1996 PLP 646 (CLC)

(2) Whether the petition is premature and not maintainable? OPR (3) Whether the disputed property is "Scheduled Building"? If so, its effect? OPR. (4) Whether the petitioner requires the disputed premises in good faith for her bona fide need, for her grandson, Sohail Shahzad Mehmood? OPA. (5) Whether the respondents. have damaged the property and impaired its value and utility? OPA. (6) Whether the respondents have made alterations on the property in dispute without permission of the petitioner? If so, its effect? OPA. (7) Relief.

4. To prove her case, the appellant examined Muhammad Hassan, A. W.1, Mr. Ataullah Nisar, Advocate A.W.2 and her grandson and attorney Sohail Shehzad Mehmood appeared as A.W.3. In rebuttal respondent produced 4 witnesses. R.W.1, Suleman Muhammad, R.W.2, Saeed‑ur‑Rehman, R.W.3 Muhammad Akram and Dr. Khalid Masood himself appeared as R.W.4.

5. On 7‑6‑1993, the learned Rent Controller accepted the ejectment petition holding that the appellant had successfully proved that the shop was required by her for her own use and for the use of her son as also grandson.

6. On appeal by the respondents, the order of the Rent Controller was set aside by the learned Additional District Judge on 31‑10‑1994 who held that though need of the grandson of the landlady stood proved but in law a tenant cannot be ejected for the requirement of grandson.

7. In support of this appeal, Mr. Muhammad Ghani learned counsel for appellant has contended that the Additional District Judge has erred in holding that the shop was required only for the use of grandson of appellant‑landlady and not for the use of landlady herself. It has been urged that in any case need of the shop by the son of the landlord stood proved on record. He has placed reliance on the statements of A. W.1 and Mr. Attaullah Nisar, Advocate, A.W.2.

8. In reply, Ch. Ali Muhammad, learned counsel appearing on behalf of respondents has pointed out that in the application for eviction the need of the son of the landlady was not pleaded and. therefore, that ground could not be taken into consideration. In this behalf, learned counsel has cited Taiyab A. Kapadia v. Agha Ziauddin Barni (1981 CLC 1267), Mst. Jana Bai v Mst. Ghulshan and another (1984 CLC 1061) and Mst. Tayyaba Begum v Taqi Haider (1994 SCMR 1913). The learned counsel further mentioned that the landlady has failed to establish that the property is required by her for her personal use and even if the need of the grandson was established, no order of eviction can be passed on that basis.

9. Having heard the learned counsel for the parties and perused the record, I am of the view that this appeal is bound to succeed. The learned Rent Controller, while directing eviction of the respondents had found that the need of the grandson was in fact the personal need of the landlady and the occupation of the shop on her behalf by the grandson was permissible in law. In coming to this conclusion, the Rent Controller relied upon the judgment of the Supreme Court in Muhammad Farid Khan v. Haji Mir Zaman Khan (PLD 1982 SC 278).

10. The Additional District Judge, however, reversed this finding of the Rent Controller by observing that it was not pleaded by the landlady that the grandson would be working on her behalf and setting up his independent business by the grandson was not a ground on which the petition for eviction could be accepted. It is unfortunate that while so holding‑the Additional District Judge failed to notice that in the application for eviction the appellant had pleaded her own use in addition to the need of her grandson.

11. As regards the other aspect, it is true that in the application for eviction the landlady had not specifically pleaded that the shop was also required for, the use of her son, but that omission by itself is not fatal and could not be made a ground for non‑suiting the appellant as in law the need of the son is considered to be an extension of the need of the landlady herself. It follows that even if the need of the son was not specifically pleaded, while deciding the question of personal use, requirement of son, if otherwise established, could also be considered. I am fortified in this view by the case of Muhammad Anwar and another v. Muhammad Saeed (1991 SCMR 2337) in which the Supreme Court was pleased to rule that even if the ejectment application the requirement by any of the children of the landlord is not pleaded, their need can be spelt out in evidence. In Mst. Mumtaz Nasim v. Additional District Judge and others (1991 CLC 306), the same view was taken by this Court. From the statements of Muhammad Hassan, A.W.1, Attaullah Nisar, A.W.2 and Suhail Shahzad Mahmood, attorney of the appellant, A.W.3, it stands established on the record that Sultan Mahmood, the son of the appellant had retired from service and wanted to run his own business, in the shop. This fact has remained unrebutted on the record. The need of the shop by the son of the landlady thus clearly stands proved.

12. None of the cases cited by learned counsel for respondents has any applicability to the facts of the present case: In Mst. Tayyaba Begum's case supra (1994 SCMR 1913), it was laid down by the Supreme Court of Pakistan that even though the rules of pleadings are not strictly applicable, yet if a specific plea which goes to the root of the matter and is the main defence is not pleaded, it cannot be considered if the opposite‑party is taken by surprise and has no opportunity to meet the pleas so raised. In that, case the tenant had failed to plead that there was a practice on the part of the landlord to receive the rent in lump sum. In that context, it was observed by the Supreme Court that this plea could not be examined as after the tenant had led the evidence to prove that practice the landlord had no opportunity to rebut the same. In the present case, even if the need of the son of the landlady was not specifically pleaded, all the witnesses produced by the appellant had deposed about that fact and after which respondents produced their evidence. Consequently, it cannot be urged with any success that respondents were taken by surprise or that they had no opportunity to lead evidence on that aspect of the case. In the other case namely Mst. Jana Bai v. Mst. Ghulshan and another (1984 CLC 1061), the plea was disallowed for the reason that according to the case of the landlord himself the need for use by the son had arisen before the filing of the application for eviction but was purposely omitted. In view of the above, it becomes unnecessary to decide as to whether the shop could be got vacated for the use of the grandson, independently.

13. Learned counsel for the respondents has further argued that the landlady had not appeared as witness in support of her case and, therefore, the eviction application could not be accepted. I am unable to agree with the learned counsel. There is nothing in support of his case. The statement of her attorney, who is also her grandson supported by other evidence was sufficient. It is by now well settled that it is not essential for the landlord to examine.himself or a particular number of witnesses in support of his case, if the need can be proved by producing other evidence. In view of what has been stated above, this appeal is allowed; the order of the Additional District Judge dated 31‑10‑1994 is set aside and the respondents are allowed four months' time to vacate the premises. No order as to costs H.B.T./K‑218/L Appeal allowed.