2000 PLP 2007 (MLD)

A That the eviction applications were not filed properly, as admitted the Anjuman is a Corporate Body and the eviction applications were filed through Muhammad Ibrahim, President of the Anjuman and no Resolution, authorizing the President to file eviction applications was placed on record. B The respondents have set up a case, contrary to their pleadings. C. The plea of personal bona fide requirement was not proved. Messrs Tahir Hussain and AItaf Hussain, Advocates, adopted the arguments of Mr. Aslam Chishti, learned counsel. Mr. Mumtaz Hanfi Baqri, learned counsel for respondents; argued as under:‑‑ A. As far as filing of eviction application is concerned, the same was filed through President of the Anjuman, who was duly authorized to sign and verify the eviction applications by a formal resolution duly passed by the governing body of the Anjuman. B, Since the proceedings before the trial Court are of quasi judicial nature, therefore, law of pleadings does not strictly apply to such proceedings. C. Through evidence the respondents have proved their personal bona fide requirements. Coming to the first objection of learned counsel Mr. Aslam Chishti, that Anjuman is a Corporate Body, duly registered under the Societies Registration Act (XXI of 1860), and under section 6 of the Act, every Society registered under .the Act may sue or be sued in the name of the President, Chairman, or Principal Secretary, or Trustees, as shall be determined by the rules and regulations of the society, and, in default of such determination, in the name of such person, as shall be pointed by the governing body of the Society. In this behalf, learned counsel, contended, A that since no Resolution was passed by the Anjuman, authorizing the President for filing an eviction application, thus, the same were filed by an incompetent person, as such, were not maintainable. Mr. Mumtaz Hanfi Baqri, learned counsel, controverting the contention of appellants' counsel, argued that on record,. copy of the Resolution duly passed by the Anjuman, authorizing the President to file eviction applications has been placed and in this regard an Authority Letter was also issued in favour of the President, duly signed by the Members of the Anjuman dated 2‑11‑1997. Learned counsel further contended, that since this objection was taken for the first time in appeal, therefore, the Resolution passed by the Members of the Anjuman was not placed before the' trial Court. In this behalf, it may be observed that the eviction applications were filed on behalf of the Anjuman by its President and no such objection was taken before the Rent Controller. However, before this Court, when such objection was taken, the respondents have placed on record a copy of the Resolution and Authority Letter, duly authorizing the President to file eviction application. Validity of the Resolution and Authority Letter has not 8 even been challenged before this Court. Thus, I am inclined to hold that the eviction applications were filed by the person, duly authorized by the Anjuman. Accordingly the objection being misconceived is repelled. Adverting to the next objection of the learned counsel Mr. Muhammad Aslam Chishti, that the respondents have set up a case, contrary to their pleadings. In this behalf, learned counsel contended that in the eviction application, the ground of demolition of shops and including the same in Imam Bargah has been taken, but the evidence led by the respondents is with regard to demolition and reconstruction of the shops in dispute. It may be noted that in para.4 of all the eviction applications, the ground taken is for demolition of the shops and including the same in Imam Bargah. Para. wherein personal requirement has been urged by the respondents is reproduced herinbelow:‑‑ (4) That the applicants reasonably and in good faith require shop in occupation of respondent No.2 alongwith 12 other adjacent shops for including the same in the area of Baltastani Imam Bargah by demolishing the same. The existing space of Imam Bargah is not sufficient and by including the shops in the area of Imam Bargah and Imam Bargah will expand. The applicants have got approved map and permit from Quetta Municipal Corporation. The witnesses of the respondents have also in unequivocal terms deposed that the respondents want to demolish the shops and include the same in the area of Imam Bargah, which is small in size and triangular shaped. But the Secretary appearing on behalf of the Anjuman, has stated that the space of Imam. Bargah is very congested and to broaden and have more space, the respondents intend to demolish and reconstruct the shops in dispute and in this regard Building Permit and site plan has been duly got approved from the‑Municipal Corporation, which were produced as Exhs.A/1 and A/2 respectively. A perusal of the Building Permit reveals that the respondents want to demolish and reconstruct the shops. . . Mr. Muhammad Aslam Chishti, learned counsel argued that the eviction applications were filed only on the ground of demolition, and thereafter, including of same in Imam Bargah to have more space, for which, no permission from the Municipal Corporation was required, but the respondents have made out a case contrary to their pleadings, as all the witnesses produced by the respondents have stated that the shops are required for demolition and inclusion in the Imam Bargah to have more space, whereas the Representative of the Anjuman has given a different statement, deposing therein, that the shops are required for demolition and reconstruction, which was never the case of respondents. Mr. Mumtaz Ali Baqri, learned counsel, contended that since proceedings before the Rent Controller are of quasi nature, therefore, the principles of pleadings are not strictly applicable, as in civil suits. I am not persuaded to agree with the contention of Mr. Mumtaz Hussain Baqri learned counsel for respondents, that the principles of pleadings is not applicable to rent proceedings. It tray be noted here that the provisions of the Code of Civil Procedure, though not applicable strictly but the principles are very much applicable to rent proceedings. In the case in hand, principles of Order, Order VI, Rule 7, C.P.C. are applicable, which reads as under: "

7. Departure.‑‑No pleading shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same." It may be observed, that the purpose of pleading is to let the opposite‑party to know, as to what it has to meet. On the basis of facts averred in the plaint, the plaintiff has to establish the cause of action, or the defendant to rove his defence. It is well‑settled, that neither the pleadings are evidence nor deemed to be evidence, but facts alleged in the pleadings have to be proved by producing evidence. If a party omits to mention material facts in the plaint, constituting cause of action, such party will not be permitted to lead evidence, regarding such facts, unless amendment is allowed. In this behalf, reliance can be placed on Atlantic Steamer's Supply Company v. m.v. Titisee and others (PLD 1993 SC 88). Relevant portion therefrom reads as under:‑‑ "It may be pertinent at this juncture to refer to Rule 2 of Order VI and clause (e) of Rule 1 of Order VII of C.P.C. the former inter alia provides that every pleadings shall only contain statement in a concise form of the material facts on which the patty pleading relies for his claim or defence, as the case may be, whereas the latter provision of the C.P.C. lays down that the plaint shall contain the facts constituting the cause of action and when it arose.

