SYED ASGHAR HAIDER, J. --- These remand proceedings have been initiated pursuant to the order of the Apex Court passed in Constitution Petition No. 1599-L of 2007, with the direction that:- "consequently the impugned order is set aside and the case is remanded to the High Court for decision afresh expeditiously after taking into consideration the evidence and the record available on file."
2. The backdrop of the controversy is that a residential House, bearing No. 13/100, situated at 100 Saint John Park, Lahore, was rented by the respondent's predecessor Mst. Naseema Warsi to Mian Muhammad Latif; the present appellant, on rent, which presently is Rs. 22,000/- per month. The landlady filed an ejectment petition before the Rent Controller pleading the grounds of default in payment of rent, personal bona fide of the premises in good faith for her occupation as well as for occupation of her daughter Mst. Bismaq Warsi, who is doctor by profession, it also was alleged that the house was damaged by the tenant, he also has raised construction without approval and consent of the landlady, has created nuisance and disturbed the peace of locality. The appellant was served, the filed written reply and denied all the assertions. But accepted the relationship of landlord and tenant. The Rent Controller thereafter passed order under Section 17(8) of the Cantonment Rent Restriction Act, 1963, directing the tenant to deposit monthly rent before the 5th day of each calendar month vide order dated 13.9.2001 and framed the following issues:--
(1) Whether the petitioner requires rented premises in good faith for her on occupation and for her doughter namely Mrs. Dr. Bisma? OPP.
(2) Whether the respondent is a willful defaulter not making the payment of Rs. 30,420/- till 27,10.2001?
(3) Whether the respondent has damaged the house by breaking the main gate of the house and also carried out new construction of house without any approval or consent of the petitioner? OPP.
(4) Whether the respondent has created nuisance and disturbed the peace of locality? OPP.
(5) Whether the petition is male fide and without any cause of action? OPR
(6) Whether the approach of the petitioner is with unclean hands and as such she is not entitled to any relief? OPR. !(7) Relief.
4. It is interesting to note that order for deposit of rent was not complied with by the tenant (appellant) and he failed to deposit the rent for the month of September, 2002, by the stipulated date (5.10.2002), but deposited it on 19.10.2002.
5. The respondent/landlady filed an application under Section 17(9) of the Cantonment Rent Restriction Act, 1963, praying that the defence of the tenant/appellant be struck of, a reply to this application was filed, but the same was dismissed. Aggrieved thereof F.A.O. No. 170 of 2003, was filed in this Court, but was withdrawn.
6. The parties tendered their evidence through affidavits. On behalf of the respondent/landlady PW-1 Mirza Shamshad Baig appeared as witness and Mst. Naseema Warsi herself appeared as PW-2, (documentary evidence, i.e. Site plan Exh.P-2 and letters written by the landlady Exh.P-3 and 4 were also produced) they were subjected to a letthy cross-examination. Thereafter the appellant/respondent also tendered through affidavits the evidence of Mian Muhammad Latif, RW- 1, Qamar Din, RW2, Sameer Ahmad Latif, RW-3 and Muhammad Naeem, RW4. The Rent Controller answered all the issues in the negative except Issue No. 1 wherein he accepted the personal bona fide need of the landlady/respondent and granted the ejectment petition as prayed for. Aggrieved thereof the appellant/tenant filed F.A.O. No. 194 of 2007, it was admitted to regular hearing on 23.7.2007 and record was summoned. The proceedings were adjourned to 8.8.2007, but the appellant prayed for adjournment and the proceedings were adjourned to 10.9.2007, on this date none appeared for the appellant and consequently the appeal was dismissed for non-prosecution.
The counsel for the appellant filed C.Ms. Nos. 693 and 694 of 2007, inter alia, praying for restoration of the appeal, they were allowed and the appeal was restored to its original number. Thereafter counsel for the parties addressed arguments, the appeal was dismissed, which judgment was assailed before the Apex Court and allowed pursuant thereto the proceedings were remanded to this Court, as stated above, for decision afresh after perusing the evidence and record available.
7. Learned counsel for the appellant contended that the landlord does not have unfettered and unbridled power to seek eviction of the tenant, the parameters of this context have been clearly stipulated in the statute and complete adherence to the enactment is required, the landlord no doubt has the prerogative to choose the premises of his on choice for his residence and occupation, but he has to establish bona fide need by.Cogent and reliable evidence. Learned counsel also dilated on the fact the the landlady was bound under the law to make complete disclosure of all properties she owned in the same vicinity, which could be used for similar purpose and in case the same were not disclosed then it was fatal to her cause. In the present matter there is un-controvertable evidence that the respondent owns 16 properties in the vicinity, of which the one she is occupying is best suited for her needs, but it, was not disclosed in the contents of the ejectment petition. The Tribunal has not adverted to the evidence led by the parties in the order under challenge, therefore, this ground alone is sufficient to set aside the finding on Issue No. 1. He also stated that during the course of these proceedings one of the properties, owned by the landlady, was rented out, this further fortifies the fact that the ejectment petition was mala fide, further Naseema Warsi, the original landlady and author of the agreement governing the relationship of the parties, expired during the pendency of these proceedings, therefore, there is absolutely now no personal bona fide need for the landlady to seek ejectment of the appellant.
