1. ' DR. RANA MUHAMMAD SHAMIM, J.--- In this first Rent Appeal, the appellant has assailed the impugned order, dated 25-7-2007 passed by learned Controller of Rents, Clifton Cantonment, Karachi whereby the application under section 17 of the Cantonments Rent Restriction Act, 1963 filed by Syed Naveed Hussain through the respondent was allowed and the appellant was directed to vacate the demised premises within 30 days.
2. ' Brief facts of the case are that Syed Naveed Hussain through his attorney, the respondent, filed the eviction application against the appellant, who is his tenant vide tenancy agreement, dated 11-9- 2007 with the current rate of rent at Rs,51,350, on the sole ground of personal bona fide need, however, subsequently the ground of default was added with the permission of the learned Rent Controller. Syed Naveed Hussain has premised the ground of personal bona fide need by pleading that he is residing abroad and wants to shift Pakistan but due to non-availability of accommodation he requested the appellant first in July, 2005 to vacate the demised premises, who promised to do the needful but subsequently, backed out of his commitment, consequently eviction application was filed. As regards the default Syed Naveed Hussain has alleged that the appellant failed to pay the monthly rent for the months of August, September, and October, 2006 as admitted by him in letter dated 12-11-2006, which was replied to by Syed Naveed Hussain by letter, dated 16-11-2006. The tenancy agreement and the rate of rent are admitted.
3. ' The appellant in his objections/written statement refuted the allegations and stated that Syed Naveed Hussain in July, 2005 visited him and they negotiated for sale of the demised premises however, the negotiations failed on the sale price. Appellant stated that he has never promised to vacate the demised premises and on failure of negotiation for sale of the demised premises, Syed Naveed Hussain had decided to sell the same and therefore, has filed the eviction application. The appellant also refuted the claim of Syed Naveed Hussain that he has no other accommodation. On the ground of default, the appellant has stated that it was practice that Syed Naveed Hussain used to send his representative to collect the rent periodically, after a month or two, however, Syed Naveed Hussain deliberately and wilfully avoided to collect and accept the rent and did not sent his representative on which the appellant made efforts to contact Syed Naveed Hussain and pay rent and since they avoided or refused the appellant dispatched and delivered the uncollected cheques towards the payment of rent at the residence of respondent which were accepted and encashed.
4. ' Learned Rent Controller, on the pleadings of the parties, framed the following issues:-
(1) Whether the demised premises is required by the petitioner for personal use?
(2) Whether the respondent has committed default in payment of monthly rent?
(3) What should the order be?
(4) Whether the ejectment petition is maintainable under the law?
(5) Whether the petitioner has filed this case with mala fide intentions?
(6) Whether the petitioner wants to sell the demised premises after obtaining the order of vacation from this Court?
5. ' Both the parties examined themselves in support of their claim and after close of their side the learned Rent Controller heard the arguments of both the learned counsel and allowed the ejectment application by deciding both the issues of default and personal need in favour of Syed Naveed Hussain vide impugned order.
6. ' Learned counsel for the appellant has contended that the learned Rent Controller has passed the impugned orde'r without considering the evidence available on record; that the ejectment application was not maintainable on the ground of personal need as Syed Naveed Hussain for whose personal need the demised premises is sought is out of country; that the impartiality of learned Rent Controller became doubtful when he rejected the application under section 151, C.P.C.
7. To bring on record the additional documents/information; that the learned Rent Controller has acted illegally by allowing the application for amendment of ejectment application; the learned Rent Controller has failed to consider the fact that Syed Naveed Hussain owns properties .Other than the demised premises; that the learned Rent Controller has failed to consider the inconsistent and contradictory statements made in his evidence; that the learned Rent Controller has failed to consider the provisions of section 4(a)(ii) and (iii) while holding the issue of personal need in favour of Syed Naveed Hussain; that the learned Rent controller has failed to consider the mala fide of Syed Naveed Hussain by not following the agreed practice of receiving the rent from the appellant; that the learned Rent Controller has failed to consider the fact that the alleged payment of rent for three months does not constitute a default as provided under section 17 of the Cantonments Rent Restriction Act. Learned counsel submits that First Rent Appeal has to be heard as a matter of right and without summoning record from the learned Rent Controller cannot be disposed of. He made reliance on a case of Chaudhry Nazir Ahmed v. Mrs. Mariam Salahuddin Khawaja PLD 1994 Lah. 252 and a case of Dr. Abdul Hafeez v. Province of Punjab and others PLD 1991 SC 165. The learned counsel for the appellant submitted that the respondent could not prove his bona fide personal requirement in good faith of the premises in question as he could not produce his passport, termination of his service or contract of business abroad, that his all children are studying abroad and he has another place owned by him to reside.
