P L D 1988 Quetta 16 (PLP)

Brief facts leading to this Petition are, that respondent Abdullah Khan on 9‑2‑1985 filed an application under section 7 of British Baluchistan Rent Control Regulation II of 1945 for ejectment of petitioner and respondent No.2 from shop situated at Station Road, Muslim Bagh. It is alleged the petitioner and respondent No.2 are in occupation of said shop as tenants of respondent No.1 at a monthly rental of Rs.30. Their ejectment has been sought on the ground of (i) damage to property, (ii) default in payment of rent from July, 1984 to January, 1985, and (iii) personal bona fide requirement for himself and his son. In para. (5) of the plaint, it was averred that notice dated 23‑12‑1984 calling upon petitioner and respondent No.2 to vacate premises in dispute was sent through registered post. However, (!)'photo copy of notice, (ii) acknowledgment receipt, (iii) lease deed, and (iv) letter of Union Council dated 16‑3‑1982 has been relied upon and placed on record alongwith plaint. Petitioner filed written statement on 6‑7‑1985 wherein allegations of plaint were categorically denied. It was asserted that petitioner had been paying the rent regularly but respondent landlord declined to receive the same therefore same was remitted through money order which was also refused. Besides, receipt of notice alleged in para. (5) is specifically denied. Initially learned Civil Judge, Loralai, framed only one issue on 6‑7‑1985 for showing, whether premises was a lodging house or a hotel. Whereas towards 3‑8‑1985 respondent No. 1 (landlord) submitted an application requesting the Court to frame issues on merit as well. The application though was opposed yet request in this behalf was allowed by the trial Court. Consequently on 15‑3‑1986 following 5 issues were framed:‑ "(1) Whether the premises in dispute are lodging house/hotel, if so whether this Court has jurisdiction to adjudicate upon the matter? (2) Whether the respondent is a bad pay master and failed to pay or tender the rent since July, 1984? (3) Whether the respondent demolished the side wall of the shop in question and caused loss and injury to the premises without consent of landlord? (4) Whether the premises are required in good faith for personal use of applicant and for his son? . (5) Relief?

2. Respondent No.l (landlord) examined four witnesses namely (i) Abdullah Khan (ii) Shah Muhammad (iii) Abdul Salam (iv) Muhammad Azam, apart from himself to substantiate his claim for evicting petitioner and respondent No.2 from demised premises. Whereas petitioner in rebuttal produced four witnesses namely (i) Abdul Hayee (ii) Dost Mohammad (iii) Shaikh Abdur Rehman and (iv) Haji Akhtar Muhammad besides himself. Two witnesses namely R.W. Noor Ali and Alam Gul were however dropped by petitioner. Thus, on the appraisement of evidence, available on record learned Civil Judge, Loralai by means of judgment dated 18‑5‑1987 determined issue of default and personal bona fides in favour of respondent /landlord and against petitioner, thereby awarding decree for ejectment of tenants i.e. (Petitioner and respondent No.2). Being dis‑satisfied from aforesaid judgment and decree this Revision Petition was filed on 1‑7‑1987.

