Amir Akbar Khan son of Gul Mir Khan, tenant occupant of Shops Nos, 3 & 4, Farrukh Plaza, Block No, 27-A, G-9 Markaz, Islamabad, impugns the judgment dated 16.02.2005 passed by learned Addl.
District Judge, Islamabad, whereby appeal against the order dated 06.10.2003 of the learned Rent Controller dismissing the ejectment petition has been accepted. The eviction petition filed by respondent Irshad Ahmed Khokhar has been accepted and the petitioner has been directed to vacate the disputed property.
2. Brief facts of the case are that irshad Ahmed Khokhar respondent initially filed a suit for ejectment and possession against Aamir Akber Khan, Taj Muhammad Khan and Saleem Akhtar in respect of Shops Nos, 3 & 4 alongwith basement (3 & 4). The said suit was withdrawn and thereafter ejectment petition was filed on the promulgation of Islamabad Rent Restriction Ordinance, 2001. Respondent sought ejectment of the petitioner alongwith performa respondents on the ground of personal bona fide need, default, sub-leasing and damage to the property. The petition was resisted by filing written reply of the ejectment petition. Learned Rent Controller framed the issued and by order dated 06.10.2003 dismissed the ejectment petition of the respondent vide order dated 06.10.2003. Appeal filed against the said order was also dismissed on 12.02.2004 by the learned Addl. District Judge, Islamabad. Respondent Irshad Ahmad Khokhar filed Writ Petition No, 1107/2004 in this Court which was accepted vide order dated 16.09.2004.
Consequently, both the orders aforesaid were set at naught and the case was remanded to the learned Addl. District Judge, Islamabad, to decide the appeal afresh without being influenced by any observation in the order passed by this Court.
3. On remand, learned Addl. District Judge, Islamabad, accepted the appeal filed by Respondent No, 1 Irshad Ahmad Khokhar vide his order dated 16.02.2005 and had directed the petitioner to vacate the said property within one month from the date of decision, hence this writ petition.
4. Learned counsel for petitioner contends that Islamabad Rent Restrict Ordinance, 2001 was published in the Gazette on 23.01.2001 two notifications under the Ordinance were required to be published by the Federal Government under Section 1(2) and Section 2-K of the Ordinance ibid regarding such buildings and rented lands in Islamabad Capital Territory to which the Ordinance would extent and urban area was to be defined under the Ordinance was to be notified by the Federal Government. According to the learned counsel since no notification was issued, therefore, on the mandate of order passed by this Court in Writ Petition No, 346 of 2004 the date of commencement of Ordinance was 30.06.2004 when the writ petition was decided. Since no notice terminating the tenancy was issued, therefore, ejectment petition filed by the respondent Irshad Ahmad Khokhar was infructuous from its inception as no Ordinance was in the filed when the ejetment petition was filed.
5. Ground of non-maintainability of the ejectment petition on the ground that two statutory notices are required under Section 1(2) and 2(K) of the Ordinance ibid declaring such buildings and rented lands in Islamabad Capital Territory to which the Ordinance would extend and whereby urban area within the meaning as defined under the Ordinance was to be notified and is not available to the petitioner on two grounds. Firstly, this point was not raised before the trial Court or the Court of appeal or before this Court in first round of litigation therefore the petitioner is stopped by his conduct to raise this point for the first time. Secondly, while deciding Writ Petition No, 346 of 2004, notification SRO 83(Re)/02 dated 19.07.2002 published in Gazette of Pakistan Extraordinary on 01.08.2002 which was issued in terms of said provisions of Islamabad Rent Restriction Ordinance, 2001 was not brought in the notice of this Court. The above point of the learned counsel regarding statutory notification dated 19.07.2002, maintainability of ejectment petition and jurisdiction of the Rent Controller came up for consideration before this Court in case reported as Raja Hassan Ali Khan versus Additional District Judge, Islamabad and 2 others (2003 CLC 1819) and it was observed that, "A reading of the table appended to the said notification, dated 01.08.2002 leaves no manner of doubt that the properties are located in area which stands specified in the said notification to be urban area for the purpose of Islamabad Rent Restriction Ordinance, 2001. It is true that when petition in both cases were filed, the said notification has not been published. However, to my mind, nothing turns on the said plank in favour of the petitioners as under Section 1(3) said Ordinance shall come into force at once. The urban area was of course to be specified which stand so specified in terms of Section 1(2) read with Section 2(k) of the said Ordinance, 2001. I may note here that there is no allegation or objection that the learned Rent Controller who took cognizance of the matter was not validly appointed in terms of Section 7 of the said. Ordinance, 2001. This being so, institution of the applications in the Court of learned Rent Controller being in accord with Section 7(3) of the said Ordinance, 2001, the same cannot be said to be without lawful authority." Further contends that the petitioner entered into the possession of the shop by putting considerable amount as "pagri" and thus provision of Islamabad Rent Restriction Ordinance, 2001 cannot be utilized to the benefit of landlord. Reference is made to the case reported as Muhammad Hanif versus Mumtaz Ahmad (PLD 1986 Karachi 16). It was also argued that had the need of the petitioner being bona fide. He should have prayed for possession of one shop but he instead prayed for ejectment of both the shops, which negatively reflect on his bona fides. Further argues that the petitioner has not disclosed the business which he intends to start, without showing his experience therein and has not stated that he has funds to do his own business; further that there was no violation of any agreement and denied the default in payment of monthly rent and damage to the property or impairment of its utility.
