Eviction

Application for setting aside ex-parte eviction order was submitted by two of the respondents, which was accepted by Special Judge (Rent) directing the petitioner to implead another respondent as party to ejection petition

Petitioner contended that application for setting aside ex-parte decree was not accompanied by application for leave to contest; that the Rent Tribunal accepted the respondents' application beyond the statutory period of 10 days; that address of the one of two respondents mentioned in rent agreement was incorporated in eviction petition, however, in application for setting aside of eviction order, one of the two respondents malafidely mentioned a different address

Held, that the record showed that no process/summons, served / unserved, returned

Third respondent remained unaware about the proceedings of the ejectment petition

Substitute service could only be adopted when all efforts to effect service upon respondent in ordinary course were made, but failed

No report/statement of process server was on record to the effect that one of the two respondents was either avoiding service of summons, or it could not be found for any reason

When law required a thing to be done in a particular manner, the same must be done accordingly

Both the petitioners and third respondent were co-sharers of the property in question and simultaneously claiming tenancy agreement with regard thereto

Rent Tribunal was justified to sanguine for a judicious/sagacious conclusion in case of third respondent was arrayed as party to the proceedings

Constitutional petition was dismissed accordingly.

If ex-parte orders/ decrees were passed on the basis of defective service, then same would adversely affect not only valuable rights of the litigants but also render the Court proceedings defective/meaningless as final order on defective foundation was liable to be set aside.

Default in payment of rent; unauthorized changes in the nature/character of property and requiring same for personal use/ occupation

Respondent filed eviction application alleging that he purchased the property through a registered sale-deed that petitioner (being real brother of the respondent)got the property on rent from respondent on the basis of oral tenancy agreement that possession was handed over by respondent to the petitioner as tenant; and that all utility bills of the premises used to come in the name of previous owner of property

Petitioner controverted that the respondent had concealed the facts in the eviction petition; that petitioner was owner-in-possession of the property to the extent of his share as all the legal heirs were the owners as per their respective shares in the property; that two suits (i.e. for partition and for declaration of benami transaction) were pending in the competent court of law inter se the parties; and that relationship of landlord and tenant did not exist between the parties

Mother of respondent appeared and claimed that the property had been given to her by her son; that she had been renting out the property; that she inducted the petitioner as a tenant along with other tenants and that she had been receiving the rent till the date of default

Respondent's application for ejectment was dismissed by Special Court (Rent)

In appeal there against, District Court observed that she was included in the definition of "landlady" and could seek eviction of the petitioner, hence, allowed the eviction of petitioner

Petitioner contended that no one could be permitted to produce evidence contrary to what had been pleaded nor could any case be set up on the basis of evidence for which no foundation was placed in the pleadings

Held, that ejectment application was signed/verified by the respondent himself which was supported by his affidavit wherein the contents of the ejectment application were reproduced and were verified on oath

Affidavits of two witnesses also supported the version of the application

Ejectment application had not given impression that the respondent's mother was ever given the premises; or was vested with the authority to rent out the same or to receive the rent and induct tenants; or that she had ever acted under instructions and with authority from respondent as a rent collector

Statement of mother was contradictory in the context of the affidavit and the same did not support the stance of the respondent in the ejectment application either

Respondent failed to produce any evidence in support of his own case

Before introducing ejectment application, the respondent sent a notice to the petitioner in which he did not take the stance of any indulgence of his mother in the matter of renting out the property or of receiving rent from the petitioner

Although, the concept of landlord included a person who had been authorized to rent out the property or who had been acting as rent collector under instructions/permission of the landlord, such evidence could only be accepted if the case was so pleaded in the ejectment application

Evidence could not be allowed or led beyond the pleadings and the case set up in the pleadings could not be improved at the stage of evidence

Order of the appellate court, therefore, could not be allowed to remain in field to that extent

Respondent never appeared in the witness-box nor was any document showing delegation of authority by respondent produced

Pleadings were never amended to raise such a plea

Constitutional petition was allowed accordingly.

Respondent alleged that suit premises/shop was given on rent to the petitioner being close relative; that petitioner allowed hawkers to use the front of the rented premises; that petitioner stopped making payment of rent to respondent

Petitioner, in his leave to contest, denied the relationship of landlord and tenant

Premises was sold by predecessor-in-interest of the respondents to the petitioner through an oral agreement

Rent Tribunal closed the right of petitioner to produce evidence and finally accepted the eviction petition while determining the rent due

Appeals filed by both parties, were dismissed by appellate Court

Validity

Petitioner submitted that matters had to be decided on merit rather than technicalities; that Rent Tribunal acted harshly while closing his right to produce evidence; that he also filed a suit for specific performance of an oral agreement to sell in respect of the suit shop

