2014 PLP 869 (MLD)

ABDUL LATIF KHAN, J.

Through the instant writ petition, petitioner has challenged the judgment and decree dated 6-10-2009, passed by learned Additional District Judge-I, D.I. Khan for declaring the same unlawful and without jurisdiction.

2. Brief facts of the instant writ petition are that the respondent filed the ejectment petition under section 13 of Urban Rent Restriction Ordinance, 1959 for the ejection of respondent from shop Nos.57-66 (in the shape of one shop) along with upper storey of Shop No.57, fully detailed in the head note of the petition, as well as, recovery of rent at the rate of Rs.2600 for the shops and Rs,800 for the upper storey of shop No.57 per month from November, 2008 till date of obtaining possession. The learned trial Court summoned the petitioner, who appeared and submitted his written reply. The learned trial Court after framing issues, directed the parties to produce their pro and contra evidence. After recording evidence of the parties, the learned trial Court dismissed the petition, vide judgment and decree dated 30-4-2009. Aggrieved from the above mentioned judgment and decree, the respondent preferred appeal before learned appellate Court, who vide judgment and decree dated 6-10-2009, accepted the appeal, hence the instant writ petition.

3. Learned counsel for the petitioner contended that the learned appellate court has passed the impugned judgment and decree against the available record and has travelled beyond his jurisdiction. He contended that the rent petition filed by the respondent was based upon two grounds i.e. wilful default by the tenant/petitioner and the bona fide personal need of landlord. He contended that the petitioner had not entered into agreement or rent deed with the present respondent and as such no document regarding relationship of tenant and landlord exists between the parties. He contended that the respondent was unable to prove the bona fide personal need through cogent evidence. He contended the petitioner was inducted into possession through a lease deed by the father of the respondent. He contended that the petitioner has regularly paying the rent and does not come within the ambit of default. He contended that C.M No.252-D of 2013 has been moved by the petitioner for consideration of subsequent events i.e. a preliminary decree passed in favour of one Mst. Zaitoon Bibi and argued that one of the suit shop was not given to the father of respondent in his share through private partition and as such father of the respondent had no authority to transfer the same in favour of the respondent. He contended that security deposit at the rate of Rs.30,000 each amounting to Rs.60,000 for suit shops two in number, was paid by the petitioner at the time of execution of deed with the father of the respondent. He contended that the respondent is not capable to do business and is still a student at SSC level. He contended that the respondent owned other shops in the locality and there is no reason to seek ejectment of the present petitioner from the suit shops. He prayed for the reversal of the judgment and decree passed by the learned appellate court and to restore the judgment and decree passed by the leaned Rent Controller.

4. As against that, the learned counsel for the respondent contended that the respondent needs the suit shops for bona fide personal need and to this extent sufficient evidence is available on the file. He contended that the petitioner has no case and is tried to linger on the matter in order to occupy the suit shops for indefinite period. He contended that even solitary statement of the landlord is sufficient in order to prove the bona fide personal need. He contended that a preliminary decree in favour of Mst. Zaitoon Bibi, paternal uncle of the respondent, has been passed by learned civil court for the partition of more than 200 shops out of which her share is to be separated keeping in view the already carried out private partition between the parties and has no nexus with the instant matter which confined to the extent of ejectment of petitioner from the suit shops owned by the respondent. He informed the court that Mst. Zaitoon Bibi had already moved an application for impleadment in the instant writ petition, which was not pressed and dismissed by this court as withdrawn. He contended that in collusion with Mst. Zaitoon Bibi, the petitioner filed C.M No.252-D of 2013 in order to prolong the possession of the petitioner over the suit shops.

5. We have heard learned counsel of the parties and perused the record with their valuable assistance.

6. The learned counsel for the respondent/landlord candidly accepted the plea of wilful default raised by him in his petition is no more relive for the reason that the default of one month at the time of filing of rent petition was settled in the trial court and would not stress the same any more.

7. So far as the bona fide personal need of the landlord is concerned, it was specifically alleged in the rent petition that he needs the suit shops for personal business to run a decoration center for which the suit shops are most suitable. He appeared in support of ejectment petition and reiterated the stance taken by him, despite lengthy and searching cross-examination nothing adverse brought on record to damage the case of the landlord. AW-2 also supported the version of the respondent/landlord. AW-4 and AW-5 produced the record in respect of suit shops. On the other hand, the petitioner has produced six RWs including himself and rebutted the version of the landlord.