6. On the other hand, learned counsel for respondents contends that bona fide personal need of the Respondent regarding shops in question was proved on the file and therefore ejectment order has rightly been passed by the learned Addl. District Judge; possession of the shop by Respondent Nos, 2 to 4 has not been denied by them which has been attempted to be explained as of brothers and an employee but there is not an iota of evidence on the file to substantiate this defense plea. It has been proved on the file that shops was sub-letted; further contends that Respondent No, 1 committed willful default in payment of agreement monthly rent including the 10 percent. increase after two years, besides non-compliance of orders of the learned Rent Controller under Section 17(9) of the Ordinance 2001. It was further contended that the petitioner has admitted the impairment of utility of the property. This being so, arguments of the learned counsel that ejectment petition was not maintainable in repealed.
7. Before I proceed to discuss the issue of sub-letting of property violation of terms of agreement and that the respondents have committed default and that the fact of receiving of "Pagri" of Rs, 6,50,000/-, I advert to the question of bona fide need of the demise property. Law regarding bona fide personal need of the landlord to occupy the rent premises for his own business for the use of the children is that ejectment of the tenant on the ground of bona fide personal need of the landlord cannot be refused when statement of the landlord on that is consistent to his averments in the ejectment petition and not shaken in cross-examination or disproved in rebuttal by the tenant. In case reported as Muhammad Shoaib Alam and others versus Muhammad Iqbal (2000 SCJ 306) the Hon'ble Supreme Court while deciding the question of bona fide of personal requirement held, that "statement of landlord on oath if consistent and not shaken in cross examination or disproved in rebuttal is sufficient to prove that requirement of landlord was bona fide." It has been held in case reported as Hassan Khan versus Mrs. Munawar Begum (PLD 1976 Karachi 832) that, "assertion or claim on oath by landlord that he required premises for his personal use found to be consistent with his averments in his application and not shaken in cross- examination or disproved in rebuttal. To be accepted by Rent Controller as bona fide." On the touch stone of the above said case laws, I have examined the ejectment petition and the statement of Respondent No, 1 Irshad Ahmad Khokhar as AW-1. Record reveals that the respondents-petitioners are in possession of the demise property since 1989. Respondent Irshad Ahmad Khokhar during this period was abroad and the affairs of the shop was looked after by his father in law being a special attorney. He filed ejectment petition and meanwhile he joined the temporary job. He had stated that he had returned from Saudi Arabia in July, 1999 and gone through a surgical operation. Having five daughters, he had no other commercial property. He deposed in cross-examination that he is doing a temporary employment with M/s. Rafan Food Products. Petitioner was cross-examined at length but his case in the ejectment petition and his statement as AW-1 are absolutely in- consistent with each other. Temporary job by the landlord, waiting vocation of the shops needed by him, in order to meet both ends of life, is neither illegal nor it negatively reflects on his personal requirement. Moreoever, he has produced the termination letter Ex. A/2, though during his statement in rebuttal yet the same lends support to his stance already taken by him. Therefore, learned Addl. District Judge was right in recording the finding on issue of personal bona fide need of the demise premises in favour of the respondent and no exception can be taken to it. Failure of landlord to give details of the business to be started in the shops needed by him, his experience in the business and disclosure of funds in this behalf were neither relevant factors nor these furnished a concrete basis for his exclusion to utilize his own property. Reference can be made to case reported as Muhammad Ramzan versus Mian Muhammad Shahbaz Ranjha (NLR 1997 Civil 706). No doubt in the ejectment petition petitioner has not asserted that part of shop is required for his daughter who is doing her M.B.B.S. but it might be that at the time of filing ejectment petition, the shop was not required for utilization by the daughter of the landlord who had at that time doing M.B.B.S. but at the time his entering in the witness box this plea of the petitioner of utilization of part of the shops by his daughter might have arisen and it may be an additional ground for eviction of the respondents but it too did not negate his bona fide personal need. Further more, protection has been given to the tenant under Section 17(6) of the Ordinance, 2001 to move for re-occupation of the rented premises in case landlord fails to occupy it for his use. In this view of the matter, finding of the learned Addl. District Judge on the issue of personal bona fide need of demise premises does not call for any interference and is maintained.
