' DR. SAJID QURESHI, J.---Brief facts are that the respondent No,1 is owner of Shop No,3-B Block No,12-C, Jinnah Super Market Markaz F-7, Islamabad, and the petitioner is a tenant vide agreement, dated 1-9-2002 for 11 months commencing from the said date at a rate of Rs,11,880 monthly rent; that on 9-9-2003 respondent No,1 moved an application for eviction of the petitioner from the shop which had been preferred by the respondent No,2 (learned Rent Controller) contending that the demised premises had been rented out on 1-9-2002 for a period of 11 months @ Rs,11,880 per month. This time period has expired on 31-7-2003 and no further agreement was signed or executed. The petitioner was asked to vacate the suit shop but did not vacate it neither did he allegedly pay any rent since August, 2003 to October, 2003. The rented shop was required for personal bona fide use of the respondent in a shape of a business. That on conclusion of proceedings of the Rent Controller vide order, dated 30-7-2004, the respondent No,2's eviction of petitioner, was accepted and ordered. That on 11-8-2004 the petitioner filed an appeal which after formal proceedings came to be heard by respondent No,3 (Addl. District Judge). That vide judgment and decree, dated 20-10-2004 of the Addl. District Judge, Islamabad, the petitioner's appeal was dismissed, the petitioner was again directed to vacate the premises within a period of two months from 20-10-2004. Being aggrieved by this, the petitioner invoked jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan.
2. The learned counsel for the petitioner stated that he was a tenant under respondent No,1 and that an application was moved for eviction of the petitioner from the shop that the petitioner had not paid the rent from 1-8-2003 onward. The learned counsel argued that the shop was required for personal use by respondent No,1 and did agree that the period of agreement had expired. That the petitioner had resisted the eviction and he had offered the rent for the month of August, 2003 which was not accepted. While undergoing legal proceedings, the trial Court ordered the petitioner to deposit rent from August, 2003 to December, 2003 and for "every subsequent month. The petitioner had appeared as a witness and had produced the receipts of payments as rent and the evidence was closed. However, on the conclusion of the proceedings of the learned Rent Controller, vide judgment, dated 30-7-2004 had ordered eviction of the petitioner. The learned counsel pointed out while examining the said judgment, issues Nos.1 and 3 were in favour of the petitioner holding that there was no default and that the respondent No,1 had only stated that the rented shop was required. However, the terms, personal bona fide needs were not mentioned along with the purpose for which the rented shop was required. He pointed out most vehemently that in the cross-examination the applicant had admitted his ejectment petition he had not mentioned the purpose for personal use per se. This issue was decided against the respondent. The learned counsel further stated that on 11-8-2004 the petitioner filed an appeal which after formal proceedings came to be heard by the learned Addl. District Judge, Islamabad; that the respondent had moved cross objection on 18-9-2004; he moved for amendment in memo of cross objection on 21-9-2004 and petitioner has opposed both these applications by filing a reply. This aspect has been omitted by the learned Rent Controller. That vide judgment and decree, dated 20-10-2004, the learned Addl. District Judge, Islamabad had dismissed the appeal of the petitioner and cross objections had been accepted and the petitioner was directed to vacate the premises within a period of two months from 20-10-2004. The learned counsel had stated that the learned Addl.
District Judge, Islamabad had no jurisdiction to entertain cross objections, dated 18-9-2004. In continuation, the impugned judgment of the learned Rent Controller should be struck down on the sole ground that the application, dated 21-9-2004 remained un-decided. Further, the learned Rent Controller had fallen in error in that the petitioner was defaulter but this was not so and that the amount of Rs,28,000, was lying with the respondent, hence there could be no default. The issue of remittance of rent and its refusal by the respondent was established by evidence on record and endorsements were not formally proved. The learned counsel stated with vigour that the personal need of respondent was not proven and the evidence had not been appreciated in the right context. Having made general comments the learned counsel relied on several citations regarding bona fide or personal use, relying on PLD 2000 Supreme Court 829 (Sardar Nabeel Wali v. ADJ), in which the bona fide personal need of the landlord is a burden of proof. Relying on PLD 1975 Lah. 308 (Muhammad Siddique v. Mistri Muhammad Aslam), it was held that in the requirement of personal use or good faith the landlord is required to proof that he has to make a statement with regard to the factual position as it stands. If the landlord wishes to require the premises in good faith, the term mere "wish" is not good enough and the landlord has to prove his requirement in good faith, relying on PLD 1985 Karachi 639 (Mst. Farrukh Nisa v. Safdar Ahmad). Again on the same point, PLD 1985 Karachi 624 (Sultan Press Ltd. v. Muhammad Hassan), also in 2000 CLC 764 (Ghulam Muhammad Khan v. Muhammad Khalid) and 1991 CLC 1421 (Ghulam Rasool v. Muhammad Sharif).