Respondent contended that the title could not be determined in ejectment proceedings; that at the time of allowing the eviction petition, rate of rent was erroneously fixed; that interim rent was fixed but the arrears of the rent recoverable had been settled

High Court observed that even today the rented premises was, admittedly, in the name of predecessor-in-interest of the respondents as owner

Suit for specific performance filed by the petitioner was concurrently dismissed by both the Courts below and now the matter was pending adjudication before High Court

Petitioner filed suit for specific performance after the date when notice for eviction/recovery of rent was sent by predecessor-in-interest of the respondents to the petitioner

Suit was apparently filed as a counterblast to circumvent the eviction proceedings

Right to produce evidence was closed after providing multiple opportunities to the petitioner to produce the evidence with an explicit warning about the consequences of failure to adduce the same

Recovery of arrears of rent per month was not justified and was much below the amount on which fine had been received by the landlord or the tentative rent, which Rent Tribunal itself determined

Predecessor-in-interest of the respondents made averments in his eviction notice that under oral tenancy, petitioner was occupying the rented premises at the said rate per month, hence the respondents' claim for enhancement of rent was unjustified

Since the hawkers were not using the rented premises rather putting their carts on the public road, the respondents were not entitled to enhance rent on that account

Both the Constitutional petitions were dismissed accordingly.

Tenant assailed an order whereby his defense was struck off due to non-payment of tentative rent and consequently he was directed to vacate the demised premises

Contention of tenant was that the Rent Controller did not have jurisdiction to add 10% increase in the monthly rent and that the original tenancy agreement wherein the enhancement was contemplated had expired

Validity

Pleadings of the parties were sufficient to draw a tentative conclusion upon a summary inquiry that there was a specific stipulation in the agreement regarding 10% increase in the monthly rent at the time of each renewal

Upon expiration of the agreement the status of the tenant became that of a statutory tenant and the parties were bound by the terms and conditions of the agreement

Contention of the tenant was not tenable

Tentative rent order passed by Rent Controller was not without jurisdiction or illegal

Constitutional petition was dismissed, in circumstances.

Concept of goodwill had not been explained in the Islamabad Rent Restriction Ordinance, 2001 or the Islamabad Rent Restriction (Amendment) Act, 2021

Goodwill of a business was something such as its good reputation, which would increase the value of the business

Such was a business reputation/patronage/other intangible assets, which were considered when appraising the business, especially for purchase; the ability to earn income in excess of the income that would be expected from the business view as a mere collection of assets

Term "good will" had been equalized by the superior Courts with the term "Pagri" which was not recognized by law

Payment of Pagri not forming terms/conditions of tenancy and being contrary to public policy and any supra contractual arrangement, which negated tenancy could not affect maintainability of eviction proceedings

Landlord was not debarred from seeking eviction of the tenant despite receiving the goodwill or Pagri.

Respondents filed ejectment application contending that premises was rented out for 10 years; that petitioner committed default in payment of monthly rent and did not pay withholding tax and violated terms and conditions of lease agreement

Ejectment application was disposed of on basis of compromise and fresh lease agreement was made with new terms and conditions

After 21 days of said disposal respondents filed application for execution of the order

Special Judge (Rent) passed order for issuance of warrants of possession

Order for police assistance and lock/door-breaking was passed

Validity

Statement of one of the respondents in eviction petition was recorded to the effect that a fresh tenancy agreement had been executed between parties and ejectment application be disposed of

No endorsement of other two respondents who filed execution application asserting that the order of disposal of petition on the basis of compromise was not complied with

After two days of order for issuance of warrant of possession, a report was submitted by the bailiff that the possession could not be delivered without police assistance

Report showing two witnesses who were not residents of the area

Such report was unworthy of credence but was relied upon and order for enforcement of warrants of possession through breaking of locks, doors, etc. with police assistance was passed

At the time of passing order of disposal of petition on the basis of compromise only attendance of bailiff and counsel for decree-holder was recorded

Neither any inquiry was made nor the statement of bailiff was recorded to verify the report and in a mechanical manner permission was granted for breaking doors, locks, etc. with assistance of police and in consequence thereof, tenant was thrown out of the rented property

No eviction order was passed by Special Judge (Rent) and only eviction petition was disposed of

Parties having executed a fresh rent note on new terms/conditions whereby rate of rent was changed, period of tenancy was changed and other terms were also modified

Outright execution of fresh rent agreement could not result in eviction of the tenant ipso facto merely because landlord claimed that the terms were breached, unless proper inquiry was held in fresh round of litigation

Respondents did not raise any objection to the execution of fresh agreement and did not object to fresh terms/conditions

High Court observed that proper remedy was to file an eviction application on the plea of fresh cause of action and not to seek execution of an order that did not contain any condition of eviction­

Such order was not executable

Constitutional petition was allowed and execution petition was dismissed.