10. Since the question, whether a particular foreign law in a particular foreign country is a question of fact, in our view, it is to be pleaded expressly as a material question of fact and as the fact constituting cause of action in terms of the above provisions of the C.P.C. In the absence of any such pleading, it will be open to the Court not to allow a party to lead evidence on the above question and if the evidence on such question is produced, the Court may decline to look into the same as held in the case of Messrs Choudhry Brothers Ltd., Sialkot v. The Jaranawala Central Cooperative Bank Ltd., Jaranwala and others 1968 SCMR 804. " It is pertinent to point out, that neither a party can be allowed to lead evidence, which is at variance with the pleadings, nor can be permitted to depart from the pleadings, and prove a case, not set up in the plaint. Admittedly a judgment cannot be based upon the pleas, not raised in the pleadings nor can it be based upon pleas raised, but not proved. In my considered opinion, the aforementioned principle of pleadings is very much applicable to rent proceedings, though the same are quasi -judicial in nature. A tenant can only be evicted from a tenement under the provisions of section 13 of the Ordinance and any ground agitated beyond the provisions of section 13 of the Ordinance cannot be considered. Similarly, the onus always lies upon the landlord to prove, that the tenant is liable to be evicted on the grounds as numerated in the plaint, permissible under section 13 of the Ordinance. The initial burden always lies on the landlord to prove that the tenement is required by him for a particular purpose, as set up in the plaint, but a landlord who has filed an eviction application solely on the ground of personal requirement, cannot be permitted to prove/lead evidence that he requires the premises for demolition and reconstruction, as such departure would admittedly change the cause of. action and it would amount to proving a case, not set up in the pleadings, as. it would militate against the bona fides of landlord. Now adverting to the facts of the case in hand, admittedly in the instant eviction applications, the case of respondents/landlord was that the shops in dispute are required for demolition and including the same in Imam Bargah, to have more space. Inasmuch as all the witnesses produced by the respondents have categorically deposed, that the shops in dispute are required for demolition and including the same in the Imam Bargah. But surprisingly, the Attorney of respondents has taken a departure, from the pleadings, by stating that the shops in dispute are required for demolition and re -construction and further that for such purpose, Site plan and Building Permit have also been got approved from the Municipal Corporation, as admittedly plea of demolition and reconstruction has not been taken in the application, when confronted with the above contradiction Mr. Mumtaz Hussain Baqri, learned counsel for respondents attempted to argue that since the respondent had got approved a map for demolition and reconstruction of. the shops and the statement of Secretary of Anjuman is also in consonance with such fact, that the map for demolition and reconstruction has been got approved and it would hardly matter, that the ground of re‑construction was not mentioned in the eviction application, due to inadvertence. I am not persuaded to agree with the learned counsel. It may be pointed out that for demolition, there is no requirement of getting an approved map from the Municipal Corporation. The case of respondent in the pleadings was that of demolition and inclusion of the shops in Imam Bargah, by making .the Imam Bargah spacious. But before the Rent Controller, altogether a separate case was set up by taking the plea of ' demolition and reconstruction. As observed hereinabove, a party can never be allowed to prove a case different than the one pleaded by him in his plaint, as it would prejudice the opposite side, because opponent was not required to produce evidence to rebut the plea not contained in the pleadings. In the instant cases, appellants have certainly been prejudiced by the attitude of the respondents, as a different case was set up and no chance was given to them, to lead evidence to rebut the contention so raised. No details of the newly building to be constructed, were given to enable the appellants to apply for the newly constructed building, after completion, as provided under section 13(5) of the Ordinance VI of 1959. Thus, the contention of Mr. Aslam Chisthi, Advocate, has substance, that the respondent by setting up a new plea in the application has failed to prove its personal bona fide requirement. The learned Controller has also erred in holding that the shops in dispute are required for demolition and including the same in Imam Bargah. It may be noted that the learned Controller, has overlooked the statement of Representative of landlord, as well as the site plan and Building Permit, approved by the Municipal Corporation. Thus, the eviction application must fail on this ground. As far as the last contention of learned counsel regarding inclusion of shops in Imam Bargah is concerned, it may be pointed out that Anjuman e‑Asna Ashria Baltastani is a small Sect with a limited number of people. It has come on record, that the members of the Anjuman are not more than 300 whereas appellants through evidence have proved that Imam Bargah in the existing position, can accommodate about 2000 people. Thus, the ground, that the courtyard of the Imam Bargah is congegted, and does not cater the requirement of its members, has also not been proved. For the foregoing reasons the appeals are accepted, impugned judgment and decree, dated 29‑11‑1999, passed by learned Senior Civil Judge‑I, Quetta, is set aside and the eviction applications filed by respondents are dismissed with no order as to costs. Q.M.H./M.A.K./38/Q