IQBAL HAMEED-UR-RAHMAN, C.J.---This constitutional petition has been directed against the order dated 11-3-2009, passed by learned Additional District Judge, Islamabad; whereby appeal filed by respondents Nos.1 and 2 was accepted and order of learned Rent Controller, Islamabad dated 24- 4-2007 was set aside with the direction to the petitioner to hand over the vacant possession of demised premises to respondents Nos.1 and 2 (landlords) within a period of one month.
2. The facts forming background of this constitutional petition are that respondents Nos.1 and 2 filed ejectment petition against the present petitioner seeking eviction from Shop No,4, situated on the ground floor of Masco Plaza, 64-E, Jinnah Avenue Blue Area, Islamabad by contending that the same was rented out to the present petitioner through oral agreement in continuation of agreement dated 30-9-1998 which was executed between the ex-owner, and the respondent. The rent of shop was initially fixed @ Rs,17,000 per month which was subsequently increased @ 10% after every 2 years and the rent at the time of filing of ejectment was Rs,22,000 per month. It was pleaded that the present petitioner was also liable to make payments of the utility bills to the concerned departments, but he failed to pay the same regularly and he was also rent defaulter. It was further maintained that respondent No,1 Muhammad Imran Malik had come back from USA and he had no job or business and the shop in question was required for their own use.
3. The present petitioner/tenant opposed the ejectment petition with full vehemence by filing written reply. The learned Rent Controller settled as many as 5 issues to resolve the controversy, which are as follows:-- ISSUES.
(1) Whether the respondents wilful rent defaulter? OPA
(2) Whether the suit premises is required for personal bona fide need? OPA.
(3) Whether the present rent is Rs,15,730 OPR.
(4) Whether the tenancy period has orally extended for 10 years? OPR.
(5) Relief.
4. The learned Rent Controller after recording the evidence of the parties reached on the conclusion that neither the tenant was rent defaulter nor the landlords had succeeded to establish their bona fide personal need and thus the ejectment petition was dismissed. However, rate of rent was fixed @ Rs,22,000 per month. Feeling dissatisfied with the order of learned Rent Controller, both the parties preferred appeals, but the same were dismissed by the learned Additional District Judge, Islamabad vide consolidated order dated 10-1-2008. Respondents Nos.1 and 2 preferred constitutional petition against the said order before the High Court, which was allowed vide order dated 27-5-2008 by observing that the appeal filed by respondents Nos.1 and 2 shall be deemed to be pending and the same be reheard and decided after taking into consideration the statement of the attorney of landlords. The learned Additional District Judge after hearing the parties vide the impugned judgment dated 11-3-2009 accepted the appeal of respondents Nos.1 and 2 and set aside the order passed by learned Tribunal with the direction to the petitioner to hand over peaceful possession of rented premises to respondents Nos.1 and 2 within a period of one month.
Hence, the present constitutional petition.
5. The learned., counsel for the petitioner has argued that the ejectment petition was filed mainly on two grounds i.e personal bona fide need and default in payment of rent and the same was decided in favour of the petitioner. After remand of the appeal, arguments were heard on 20-2- 2009 and subsequently the appeal was decided on 11-3-2009 without re-hearing the arguments which is against the law and settled procedure. It is in the statement of AW-1 that no default in payment of rent was committed by the petitioner; that after remand of appeal, no fresh evidence was recorded and the same was decided on the evidence already recorded; that at tim, of cross examination of AW-1, he admitted that respondent No,1 Muhammad Imran Malik was present in the court but even then none of the landlords appeared in the ,witness box to strengthen their version of personal bona fide need. Regarding statement of landlords through attorney, the learned Appellate Court relied upon the case of Syed Abdul Rauf v. Abdul Sattar (1998 SCM R 2525), but according to said ruling the statement can be got recorded through attorney when a person is minor, out of country or incapacitated to appear in the court, but in the case in hand, though Muhammad Imran Malik one of the landlords was present in the court at the time of recording of statement of attorney, but he did not opt to appear in person in the witness box, which seriously casts doubts upon the contention of personal bona fide need; that the landlords are owners of other shop and they can get the same vacated for their personal bona fide need; that the impugned judgment is a result of misreading and non-reading of evidence. By the dent of above submissions, it is prayed that the impugned judgment of learned Appellate Court be set aside and that of learned Rent Controller be restored.