High Court after examining case in detail coming to conclusion that petitioner/ tenant acquired tenancy right from respondent /landlord through an agreement after target date namely 20-12-1958 and, therefore, notice under S. 30 of Act 1958 was unnecessary and that tenant was defaulter in payment of rent

Findings of fact and law arrived at by High Court, held, unassailable and no exception in law could be taken thereto

Petition for leave to appeal against order of High Court dismissed.

Provisions of S.14 of Ordinance, 1979, do not give unfettered rights to every person, who has attained age of sixty years or has retired or is widow or orphan to seek eviction of tenant due to certain disqualifications prescribed therein

Such disqualifications would be in case where landlord has rented out building after his retirement or becoming widow or orphan

Landlord in occupation of building owned by him would also be barred to seek remedy under S.14.

S. 13 (5-B) - Eviction - Reconstruction - While reconstructing building landlord, held, should take into consideration rights of tenant as conferred upon him under.

S. 13 (2) & (5-B)-Eviction-Reconstruction-Right of tenant to occupy building after reconstruction-Question of quantum of area to be given to a tenant, held, a matter within discretion of Rent Controller to be determined after taking into consideration location and type of new building and- needs of tenant.

S. 13 (2) & (5-B)-Eviction-Reconstruction-Right of tenant to be re-instated in area equal to one occupied by him in old building at site at which his original tenement situated-High Court arriving at conclusion after examining facts of case-Supreme Court agreeing with conclusion reached at by High Court and dismissing appeal filed by landlord.

S. 13-Eviction-Default in payment of rent-Fifteen days time having to be allowed over and above date fixed in agreement for payment of rent-No default committed for month of March Rent for April not paid 'before 15th April nor paid till 30th April (in their grace period) - Such constituted default for one month -Rent for May being payable before 15th May not paid then nor within grace period of 30th May - Ejectment petition instituted on same date - Second default in payment of rent, held, committed-No interference in circumstances called for with findings of fact.

Ss. 13 & 15-Eviction-Appeal-Rent Controller though bound under law to strike off defence of petitioner/tenant and order his eviction on non-deposit of rent yet failing to do so despite application to such effect having been moved by respondent landlady-Appellate forum, held, rightly set aside decision of Rent Controller and he could accept appeal on any valid available ground.

S. 13-Eviction-Bona fide requirements-Rent Controller and first appellate Court being conscious of requirement of law and landlord having raised plea of bona fide requirement, technical point as to landlord having not used expression "good faith" or "bona fide" in his pleadings, held, does not justify interference by Supreme Court and refusal to exercise its writ Jurisdiction by High Court also justified.

All Courts below concurrently finding failure on part of petitioner to pay rent to land lady-Ground of default in payment of rent-Essentially a question of fact-Supreme Court cannot reopen case in circumstances and interfere with such concurrent findings-No evidence led by tenant a petitioner to prove assessment of rent having been made ex-parte and petitioner though having a right to challenge such assessment not choosing to do so-No reason, held, existed to interfere with findings of Courts below in circumstances.

S. 13-Eviction-Plea of petitioner as to rent receipts being sufficient to prove practice of paying rent in lump sum or respondents having agreed to waive condition of monthly payment in their favour carefully examined by High Court and rejected on basis of evidence and law Petition for leave to appeal dismissed-Constitution of Pakistan (1973), Art. 185 (3).

Ss. 13 & 14-Eviction-Contention that order of Rent Controller being passed under S. 14 of Ordinance VI of 1959 and orders under such section being non-appealable no appeal could be filed against such order-held Application having been made under S. 13 of Ordinance for ejectment of petitioner tenant and such application having been dismissed order falls under S. 13 and mere fact of S. 14 having been applied would not take it out of four corners of S. 13.

Ss. 13 & 13-A - Eviction - Petitioner's predecessor-in-interest entering property as tenant when only allottees rights conferred on person inducting him as tenant-Transfer of rights in property claimed by respondent and a formal notice served on transferee-Petitioner if entertaining doubt regarding claim of two allottees, held, could have ascertained it from authorities sanctioning transfer or made deposit before Rent Controller with his own reservations but could not in good faith deposit in name of landlord about whom he stood formally informed to have ceased to have interest-in-property-Conduct of tenant being contumacious, Rent Controller, held further, rightly ordered his eviction on ground of default in payment of rent.