8. ' Learned counsel for the respondent on the other hand has at the very outset challenged the maintainability of the appeal on the ground that the appeal is filed against the attorney Brig.
9. (Retd.) Javed Hussain who is neither the owner nor had filed the ejectment application as owner/landlord and thus, not a proper party, hence the appeal is not maintainable, the respondent acted as attorney on behalf of the owner of the premises in question and the ejectment application was filed through the said attorney. He thereafter refuted the arguments of the learned counsel for the appellant by stating that there are material contradictions in the deposition of the appellant; the learned Rent Controller has passed the impugned order after carefully examining the evidence produced before the Court; that the appellant has not denied the letter, dated 6-11- 2006 in which he has sent the rent for the three months i,e, August, September and October, 2006, which itself prove late payment of the rent; that the appellant has admitted that he is searching for house but could not succeed. In reply to the argument that the applicant/ respondent in Rent Case No,89 of 2006 himself has not come before the Court to plead his bona fide requirement, learned counsel submitted that the applicant has filed his affidavit-in-evidence who was cross-examined on 17-3-2007 and stated that he needs a premises in question for his personal use and he has no other accommodation to live with his family. He stated during the year 1988 to 1994 he was living with his mother, his father died in 1989. He left Pakistan for Bangladesh in 1994 but earlier also he was living abroad in connection with his business, his mother died in the year 2003, in 1991 his mother's house was sold and she shifted to House No,43-7-H, Block-6, P.E.C.H.S. Which is occupied by three families, legal heirs of the deceased father. He has shifted to Karachi and residing with his two children in the said house in joint family, that his daughter has completed her foundation education from Oxford and now she is in Karachi with him to get her further admission in Karachi meantime she has joined his business being established in Pakistan, that the appellant in the year 2005 promised to him to vacate the premises in January, 2006 after the marriage of appellant's son to be solemnized in November, 2005, that after the expiry of tenancy agreement appellant has been paying monthly rent. Upto July, 2006 as he has promised to vacate the premises.
10. ' I have heard both the learned counsel and perused the material available on record and have carefully examined the evidence brought before the learned Rent Controller. Since both the Advocates have advanced their detailed arguments, I propose to decide this appeal at Katcha Peshi stage.
11. ' As regards first point that the appellant has not filed the appeal against proper party is concerned, the same is proved on the face of it.
12. In the title of the application and impugned order the particulars of the petitioner are mentioned as under:- ' Syed Naveed Hussain, son of Syed Ittat Hussain, Muslim, Adult, through his Attorney Brig. (Retd.)
13. Javed Hussain, son of Syed Ittat Hussain, Muslim, Adult, resident of 7/2/1, Saba Avenue, Phase-V, Extention, Defence Housing Authority, Karachi.
14. ' While in the memo. Of appeal, the appeal has been filed by arraying the following person as respondent:-- ' Brig. (Reid.) Javed Hussain, son of Syed Ittat Hussain Muslim, Adult, residing abroad, through his attorney, resident of 7/2/1, Saba Avenue, Phase-V, Ext. Defence Housing Authority, Karachi.
15. ' In view of the above, there is no ambiguity that the appeal is not filed against the proper party and the same is not maintainable.
16. ' On merit, on the point of personal need I have gone through the evidence of the petitioner and the opponent (appellant in F.R.A.) in Rent Case No,89 of 2006 who during his cross-examination has stated as under:-- ' Whenever I visit Pakistan I use to live with my mother. But that house of my mother has now been sold out.
17. ' My mother's house was sold in 1993 after my father died.
18. ' 43-7-H, Block 6, P.E.C.H.S. Owned my mother where my mother shifted after my father's death.
19. ' The second house is occupied by three families.
20. ' I have three children two boys and one girl. My daughter name is Najda, 20 years old and Omar Hussain is my son of 26 years old and second son Imdad Hussain 18 years old.
