2000 PLP 376 (CLC)

This judgment will decide First Appeal from Order No.23 of 1991 which arises from order, dated' 15‑4‑1991 of the learned Rent Controller, Multan Cantt. .

2. Facts out of which this appeal arises are that appellant filed an application under section 17 of Cantonments Rent Restriction Act 1963, for the eviction of respondent from a shop, on the ground of personal use. It was claimed that the shop was purchased vide sale‑deed, dated 15‑12‑1986, on purchase, notice dated 14‑5‑1987 was served upon the respondent who started making payment of rent and that the shop was required by the appellant for his personal use and occupation.

3. Respondent resisted the petition, claiming that the same was not maintainable as no notice under section 17 of the Cantonment Rent Restriction Act, 1963 wag served for seeking eviction from a hotel. It was added that the petition was premature and that the respondent had made certain improvements in the shop and also that the appellant was not in need of shop.

4. Points at which the parties were at variance, were transferred in the following issues:‑‑‑ (1) Whether the ejectment application is not maintainable in view of preliminary objection No. I? OPR (2) Whether the ejectment application is premature? OPR (3) Whether the respondent has spent Rs.50,000 over the improvement of shop in dispute. If so, its effects? (4) Whether the shop in dispute is required by the petitioner for his personal use bona fide and in good faith? (5) Relief.

5. The appellant produced in evidence Sarfraz Khan, A. W.1, Faqir Ahmad A.W.2, Qadir Nawaz A.W.3 and while he himself appeared as A.W.4. In defence, Ali Muhammad, Assistant Revenue Superintendent Cantonment Board appeared as R.W.1, Imtiaz Ali, Tax Clerk R.W.2, Shahzad Anwar R.W.3, Sabir Ali R.W.4 while respondent_Niaz Muhammad appeared as R.W.5.

6. The learned Rent Controller, Multan Cantt. vide impugned order, dated 15‑4‑1991 dismissed the ejectment petition, on the ground that notice under section 17 of the Cantonments Rent Restriction Act, 1963 was not served, and that the appellant failed to prove personal use. .

7. Learned counsel for the appellant argued that no notice under proviso to subsection (4) of section 17 was required as the respondent did not prove that the property was rented out for running a hotel. Learned counsel submitted that even if a notice was required, the ejectment petition could be treated as notice and on account of maturity of cause of action, the case should have been decided on merit. It was added that sufficient evidence existed on record to prove bona fide needs.

8. In reply, it was argued by learned counsel for the respondent that notice was mandatory, the personal use was not proved and that findings did not suffer from any error of law.

9. With the assistance of learned counsel for the parties, the entire evidence was examined.

10. The ejectment application was field on the grounds that the shop was required in good faith by the appellant, for his personal use. It was his case, that the shop was purchased through a registered sale‑deed, dated 15‑12‑1986, notice dated 14‑5‑1987 was served upon the respondent who started making payment of rent and that the appellant intended to carry his own business. The defence was that the respondent was running a hotel in the shop in issue and, therefore, without service of a notice under proviso to subsection (4) of section 17 of Cantonments Rent Restriction Act, the ejectment petition could not be maintained.