S. 13(2)(iii)-Eviction-Material impairment of value and utility of buildings-Burden of proof-Landlord failing to discharge onus of proof lying upon him to establish allegation of tenant having caused damage to property by using bath rooms and latrines in such a way that water leaked towards lower floors-Evidence of both parties even if kept in juxtaposition, tenant's evidence of far better value and on higher level than vague allegations made by landlord's witnesses-Conclusion that condition of building deteriorated materially after creation of tenancy in favour of tenants appellants, in circumstances, held, not correct-Observation of lower Court that question could be disposed of on ground of landlord having not been bound in duty to be always ready to repair building as soon as tenants caused damage, held further, not relevant, question, on other hand, being whether tenants did actually cause damage as alleged. Shujahuddin Qureshi v. Hussan Ara Begum P L D 1964 Lah. 292 distinguished.

S. 13(4)-Eviction-Requirement for personal use-Rent Controller discussing evidence produced by parties and coming to conclusion of shop being required by respondent landlord for his personal use and such respondent also being owner of shop in question-Petitioner proved to have deposited rent for some period in name of respondent landlord in National Bank-Respondent landlord, in circumstances, held, cannot be said to be not owner of shop in dispute-Petition dismissed as without merit.

Eviction-Compromise deed produced in Court by respondent and his counsel but petitioner's counsel seriously objecting to such document-High Court holding compromise to be not effective in circumstances and rightly upheld compromise having not been accepted nor any effort made to incorporate same in order of Court-Reliance on such compromise by first appellate Court held, uncalled for.

S. 13 read with Constitution of Pakistan (1973), Arts. 199 & 185(3)Eviction-Requirement for personal use-Burden of proof-Accommodation becoming available to landlady during pendency of ejectment proceedings being suitable, adequate and capable of meeting her requirements-Not elicited from landlady during examination of witnesses-Such primarily a question of fact required to be established either by evidence or by uncontroverted pleadings-District Judge referring to choice of landlady and her preference in matter of selecting one out of many tenanted properties in background of pleadings of parties and not applying test of choice and suitability with reference to vacant possession-Such aspect of case not highlighted even in High Court-geld : No misdirection of law attracting exercise of constitutional jurisdiction by High Court took place, hence, leave to appeal refused.

Eviction - Personal requirement - Contention that petitioner's witnesses did not state respondents having required house in dispute for their personal use and occupation and mere expression of desire to reside in one's own house could not be equated with requirement for such purpose Held: Contention without foundation Evidence on record finding mention of petitioner's bona fide requirement of premises for personal use-Father of first respondent proper person in such regard having said so it mattered little that such respondent said nothing about his getting married First respondent having appeared in LL. B. Examination and likely to set up his own legal practice, sufficient reasons, held, existed for ejectment of petitioner tenant on ground of premises being required by landlord for personal use.

S. 13 (3)-Eviction-Petitioner admittedly in default in payment of rent on date of eviction application for a period of more than 4 1/2 years such act on part of tenant, held, disentitled him to invoke Rent Controller's discretion in his favour-No evidence to show parties having agreed to accept rent at long intervals-Petition held, devoid of rnerits and dismissed.

Eviction-Requirement for personal use-Landlord seeking possession of his shop with a view to accommodating his male children-Held, cannot be non-suited on ground of such children occupying property not owned by him or by his children. [p. 12391A & B' Malik Muhammad Qayum, Advocate Supreme Court and Sh. Abdul Karim, Advocate-on-Record for Petitioner.

S. 13-Eviction-Waiver-.Petitioners themselves consenting in High Court to vacate premises, such act, held, amounted to waiver of legal right to pursue claim and not open to them to urge on merits of case-Constitution of Pakistan (1973),

S.3 (1)-Eviction-Quarter under consideration not allotted to petitioner and petitioner living therein with allottee Government servant since dead

Civil Estate Officer's direction to petitioner to vacate premises, held, not open to challenge in writ jurisdiction of High Court.

Eviction-Remand-No proof adduced by petitioner-tenant to show rent having been paid regularly for period prior to one for which Rent Controller ordered tenant to deposit rent in Court-Remand of case to Rent Controller, in circumstances, held, rightly found by High Court to be an exercise in futility..-[Remand of case].

S. 13-Eviction-No agreement between parties conferring status of tenant on predecessor-in-interest of petitioners-Agreement merely granting some time to vacate suit property and predecessor-in-interest of petitioners having to pay a specified amount per month for use and occupation of premises during such period-No conscious agreement between parties for letting premises on rent for any period of time Petitioner having been given some respite to enable him to vacate premises; no question of novation of contract-Compromise deed filed in, and made rule of Court obliging petitioners' predecessor-in interest to vacate suit property by a specified date failing which plaintiff (respondents herein) could secure possession through execution of decree and petitioner's predecessor-in-interest having failed to comply with terms of decree, respondents, held; .entitled to get premises vacated and provisions of S. 13, West Pakistan Urban, Rent Restriction Ordinance, 1959 not applicable.

S. 13(3)(a)(i)(a)-Eviction-Whether can be sought on grounds of requirements of relatives (widowed mother).