2003 PLP 917 (CLC)

(4) Whether the petitioner has not been verified. If so, what is its effect? OPR (5) Relief. In order to discharge the onus of issues, the respondent being the landlady, examined three witnesses, while in rebuttal, the appellant produced two witnesses. The learned Rent Controller, while deciding the issue of default against the respondent proceeded to pass an ejectment order against the appellant on the ground of personal need only, and directed him to vacate the shops in question vide ejectment order, dated 24-10-2000. Feeling aggrieved the appellant assailed the said ejectment order before the Appellate Authority by way of filing the appeal, but without any success, as his appeal was dismissed by the learned Additional District Judge vide judgment, dared 19-5-2001, hence the present second appeal.

3. The learned counsel for the appellant while relying upon Muhammad Younus v. Iqbal Begum PLD 1990 Lah. 577 and Muhammad Umar and others v. Dr. Amina Ashraf 1982 CLC 410 has contended that under section 13(3)(ii)(a) of Ordinance VI of 1959, in case of non residential building, a landlord/landlady can file an ejectment petition, if he/she requires it in good faith for his/her own use or for the use of any of his/her children and, as the word husband" has not been included in the said provision of law, as such, the respondent could not file the ejectment petition on the ground of the personal need of her husband and thus both the impugned order/judgment are not sustainable in law. Conversely, the learned counsel for the respondent, while relying upon various judgments, has vehemently contended that although the word "husband" has not been used in the said provision of law, yet the word "own use" includes the personal need of the husband also, as the petitioner being a Pardanasheen lady, obviously, would do business through her husband.

4. Upon the examination of the record of the case, it reveals that in response to the ejectment petition when the appellant filed the reply to the ejectment petition the plea, now urged on behalf of the appellant was not raised by him in his written reply. Although it was specifically, stated by the respondent in para. 6 of her ejectment petition that petitioner's husband, who is the only earning member of the family, needs both the shops, personally to run his own business to earn livelihood for petitioner's family, yet the reply of the appellant was that 'the petitioner has not given the nature of the business, proposed to be carried out by her husband in the rented shops, the petitioner does not require the premises in good faith, she is demanding the eviction of shops with ulterior motive to enhance the rent arbitrarily. It flows from the above that the appellant has nowhere taken the plea that ejectment petition is not maintainable on the ground of personal need of the husband of the respondent, which is now being urged by the learned counsel. However, I find from the grounds of appeal, filed before the Appellate Authority, that the appellant has taken the said plea for the first time before the lower Appellate Court. It is thus, clear that the respondent did not plead in his defence that the disputed shops cannot be got vacated under the provisions of Rent Restriction Law for the personal use of the husband of the landlady. It is settled law', that a person cannot he allowed to raise a fresh ground before they Appellate Court, which has not been pleaded and made ground of defence before the learned trial Court. As in this case, during the total proceedings before the learned Rent Controller, the appellant did not raise the said plea either in his written reply or even subsequently through filing a miscellaneous application, therefore, the appellant is estopped and precluded from raising a new and fresh plea before the appellate forum.

5. Now coming to the solitary contention raised by the learned counsel. It would be advantageous to produce section 13(3)(ii)(a) of the Punjab Urban Rent Restriction Ordinance, 1959:-- "He requires it in good faith for his own use or for the use of any of his children," It appears from the afore-noted clause that a landlord can get a non-residential building vacated if he or she required it for his/her own use or for the use of any of his/her children. The question, which has arisen for determination here, is as to whether the landlady could seek the eviction of non-residential building for the personal use of her husband. I find that the said question has been examined by the Honourable Supreme Court of Pakistan and by-this Court in number of cases and the examination of the said case-law can provide adequate reply to the afore-noted question involved in this case.

