' SHAHID ANWAR BAJWA, J:--- This is First Rent Appeal under section 24 of the Cantonments Rent Restriction Act, 1963. The tenancy was in respect of Shop No, V, Al-Habib Apartment, Plot No,FC- I/Subplot No,C-1/AIV/Y, Block "B",, Kehkashan Clifton, Karachi. Tenancy commenced in 1995. In 2005 ejectment application was filed by landlady on ground of personal bona fide need and in para 6 it was stated as under:--- "(6) That the Landlady is in financial crises and not in a position to meet her both ends on the meagre rent being paid by the tenant as such the landlady has decided to start her own business and use the said shop for her personal be fide use."
2. Written statement was filed by the appellant/tenant and in para 6 the ground was denied as under:- "(6) That the para 6 is denied being false and fabricated in nature the applicant wants to increase the rent as per her own wishes and demand, the contents of this para are also contradict to each other, she is in financial crises but ready to start her own business without any experience."
3. Thereafter affidavit-in-evidence was filed by the landlord. Ground was repeated verbatim. This affidavit-in-evidence was filed on 7-6-2006. Thereafter the following transpired in the Court below:--- 7-6-2006 Both parties present. Tenant received copy of affidavitin-evidence and case is adjourned to 15-7-2006 for cross-examination.
15-7-2006 Attorney along with counsel present. None present for tenant. Presiding Officer was on leave. Case adjourned to 12-8-2006 for cross-examination.
12-8-2006 No one was present for present appellant. Although, landlord's attorney and her counsel are present. Case was adjourned to 9-9-2006.
9-9-2006 and 7-10-2006 position was same.
11-11-2006 Presence was same. Consequently cross-examination of landlady witness was closed and matter was adjourned for affidavit-in-evidence of present appellant.
22-11-2006 No one was present from appellant side. Case was adjourned for filing of affidavit-in- evidence of present appellant.
6-12-2006 Landlord's attorney present. None present for the present appellant Nelofar. She was given last chance to file affidavit-in-evidence on next date of hearing and it was stated that if she fails to file affidavit-in-evidence on 13-12-2006 her side will be closed.
13-12-2006 None was present for present appellant and side of the tenant was closed. Landlord was directed to file written arguments on next date of hearing and landlord filed written arguments there and then.
16-12-2006 No one was present for tenant and ejectment application was allowed.
4. Ejectment application was allowed vide order dated 16-12-2006 on the ground of personal need.
Court below held as under:--- "Under para 6 of the ejectment petition the petitioner submitted that she is in financial crises and not in position to meet her both ends on the meagre rent being paid by the respondent and as such she has decided to start her own business and for this purpose she required the demised shop for her personal bona fide use in good faith. The petitioner further submitted that she gave verbal notice to the respondent for vacation of the demised shop six months earlier but the respondent did not pay attention. Moreover the shop was let out to the respondent to start her own business but the said shop is being run by her husband. The petitioner's attorney in his affidavit-in- evidence repeated the assertions of the landlady of the petitioner. The respondent in her written statement denied the claim of personal need of the demised shop by the petitioner being false and fabricated in nature and alleged that the petitioner wants to increase the rent as per her own wishes. She stated that the claim of the petitioner contradict as on one place she is claiming that she is in financial crises on the other hand she wants to start her own business and that too without any experience. The petitioner's attorney supported the petitioner's version regarding her personal need of the demised shop on oath in his affidavit-in-evidence which remains unchallenged/unrebutted as the respondent failed in testifying the petitioner's attorney/witness.
Under such circumstances the claim of the petitioner for personal need of the demised shop proved to be correct and genuine. The issue is accordingly decided in favour of the petitioner."
5. Learned counsel for the appellant made following submissions : ---
(i) Appellant has shown good faith because she continued to deposit advance, even after case was decided.
(ii) Rule that a party must suffer for negligence of counsel has been whittled down by the honourable Supreme Court. In this regard learned counsel relied upon Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCM R 584, Abdul Wahab v. Commissioner of Income Tax and another 2006 PTD 476 and Pirzada Niaz Ahmed Farooqi through legal representatives v.
Muhammad Bux and others 2004 SCM R 862.
(iii) Learned counsel referred to diary sheet and stated that on 3-12-2006 learned Judge should have adjourned the matter for arguments and then on next date he could have decided it.
