' MIAN HAMID FAROOQ, J.---The instant first appeal, filed by Farooq Imran, the appellant/respondent, under section 24 of Cantonment Rent Restriction Act, 1963, proceeds against ejectment order dated 8-7-2003, whereby the learned Additional Rent Controller, Walton Cantt.
Lahore accepted respondent's ejectment petition, on the ground of personal need and default and the appellant was directed to vacate the premises in question.
2. Precisely stated the facts culminating to the filing of the present appeal, are that Mst. Hafeez Munir, the respondent, filed an ejectment petition, seeking the eviction of the appellant from the house in question, on the grounds of default in the payment of rent and personal need of the petitioner, before the learned Rent Controller, Walton Cantt. Lahore. The appellant contested the said petition by filing the written reply, thereby, raising preliminary objections and also controverting the contents of the ejectment petition. It was asserted that the appellant has paid a total amount of Rs,8,81,300 as rent to the respondent. The learned Rent Controller passed an order under section 17(8) of the Act, 1963 thereby directing the appellant to deposit the arrears of rent as well as future monthly rent, which order appears to have been complied with. Following issues were framed:-- Issues.
(1) Whether the respondent defaulted in the payment of rent? OPP
(2) Whether the petitioner required the property in question for her personal use and occupation bona fide? OPP
(3) Whether the petition is mala fide? OPR ' Both the parties produced documentary as well as oral evidence. Ultimately, the learned Rent Controller allowed the ejectment petition on the grounds of personal need and default and directed the appellant to vacate the house in question vide impugned order dated 8-7-2003, hence the present first appeal.
3. The learned counsel for the appellant has submitted that while framing Issue No,2, regarding personal need, the word "bona fide" has not been included; that no lease deed was produced on record, by the respondent; that no specific period of default has been mentioned in the ejectment petition and that the receipts showing the payment of a sum of Rs,8,81,300, which were exhibited, were not considered and discussed by the learned Rent Controller. He has further submitted that although an application, for comparison of signatures of different persons, on the receipts, by the Handwriting Expert, was filed by the appellant but the learned Rent Controller without disposing of the said application, proceeded to decide the main ejectment petition. In this regard he has relied upon Pak Carpet Industries Limited v. Government of Sindh and 2 others (1993 CLC 334). Conversely the learned counsel for the respondent, while refuting the aforesaid contentions, has submitted that the ejectment petitioner proved, through the production of evidence, that the appellant committed default and that the respondent need the house in question for her personal need. It has been added by the learned counsel that although now the application, for comparison of signatures by the Handwriting Expert, is available on the record, yet the order sheet of the case does not show that the said application was in fact filed before the Court during the proceedings.
4. Firstly adverting to the contentions raised by the learned counsel for the appellant. As regards the first contention, I have examined the issues, framed by the learned Rent Controller on 22-3- 2003, and find that in Issue No,2, in respect of personal need, the word "bona fide" has been included in the said issue. For ready reference, Issue No,2 is reproduced below:-- "Whether the petitioner required the property in question for her personal use and occupation, bona fide? OPP (Underlining is mine).
' In view whereof, the first contention of the learned counsel, that the word "bona fide' has not been included in the issue of personal need, is misconceived, hence repelled.
(ii) As regards the next contention about, the non-production of any lease agreement, the same is also without any substance and appears to be have been raised in complete oblivion of the record of the case. I find from the record that the respondent, along with her ejectment petition, filed a photocopy of lease agreement dated 22-4-1996, entered into between the parties, which bears the signatures of the lesser and lessee. Not only this, but the petitioner also produced the said original agreement in evidence, which was admitted in evidence and exhibited as Exh.P.5 in the statement of Munir Aslam, P.W.2, without any objection from the appellant's side. In view whereof, the second contention of the learned counsel, regarding the non-production of the lease agreement, is also without any force.