21. ' I am living with my other family members in P.E.C.H.S. House where three families are already residing.
22. ' Right now I want to shift in Pakistan and my daughter is to continue her study in Pakistan.
23. ' My present address in Pakistan is 43-7-H, Block-6, P.E.C.H.S., Karachi.
24. ' Right now I am living with my two children and my wife in one room. In July, 2007 my other son will also join me.
25. ' It is incorrect to say that I want to sell the demised premis It is incorrect to say that during my visit to demised premises I did not discuss about my shifting to Pakistan with the tenant. He was clearly told that I need the demised premises. That all was said orally.
26. ' It is incorrect to say that I discussed about selling the demised premises to the tenant Mr. Tariq Omer.
27. ' It is incorrect that since the transaction could not be done therefore, I asked the tenant to vacate the tenement.
28. ' It is incorrect to say that after expiry of the tenancy agreement the tenant did not promise to vacate the premises.
29. ' It is incorrect to suggest that after getting vacation of the demised premises I want to sell the house.
30. ' Rent was paid annually but after his promise to vacate the house he is paying rent monthly...
31. ' The appellant/opponent, cross-examination on 7-6-2007 before the learned Rent Controller by the counsel is also reproduced hereunder:-- ... I see my affidavit-in-evidence it bears my signature and produce it as Exh.R.
32. ' I do not recognize the person present here namely Brig. (R.) Javaid Hussain Khan who is attorney of the applicant in this case.
33. ' I do not know whether Brig. (R.) Javaid Hussain is the attorney of the applicant, however, I had telephonic conversation with him once.
34. ' It is correct that Brig. (R.) Javaid Hussain has filed the instant ejectment petition as attorney of the petitioner.
35. ' It is correct that the house in question is under my occupation since 1997 and used to pay advance yearly rent to begin with.
36. ' I do not remember whether the practice of payment of monthly rent instead of yearly rent from mid 2005.
37. ' It is correct to state that Syed Naveed Hussain the petitioner is residing abroad.
38. ' It is correct to state that no correspondence exchange between the parties i,e, Syed Naveed Hussain and Mr. Tariq Umer had taken place.
39. ' It is correct to state that Syed Naveed Hussain forcibly entered in my house in July, 2005 and introduced himself as the owner of the house and started discussing the matter regarding few persons and vacation of the house.
40. ' It is stated that while replying to the conversation I told the petitioner that at present I have no alternative accommodation however, I will search the house in due course.
41. ' It is correct that marriage ceremony of my son was planned for October, 2005 which was later on called off.
42. ' Thereafter I tried my best to find out suitable accommodation but till date I could not find the suitable house.
43. ' It is correct to state that I am paying monthly rent of Rs,51,240 at present.
44. ' Though I am searching still the suitable accommodation/house I have no sufficient financial resource to pay advance deposit.
45. ' It is correct to state that I have sent the rent of August, September, and October, 2006 to Brig. (R.)
46. Javaid Hussain attorney of the petitioner through cross-cheque in the month of November, 2006.
47. ' I do not remember when the instant case was filed.
48. ' It is correct to state that before sending the cheque to Brig. Javaid Hussain I did not send the amount of rent either through money order or through deposit in the Rent Controller account where this case was pending.
49. ' I have not received any letter in response to about said communication from Brig. (R.) Javaid Hussain.
50. ' I do not remember whether the reply of the above said letter has been filed in this Court along with application for amendment filed on 18-11-2006.
51. ' I do not know whether the family of the petitioner is shifting to Pakistan for permanent residence here.
52. ' It is correct to state that the applicant and his attorney desired vacation of the said house, however, I do not remember whether they had said the house is required for the residence of his own family or not.
53. ' It is correct to state that I am in a state of financial constraint over the past two and half years.
54. ' I do not remember whether the petitioner or his attorney discuss the matter of disposing off the house in dispute or not.
55. ' I cannot make a commitment of time period for vacation of the said house however, I am making my cardinals to find the house...
56. ' From the above it is manifestly clear that the owner of the premises in question i,e, the petitioner in Rent Case No,89 of 2006 before the learned Rent Controller has successfully proved his personal bona fide requirement of the said premises in good faith. The appellant had conceded to vacate the demised promises and for this reason he deposed that he was still in search of good accommodation. Furthermore, the appellant failed to shatter the evidence of the owner of the rented premises with regard to the plea that he has no other accommodation. He has stated in his cross-examination that he used to reside in the house of his mother whenever he visits Pakistan.