' Learned counsel's submission was that Court violated Order XX, rule 1, C.P.C. In taking written arguments on very day and then adjourning it for orders.
(iv) Learned counsel referred to section 17(4) (b) of the Cantonment Rent Restriction Act, 1963 and also referred to para 13 of the written statement where it was stated that landlady had another shop available to her in Bahadurabad Area. Learned counsel submitted that' there is distinction between provision contained in the Sindh Rented Premises Ordinance, 1979 and Cantonments Rent Restriction Act, 1963 and therefore under the latter landlady has to discharge double burden, (a)
Establishing his bona fide need, and (b) also establishing that landlady was not occupying land in any local area in the vicinity thereof. He relied upon Mst. Hajiyani Ayesha Bai v. Zahid Hussain 2001 SCM R 1301 and Messrs Ibrahim Agencies v. Messrs Panorama Enterprises Ltd. 1997 M LD 3035.
(v) Although, affidavit-in-evidence was filed but it was never exhibited and therefore same had no evidentiary value. Learned counsel relied upon Province of Sindh through Secretary, Ministry of Works and Communications v. Messrs Umar Khan and 3 others 1986 M LD 1421, Mst. Aziz Khatoon v.
Allah Diwaya and others PLD 1952 B.J. 22 and Muhammad Ibrahim v. District Judge Appellate Authority Vehari and others 1985 CLC 2644.
(vi) Landlady had not specified any detail of business which she wished to start there. Hence, her eviction application was liable to be dismissed. Learned counsel relied upon Anisur Rehman v. Mst.
Sharifa Khatoon and another 1986 CLC 448 and Abdul Majeed v. (1) District Judge Mirpur (2) Khalid Rauf Mir 1997 M LD 2137.
6. Learned counsel for respondent submitted that respondent has no shop in Bahadurabad and no detail whatsoever of said shop have been stated in the written statement. He further submitted that learned Court below has given ample opportunity to the present appellant to cross-examine landlady's witness and to produce her own evidence but present appellant did not avail such opportunity. He further submitted that order passed by the Rent Controller is a well-reasoned order.
7. I have considered submissions made by the learned counsel for the parties and have also gone through the record as well as the case-law' cited by the learned counsel for the appellant.
8. As to the first submission made by learned counsel for the appellant that appellant has been continuously depositing advance rent even after ejectment application was allowed. Learned counsel contended that it shows that appellant's bona fide. That may be so does it wash away the order passed by the Court below. The order of a Court has to be based on evidence. Therefore, this ground does not help the appellant.
9. Second argument advanced by learned counsel for appellant was that rule that client must suffer for negligence of his counsel has been whittled down of late, by the honourable Supreme Court. In this regard first case relied upon by the learned counsel was Sherin's case (supra). Facts of this case-law were that respondent sued the appellants for declaration and permanent injunction and in the plaint an alternate relief for possession was also prayed for. The suit was, therefore, valued for the purposes of court-fee and jurisdiction at Rs,200 only. Objection was raised by appellant that plaint was deficiently stamped. Trial Court appointed Local Commissioner for assessm ent of market value of the property. Trial Court directed the respondent to make good deficiency in the court-fee. Suit was decreed. Appeal was preferred in the Court of District Judge but the memorandum of appeal was returned to present the same in High Court as the same was found beyond pecuniary jurisdiction of the District Judge. It was re-filed in the High Court and delay in filing of the same was condoned subject to all just exceptions. However, appeal was ultimately heard. Objection on limitation was upheld and High Court took the view that there was no good ground to condone delay and dismissed the appeal and matter went to the honourable Supreme Court. The Honourable Supreme Court observed as under:--- "(5) Diligence is a state of human conduct. What should be the standard for assessing the behavior of an appellant to style him as diligent. Because of fluidity of the notion of diligence, it is difficult to set up a precise yardstick. Whether or not litigant has acted diligently and with care, would differ from case to case. Speaking broadly, a person may be said to have acted diligently, when he has informed himself of all relevant factors, taken all obvious steps and precautions, characterized by degree of effort, as in a given situation, as reasonable person would do. But, the epithet of "reasonable", opens wide the measure of application of this yardstick, on the factual plane, for the word "reasonable" is not susceptible of any precise definition. Etymologically, it signifies according to reason, which expression, itself is open to difference of opinion. Whether or not a person has acted diligently, in ultimate analysis, would depend on the circumstances of each case and cannot be determined on the foundation of any judicial or any judicial syllogism.