3. Mr. Basharatullah learned counsel for petitioner vehemently urged that evidence regarding question of default, for the period specified in eviction application has been totally misappreciated, by trial Court. (ii) Service of one month's notice before filing application of ejectment, within the purview of section 7 (1) clause (g) of Regulation II of 1945 was mandatory, therefore, failure to prove service of such notice, is fatal for claiming eviction on the basis of personal requirement. He further argued that requirement of 'own occupation' contained in section 7 (g) of Regulation does not include need of son, which aspect according to him was misconstrued and misinterpreted. (iii) Request was made for grant of additional evidence, to prove remittance of rent through money order, which as alleged has been inadvertently omitted. On the other hand, Malik ‑Sikandar Khan learned counsel for respondent /landlord contended that default in payment of rent was not only proved, but has also been admitted by petitioner in the written statement as well as his own statement both during examination in chief and cross‑examination. Therefore, according to him impugned order was perfectly proper, (ii) Notice under section 7 (1) (g) of Regulation II of 1945 is merely directory. However, it was asserted that same had been served through registered post. Learned counsel attempted to produce the original notice and acknowledgment receipt in the Court and made verbal request for considering the same. Besides according to him even otherwise after expiry of month from institution of eviction proceedings cause of action should be deemed to have matured for the ground of personal occupation, therefore, objection of notice raised by petitioner is not well‑conceived. He further contended that requirement for own occupation as contained in section 7 (1) (g) of Regulation II of 1945 also includes need of children. It was emphatically argued that respondent's personal bona fide need for his own occupation was also independently established, therefore, appeal is not maintainable. It may be seen that, as regards question of default learned counsel for petitioner, attempted to argue that period of non‑payment of rent mentioned by respondent /landlord in his statement before the Court is different, than for which original eviction application was filed. He thus urged that do the basis of landlord's own statement point of default should fail. However, in order to explain factum of payment of rent, an application under Order XLI, Rule 27, C.P.C. for leading additional evidence was pressed, as according to him petitioner had remitted rent for disputed period through money orders, receipts whereof were placed on record alongwith written statement, but inadvertently same were not duly proved. It may be seen that respondent No.l has specifically alleged that petitioner wilfully defaulted in payment of rent despite demand. R.W. Shah Mohammad also expressly corroborates factum of damand of rent by respondent No.l and also petitioner's refusal to pay the same, before institution of eviction proceedings. Factually petitioner has himself categorically admitted non‑payment of rent for eighteen months at the time of giving his statement. He has unambiguously maintained that respondent No.l had demanded rent from petitioner but he had refused to pay him because according to him owner of the premises was brother at respondent No.l. In my opinion statement of tenant confirming non‑payment and attempting to flout the authority and entitlement of A landlord to receive rent, by itself is sufficient proof regarding default committed by him. Surprisingly petitioner has neither validly tendered nor deposited rent due from him even uptil now despite institution of eviction proceedings against him. Therefore, on independent assessment of available evidence I am also inclined to observe that petitioner is guilty of default as rightly held by the trial Court. So for as submission to allow additional evidence, it may be seen that admittedly reasonable opportunity was afforded to parties to lend evidence. As a matter of fact no effort was made by petitioner to adduce evidence for showing remittance of rent through money order. 11 Thus, obviously trial Court has not committed any irregularity, in this behalf which may. be questioned at this stage. Even in the application for additional evidence it is asserted that petitioner was ah l illiterate Derson and inadvertantly could not produce necessary evidence during trial of the matter. Normally powers under Order XLI, Rule 27, C.P.C. are exercisable by appellate Court. As a matter B of fact where case is open before appellant Court, which can competently see desire‑ability and genuineness of allowing additional evidence on the existence of legal justification. Even otherwise such application cannot be moved even before appellate Court as of right. Circumstances have to be established whereby appellate Court should feel impending necessity for procuring further documents or additional evidence to effectually determine real point of dispute between the parties. Said provisions however cannot be availed or invoked merely, for filling lacunas, left out by any of the parties. However scope o: interference in such like matters in the exercise of revisional jurisdiction is extremely limited. It is well settled that revisional authority can be invoked only, when it is established that trial Court (i) has exercised jurisdiction not vested in it by law or (ii) has failed to exercise the jurisdiction so vested or (iii) acted in the exercise of its jurisdiction illegally or with material irregularity Evidently request for additional evidence is not covered by the scope of revisional powers available to this Court. The failure to produce' evidence is apparently a negligent act of the petitioner and cannot be equated with non‑exercise of jurisdiction or material illegality caused by Court. Therefore, request for additional evidence at this stage is not entertainable. For the facts available on record factum of wilful non‑payment of rent is fully established. Trial Court has evaluated the evidence quite correctly. Petitioner's own testimony, reflects unjustifiable and contumacious denial to pay rent to respondent No.