Lastly the reasons stated in the cross-examination that Bismil. Warsi is a doctor by profession and needs the disputed property for her on personal bona fide need to open up a clinic is not supported. By any evidence, she is a non-practising doctor, therefore, the reason cited is not true.
The learned counsel relied on the following precedents:---
(i) Dr. A.R. Khan v. Muhammad lshaque (1972.
SCMR 437).
Allies Book Corporation through L.Rs. v. Sultan Ahmad and others (2006 SCM R 152).
(i.e) Syed Rashid H.Ussain and two others v.
Hussain Haji Ahmad (PLJ 1973 Karachi 37).
8. Learned counsel for the respondents/landlady stated that the grounds of the ejectment petition are clear, 'elaborate and unambiguous, the demand for ejectment of the tenant was raised primarily on the ground of willful default, use of the disputed premises for personal occupation for herself and for her daughter Dr. Bisma Warsi, the house was damaged and construction was raised without approval, all these grounds constituted a grave illegality and are squarely covered by the parameters enumerated in Section 17 of the Cantonment Rent Restriction Act, 1963. To prove these grounds the learned counsel stated that the landlady appeared herself in the witness-box, made affirmative statement and thereby discharged onus. She withstood the test of cross-examination and in fact was a so truthful witness that she did not conceal any fact from the Tribunal and even admitted that Warsi Estate comprises 16 bungalows, but than gave the break up of the estate and clearly stated that 12 of the stated bungalows have been sold, one is of her sister and the remaining three are with her, of which one is empty and also stated that she could not sell bungalow No. 3 because the same belongs to her sister. She also stated in categorical terms that she requires the disputed premisesfor her on personal bona fide need and that of her daughter and in fact elaborated the same in cross-examination.
9. As far as 'non-disclosure of other properties belonging to the landlady located in the vicinity is concerned, it neither is a requirement of the statute nor of law, nor is it also necessary, it also is not fatal' to the cause of the landlady. He also pointed out glaring anomalies of the witnesses produced by the appellant/tenant and highlighted the fact that even they conceded that Bisma Wasri is a doctor and that affidavits were prepared by the counsel of the tenant or his clerk and thus the same are not their on affirmations. He also elaborated on the fact that the Rent Controller is the sole judge of the personal bona fide need of the landlord and in this context adverted so Section 17(6) to address any apprehension on the part of the tenant that in case the landlord has made a misstatement before the Tribunal, it has powers to restore possession to the tenant. In view of this safeguard no further requirement for grant of ejectment petition is required. He also stated that the Appellate Court under Section .24(3) of the Act is just required to peruse the record of the case, give the parties an opportunity of hearing and if thereafter it feels necessary then conduct an Inquiry itself or may remand the matter to the Tribunal to decide the matter. The direction of Apex Court is limited and' therefore, the objection raided by' the learned counsel for the appellant are not tenable. To fortify his contention learned counsel relied on the following precedents :---
(i) S.M. Noor-ud-Din and 9 others v. Saga Printers (1998 S.C.M.R. 2119).
(ii) Muhammad Din v. Nazi/. Ahmad (1982 C.L.C. 1737).
(i.e) Muhammad lhsan v. Muhammad Hafeez (1993 Law Notes 1177).
(iv) Nasrullah Jan v. Mst. Farzana Begum and 6 others (2002 C.L.C. 1523).
(v) Farooq lmran v. Mst. Hafeez Munir through Special Attorney (2006 Y.L.R. 2723).
Malik Muhammad Zakria Kansi' v. Dr. Bashir Ahmad (P.L.D. 2001 Quetta 40).
10. Heard. Record perused.
11. The most important and vital evidence on record on behalf of the respondent/landlady is her affidavit, in paragraph No. 5 and "Ground B" she has categorically stated that she requires the premises for her on personal use and for her daughter Bisma Warsi. It was communicated to the tenant/appellant, Exh.P-3 affirms this, position further, wherein an unequivocal request has been raised by her that she requires the premises for her on personal use. In EXh.P.4 reference has been made to the dilapidated condition of the house but again a request has been made for eviction.
