FAZAL-E-MIRAN CHAUHAN; J. --- Through this Constitutional petition, the petitioner has impugned the judgment and decree dated 11.06.2007, passed by learned Additional District Judge, Lahore and restoration of the judgment and decree dated 30.09.2006, passed by the learned ReN Controller, Lahore.
2. Facts giving rise to the filing of the present writ petition are to the effect that the petitioner being landlord of the property in question filed petition under Section 13 of the Punjab Urban Rent Restriction Ordinance, 1959, seeking ejectment of respondent No.. 1 Kamran Javed from the property in question for personal need in good faith for her daughter and her family on the ground of default causing damage to the property lowing his valuation. In support of ejectment petition, affidavit of Asmat Ullah petitioner, AW-1 Shakar Ullah .And AW-2 were annexed with the ejectment petition. Reply to the ejectment petition was filed by respondent No. 1 denying that the property in question is required by the landlord for need of his daughter for the personal use and occupation as both of them are owner-in possession of the property bearing No. 232, Kashmir Block, Allama lqbal Town, Lahore and 666 Kashmir Block, Allama lqbal Town, Lahore. The daughter of the petitioner is residing in House No. 116, Kashmir Block, Allama lqbal Town, Lahore which is owned by her father-in-law namely Khurshid Ahmad Butt. Also denied that a default in payment. Of rent has been committed. The rent for the month of September, 2004 was received by the petitioner himself and he also issued receipt of the same. Causing damage to the property was also denied.
4. On the basis of divergent pleadings of the parties , following issues were framed on 05.01.2006 by the learned Rent Controller, Lahore. .(1) Whether the respondent is willful defaulter in payment of rent, if so for what period and for what rate? O.P.A.
(2) Whether the disputed premises is required by the petitioner for his own personal need? D. P.A.
(3) Whether the disputed property has sublet to other person without consent and permission?
O.P.A.
(4) Whether the respondent has become a permanent source of nuisance and mental disturbance due to his act and conduct? O.P.A.
(5) Whether the disputed premises has damaged by the respondent? O.P.A.
(6) Relief.
5. The learned Rent Controller, after recording and appreciating the evidence of the parties, proceeded to accept the ejectment petition deciding issue No. 2 in favour of the landlord after observing that the property in question is required by the landlord for the use and occupation of his daughter and directed respondent No. 1 to hand over vacant possession of the property in dispute to the landlord petitioner, within one month. Respondent No. 1 challenged the eviction order by filing appeal under Section 15 of the .Punjab Urban Rent Restriction Ordinance, 1959. The learned lower Appellate Court after hearing the parties accepted the appeal set aside the findings on issue No. 2 and remanded the case to the learned Rent Controller, to adjudicate' upon the issue afresh by hearing arguments and if he thinks some issue is required, frames the same in the line of decision given by the learned lower Appellate Court, hence this writ petition.
6; Learned counsel for the petitioner argued that, the learned lower Appellate Court erred in law and facts of case and failed to comprehend its true perspective, in making bleak to the crystal clear, pleas, promoting to file' the ejectment petition against the tenant. The learned lower Appellate Court while reversing the finding on issue No. 2 has totally ignored the evidence as well as law laid down by the Superior Courts. Further argued that as per Section 3- A.I)(a), there is sufficient evidence available on the record showing that the premises in question are required by the landlord for the personal need of his daughter and the same is covered by law. The learned lower Appellate Court erred in law by holding that the landlord has not mentioned about the property in his possession or in the possession of his daughter in the same locality. Further argued that the daughter in whose need the property in question is required is residing in a rented premises. Further argued that in fact, the property- belongs to the daughter of the petitioner landlord but same was rented out by the petitioner to respondent No. 1 and he being landlord of the property, in question, rightly filed the ejectment petition seeking 'ejectment for personal need of his daughter, who shifted from abroad to Pakistan and wanted to reside in her house. Further argued that the learned lower Appellate Court had entered into a non-issue regarding nomination of landlord mentioned in the ejectment petition or in the rent-note that tenancy in any case is not denied by respondent No. 1 and petitioner is accepted as landlord by respondent No. 1.
7. Conversely, learned counsel for respondent No. 1 argued that the petitioner landlord has not come to the Court with clean hands and the petitioner had deliberately not mentioned the other properties in his possession as well as the possession of his daughter in the same locality and by concealing this fact, he has become disentitled to any relief under the law. Further argued that the learned lower Appellate Court had failed to give any finding regarding this aspect of the case and the learned lower Appellate Court rightly having taken note of this fact, dis-agreed with the finding of learned Rent Controller and set aside its findings on issue No. 2. Further argued that though the property in question was rented out by the petitioner through a rent-note, but since the creation of tenancy, possession of one room was never handed over to respondent No. 1 and the learned Rent Controller has not given its finding on the same and the learned lower Appellate Court rightly took note of this fact and remanded the case to' the learned Rent Controller, with the direction to decide this fact after framing issues if required so. Further argued that the landlord miserably failed to prove that the property. In question is required by him in good faith for the use and occupation of his daughter. The mere words of the petitioner are not sufficient to prove his contention and it was the duty of the. learned Rent Controller to discuss the evidence led by both the parties and gave its findings on the same. It has been brought on the record that the landlord is already in possession of other properties in the, same locality and the property; in question, is not required by him for his daughter as she is already residing in a house in the same locality. Further argued that the learned Rent Controller proceeded to pass ejectment order without deciding two Miscellaneous applications filed by respondent No. 1 tenant and this omission on the part of learned Rent Controller reflects non-application of mind by him and the right of the parties to get a decision on each and every issues, which has arisen before the Court or Tribunal. Finally argued that since the ejectment is with regard to residential portion and no appeal is .Provided against the order of the learned Rent Controller, hence writ petition is not maintainable.
