlord of the suit shop on behalf of her mother. Therefore, it can safely be held that the respondent being a landlord of the suit shop has competently filed the ejectment petition.

6. Emphasis of the learned counsel for the appellant that that failure to appear in person, by Mst. Anwar Ikram and Dr.Umair Ikram, is fatal to the respondent's case, has no force in it as in his replication the appellant had not taken such stance specifically. Therefore, at this belated stage such ground cannot be urged before this court in appeal when same was not so agitated before the Rent Controller. Moreso, the respondent has sued the appellant through his attorney Nadeem Akhtar and in law there is no restriction that a landlord must appear in person to prove his plea of personal bona fide use. Appearance through attorney is as good as of the principal.

7. Learned counsel for the appellant also laid a lot of emphasis on the point that as the respondent was only a rent collector on behalf of the owner of the suit shop, therefore, in the capacity of a rent collector he could not ask for possession of the suit shop for his own personal need. Such contention of the learned counsel hardly advances his case as according to section 17 of the Cantonments Rent Restriction Act, 1963, a landlord may apply to the Controller for an order directing the tenant to put the landlord in possession of the rented building if he requires it in good faith for his own occupation or for the occupation of any member of his family. According to section 2 (g) of ibid Act landlord means any person for the time being entitled to receive rent in respect of any building whether on his own account or on behalf of or for the benefit of any other person. Therefore, requiring the suit shop by the respondent for his own personal need is to be considered and taken as requirement of the owner-landlady. Moreso, the respondent is not mere a landlord for collecting rent of the suit shop or to act as a watchman thereof but he is real son of the owner of the suit shop and has a legitimate and lawful interest in the premises. No doubt, the ejectment petition was not filed by owner of the suit shop, namely, Mst.Anwar Ikram but on this technical ground the appellant cannot take an advantage as interest of the respondent and that of his mother in the suit shop is common.

8. The next question in the case is whether the respondent has proved requirement of the suit shop for his personal bona fide use? The answer is that he has proved his case to the hilt. On his behalf, one Nadeem Akhtar appeared before the learned Rent Controller who produced his affidavit in evidence as Ex.P.W.1/1. This witness being attorney of the respondent has deposed that the suit shop was personally required for the respondent as being a doctor he wanted the same to set up therein a medical store as the same was in close proximity to his clinic. This witness was put to lengthy cross-examination but nothing was extracted from him to discredit his deposition. P.W.2 and P.W.3 also appeared before the Rent Controller for the respondent who supported his case. Appellant appeared as R.W.1 and also produced one Farman Ali as R.W.2 who has admitted in cross-examination that near about 200 patients daily come for their medical check up to the respondent. This admission of R.W.2 supports version of the respondent.

9. Perusal of the case evidence shows that the respondent has proved through cogent, convincing and confidence inspiring evidence that the suit shop was required to him for his personal bona fide use as being a medical practitioner he needed the same to make it a unit of his clinic. Objection of the learned counsel for the appellant that being a medical practitioner, the respondent is not authorized to act as a chemist is of little use to him as running a medical store alongside a clinic is not something unusual rather same is considered necessary for smooth running of a medical profession now a days. Besides, it will be convenient to patients if a medicine store is situated near to clinic of a doctor.

10. The learned Rent Controller has properly appreciated and analyzed the case evidence in its true perspective whereafter ejectment petition of the respondent was allowed. While allowing the ejectment petition, no illegality or any irregularity has been committed by the learned Rent Controller. Therefore, the instant appeal being, bereft of any merit, is hereby dismissed. ZC/97/P Appeal dismissed.