'MUHAMMAD AMJAD IQBAL QURESHI, J.---Through instant writ petition the petitioner calls in question judgment and decree dated 24-7-2008, passed by the learned Additional District Judge, Islamabad whereby a civil appeal filed by the petitioner was dismissed and the order of learned Rent Controller was upheld.
2. Facts forming the background of instant case as reflected from the contents of writ petition are that the petitioner, who is owner of House No,417, St. No,56, Sector 1-10/1, Islamabad rented out upper portion of said house to respondent No,3 at the rate of Rs,5000 per month. Thereafter, a lease agreement was entered into between the parties, which expired on 22-8-2005. However, the respondent No,3 gave an undertaking in the Court of Miss Ambreen Qureshi, learned Civil Judge, Islamabad to vacate the premises on expiry of said lease agreement i.e, on 22-8-2005. After expiry of said period, respondent No,3 refused to vacate the demised premises and handover its vacant and peaceful possession to the petitioner. It has been requested that the impugned order dated 24-7-2008, passed by learned Additional District Judge, Islamabad, which confirmed/endorsed order dated 17-4-2008 passed by the learned Rent Controller may kindly be set aside and declared without jurisdiction and without lawful authority. It has further been prayed that respondent No,3 may be directed to put the petitioner/landlord in possession of suit premises along with paid up utility bills and payment of future/past outstanding rent.
'Learned counsel for the petitioner contended that the impugned order suffered from illegalities and irregularities; the findings are based on conjectures and surmises. That the impugned order has been passed without lawful authority being inconsistent with principles of law enunciated by the apex Court in M.H. Mussadaq v. Muhammad Zafar Iqbal and another 2004 SCM R 1453, Zarina Ayaz v. Khadim Ali Shah 2003 SCM R 1398, Muhammad Ashraf v. Muhammad Adil Zaidi and 4 others 1999 M LD 3312 and Muhammad Naseem Khan and 5 others v. United Bank Limited, A Banking Company, Registered under the Companies Act, having its registered office at I.I. Chundrigar Road, Main Branch at Marriot Road, Karachi PLD 2002 SC 753. That the learned Courts below failed to appreciate that the tenancy/lease agreement had already expired and that the respondent No,3 had violated the undertaking given before the learned Civil Court. That such breach of undertaking is punishable as laid down in Said Muhammad v. Sultan Ahmed and 7 others 2000 CLC 387. That the respondent No,3 has failed to pay the rent for the month of February, 2007, November, 2006 and March, 2008 as well as water bills for the month of July, 2007 to March, 2008. The matter was brought into the notice of learned Courts below but was not adverted to while holding that the ground of default was not raised in the ejectment petition. Learned counsel for the petitioner contended that it is a well settled law that the order of tentative assessment of rent is mandatory even if plea of default was not raised and defence of tenant can be struck off due to default in payment of rent. In this regard, he placed reliance upon M.H. Mussadaq v. Muhammad Zafar Iqbal and another 2004 SCM R 1453. That the house is required by the petitioner for personal use of his second wife and four children.
4. On the other hand, learned counsel for respondent No,3 contended that there are concurrent findings of the Courts below against the petitioner. The petitioner had filed the eviction petition mainly on the ground of termination of lease period, personal bona fide need, which grounds he could net prove during the trial before the learned Rent Controller, Islamabad. That the ground of having four children and two wives was never taken by him at the time of filing his eviction petition before the learned Rent Controller. He further contended that the grounds which were not taken at the time of adjudication of main petition for ejectment cannot be subsequently relied upon by him in appeal or in writ jurisdiction. He supported the decisions of learned Rent Controller as well as the learned Additional District Judge, Islamabad, The learned counsel for respondent No,3 relied upon Mst. Munawar Sultana v. Additional District Judge, Islamabad 2005 CLC 119 and Haji Moinuddin v.
Shafiquddin Qureshi and 3 others 2008 YLR 2939.
5. I have heard the learned counsel for both sides and minutely perused the record.
6. The petitioner filed the eviction petition mainly on the ground of personal need and termination of lease agreement entered into between the parties as a result of compromise, during pendency of a suit for possession through eviction. No ground for subletting of the house in question was ever taken by the petitioner. It appears from the record that during his statement while appearing as P,W.1, the petitioner deposed that he had rented out the upper portion of the house to the respondent against monthly rent of Rs,5000 regarding which the agreement expired on 22-8-2005, but the respondent did not vacate the house in question in spite of expiry of the agreement. He also deposed to the effect that he needed the house in question for his bona fide personal use.