8. I have heard the arguments of the learned counsel for the parties and perused the record as well as the affidavit submitted by both the parties and the lengthy cross-examination conducted by respondent No. 1 - tenant on the landlord and AW-1 and AW-2.
9. From perusal of issues .Framed by the learned Rent Controller, it is clear that no issue has been framed with regard to not handing over possession of the whole property to respondent No. 1 - tenant. Admittedly, the property was rented out way back in the year 2002 on 21.09.2002. Since then, till filing of ejectment petition, no application has been moved by respondent No. 1 - tenant to the learned Rent Controller seeking redressal of his grievances that the landlord was under obligation to hand over the possession of the whole of the property and nondelivery of possession of one room by the landlord was in sheer violation of rent note executed between the parties. This issue for the first time was raised in the written reply submitted to the ejectment petition before the learned Rent Controller. The respondent No. 1 never moved to the learned Rent Controller for framing of issues on this subject.
From the conduct of the parties, it appears that the daughter has in-fact never demanded possession of so-called master bed room with bath room and store. The landlord denied the suggestion put-forth by the learned counsel for respondent No. 1 that, it was agreed between, the parties that the possession of lower portion which consists of one bed room, one store and bath room would be handed over to the tenant. After denial by the landlord that no such agreement exists between the parties for handing over the possession of lower portion consisting of one bed room, store and bath room, the burden shifted upon the tenant that any such agreement existed between the parties, no such clause is found mentioned in the rent note executed between the parties. Thus, the finding of the learned lower Appellate Court that learned Rent Controller should have framed an issue and should have given finding and give opportunity of producing evidence on the same. However, counsel for respondent No. 1 had cross-examined AW-1 at length on each and every issue and fact raised in the written reply and this fact that possession of one room, store and bath room was not handed Over to the respondent No. 1 as per agreement was denied by the petitioner and there is no rebuttal of the same from the respondent's side. Thus, the learned Rent Controller was not under obligation to give any finding on the same when no issue was framed or was demanded to be framed from the respondent landlord.
10. The main stress of the case in-fact revolved around the personal need of the landlord in the shape of need of his daughter. From the pleadings of the evidence and cross-examination, it appears that the property in question is owned by the daughter of the landlord. Since she was not in the country, the rent-deed was executed between the petitioner and respondent No. 1 as well as the property was rented out by him, so the ejectment petition was rightly moved by Asmat Ullah Butt - petitioner, father being landlord, seeking ejectment for the personal need of his daughter.
Admittedly, it is not mentioned in the ejectment petition that the landlord or his daughter is, in possession of some other property in the same area. It has also been brought on the record that the daughter of the landlord is in possession of House No. 116,Kashmir Block, Allama lqbal Town, Lahore. The house does not belong to the landlord but the same belongs to father-in-law of the daughter of the petitioner landlord. Khurshid Ahmad Butt is the owner of the said house who is father-in-law of the daughter of the petitioner and she was accommodated by her farther-in-law and was provided to reside in the said house till she gets the possession of her house after decision of the ejectment petition. The other question that the landlord deliberately did not mention the other properties in their possession in the plaint, thus personal need could not be treated bona fidely It is a basic principal question that evidence is to be recorded to be mentioned therein, therefore, landlord needs not to detail that he owns and occupies some other properties in the urban area. All that is required that landlord should plead that he needs property in occupation of certain tenant for his own need and he does not occupy and other property in the same urban area, Suitability of the landlord should be preferred and not of tenant. There is sufficient evidence on the record to show from the petitioner's side that the daughter of the petitioner requires the property for her personal need and occupation as she is residing in a rented house and the property in possession of respondent No. 1 tenant is suitable for her need. The landlord was required to prove that certain property was required by him for his personal need and occupation and that he was not in occupation of any property similar in the same urban area. Various ingredients of bona fide personal need being matter of evidence may be proved at the time of by leading evidence and non-mentioning of the same is not fatal to the ejectment petition The basic law of pleadings is that, evidence could not be mentioned therein therefore, the landlord was not obliged under the law to mention detail of every property that he owns or occupies the same. It is the prerogative of the landlord to select any one of his properties for his own use and neither the learned Rent Controller nor the, learned lower Appellate Court has any right to insist that, he occupy some other property. Here in this case, since the landlord has proved that the property in possession, of respondent No. 1 is required by him for the personal use of his daughter and she is not occupying any property owned by her in the same urban area suitable for her. Presently, she is occupying a rented premises owned by his father-in-law. Since she is owner of this property she wanted to reside in the same and this choice of the landlord for the personal need of his disputed property is very much in accordance with law. Evidence on the, record proved that learned Rent Controller correctly found on the basis of material on the record that landlord needed premises in possession of the tenant for the personal need and occupation of his daughter. The learned lower Appellate Court reversed the order of learned Rent Controller on the ground that though the - words of petitioner-landlord are sufficient to prove his contention and it was essential for learned Rent Controller to discuss the possible objections of the tenant's side and to deliver conclusion as it is the necessary requirement of law. I have gone through ,.The findings of both . The Courts below.