(6) The criterion of "diligence" for enlargement of time is prescribed by section 14 of the Limitation Act, which upon its terms applies only to the suits and applications and not to the appeals. On the other hand section 5 is applicable to the appeals but it does not apply to suits. The question of condonation of delay, therefore, has to be examined on the basis of section 5 and not section 14 of the Limitation Act. Not unoften, while ,examining the question of condonation of delay, in filing the appeal, the Courts have been invoking the principles underlying section 14 of the Act. The High Court has declined to condone the delay entirely on the touchstone of section 14. It is, however, to be remembered that expression "due diligence" and "good faith" appearing in section 14 do not figure in section 5. The condition prescribed in the latter section for its applicability in "sufficient cause" but what is sufficient cause is not capable of connotation, with exactitude and would differ from case to case. We may observe that filing of appeal in a wrong Court on account of mistaken advice tendered by the counsel canvassed on behalf of the appellants for condonation of delay by itself would not attract section 5 but when the litigant and the counsel have acted with due care and caution and their conduct does not smack of negligence, the institution of the appeal in the wrong forum may constitute a "sufficient case" within the meaning of section 5 for condonation of the delay."
10. In Abdul Wahab's case facts were that prior to 1st July, 1997 a reference was provided under the Wealth Tax Act, 1963 as well as the Income Tax Ordinance, 1979 and same was to be filed in the first stance before the Income Tax Appellate Tribunal. Through amendment introduced by the Finance Act, 1997, for provisions for filing reference before the Income Tax Appellate Tribunal were substituted by direct appeal to the High Court. However, by Finance Ordinance 2000 the original provision as existing up to 30th June, 1997 was resorted so far the Income Tax Ordinance 1979 was concerned. Order assailed in the appeal was passed on 15-2-2001. In accordance with amended section 27 of the Wealth Tax Act, 1963 an appeal was required to be filed before the High Court.
However, counsel filed reference under mistaken view of law before Income Tax Appellate Tribunal and High Court condoned delay due to mistake of counsel.
11. In Pirzada Niaz Ahmed Farooq's case High Court had dismissed writ petition for non-prosecution and thereafter refused to restore it. Matter went up to the honourable Supreme Court. Objection raised by the respondent. Honourable Supreme Court observed as under:--- "Be that as it may, conduct of the counsel may be reprehensible ends of substantial justice demand that the parties should not suffer on account of negligence or indifferent attitude on the part of their counsel, in whom they reposed full confidence. Indeed it is a matter of mutual trust between a client and counsel. On merits, we are not impressed with the ground urged in support of the petitions, inasmuch as, affidavit of delinquent counsel was not submitted before the Division Bench of the High Court, which has been filed for the first time explaining reasons for non- appearance before this Court, but in order to ensure that the cause is decided on merits and to do complete justice between the parties, we grant leave to appeal, convert these petitions into appeals and allow the same subject, however, to the payment of Rs,25,000 by way of compensatory costs to the respondents in each of the petitions within thirty days from today, failing which petitions shall be deemed to have been dismissed."
12. All the three cases are distinguishable. First and second cases relate to condonation of delay and third case related to a matter which was dismissed for non-prosecution. Present case is a case where between date of last attendance of appellant in the Court below on 7-6-2006 and the date when matter was finally decided on 16-12-2006 there were 8 dates. It is not a question of condonation of delay and payment of court-fee. Therefore, this ground is not tenable. A party must sink or swim on doings of its counsel.
13. Third ground argued by learned counsel is a reference to Order XX, rule 1, C.P.C. And it was contended by learned counsel that on 13-12-2006 when tenant's side was closed matter should have been adjourned for arguments. I am afraid. This contention is not tenable. Provisions of Civil Procedure Code are not applicable to rent proceedings before the Rent Controller and a very elaborate judgment in this regard has been rendered by Mr. Justice Sabihuddin Ahmed in Suhail Printer and others v. Shaikh Abid Ali and Company Pvt. Ltd. Civil Petitions Nos.24-K to 26-K of 2009.
' Provisions contained in the Sindh Rented Premises Ordinance, 1979 and corresporiding provision of section 17(4)(b) of the Cantonments Rent Restriction Act 1963 in respect of contention of learned counsel are reproduced herein below:--- "Section 17(4)(b) of the Cantonments Rent Restriction Act 1963:
(4) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession:--- (a)
(i)
(ii) ..