8. The perusal of the written reply filed by the petitioner does not contain the denial of the landlord between the landlord and tenant. The respondent became owner of the property in the year 2001, the petitioner used to pay him rent upto 2008, when the instant rent petition was filed. The conduct of the petitioner shows that on one pretext or the other he has lingered on the rent petition, right from 2008 till date which is highly deprecated and on the other trying to deny the relation of landlord and tenant that too, at this stage before us. The plea that a decree passed in favour of the lady Mst. Zaitoon Bibi and to that extent separate C.M No.252-D of 2013 was moved for consideration of subsequent evident i.e. a preliminary decree in partition suit passed in her favour, was another attempt to further linger on the matter in collusion with inter se tenant and the said lady. Needless to mention that she happens to be the sister of the father of respondent and the market comprising more than 200/250 shops has been privately partitioned through deed and the suit shops fall in the share of the father of respondent who in turn gifted the same to the respondent in the year 2001. These shops are not included in the partition suit, decreed in her favour, nor the present respondent was party to that suit, so the subsequent evidence, if any, has no nexus with the instant matter and the C.M. is being misconceived and without any substance, is dismissed.

9. The entire arguments advanced by the learned counsel for the petitioner was departure from his pleadings as the written reply and the evidence available on file, does not contain any of the argument advanced today before us. It is established law that departure from the pleadings cannot be allowed unless permission sought from court and necessary amendment made.

10. In the instant petition, a simple question involved as to whether the respondent can ask for ejectment of his tenant on the basis of bona fide personal need, or not. It is by now establishment that mere sole statement of the respondent/landlord is sufficient for ejectment of the tenant as the landlord under section 13(4) of the Rent Restriction Ordinance, 1959 would be bound in case of ejectment to make use of the suit shops for the purpose of his personal need allowed by the Rent Controller. It provides the procedure to meet the situation and in case the landlord opted for the use of suit shops for the purpose of other than taken as ground in the rent petition, the tenant would be at liberty to seek restoration of possession from the Rent Controller within specified time. Section 13(4) of Urban Rent Restriction Ordinance, 1959 is reproduced below:-- "

13. Eviction of tenant.- (4) Where a landlord has was obtained possession of a building land in pursuance of an order made under sub-paragraph (i) or sub-paragraph (ii) of paragraph (a) of subsection (3), does not himself, or where the building has been got vacated for the occupation of any of his children, such child does not occupy in within one month of the date of obtaining, or having been so occupied is re-let within two months of the said to any person other than the original tenant, the tenant who has been evicted may apply to the Controller for an order directing that he shall be restored of possession of such building or rented land and the Controller shall made an order accordingly".

11. It is the prerogative of the landlord and has the authority to decide as to which of the shops owned by him is suitable for his business and in this respect no advice or suggestion can be made binding upon him on behalf of the tenant. The real test is the personal bona fide need for which the above-referred provision has bounded the landlord. The arguments of the learned counsel for the respondent, has no force for the reason that this plea has not been raised by the tenant in his written reply or in the evidence and for the first time in writ petition is being raised before us, which is not permissible and has waived through own conduct to pay the rent for the long eight years with effect from 2001 to 2008 to the present landlord/respondent. It would safely suggest that he surrendered as tenant before the landlord and at this juncture in constitutional petition, neither relation can be denied nor a plea can be raised extraneous to the material available on file. Even otherwise there is no provision in Urban Rent Restriction Ordinance, 1959 that non-existence of written agreement or the expiry of the same, would give a license to the tenant to occupy the premises against consent of the landlord for indefinite period on mere technical grounds, which is against the mandate of law. The learned appellate court has rightly observed that the findings of the learned Rent Controller was perverse in law, which were set aside and accepted the appeal with the direction to the petitioner to vacate the suit shops within thirty days, which is based upon well reasoning and no exception can be taken of it.

12. For the foregoing reason, we dismiss the instant writ petition along with C.Ms being bereft of any merit. The petitioner is directed to vacate the suit shops within thirty (30) days positively. JJK/530/P Petition dismissed.