11. The first question to be attended is as to whether the property was rented out for the purposes of running a hotel. Proviso to section 17(4) contemplates that if the landlord required a building, which was rented out for running Sarai hotel, lodging houses for personal business, he can do so after serving notice of two years upon the tenant. The proviso also provides that if the building was not being used for the above purpose on the commencement of the Act, or was not let out expressly for any such purpose, it shall not be converted to any such purpose except with the consent in writing of the landlord. Precise objection was that the premises was primarily let out for running hotel. To seek benefit of this proviso, the respondent was duty bound to prove that the premises was being used as hotel, at the time of commencement of the Act or that it was let out, for hotel expressly, with the consent in writing bf the landlord. In the absence of any consent in writing, the tenant could not claim any benefit of the proviso. In this case, the respondent did not claim or prove that the shop was let out, expressly for hotel purpose, with written consent of the landlord. Learned counsel for the respondent submitted that the shop was let out by the previous owner. It was not denied that there was no written consent from the previous landlord or from the appellant. This being so, the plea was based on oral assertion. With a view to have the benefit of the proviso, it was mandatory that the respondent should have produced written permission or document from the previous owner/landlord, or from the appellant, to make out a case that the premises was let out, expressly for hotel purpose. In the absence of any written permission, the respondent cannot possibly be benefited by the proviso nor could object to the maintainability of the ejectment petition on the plea that two years prior notice was not served. The learned Rent Controller, was influenced by the evidence, by which the respondent attempted to establish that he was using the premises as a hotel. This evidence was not helpful, for the reasons, that the subsequent user of the property as hotel was not material and in fact it was the basic purpose for which the property was let out which was relevant. Any subsequent conversion of the user by the tenant without the written consent of the landlord could not justify raising of objection to the maintainability of the ejectment petition. Since the respondent could not prove by any valid document that there was written consent, for the letting out of the shop, for hotel purposes, the plea raised was devoid of merit. Reference can be made to Lt.‑Col (Retd.) Muhammad Hassan Safdar v. Malik Shabbir Ahmed and another 1994 CLC 286 and Kamil Khan and another v. Government of Sindb through Deputy Commissioner, Sanghar and 22 others PLD 1998 Kai. 28 (DB) where similar view was taken. Even if any notice was required, the ejectment petition itself could have been treated as a notice. Reference can be made to Aziz Begum v. Faiyaz Butt 1991 CLC Note‑9 at p.6. This being so, the ejectment having been filed on 6‑7‑1987, the learned Rent Controller, could have decided the same on merit, on 17‑4‑1991 as two years having expired after filing of ejectment petition, which being a notice, the ejectment application could be deemed to have been validly instituted. It is a settled rule, that if a premature petition is filed, and the same is matured during the pendency of the case, the Rent Controller is not denuded of its power to decide the case on merit. Reference can be made to Abdul Razaq v. Abdul Hamid 1979 SCMR 534 and Raj Muhammad and 11 others v. Haji Muhammad Zareen and 3 others 1980 SCMR

339. It is also a rule, that the Rent Controller is competent to mould relief according to the changed circumstances. Reference can also be made to Mst. Amina Begum and others v. Mehar Ghulam Dastgir PLD 1978 SC 220.

12. In this view of the matter, the Rent Controller, by treating the petition as a notice, could have decided the main petition on merit instead of non‑suiting the appellant on technicalities.

13. Ac to the plea of personal use, the appellant was expected to make statement on oath about the personal need and if the statement was consistent with the pleadings and nothing extracted in cross‑examination, the F question of personal use had to be considered in context with the protective clause which provides adequate checks against mala fide eviction. In this case, the appellant did appear in the witness‑box and deposed that the shop was required in good faith and bona fide manner for the personal use he was not in occupation of any other shop, he wanted to run the business of ' Tikka Karahi', he was already working with his brother and brother‑in‑law and that he wanted to have a shop of his own to carry bi‑ independent business, as there was some dispute with the brother and brother‑in‑law. He was cross- examined in detail but the statement could not be shaken Appellant's statement was also corroborated by the statement of other witness who deposed about his bona fide need. The statement of A.W.4 was consistent with the averments in the petitioner and the same could not be shaken or rebutted by any evidence worthy of credence. The evidence led by the respondents was mainly for the purpose of showing that the shop was being used as a hotel. It was also claimed that the appellant was running the business with his brother. Mere fact that the appellant was working with his brother would not debar him to have independent business in his own shop. Another plea was that the appellant intended to increase rent although it could not be proved that the intention was to increase rent yet in law plea of intentions to increase rent cannot adversely affect the case for personal use, if the bona fide need is otherwise established on the record. Reference can be made to "Shamsul Islam Khan v. Pakistan Tourism Development Corporation Ltd. "(1985 SCMR 1996). There being sufficient evidence on the record to prove the bona fide of the appellant, the learned Rent Controller fell in error in ignoring the evidence and rejecting plea of personal use, on flimsy grounds. The order passed by the learned Rent Controller suffers from misreading of the record and perversity of reasoning.

14. For the reasons above, this appeal is allowed, the impugned order is set aside, the ejectment application is granted and an order of ejectment is passed against the respondent, directing him to deliver vacant possession of the shop to the appellant within three months. Q.M.H./M.A.K./A‑168/L Appeal allowed.