57. The appellant has pleaded that the respondent has other accommodations in his name but he failed to bring on record anything whereby it may be proved that the respondent is having any other property in his name except the demised premises.
58. ' In the same way the cross-examination of appellant with regard to default is also very clear. The appellant in his cross has even stated to the extent that he does not remember whether the practice of payment of monthly rent instead of yearly rent from mid 2005. He has admitted that he has sent the rent of August, September and October, 2006 to the respondent through cross cheque in the month of November, 2006 in spite of the fact that he appeared in the said rent case before the learned Rent Controller on 27-9-2006 and sought adjournment and not paid the rent to the owner and sent the cheque which was received on 12-11-2006 hence wilfully committed default in payment of rent. He has also admitted that he has not tendered the monthly rent through money order on avoidance of the respondent. It is settled principle of law that in case the landlord refuses or avoids the receipt of the monthly rent, the tenant has to tender the monthly rent through money order, which in the instant case appellant has failed. So also it is settled principle as held by the Superior Courts that it is the duty of the tenant to the pay the rent to the landlord and not the duty of the landlord to go to tenant to receive the rent.
59. ' As regards the summoning of record from the learned Rent Controller the learned Advocates for the parties have filed all the relevant documents i,e, certified copies of memo. Of plaint of rent case, Annexure thereto, written statement, affidavit-in-evidence and cross-examinations of the respective parties, general power of attorney, Tenancy Agreement, dated 11-9-1997, application under section 151, C.P.C. Dated 17-9-2006 for amendment in main application, counter-affidavit and order passed on said application under section 151, C.P.C., amended application under section 17(2) and (4) of the Cantonments Rent Restriction Act, 1963 (XI of 1963), objections/written statement on amended application, application for amendment of issues and order, dated 10-2- 2007 passed, miscellaneous application for adjournment and order passed thereon, written arguments along with Annexure on behalf of both the parties (in Rent Case No,89 of 2006). All the above documents/record of Rent Case No,89 of 2006 is available in case file and as such there is no need to call for the record.
60. ' I am guided by the judgment in cases of Jahangir Rustam Kakalia v. Messrs Hashwani Sales and Services (Pvt.) Ltd. 2002 SCMR 241, Mehdi Nisar Rizvi v. Muhammad Usman Siddiqui 2000 SCMR 13, Shaikh. Anjum Iqbal v. Sher Afgan 2005 SCMR 1200 and Muhammad Bashir v. Sakhawat Hussain 1991 SCMR 846.
61. ' In case of Shaikh Anjum Iqbal (supra) the Honourable apex Court was pleased to hold that, if the impugned judgment is in consonance with material brought on record and clearly establish the plea of personal bona fide need of the landlord and default committed by the tenant by an irrefutable evidence, the interference in it is not warranted. In case of Muhammad Bashir (supra) the apex Court has held that if the landlord did not contravene the provisions of law, which allows him relief, then it was not open to the tenant, or even for the matter to the Court, to make comments as to what landlord should do or should not do. In a case of Jahangir Rustam Kakalia (supra) no unreasonable restrictions on use of his property can be placed on exercise of right by landlord which would offend the fundamental rights guaranteed under Article 233 of Constitution.
62. In case of Mehdi Nasir Rizvi (supra) when no circumstance was available on record to show to desire of landlord to use his own property was fainted with malice or any evil design and landlord statement on oath had not been seriously challenged same being consistent with the case pleaded by him must have been accepted on its face value and be given due weight. It is further held by the apex Court that the landlord had the absolute right to acquire and deal with his property in the manner best suited to him and the tenant had no right to disentitle the landlord of his valuable right to acquire, deal and possess his property which right has protected by the Constitution.
63. ' In view of the above facts on record and case-laws as discussed above, present case is not a case of misreading, non-residing or misappreciation of the evidence and the impugned judgment is in consonance with material brought on record and no interference is warranted. This appeal is accordingly dismissed and impugned order of C learned Rent Controller is maintained. In view of the old tenancy the appellant is allowed 60 days to hand over vacant and physical possession " of the demised premises to the landlord subject to payment of usual monthly rent, utility bills etc. Failing which writ of ejectment be issued without any prior notice.