(iii) Now coming to the other contention regarding the period of default. In para.6 of the ejectment petition, it has specifically been mentioned that uptill 21-4-1999, the rent was received in full vide receipt dated 9-5-1999 and out of rent due, in respect of period from 22-4-1999 to 21-11-2001, amounting to Rs,3,58,501, only a sum of Rs,1,75,800 was paid and thus at the time of the filing of the ejectment petition, a sum of Rs,1,82,701 was in arrears of rent. In view of the clear narration of the facts in the ejectment petition from the very inception of the case, it cannot be argued that the period or amount of default has not been mentioned.
(iv) So far as the plea of the learned counsel that the receipts of rent, which were exhibited, were not considered by the learned trial Court, the same is equally without any force. Upon the perusal of the impugned order, I find that the learned Additional Rent Controller, while deciding Issue No,1, has specifically discussed about the alleged payments made by the appellant and has also referred to the receipts produced by him in support of the said payments. After discussing the receipts of the said payments, the learned Additional Rent Controller has concluded that the respondent could not prove the genuineness of the receipts, produced by him. It would be appropriate to reproduce a portion of the order, wherein the learned Additional Rent Controller has discussed about the payments and receipts produced by the appellant.
"After perusal of the record hearing the counsel for the parties and going through the written arguments advanced by the parties, this Court is of the opinion that the respondent failed to prove this issue. The receipt of Rs,60,000 paid on 16-4-1996 i.e, six days before the execution of the tenancy agreement, then payment of Rs,2,12,000 on 24-4-1996 i.e, two days after the said agreement and payment of Rs,40,000 on 8-5-1996 i.e, sixteen days after the said agreement without mention in tenancy agreement are not proved. It was also noticed that the payment of Rs,50,000 said to have been made to P.W.1 Niamat Ali on 14-1-1998 was not questioned to P.W.1 during cross-examination. The respondent could not prove the genuineness of these receipts produced by him The security amount of Rs,48,000 and advance rent for 11 months April to March, 1997 amounting to Rs,88,000 is mentioned in the agreement but no other amount as claimed to have been paid is mentioned. Beside this when the rent becomes due in April, 1997, it was paid Rs,26,400 vide Exh.R.10 which meant it was paid with enhancement of 10% after a lapse of 1 year."
(v) Now coming to the last contention raised by the learned counsel that the learned Rent Controller omitted to decide his application, filed for comparison of the signatures. The learned counsel for the appellant is right in submitting that when a miscellaneous application is filed before a Court, it is its duty to dispose of the same before deciding the main case. However in the instant case, the real question, which has arisen, is as to whether such an application, alleged to have been filed by the appellant before the learned Additional Rent Controller, was in fact submitted before the Court. I have perused the record of the learned Rent Controller and do find that there is an application by the appellant for comparison of signatures by the Handwriting Expert from the Forensic Science Laboratory, which appears to be typed on 27-4-2002 and the court-fee affixed thereon bears the date i.e, 8-5-2002. However, the said application does not indicate that on which date, the same was filed. I do not find any initial of the presiding officer or the seal of the Court on the application under discussion, showing that the same was filed in the Court. It is a matter of common knowledge that when any miscellaneous application is filed before the subordinate Courts, it is always initialed by the presiding officer and the seal of the Court is affixed on it along with the date, indicating the fact that the same was filed in the Court.
Additionally, filing of such an application also finds mention in the order sheet together with the proceedings on the said application and the result thereof. In view of the date, mentioned in the court-fee i.e, 8-5-2000, as noted above, certainly this application could not have been filed before the said date. In this perspective, I have examined the order sheet and do not find any proceedings about the institution of this application or/and any subsequent proceedings on the application in the order sheet, to which the presumption of truth and correctness attaches under the law.
Furthermore at best the stance of the appellant could be that he filed the said application on 8-5- 2002, but admittedly, he never filed any application or ever agitated before the Court uptil 8-7- 2003, the date of decision of the main ejectment petition, that his application remained undecided and it was for the first time, the said plea was raised before this Court.
(vi) In view of the above, to my mind, as the said application does not appear to have been legally, validly and properly filed, therefore, the learned Rent Collector was not obliged under the law to decide the said application. Contention of the learned counsel in this regard, is without any force. It is, however, not clear from the record as to how the said application was imported in the file.