According to the learned counsel for the appellant all the three stances are different, contradictory and self-destructive. As far as this argument its concerned suffice is to say that in the pleadings the ground for personal need has been elaborated and unambiguously highlighted, it has been stated categorically that the same is required by the landlady/respondent for her on occupation and occupation of her daughter Bisma Warsi. This stance is clearly affirmed in Exh.P-3 as a demand for her personal need has been clearly elaborated. There is deviation in Exh.P-4 as demand for eviction has been made pleading dilapidated condition of the house, but is this anomaly alone sufficient to snatch from the landlady her right to use property of her choice, the answer is no, as it is evident in the evidence produced by the parties that the petitioner was a lady of advanced age. Obviously not acquainted with the finer technicalities and law but it clearly reflected her mind frame that she requires the premises for her on use, further during cross- examination she vouched every word of the petition and elaborated and dilated upon her need in a very detailed and clean manner, she categorically stated that she requires the premises for personal bona fide use of her daughter who has since married and intends to set up a clinic and the disputed premises are most suitable for this purpose. Personal bona fide need of the landlord and an affirmative statement coupled with the test of cross-examination is sufficient for the purpose of discharging onus by the landlord in this respect. In the present proceedings on the touchstone and benchmark of this principle the landlady who appeared as PW-2 clearly and unequivocally stated that the property most suitable for the need of her daughter to establish a clinic is the one which is occupied by the present appellant, it is the prerogative of the landlord to choose the property of his choice and he/she is the best judge of his needs, she therefore, succeeded on this principle. A tenant cannot impose his will and desire on the landlord in this context, a very heavy burden lay on the tenant to disprove this need, there is no convincing evidence on record produced by the tenant, the witnesses were either interested in his cause or not acquainted with landlady's need, therefore, they could not judge her choice. The law on the subject is also clear. Reference:- (i)S.M. Noor-ud-Din and 9 others v. Saga Printers (1998 S.C.M.R. 2119).
(ii) Malik Muhammad Ramzan v. M/s. General Iron Stores and another (1995 S.C.M.R. 1125).
(i.e) Abdul Aziz and another.v. Muhammad Ibrahim (P.L.D. 1977 S.C. 442).
12. Now adverting to the question of nondisclosure of the other properties owned by the landlady in her petition. It neither is necessary nor required, there is no such requirement in Section 17 of the Act, it also now has so been interpreted, therefore, on this ground also the appellant has no cause or case, thus, the objection is repelled. Reference:-
(i) Gohar Rashid v. Fazal Hassan Mazhar (P.L.D. 1995 Lahore 469).
(ii) Haji Mohibullah & Co. And others v. Khawaja Baha-ud-Din (1990 S.C.M.R. 1070).
13. The next objection raised by the learned counsel for the appellant that the Rent Controller has not appraised evidence properly and likewise is the case by this Court. The evidence reflects that the respondent appeared as a witness herself and also produced PW.1 Seven issues were framed, Issue No. 1 was the main issue, it pertained to the evidence of the tenant, from the pleadings of the parties it is clear that the primary consideration which prevailed with the Rent Controller to allow the petition was the requirement of Bisma Warsi for the purpose of running a clinic. No doubt detailed reference has not been made to the evidence produced by the respective parties, but law only requires the Rent Controller to hold an inquiry into the matter and peruse the material available on record. The Rent Controller arrived at this conclusion after hearing counsel for the parties, it is clear that the counsel would have certainly referred to the material evidence produced by the parties in their favour and the faults and contradictions in evidence of their rival. Further the parties were provided opportunity,to file written arguments, the arguments tendered by the tenant clearly indicate that no material contradiction qua the witnesses was referred to in detail, the evidence produced has been discussed in mere general form, but one thing which transpired from record and the written arguments is clear that the respondent/landlady expressed her clear desire to have the disputed house vacated for the reason that it is best suited for the need of Dr. Bisma Warsi to establish her clinic. This fact has been impliedly accepted even by the witnesses of the appellant/tenant. But pursuant to the directions of the Apex Court 1 have very minutely examined the entire evidence produced by the. Parties and also read the written arguments tendered before the Rent Controller. It is.Clear and apparent that the landlady clearly withstood the test of cross- examination very well and stated her need clearly, unequivocally and very plainly that most suitable place for establishing the clinic is the disputed property. The evidence produced by the appellant/tenant on the contrary is full of glaring anomalies and contradictions, the affidavits furnished are not in the spirit and requirement of law. RW.1 candidly admitted that the affidavit was given on the instructions of the counsel for the appellant, RW.2 Qamar