6. In Ghulam Mohyuddin v. Mst. Nazir Bibi 1983 SCMR 715 it has been held as under:-- "The requirement and need of shop by landlady for business of the husband was held to be quite genuine and perfectly bona fide. " Identical question was examined by this Court in a case reported as Masood Ahmad v. Mst. Anwar Begum 1983 CLC 1139 and it was held as under:-- "In the present case also I am not inclined to differ with the concurrent findings of the two Courts below. It has come to the record that the husband of the respondent was doing their work and had become sick and was unable, to undertake that vocation, The landlady, therefore, wanted her husband to carry on business in the shop and earn livelihood for the family. This in my view will be a good faith and bona fide requirement of the landlady and cannot be said to be a matter beyond the purview of the Rent Restriction Ordinance. The learned Additional District Judge has also rightly pointed out that in case the landlady did not occupy the premises, there were ample safeguards provided to the tenant by the Ordinance." In a case reported as Abdul Rashid v. Mst. Adila Musarrat 1982 CLC 149, this Court, while dilating upon the afore-noted proposition and after considering the afore-noted case of Muhammad Youruis (heavily relied upon by the learned counsel for the appellant) came to the conclusion that the words used in section 13(3)(ii)(a) are of wide significance and the shop required by landlady for running of business by her husband, benefit from which to accrue to landlady, would necessarily amount to putting shop for landlady's own benefit. Similarly this Court in a case reported as K.H. Hiramnek v. Shafqat Aslam and others 1997 MLD 1800, while relying upon Adamali Hasanali v, Mst. Rubab Bai PLD 1965 (W.P.) Kar. 408 and Abdul Rashid v. Mst. Adila Musarrat 1982 CLC 149 has held that "the landladies could lawfully seek eviction of disputed, premises a use and occupation of their husbands". Balochistan High Court in a case reported as Haji Gul Baran and another v. Mst. Rehana Mushtaq 2001 YLR 2451 while relying upon Ghulam Mohyuddin v. Mst. Nazir Bibi 1983 SCMR 715 and Masood Ahmad v. Mst. Anwar Begum 1983 CLC 1139 has held that now it is well-settled that there is no bar on the landlady for filing eviction application on the ground that the premises in dispute was required for the use and occupation of her husband as he was doing business in rented premises. Resume of the case-law on the subject amply establishes that although the word "husband" has not been used in section 13(3)(ii)(a), of Punjab Urban Rent Restriction Ordinance, 1959 yet the need of the husband would include in the words "his own use" and that a landlady can legitimately file an ejectment petition, in respect of 'non-residential building if she is able to prove that she requires it in good faith for the use of her husband. In the present case, I find that through the concurrent findings of fact the respondent has been able to prove that she requires the disputed shops of bona fide personal use of the husband of the respondent, who is doing business in the rented premises.

7. Now coming to the case-law referred by the learned counsel suffice it to say that the case of Muhammad Younus PLD 1980 Lah. 577 has duly been considered in the case of Abdul Rashid (ibid) wherein, it has been laid down that a landlady can file an ejectment petition against a tenant in respect of non-residential building for the bona fide personal. need of her husband. So far as the case of Muhammad Umar and others v. Dr. Amina Ashraf 1982 CLC 410 is concerned, the same is not 'applicable to the facts of the present case as in the said case the landlady was non-suited on the ground that she is running an independent clinic not showing the occupation of disputed shop by her husband being beneficiary to her and the husband who appeared as witness of the landlady did not state any thing about the personal need in view whereof, the reliance of the learned counsel on the above two judgments, is of no avail to the appellant.

8. Both the Courts have concurrently held, on the basis of evidence on record that the respondent requires the shops in question bona fidely for the personal need of the husband of the respondent she wants to start the business in the disputed premises through her husband to earn the livelihood of her family, and the husband was proved to be the only earning male member.

9. In the above perspective, I have examined both the judgments and find that they are legal, according to the evidence on record, apt to the facts and circumstances of the case and I see no justification to interfere with the concurrent findings on facts and the impugned Judgments, thus both are maintained.

10. Upshot of the above discussion is that the present appeal is devoid of merits thus the same is dismissed leaving the parties to bear their own costs. H.B.T./S-606/L Appeal dismissed.