The learned counsel stated that equitable and just principles should be invoked and be taken advantage of in the ejectment proceedings, which were not done so by the lower Courts relying on 1991 CLC 1967 (Muhammad Ibrahim v. Zeenat Bibi). As far as the documentary evidence was concerned the learned counsel stated that the courts had erred in law and have not taken the documentary evidence into account relying on 1991 CLC 1414 (Muhammad Yousaf v. ADJ) and 1988 MLD 641 (Punjab Province v. Rent Controller). Finally, the learned counsel stated that the orders of the lower Courts are without jurisdiction and should be dismissed accordingly and this writ petition be allowed.
3. The learned counsel for the respondent vehemently and aggressively argued that the lower Courts were correct in their decision in that there had been a default in non-payment of rent from August, 2003 to December, 2003; that the tenancy had expired on 31-7-2003 and the landlord had bona fide and personal need for the suit shop. The learned counsel stated that as far as the learned Rent Controller was concerned, she had established the above points in that the petitioner had provided any receipt of money which he had been allegedly sending to the respondent and in the cross-examination he had admitted that he had not paid the rent from July, 2003 till the filing of the petitioner. The learned counsel further contended that the agreement was presented before the learned Rent Controller which stated clearly that the period started from 1-9-2002 till 31-7-2003 and that there was no further lease agreement presently in existence. Clearly under section 6 of the Islamabad Rent Restriction Ordinance, 2001, any tenancy after the period of agreement has expired will become invalid and therefore under section 6 the petitioner is liable to be evicted from the suit shop. As far as the security aspect is concerned which was pointed out during the cross- examination before the lower Court, the counsel stated that the security element was not relevant and could not be held to absolve the rent liability of the petitioner, he relied on 2003 SCMR 1580 (Khadim Hussain v. Nisar Ahmad) and 1991 SCMR 1982 (Saeed Muhammad Zaman v. Abdul Khaliq).
The learned counsel argued that as far as the personal or bona fide issues are concerned there is a plethora of case-law which supports the contention that good faith may not be equated with personal use. Before he argued this he mentioned that in the Sindh Rented Premises (Amendment)
Ordinance, 1984, there is a provision that simply personal use is acceptable. As to the case-law of the personal or bona fide use he relied on 1995 MLD 1054 (Chartered Bank v. Shirin Bai Sajjan), 2008 YLR 1801 Messrs Alam Educational Society v. Jameela), 1998 MLD 1765 (Messrs HBL v. Naseer Ahmad), in which it was held that a shop for personal bona fide need may be established by the landlord, this was enough, in PLD 2004 Peshawar 62 (Manzoor Elahi v. Suriya Jabeen), in which the term personal use is not essential, neither is nature of business in establishing the need to establish a business. Again in PLD 2002 Lahore 227 (Raja Javed Kiyani v. Muhammad Iqbal), in which it was held that personal use is acceptable even if there are other properties available to the landlord.
The landlord can choose to have any of his premises vacated if there is an element of honest purpose and reasonableness relying on 2004 MLD 599 (Fakhur ud Din v. Mst. Salma). The fact that the term bona fide was omitted is a mere technicality especially when it was stated in the ejectment petition, the such omission should not adversely affect the right of the landlord, the counsel relied on 1985 SCMR 529 (Ahmad Din v. Din Muhammad). Finally, on the point of bona fide and personal use the counsel relied on 1982 SCMR 544 (Ghulam Muhammad v. Mst. Fatima Bibi) and 1998 SCMR 2119 (Noor ud Din v. Saga Printers). As far as the term good faith is concerned it implies that the demand of a possession of the rented premises must be honestly made. The learned counsel stated that evidence was closed before the learned Rent Controller and that no evidence or documentary proof was given as to rent paid. He relied on 1991 SCMR 1775 (Bata Shoe Co. v. Muhammad Arshad Siddiqui). As regarding the increase in rent which was alleged during the cross-examination, the petitioner relied on 2000 SCMR 207 (Muhammad Irfan v. Muhammad Zahid Hussain Anjum) in which it was held that increase of rent is acceptable upon the expiry of the rent due lease period. As far as the aspect of cross objections is concerned, the learned counsel stated that an ejectment decree passed by the learned Rent Controller can be made and can be supported without filing cross objections by transversing any ground which the learned Rent Controller may have found against the landlord. He relied on PLJ 1975 Karachi 283 (Yousaf and Co. v. Rasheeda Begum), also relying on the same point in 1981 CLC 903 (Vidayabai v. Mooranjamal), the learned counsel further contended that the tenant has to prove a payment of rent if it is not done so then it is a default relying on 2000 MLD 382 (Abdul Qadeer v. Haji Muhammad Ismail), 2004 MLD 467 (Rozie Almedie v. Asif Ali) and 2000 MLD 186 (Ghulam Nabi v. T. Ismail). Finally, as regarding the non-payment of rent; the learned counsel relied on 2008 YLR 1762 (Haseena Sheikh v. Sikandar Hayat), which supported his contention.
