' MAULVI ANWARUL HAQ, J.--- On 3-1-2006 the respondent filed an application for the ejectment of the appellant from a house located in Rawalpindi Cantonment. It was stated that the respondent is the owner of the said house and the appellant entered the same as a tenant under the agreement dated 5-5-2003 subject to payment of Rs,4,000 per month as rent. The ejectment was sought on the ground of bona fide personal requirement and also default in payment of rent at the enhanced rate since July, 2005. The appellant filed a written statement who admitted that the respondent is the owner and he is the tenant in terms of the said agreement under him. He, however, denied having committed any default and also denied that the house is required for bona fide personal use and occupation of the respondent. Following issues were framed by the learned Rent Controller:-
(1) Whether the respondent is a wilful defaulter and did not tender or pay the enhanced rent since July 2005? OPP
(2) Whether the petitioner requires the suit house for his own personal use and occupation ? OPP.
(3) Whether the ejectment petition is not maintainable in view of the preliminary objection raised by the respondent in his written reply? OPR
(4) Relief.
' Evidence of the parties was recorded. The learned Rent Controller found that the appellant has not committed default in the payment of rent. He, however, answered Issue No,2 in favour of the respondent holding that he does require the house for his personal use and occupation bona fide.
The application was allowed and an ejectment order was passed on 16-4-2007.
2. Learned counsel for the appellant contends with reference to some portions of the cross- examination of the respondent as P.W.-1 that since he was not owner of the house, he could not claim the ejectment of the appellant on the said ground. Relies on the case of Muhammad Kashif Kamal Siddiqui v. Mirza Farooq Baig 1990 M LD 1009. Learned counsel for the respondent, on the other hand, contends that the facts of the said judgment are quite distinct and in the present case, there is no denial that the respondent delivered possession to the appellant under the said agreement as a tenant representing himself to be the owner of the house. In fact, the specific averment was admitted by the appellant.
3. I have gone though the records of the learned trial Court, with the assistance of the learned counsel for the parties. So far as the merits of the issue No,2 are concerned, it has come on record that the tenancy agreement has expired and that the respondent is not in possession of any house owned by him in the Rawalpindi Cantonment suitable for his needs.
4. Coming to the said contention of the learned counsel, it was stated in the ejectment petition that the respondent is the owner of the house and let out the same to the appellant on terms contained in agreement Ex.P.4 which facts were admitted by the appellant. It is true that in the course of his cross-examination, it was first suggested to the respondent and he admitted that he is paying the taxes in respect of the suit property but he clarified that the receipts are in the name of old owner.
He then stated in response to a question that the house is in the name of a lady Moeeza Naheed wife of Waseem Shah. It is in her name but he has a power of attorney. He then admitted that he has incorrectly stated that he is the owner of the house. The cross-examiner did not stop and ultimately the respondent volunteered that he is the actual owner but in the papers the name of the said lady continues. He denied a suggestion that he was not the owner of the suit house. This statement was recorded on 1-7-2006. The statement of the appellant was recorded on 30-11-2006.
His examination-in-chief is in the form of an affidavit Exh.R.1. In this affidavit, there is no denial that the respondent is the owner of the house. It has been admitted that the house was let out to the appellant by the respondent under a written agreement. In his cross-examination, he admitted agreement Exh.P.4. It has been executed by the appellant and narrates that he has obtained the house on rent from the respondent, namely, Arshad Pervaiz who is the owner of the house. He further confirmed that he had acknowledged that Arshad Pervaiz respondent is the owner and he is the tenant and that there was no mention of anyone else being the owner.
5. In view of the said pleadings and evidence on record, I do agree with the learned counsel for the respondent that the judgment in the case of Muhammad Kashif Kamal Siddiqui is not at all attracted. Their lordships have narrated the entire history of the case in the said judgment. What happened was that, in the first instance, the tenant in the said case specifically pleaded in his written reply (reproduced at page 1012 of the report) that father of the said Muhammad Kashif was the owner of the premises and he had filed an ejectment petition against the said tenant. The matter went up-to the Honourable Supreme Court where the appeal of the said father of Muhammad Kashif was dismissed on 9-5-1982. It was on 10-1-1984 that Muhammad Kashif filed the ejectment petition for the same premises against the same tenant. It was in the said background that the said findings were recorded which are being relied upon by the learned counsel. The facts are clearly distinguishable. No other point has been urged. The F.A.O. Is dismissed. However, the appellant is directed to hand over vacant possession of the house in question to the respondent on or before 31-8-2008. In case he fails to do so, the respondent shall be entitled to execute the ejectment order. No orders as to costs.
6. The records of the learned Rent Controller be remitted back immediately.