Din stated that the affidavit was written by the Clerk of the counsel, RW.3 also stated a similar case, he did not even remember the name of the local commissioner, RW.4 stated that the affidavit was furnished by him on the asking of the appellant/tenant and was furnished also in presence of the son of the tenant/appellant. It also is quite interesting to note that when the landlady made an application alleging default for non-compliance with the terms of the order of the Rent Controller an unequivocal and clear 'declaration was made by the appellant/RW.1 himself thathe is the only person who has knowledge of these proceedings and pleaded this ground seeking condonation of delay in depositing rent. However, his son RW.3 clearly admitted that he is prosecuting the cause in the Tribunal, this misstatement on part of RW.1 and 3 alone is sufficient to disbelieve their testimony as it clearly indicates that the purpose of litigation is to protract and prolong the proceedings. In these circumstances no credence can be given to the testimony and independence of these witnesses. They clearly are biased towards their cause, the other witnesses of the tenant/appellant not are independent because they furnished the affidavits on his instructions.Order XIX of the Code of Civil Procedure deals with the affidavits and Rule 3 makes it incumbent, ,mandatory and essential that the ,affidavits are required to be confined to such facts as the deponent is able to his on knowledge to prove, the affidavit, referred to above, tendered by the appellant/tenant and his witnesses, on the touchstone of this requirement do not carry any weight and help the cause of the appellant/tenant, therefore, they cannot be termed legal and credible. Allies Book Corporation through L.Rs. v. Sultan Ahmad and others (2006 S.C.M.R. 152). Hence is of no help to his cause.
Further they divulged nothing substantial qua the personal need of the respondent or otherwise, there are merely vague and bald assertions that the landlady did not require the premises for her on personal bona fide use: As compared to his evidence, the landlady as PW.2 in her cross- examination clearly established her cause' and bona fide personal need.
14. The next contention of the learned counsel that the during the course of these proceedings Nasima Warsi expired, therefore, if there was any need qua these premises the same ended with her death is also misconceived, as there is a "clear assertion in the petition that the requirement, was both for herself and her daughter and the reason to this effect was got elaborated by the appellant's counsel himself while conducting detailed cross-examination on Nasima Warsi. 15.
Before parting with this judgment it is necessary to dilate on a very important aspect that the parties tendered their written arguments. A specific assertion was made that a direction was issued by the Rent Controller to the tenant to deposit the rent on or, before the 5th day of each commencing month as contemplated by Section 17-A of the Cantonment Rent Restriction Act, 1963, but the direction for the month of September, 2002, was not complied, the rent was, deposited on the 19th October, 2002, and thus an application under Section 17-A was filed pleading that right of defence of the tenant be struck of, the application was contested by the tenant/appellant but the Rent Controller condoned the delay. An appeal was filed in this Court which later was withdrawn.
The question that arises now is whether this default could be condoned by the Rent Controller or not. Section 17(9) clearly stipulates that any default in this context is to be visited with penalty, when the tenant himself admitted it. This itself was a sufficient ground to strike of the defence of the tenant/appellant, as the proposition has been interpreted by the Apex Court clearly.
Reference:---
(i) Messrs Ansari Brothers v. Holy Trinity Church Trust (P.L.D. 1971 S.C. 700).
(ii) M. Nazir v. S. Shaukat Ali (1982 S.C.M.R. 985).
(i.e) Safer Travels (Pvt.) Ltd. v. Muhammad Khalid Shafi (deceased) through L.Rs. (P.L.J. 2007 S.C.
1067).
Therefore, on this ground alone the ejectment petition should have been granted, if it was not so done, but can cognizance of. Same now be taken. The answer yes, as this Court is empowered to pass any order in this context. Section 24 of the Act does empower this Court to exercise such powers, as they are parallel to Section 96 of the Code of Civil Procedure, and this Court exercises the same powers as are available to the Trial Court under Section 107, C.P.C. I am fortified in this context by Samiullah v. Mian Muhammad Salim, District Judge, Rawalpindi and others (P.L.D. 1966 Lahore 572), as referred to in the precedent (supra) this Court has enabling powers to correct any illegality in law, therefore, this finding is reversed.
16. Lastly the learned counsel emphatiOally referred to Dr. A.R. Khan v. Muhammad Ishaque (1972 S.C.M.R. 473) to plead that a heavy burden is cast upon a landlord to prove his personal bona fide need and the provisions of Section 17(4) are a check upon the landlord. The precedent referred to does not in any manner impede the powers of the landlord to seek ejectment of the tenant, he only is required to prove his personal need. In the present circumstances it was adequately so done by the landlady. More-so when the evidence produced to controvert the assertions was not upto the mark, therefore, the precedent is distinguishable on the present available evidence on record.
Record of the lower Court be returned.
F.A.O. Dismissed.