Although, this ground was agitated in the eviction petition, yet the petitioner while appearing as a witness in the witness-box remained unable to give any detail of alleged bona fide personal use.
He in support of his claim, could not give any plausible reason as to why he needed the demised premises. It is also worth-mentioning here that petitioner did not take the ground at the time of filing of eviction petition or during his examination-in-chief before learned Rent Controller that he had two wives and four children for whom he wanted the premises in question vacated and the fact that it was difficult for his above said wives to live together under one roof. The learned Additional District Judge, Islamabad has rightly said in his judgment that it was the duty of the petitioner/appellant to establish his personal need. It has been established by the learned counsel for the respondent during cross-examination upon the petition that there is another house also, which belongs to the present petitioner, wherein he is living along with his family and that he had rented out a portion of the said house to a tenant.
7. Therefore, I am of the view that the learned Courts below have rightly decided the issue of personal need against the petitioner. Regarding the other issue of eviction of the house on the basis of expiry of lease agreement, also the learned Courts below are quite justified in holding that the eviction could not be availed by the petitioner on this ground under Islamabad Rent Restriction Ordinance, 2001, as there is no such provision available in the said Ordinance. The decision of the learned Courts below finds strength in this regard from the case of Mst. Munawar Sultana as quoted above, wherein it has been held that "The tenant will continue to fall within the definition of 'tenant' who continues to remain in possession even after the termination of tenancy. The ejectment of the 'tenant' (as defined in section 2(j) of the Ordinance) can be sought only on the ground given in section 17 to show that the tenant can be ordered to be ejected from a residential building merely on the ground of expiry of the lease period. Section 6 of the Ordinance is not the overriding section, it is subject to section 17 of the Ordinance. It merely states that the tenancy shall not be valid beyond such period as the landlord and tenant may by mutual agreement fix before or after the commencement of the tenancy. After the expiry of the agreed period between the landlord and tenant the tenancy is not valid and the same will not be governed by the terms and conditions of the previous tenancy agreement but it does not mean that a tenant who continues to be in possession or occupation after the expiry of the period will be subjected to ejectment on the ground which does not find mention in section 17 of the Ordinance. The ejectment of the tenant can be sought only on the grounds enumerated in section 17 of the Ordinance. The Rent Restriction Laws are generally made for the protection of the tenant. If the contention of the landlord is accepted that after expiry of the lease period the tenant is to be eviction, the provisions of section 17 of the Islamabad Rent Restriction Ordinance, 2001 shall have to be amended. Previously the matter was covered by the Transfer of Property Act, 1882. Section 111 of the Act of 1882 gives eight grounds on which the tenancy determines. Under subsection (a) of section 111 of Transfer of Property Act lease determines by afflux of time limited thereby. The preamble to the Islamabad Rent Restriction Ordinance, 2001 shows that the Ordinance was enacted by the legislature in order to "regulate the relations between the landlords and tenants of rented premises in Islamabad Capital Territory and to provide for matters ancillary thereto or connected therewith." The Rent Restriction Ordinance being a special law will prevail over the ordinary law. The eviction of the tenant on the ground of efflux of time cannot be read into the section 17 of the Ordinance. There being no provision in section 17 of the Ordinance for ejectment of the tenant on the ground of expiry of the tenancy, the ejectment of the tenant cannot be ordered. The general rule is that the Court can neither add to or delete any word from any section of a statute. A Court must not import in a statute anything more nor anything less than what the language clearly indicates. It is not the function of the Court to read into an enactment words that are not there. The mere fact that the language of a section in an Act is not happy or appropriate, would not justify the Court in adopting an interpretation which leads to anomalous results and frustrates the very object of the statute.
The provisions of section 17 of the Islamabad Rent Restriction Ordinance are clear and unambiguous and cannot be given an effect not contemplated by the Ordinance".
8. Regarding the contention of the learned counsel for the petitioner about the contempt of Court committed by the respondent by way of refuting from the undertaking given by him before learned Civil Judge, Islamabad, the relief sought by the respondent cannot be granted in the matter in hand as it was quite open for him to initiate contempt proceedings against such illegality or violation allegedly committed by the petitioner, in the concerned Court.
9. So far as contention of the learned counsel for petitioner regarding arrears of rent and bills is concerned, the findings of the learned Courts below are also maintained that the petitioner should approach the proper forum for recovery of the same.
10. For what has been discussed above, the learned Rent Controller as well as learned Additional District Judge, Islamabad have rightly passed the impugned judgments, which do not call for any interference. I am not inclined to accept the instant writ petition, same is dismissed accordingly.