8. Learned counsel for petitioner contends that he entered into possession of the shops by paying a considerable amount as 'Pagri" and thus provisions of Islamabad Rent Restriction Ordinance, 2001 cannot be utilized to the benefits of landlord. He relies on the case reported as Muhammad Hanif versus Mumtaz Ahmad (PLD 1986 Karachi 16). Firstly, it has not been proved on the record that the petitioner has paid an amount of Rs, 6,50,000/-as "Pagri" to the respondent landlord. Section 6 of the Islamabad Rent Restriction Ordinance, 2001 contemplates that landlord not to claim in excess of fair rent. In case reported as Muhammad Hanif (PLD 1986 Karachi 16) Supra agreement between the land and tenant was executed indefinite period. Such agreement also providing that lessor would not eject lessee under any circumstances. Therefore, High Court Karachi held that such clauses of agreement relating to duration of tenancy and limiting right of landlord, clearly manifested intention of parties that "Pagri" was given and accepted, providing proper cover in agreement that tenant would not be evicted and could transfer tenancy with consent of landlord.
In case reported as Sheikh Muhammad Yousaf versus District Judge, Rawalpindi and 2 others (1987 SCM R 307) while interpretating the term "Pagri" the Hon'ble Supreme Court held that, "plea that landlord having received amount as Pagri at time of letting out shop to tenant, was debarred from seeking ejectment, repelled for that being a mutual arrangement between parties would not debar landlord from instituting eviction proceedings on ground of bona fide personal need."
9. Agreement of 1998 is not admitted between the parties. Respondent states that they are in possession of the premises according to the agreement of 1997. According to which monthly rent was Rs, 9,350/- and in the property the flat was also included whereas after the disputed agreement of 1998 the flat was missing but the rent was increased to Rs, 12,000/-. The evidence on the record shows that parties entered into agreement on 12.12.1998 and the same has also been placed on the record but the same was not exhibited yet its terms have been approved. According to this agreement, petitioner was under legal obligation to deposit rent till fifth of every month but the record reveals that the petitioner never deposited the rent till the fifth of every month. Petitioner was required to make payment on the increased rate of rent at Rs, 12,000/- per month before fifth of every month. Which was not paid in accordance with the agreement dated 12.12.1998.
10.Petitioner was running a medical store on the ground floor whereas the Respondent No, 4 was doing his own business in one of the shop and the basement of the shop was also in possession of the Respondent No,
4. While appearing as AW-1 respondent stated that Respondent No, 4 had been depositing income tax as owner of the business. This part has not been cross-examined by the petitioner. Respondent No, 4 although submitted joint written reply alongwith other respondents but he never appeared in the Court to establish that he was the servant of other respondents.
Respondent No, 4 was proceeded ex parte because in the trial Court he made statement on summon for his appearance that he had left the shop two years back as his period of tenancy expired. Again as per report of another summon of Gul Aziz issued earlier, it was reported that basement shops were found close, therefore, learned Addl. District Judge had rightly concluded that the Respondent No, 4 was performing business and after his vacation the shops were closed. It is established on the record that shop was sub-leted to Gul Aziz Respondent No, 4 However, as to the Respondents Nos, 2 and 3 the same is not proved as they are brothers of Respondent No, 1 and there can be joint business. So, it is established on the record that respondent has subleted the shops in basement to Gul Aziz Respondent No, 4.
11. It is admitted that partition wall and front wall in the basement has been removed. Learned counsel for petitioner argues that removing of these walls was agreed by the parties vide Iqrarnama Exh. D.
3. On the basis of Iqrarnama Ex. D.3, it was agreed between the parties that wall in between Shops Nos, 3 & 4 on the ground floor would be removed and it did not pertain to the shop in basement. This being so, finding recorded by the learned Addl. District Judge, that the petitioner has damaged the property by removing the wall of the basement is in accordance with the correct reading of the evidence on record. Learned Addl. District Judge while appreciating the evidence on record, keeping in view of the provision of law and the remand order of this Court has correctly appreciated the evidence and accepted the appeal of the respondent and passed the ejectment order by accepting the ejectment petition against the petitioner which does not call for any interference in exercise of writ jurisdiction of this Court. Resultantly, this petition fails and the same is dismissed.