1. The default thus committed by petitioner is unexplained, which. therefore, constitute a valid ground for ejectment within the purview! of section 7 (1)(a) of Regulation II of 1945. The observations of trial; Court determining petitioner as defaulter are accordingly unexceptionable. Undoubtedly jurisdiction in this behalf has been properly exercised on due ascertainment of facts available on record on account of which impugned judgment to the extent of default does! not suffer from any legal defect. Therefore, no interference is' warranted in this aspect of the case. As regards next contention, it may be seen that provision of clause 7 (1) (g) of Regulation II of 1945 regulates principle and procedure concerning bonafide requirement of demised premises for purpose of construction or own use and occupation. It is clearly laid down in the said provision of Regulation that ejectment of tenant on the aforementioned grounds can be sought, provided for one month's notice is given. Relevant provision is reproduced below for ready reference:‑

7. Eviction of tenant 11) . . . . . . (a) (b) .. (c) . (d) (e) . (f) . (g) ... that the premises are reasonably or bona fide required by the landlord either for erection of building or for' his own occupation or for the occupation of any person for whose benefit the premises are held provided that a month's notice to quit has been served on the tenant; or Now it is to be seen whether provisions of section 7 (1) (g)1 of Regulation II of 1945 are 'directory' or 'mandatory' in nature., Apparently basic criteria for determining true nature of any provision] of law is that, if contravention of its requirement renders action altogether void than same would be deemed 'mandatory'; whereas if I strict and absolute compliance is not contemplated and substantial fulfilment of its requirements adequately serves the purpose, said provision would be termed as 'directory'. Obviously a mandatory provision, demands strict and absolute compliance else proceedings stand vitiated, but directory provisions even if not followed completely in prescribed manner yet when broad requirements are carried our proceeding or action taken in the matter are not treated as invalid. Thus, examining clause 7 (1) (g) of Regulation II of 1945 one the anvil of above criteria, question arises whether prior service or l one month's notice to quit as specified in law is 'mandatory' of merely 'directory'.. Bare perusal of relevant provision expressly displays that service of one month's notice is a condition precedent for filing eviction application on the ground of bona fide requirement for construction or his own occupation. Besides to ascertain real intention of legislature comparison may be made of the aforesaid provision and other clauses of Regulation II of 1945 which also specify different grounds on which eviction of tenants can be sought. Undisputedly only clause (g) of Section 7 (1) of Regulation provides requirement of notice. It therefore appears that non‑compliance of the requirements contained in aforementioned provision about need for one's own occupation tends to invalidate eviction proceedings and are thus of mandatory nature. In the instant case .although it is alleged in plaint, that notice dated 23‑12‑1984 was sent to appellant through registered post and a copy thereof was placed on record of trial Court, yet same has not been proved as required by law. Mr. Sikandar Khan learned counsel for respondent No.l, however, made a verbal submission to receive as evidence original notice and acknowledgment receipt, for proving its due service on tenants. Submission in this behalf is not entertainable on the same ground. On which request for additional evidence made by petitioner has already been rejected. Accordingly have no hesitation to observe that in the absence of proof, above service of notice, the proceeding for ejectment of tenant on the ground of one's own occupation under section 7 (1) (g) of Regulation II of 1945 are not maintainable. Therefore, evidence led by petitioner before trial Court on this aspect is neither relevant nor can be looked into. Evidently in view of inherent legal defect pointed out above, trial Court seriously erred in deciding issue pertaining to ~ personal bona fide use and occupation in favour of respondent, landlord. Factually, on account of apparent legal confirmity regarding petitioner's failure to prove service of requisite notice, trial Court was not competent to adjudicate upon facts, ,concerning this Issue, Consequently impugned judgment so far it relates to determination of' Issue No.4, is defective and to that extent is not sustainable. Thus, in the light of above discussion, the findings arrived at by trial Court as regards default being proper is hereby confirmed, However, conclusions arrived at in respect of personal bona fide use and occupation are reversed for want of proof about service of requisite notice. It is, therefore, unnecessary to discuss merits and other contentions raised in the matter pertaining! to issue No.4. Resultantly decree of ejectment dated 27‑4‑1987 passed by trial Court is maintained only on the point of default. Appellant, is, however, allowed three months time to vacate premises in dispute and hand over its possession to the respondent No.l f landlord (Abdullah Khan). For the foregoing reasons and subject to aforementioned modifications, the petition is dismissed. Parties are left to bear their own costs. A.A./298/Q Revision dismissed.