2013 PLP 1103 (YLR)

ABDUL RASOOL MEMON, J.

By this constitutional petition the petitioner has challenged the order dated 10-2-2007 in First Rent Appeal No.271 of 2005 passed by VIIth Additional District Judge, Karachi South, whereby he dismissed the FRA filed by the petitioner/tenant and maintained order dated 29-11-2005 passed by Xth Rent Controller, Karachi South, whereby the Rent Controller had allowed the Rent Application No.524 of 1998 and directed the petitioner/tenant to hand over the vacant peaceful possession of the demised premises to the respondent/landlord within thirty days from the date of that order.

2. Brief facts of the case are that the respondent is landlord and owner of building known as Swami Narain Temple Estate Trust Building and the petitioner is tenant in respect of Godown No.247 in the said building. The respondent filed an application under section 15 of the Sindh Rented Premises Ordinance, 1979 seeking ejectment of the petitioner solely on the ground that the petitioner without permission of the respondent has raised illegal construction and constructed various rooms on the roof of the demised premises and even without obtaining any approved plan from the competent authority.

3. The petitioner filed his written statement denying the averments of the ejectment application and prayed for its dismissal.

4. Before the learned Rent Controller, the Administrator of respondent Trust namely Paromal son of Jodha Ram filed his affidavit in evidence in support of the contention raised in the ejectment application. However, he was not cross-examined by the petitioner and therefore cross of the petitioner to this witness was recorded nil and side of the respondent was closed on 22-12-2004. The petitioner also did not file his affidavit in evidence. The learned Rent Controller heard the arguments of the parties and framed the following points for determination:-- (1) Whether the opponent has made addition, alteration or construction without consent or permission of the applicant? (2) What should the order be? The Point No.1 was replied in affirmative and the ejectment application was allowed. The petitioner filed appeal before the learned District Judge, which was dismissed by the impugned judgment. Hence this constitutional petition.

5. I have heard Mr. Rafiq Ahmed Kalwar Advocate for the petitioner and Mr. Neel Keshav Advocate for the respondent.

6. Learned counsel for the petitioner argued that the judgments of both the Courts below are based upon misreading and non-reading of evidence hence are liable to be set aside; that both the courts below have failed to appreciate that the cause of action as regards construction on the roof of the demised premises accrued to the respondent in the year 1978, whereas the respondent filed rent case against the petitioner in the year 1998 after a period of twenty years, which is hit by principle of laches and is not maintainable in law. He has further argued that prior to filing of the present rent application the respondent also filed two other ejectment applications against the petitioner one on the ground of default in payment of rent and another for determination of fair rent in the years 1978 and 1991 respectively, but he did not raise the ground of the alleged illegal construction over the demised premises although the same was available to him at that time, thus he has waived his right, which cannot be agitated after lapse of twenty years.

7. He contended that it was the duty of the respondent to carry out repairs of the demises premises from time to time which he deliberately and wilfully failed to discharge and the demises premises were left to fall and the petitioner was left with no option but to repair and carry out the requisite constructions.

8. He next contended that no tenancy agreement existed between the parties and on the basis of verbal tenancy agreement the ejectment proceedings are not maintainable in law.

9. He lastly argued that the construction raised by the petitioner over the demises premises has raised its value and utility which was in a dilapidated condition at the time of acquiring of tenancy, thus, the contention of the respondent that the value of the demises premises was impaired is not justified.

10. In support of his contentions he has placed reliance on the following cases:-- (1) AMINA BEGUM v. IQBAL HUSSAIN (1988 CLC 1816) (2) SHAFQAT ALI KHAN v. MAHBOOB ALAM (1993 MLD 219) (3) ZAINAB BAI and 2 others v. SHAFIUDDIN (PLD 1987 Karachi 116) (4) MUKHTAR AHMED v. IIIRD ADDITIONAL DISTRICT JUDGE and others (2004 MLD 713) (5) HABIB BANK LIMITED v. MOHAMMAD RAZA (1997 MLD 833) (6) MOHAMMAD SAEED v. UNITED BANK LIMITED, KARACHI (1993 CLC 1830) (7) MUSHTAQ AHMAD and others v. MEHMOOD AHMAD and others (2005 CLC 1827) (8) PAKISTAN STATE OIL COMPANY LIMITED v. SIKANDAR A. KARIM and others (2005 CLC 3) (9) Mst. SURIYA SULTAN v. M.I. MALIK (1988 MLD 2936) (10) K.C. MAMOO v. Mrs. BADRUNNISA (1985 CLC 332)