4. Arguments heard at length, record perused and case-law examined.
5. The case revolves around three issues firstly whether the rent was paid in August, 2003 to December, 2003, whether the tenancy expired on 31-7-2003 and whether there was bona fide personal basis for seeking possession of the suit shop by the landlord?
6. As far as the first aspect is concerned, the petitioner had not provided any receipt of money during the evidence stage and the respondent had admitted in his cross-examination that the rent from July, 2003 onwards had not been paid or received, through money order. The learned Rent Controller very clearly placed emphasis on this point and decided accordingly. This becomes an important aspect which was assailed before the trial Court . Secondly, the agreement time period was from 1-9-2002 till 31-7-2003 and that the petitioner has admitted that there was no further lease agreement in existence. Section 6 of the Islamabad Rent Restriction Ordinance, 2001, which clearly states that the tenancy after the mutual agreement period of lease becomes invalid.
Therefore, the tenant does not fall within the ambit of an alive lease agreement. The lease agreement had expired and the tenant was in possession of the suit shop after this expiry period.
As far as the issue of personal bona fide basis a large number of case-law has been cited by both the counsel and in my mind the terms personal and bona fide can either be read singly or as combined words. The most important aspect is that the honesty of the landlord and to the reasons why he requires the suit shop even though in this case, he may have other shops available and as a landlord he has a right to acquire his own property as long as he can show it was for personal and on good faith basis. The learned Rent Controller, had on four issues decided in favour of the respondent in which the ejectment petition was accepted and the petitioner was directed to vacate the suit ship within 30 days. The learned Addl. District Judge, had framed four issues and reiterated that the learned Rent Controller had answered issues Nos. 1 and 3 in favour of the tenant and issue No,2 in favour of the landlord and subsequently ordered the eviction of the tenant. The learned counsel for the petitioner had stated that the decision of the lower Courts had been one of misreading or non-reading of evidence and the learned Addl. District Judge, had not examined all issues. Again the learned Addl. District Judge, points out that the issue No,1, the rent, for the month of August till December, 2003 had not been receive by the respondent. However, the tenant had stated that the same had been tendered to the respondent through money order but no documentary evidence regarding the sending of said money order in respect of the four months had been brought on record. Therefore, the tenant has become a defaulter for non-payment of rent. It is agreed that the eviction was ordered on, inter alia, on the ground that the tenancy expired on 31-7-2003 and hence the eviction be commenced. Upon examination of section 17 of the Islamabad Rent Restriction Ordinance, 2001, the law provides eviction of the tenant on the grounds mentioned therein.
7. As far as the proposition that the suit shop is for personal use the learned Addl. District Judge, Islamabad had examined this point and had settled the point that the landlord is not required to give details or urge all ingredients showing his bona fide requirement and that only a statement is required which should remain unshaken during the cross-examination. The statement of the petitioner reveals that the landlord wanted the suit shop for his personal use and the fact that he was working along with another person in another shop shows that the bona fide requirement of the respondent. However, the landlord does have other shops but was trying to get the petitioner evicted only because he wanted to raise the rent for the new tenant. There was no details of the business but one aspect is that the other shop still had a tenancy agreement with other tenants which had not expired, hence the respondent could not gain possession of that shop. In a writ petition evidence cannot be induced but there appears that further evidence need not be induced at the lower Court level.
8. In these circumstances, and in view of the above, the findings of the learned Addl. District Judge, were correct and according to law, which does not warrant any interference by the High Court in its constitutional jurisdiction. In absence of any merit in this constitutional petition the same is dismissed with no order to costs.