The learned Rent Controller while deciding issue No. 2 in favour of the petitioner observed that the landlord was cross-examined at length by respondent No. 1 - tenant and the lengthy cross- examination shows that all the details came on the record showing that the disputed property is required by the petitioner for personal use of his -daughter. It appears that though the learned Rent Controller has not discussed the evidence in detail but he has gone through the same. I have myself gone through the details cross-examination on AW-1 and due to this cross-examination all the facts that not mentioned in the ejectment petition are stated in the examination-in-chief and during this cross-examination, each and every detail comes forward that the landlord is residing in a different house while his daughter is residing in a different house owned by her father-in: law. The possession of the upper portion of the property in question was given to respondent No. 1 - tenant on rent. The possession of lower portion was never handed over to the tenant during the period of two years nor raised any objection regarding non-delivery of possession or had moved the learned Rent Controller for the possession of the same. In the lengthy cross-examination, all the questions with regard to the same were put to the petitioner landlord and all the questions were cogently replied by the landlord. Nothing has come out from this cross-examination regarding the tenancy showing that the property is not required by landlord or the property in which the landlord or his daughter is residing is sufficient for their personal need or the property in possession of the tenant is not sufficient for the personal need of his daughter. It appears that the learned lower Appellate Court, entered into a argument of non-issue which practice is not proved by the superior Courts. It has been consistently observed and held by the High Court as well as by the Supreme Court of Pakistan that it is only the choice of the landlord and the prerogative of the landlord to seek ejectment of a property claiming the same to the suitable if used and occupation. The respondent No. 1 has failed to cross-examine the petitioner as well as any evidence on the record to show that the property in his possession required by the landlord for the use of landlord of his daughter is not suitable for her need and ejectment is being sought simply with mala fide intention to seek ejectment and to rent out the same or the intention of landlord to get the higher rent from the same property.
11. The other question with regard to the pendency.
Of Miscellaneous application filed by respondent No. 1 or other authorities to be imrieaded as party in the ejectment petition being not decided by the learned Rent Controller was held to be fatal by the learned lower Appellate Court. I am afraid, the findings and the observations of the learned lower Appellate Court on this issue is not in consonance with law laid down by the Superior Courts.
The provisions of C.P.C. Are not applicable to the ejectment proceedings. The learned Rent Controller being a Tribunal can proceed and hold any method or procedure to decide the application pending before it. The application. Filed by Excise and Taxation Department to become party. In the ejectment petition has no bearing on the ejectment side by the landlord for his personal use and occupation. The WAPDA Authorities or the Taxation Department's application to be impleaded, if are not decided, are not going adversely affect the case regarding the relationship of landlord and tenant. The function of the Tribunal is to decide the dispute between the landlord and tenant and nothing beyond that. Thus, the findings of learned lower Appellate Court remanding the case of the learned Rent Controller to decide the case is not approved and the same is set aside.
12. Since, no application was ever moved by respondent No. 1 - tenant to frame any issue besides those already framed, it appears from the lengthy cross-examination that respondent No. 1 was satisfied with the issues already framed and the whole case of the parties is covered by these issues and he was given all possible time for producing the evidence. Thus framing of additional issues OF !Deciding the matter regarding non-mentioning of the premises or non-handing over one bed room, store and bath room to respondent No. 1 tenant will not be fatal in this case. The main issue in this case is that landlord required ejectment of the tenant on the ground of personal need, thus issues of default and damages to the property is not necessary. There is sufficient evidence regarding personal need of landlord and the same is proved and it has been reported from the respondent No .1 side. Thus the learned Trial Court proceeded to accept the ejectment petition and passed the ejectment order against respondent No. 1 to hand over the vacant possession of the same within one month.
13. For the foregoing reasons, this writ petition is accepted , the order of remand dated 11.06.2007 passed by learned lower Appellate Court is set aside and the ejectment order passed by learned Rent Controller is upheld. Respondent No. 1 tenant is directed to hand over the vacant possession of the property, in question, to petitioner-landlord within a period of one month, from the announcement of this judgment. .