11. The learned counsel for the respondent has contended that no evidence is brought on record whereby it may be established that the construction was completed in the year 1978 hence the plea of laches or waiver cannot be raised at this stage; that the plea of waiver or estoppel was not raised by the petitioner in the pleadings before the trial Court and the question of waiver being a mixed question of law and fact must be pleaded initially and the evidence be adduced thereon; that the earlier round of litigation has no nexus with the present proceedings as the earlier rent applications were filed on the ground of default in payment of rent and for fixation of fair rent; that the petitioner neither cross-examined the respondent nor he filed his affidavit in evidence or of his witnesses to rebut the contentions of the respondent; that the written statement of the petitioner cannot be treated as an evidence as he is not subjected to examination in witness box; that the waiver can only come in play when there is no resistance; that the letter produced at (P-4) clearly shows that the construction was stopped on the resistance of the respondents therefore the implied consent cannot be pleaded by the petitioner; that in the letter produced by the petitioner it is clearly mentioned that only permission for roof treatment was granted to the previous owner; that the construction was not raised with permission and basic structure has been changed and two rooms have been constructed over the roof of the demised premises which fact is evident from the Commissioner report; that the demised premises was godown and now it has been converted into offices. In support of his contentions he has relied on the following case-law. (1) Khalifa FATEH MOHAMMAD v. AHMAD NASIR KHAN (1988 SCMR 689) (2) LAL KHAN through Legal Heirs v. MOHAMMAD YOUSAF through legal heirs (PLD 2011 SC 657) (3) MANAK LAL, Advocate v. Dr. PREM CHAND SINGHVI and others (PLD 1957 S.C. (Ind.) 346) (4) Mst. BILQIS SULTANA v. SETTLEMENT COMMIS-SIONER, LAHORE and 2 others (PLD 1975 Lahore 185) (5) DANISH IQBAL v. Syed ZAHEERUL HASAN (1986 CLC 981) (6) ANJUMAN HIMAYAT-E-ISLAM, LAHORE v. DR. SYED FAROOQ HASSAN (PLD 2007 SC 352) (7) MASOODA BEGUM through legal heirs v. GOVERNMENT OF PUNJAB through Secretary Forest, Lahore and 9 others (PLD 2003 SC 90). (8) MOHAMMAD YOUNUS KHAN and 12 others v. GOVERNMENT OF N.-W.F.P. through Secretary, Forest and Agriculture, Peshawar and others (1993 SCMR 618) (9) MUHAMMAD SHARIF and another v. MOHAMMAD AFZAL SOHAIL and others (PLD 1981 SC 246) (10) ABDUL AZIZ BUTT v. MUHAMMAD ARSHAD and another (1985 MLD 148) (11) M. IMAMUDDIN v. MST. SURRIYA KHANUM through Legal Heirs (PLD 1991 SC 317) (12) LITHOCRAFT CORPORATION v. A. HABIB through his 9 Legal Heirs (1988 CLC 272)

12. I have considered the arguments of both the learned counsel and gone through the record so also the case-law cited by them.

13. Record shows that affidavit in evidence of the respondent was filed on 29-7-2003 and thereafter matter was fixed for cross-examination of the respondent on 20-8-2003, 9-9-2003, 24-9-2003, 7-10-2003, 27-10-2003 and 10-11-2003. The respondent witness was available on all the said dates while the petitioner remained absent. Thus, on 10-11-2003 cross to the respondent witness was recorded as nil. On 21-11-2003 and 8-12-2003 the matter was fixed for filing affidavit in evidence of the petitioner but no one appeared on his behalf to file any affidavit and resultantly side of the petitioner was closed. Thereafter, on 28-4-2005 an application for review/ recalling the order of closure of side was moved under section 21 of the General Clauses Act, which was dismissed on 30-5-2005 against which the petitioner moved Constitutional Petition No.360 of 2005 which was subsequently withdrawn. So it is clear that the petitioner was given sufficient opportunities for filing his affidavit and affidavit of his witnesses but he did not file the same and consequently his side was closed. In such circumstances, it is admitted fact that except the written statement filed by the petitioner no other material is available on record to controvert the contention of the respondent. The written statement filed by the petitioner cannot be treated as an evidence unless the person filing the same is subjected to cross-examination in witness box. Thus, in the circumstances, the written statement filed by the petitioner has no evidentiary value. Reliance may be placed on the case of Mst. KHAIR-UL-NISA and 6 others v. Malik MOHAMMAD ISHAQUE and 2 others (PLD 1972 SC 25).

14. Perusal of the affidavit in evidence filed by the Administrator of the respondent goes to show that in para 4 of the affidavit the Administrator of the respondent Trust namely Paromal son of Jodha Ram has stated as under:-- "

4. That I say that the opponent without permission of the Trust written or orally raised illegal construction over the roof of the said godown and have constructed various rooms on the roof of the said go-down. Photocopy of the said construction which was being raised by the opponent are filed herewith as Annexures B, B/1 and B/2 respectively."

15. The above version of the Administrator of respondent-Trust has not been questioned in cross-examination, therefore, the evidence of the Administrator of respondent Trust has gone unrebutted and unchallenged. It is rule of law that where pivotal points/specific portion of evidence goes unrebutted and unchallenged the same are deemed to have been admitted. On this point if any case law is needed, reliance may be placed on the following cases: (1) Mst. NUR JEHAN BEGUM through Legal Representatives v. Syed MUJTABA ALI NAQVI (1991 SCMR 2300) (2) N.-W.F.P. PESHAWAR and 2 others v. MAZHAR HUSSAIN and 2 others (PLD 2004 SC 682) (3) SHERAZ TUFAIL v. THE STATE (2007 SCMR 518) (4) Dr. JAVAID AKHTAR v. THE STATE (PLD 2007 SC 249)

16. So far as the plea of waiver which has been taken by the learned counsel during his arguments and so also before the Appellate Court the same is also not helpful to him for the reason that this plea was not taken in the first instance before the trial Court (Rent Controller), therefore, the petitioner cannot raise the said plea in constitutional petition because the plea of waiver is a mixed question of fact and law and unless such plea has specifically been raised before the trial Court and parties have been given opportunity to lead evidence in rebuttal such plea cannot be allowed to be raised in appeal . Reliance is placed on the case of DANISH IQBAL v. SYED ZAHEERUL HASAN (1986 CLC 981).

17. In view of my above discussion I am of the considered opinion that the learned counsel for the petitioner has failed to bring on record anything on the basis of which the concurrent findings of the two courts below could be interfered by this Court in exercise of its constitutional jurisdiction under Article 199 of the Constitution. Consequently, I find no merits in this constitutional petition, which is dismissed accordingly. SAK/H-7/K Petition dismissed.