5. Now coming to the Issue No,1, about the default in the payment of rent. I have examined the findings, rendered by the learned Additional Rent Controller and am of the view that the learned Rent Controller, after referring to the evidence on record, adverting to the alleged payments made by the appellant and the receipts produced by him, has rightly concluded that the appellant is a defaulter and thus rightly decided the said issue in favour of the respondent. Even otherwise, the learned counsel for the appellant has not addressed this Court on the issue and the only contentions raised by the learned counsel has been dealt with in the preceding paras. The findings of the learned Rent Controller, on Issue No,1 are hereby maintained.
6. As regards the issue of personal need. The learned Additional Rent Controller, while deciding the said issue, has adverted to the every aspect of the case, appreciated the evidence on record in its true perspective and has rightly concluded that the ejectment petitioner needs the house in question for her bona fide personal need. In order to rebut the said evidence, the appellant could not produce any evidence to show that either the personal need of the appellant is clothed with mala fide intentions or that she owns any other property in the same locality or that the respondent and his family is not living in a rented house. The learned Rent Controller has properly appreciated the evidence on record and rightly came to the conclusion that the property in question is required by the ejectment petitioner and his family for her personal use. I have also examined the evidence on record in juxtaposition with the findings of the learned Rent Controller and find that the conclusions arrived and findings given by the learned Additional Rent Controller on both the issues, specially on the issue of personal need, are not only in accordance with the record of the case, but the same are also in consonance with the law on the subject. The ejectment petitioner has been able to prove that the house in question is required for her bona fide personal use and her witnesses have consistently stated that she required the disputed house. The appellant by producing his witnesses, could not shake the veracity of respondent's witnesses and failed to adduce sufficient evidence, which could rebut the consistent evidence, produced by the respondent, which in my view, has proved the bona fide personal need of the respondent. It has been held in Jehangir Rustam Kaklia through legal heirs v. Messrs Hashwani Sales and Services (Pvt.) Limited (2002 SCM R 241) that the landlord being owner of demised premises cannot be deprived of his rights and interest to use h.s property in a manner more suited to his requirements and no unreasonable restriction can be placed on exercise of right by landlord, which would offend the fundamental rights guaranteed under Article 23 of the Constitution. It has been held in Tahir Umar v. Messrs Bata Shoes (Pakistan) Limited through Managing Director and 3 others (1991 M LD 1236) that the landlord was not under any obligation to have disclosed in his ejectment petition that he was not in occupation of any other shop.
7. By now it is well-settled law that even the solitary statement of the landlord, on oath, regarding bona fide personal need, which is consistent with the pleadings and not shaken in the cross- examination, would be sufficient for the eviction of the tenant. If any case-law is needed Miss Akhtar Qureshi v. Nisar Ahmad (2000 SCM R 1292), Mehdi Nasir Rizvi v. Muhammad Usman Siddiqui (2000 SCM R 1613), Messrs F.K. Irani and Co. v. Begum Feroze (1996 SCM R 1178), Juma Sher v. Sabz Ali (1997 SCM R 1062) and Muhammad Siddiqui v. Muhammad Shoaib (1986 SCM R 1207) can be referred. Needless to mention that in this case, the appellant has failed to prove either through cross-examination, made on the witnesses of the respondent, or through production of his own witnesses that the plea of personal need of respondent is clothed with mala fide. It has been held in Mst. Akhtari Begum v. Muhammad Qasim (2000 SCM R 1937) that the suitability of the premises for personal requirement was to be judged by the landlady herself and she could not be compelled to accept any other premises if she made her choice for one of the shops.
8. In the above perspective, to my mind the respondent has been able to prove that she required the house in question for her bona fide personal need. It has been held in various judgments that it is the prerogative and choice of the landlord as to .Which property is required by him for his personal use and the tenant has no lawful authority to dictate the landlord about his personal need.
9. In view of the above, I have examined the impugned order and find that the same is legal, unexceptionable and does not call for any interference by this Court, thus the same is hereby maintained.
10. Upshot of the above discussion is that the present appeal is devoid of merits, hence dismissed leaving the parties to bear their own costs. However, the appellant is allowed a period of one month from today to vacate the house in question and to hand over its possession to the respondent.