(iii) .
(b) In the case of a commercial building, if:---
(i) He requires it in good faith for his own use, and
(ii) he is not occupying in the Cantonment area concerned or in any local area in the vicinity thereof in which such building is situated for the purposes of his business any other such building suitable for his needs at the time, and
(iii) he has not vacated such a building in the said area or vicinity without sufficient cause after the commencement of this Act.
"Section 15(2)(c)(vii) of the Sindh Rented Premises Ordinance, 1979:---
(2) The Controller shall, make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in the order, if he is satisfied that:---
(i) .
(ii)
(iii) ..
(a)
(b) ..
(c)
(iv)
(v). .
(vi)
(vii) The landlord requires the premises in good faith for his own occupation or use or for the occupation or use of his spouse or any of his children."
14. Indeed two provisions are different. Whereas under the Sindh Rented Premises Ordinance, 1979 a landlord is required to establish that he/she required premises in good faith for his/her occupation or for the use of spouses or any children. Therefore, if a landlord has a number of premises, landlady is not burdened with any other onus beyond making a bare statement of his need and establish his bona fide. However, as far as Cantonments Rent Restriction Act 1973 is concerned, a landlord has to, firstly, demonstrate his good faith, just like he has to do in the case under the Sindh Rented Premises Ordinance, 1979. It seems that in case of commercial building he also has to establish that he is not occupying in the tenement concerned or in local area/vicinity thereof any such building suitable for his possession. Thus if there is another premises available to the landlady, she has to travel beyond mere statement and to establish as to why premises chosen by her is more suitable than other premises available to he.So far as case property is concerned, it does not help the appellant. There are two points. Firstly, other premises must be either in Cantonment area concerned or in the local area in the vicinity. Property subject of this tenancy is situated in Clifton Cantonment Area. It is nobody's case that Bahadurabad is in Clifton Cantonment Area. Second aspect is local area in the vicinity. Considering the business imperatives of Clifton area and Bahadurabad area. I do not think they should be treated as vicinity of each other as far as Boutique business is concerned. In any case there has not been any evidence or issue or pleading in this regard. This is not all. All that wasstated in the written statement in Court below was that she owned shop in Bahadurabad. No specifics such a shop had been disclosed. She was not cross-examined in this respect and no evidence was produced in rebuttal. Therefore, this ground is also not available to the appellant.
15. Next ground urged by learned counsel was that affidavit-in- evidence was not exhibited and therefore it is of no evidentiary value. First case relied upon by the learned counsel is Mst. Aziz Khatoon's case. In this case it was held that documentary evidence which was necessary for disposal of suit was not brought on the file in accordance with the law because it was neither legally admitted not proved nor tendered nor exhibited and if that evidence was ignored then there can not be any decision of the dispute between the parties and there was no alternative but to remand the case for retrial. It should be noticed that words used in this case are "nor proved, nor tendered." In present case affidavit-in-evidence was tendered in the court. Secondly, case law relates to proceedings strictly governed by the Civil Procedure Code whereas the present proceedings are under the Cantonments Rent Restriction Act, 1963. Messrs Ibrahim Agency's (supra) case is also on the same point where it was stated that documents not formally tendered in evidence or exhibited cannot be relied in the proceedings. Affidavitin-evidence in this case was tendered.
16. Last ground urged by the learned counsel was that nature of business was not specified. He primarily relied upon Anisur Rehman's case, it was held in that case as under:- "In the application of eviction a vague ground was given that she wanted to start business. It has not been stated as to what kind of business she wanted to do. The respondent filed her own affidavit-in-evidence. It has not been stated as to what kind of business she wanted to start. For this purpose she must put before the Controller all the necessary details which are required for granting relief. On such vague allegation as made in the eviction application or in her affidavit-in- evidence, the respondent cannot expect to get relief on the ground of requiring the shop in question for the occupation of her son."
17. The Honourable Supreme Court of Pakistan in Haji Mohibullah & Co. And others v. Khawaja Bahauddin 1990 SCM R 1070 and Juma Sher .v. Sabz Ali 1997 SCM R 1062 has held that it is not necessary for landlord to disclose in ejectment application as to what business does he intend to start in the premises. Therefore, this ground is also not available to the present appellant.
18. For the above reasons this appeal is dismissed.