6. Conversely, learned counsel for respondents Nos.1 and 2 contends that learned counsel for the petitioner has failed to show any case-law which precluded the landlords to record their statements through attorney; that mere contention of recording of statement through attorney is highly insufficient to disprove the personal bona fide need of the landlords; that no violation of order of Hon'ble High Court has been committed by the learned Appellate Court while passing the impugned order; that the attorney is father of Muhammad Imran Malik and being so he was the best person to record statement as attorney of his son; that it is not a fit case to interfere into the impugned judgment in exercise of constitutional jurisdiction, therefore, the instant petition may be dismissed.
7. I have heard the arguments and perused the material made available on the file.
8. With regard to dispute of default in payment of rent, the learned Rent Controller framed Issued No,1, and decided the same against respondents Nos.1 and 2. After remand the same was also decided against them. The same also has not been agitated by both the parties during the course of arguments.
9. The learned counsel for the petitioner has laid much emphasis on the point that the on the day of recording of evidence Muhammad Imran Malik one of landlords was present in the court, but he himself has not appeared in the witness box and that the case law i.e Syed Abdul Rauf v. Abdul Sattar (1998 SCM R 2525) relied upon by the learned Appellate Court is not applicable in the case in hand. It is settled law that landlord in order to prove personal bona fide need can get examined his attorney and there is no compulsion that he must have appeared in the witness box. In the esteemed citation mentioned supra, it has been held as under:-- "It will not be in the interest of justice to lay down that in every case where a party does not appear or arranges his appearance through attorney, an adverse interference should be drawn against him. Such rule if laid down, would result into great hardship in cases where the parties, for instance, reside abroad, who will have to sue and defend themselves through their attorney" Although for instance the words "reside abroad" has been used, but at the same it has not been ruled out that the only person who resides abroad can appear through attorney. Hence, this contention of learned counsel holds no water that the above said ruling is not applicable in this case. Even otherwise, the learned Appellate Court has not absolutely relied upon the said citation, rather it has been alleged that the learned counsel for respondents Nos.1 and 2 has referred the said case-law. Moreover, it has not been alleged on behalf of the petitioner that due to appearance of attorney what injustice has been done to him. The learned counsel for the petitioner has also failed to quote any case-law to prove that without assigning any reason the landlords could not appear through attorney. The attorney of landlords while appearing as AW-1 has fu41y corroborated the contents of ejectment petition. Despite lengthy cross-examination, his deposition could not be shaken and nothing could be brought out in favour of the present petitioner.
10. In the present case landlord has succeeded by leading reliable and sufficient evidence to prove that shop in question was required in good faith and claim was based on honesty and sincerity. No flaw has been pointed out by the learned counsel for the present petitioner. Moreover, if the landlord does not occupy the demised premises got vacated on the ground of personal bona fide need, the rights of the tenant have also been protected under subsection (6) of section 17 of the Islamabad Rent Restriction Ordinance, 2001, which reads as under:--
(6) Where the landlord who has obtained possession of a building in pursuance of an order made under subsection (5) does not himself, or where possession of the building or rented land has been obtained for any member of his family such member does not, occupy the building or rented land within one month of the date of obtaining its possession, or having obtained possession relets it within six months of the said date to any person other than the tenant, the tenant may apply, to the Controller for an order directing that the possession of such building be restored to him and the Controller may make an order accordingly.
11. Now adverting to the contention that respondents Nos.1 and 2 are owners of other shop, suffice it to say that it is settled law that it is the prerogative of the landlord to choose premises for his personal need and no discretion in respect thereof can be given to the landlord and in this respect reliance is placed upon the case of Malik Muhammad Ramzan v. Messrs General Iron Stores and another (1995 SCM R 1125), wherein it has been held that "landlord" would have privilege to choose anyone of his properties for self-use, considered by him suitable for his requirement, provided his need was not tainted with mala fide. Further in the case National Tubewell Construction Corporation Ltd. v. Tariq Rahim (Advocate) and another (NLR 1991 Civil 366), it has been observed that it is for landlord to choose and make a choice as to which of his properties is suitable to meet his needs/requirements and tenant cannot dictate to landlord that he should occupy this property or that property or that he should move for eviction against this tenant or that tenant.
12. So far as the contention that the arguments were heard on 20-2-2009 and the case was adjourned for 23-2-2009 for order, but the order sheet of said date reveals that the case was adjourned for arguments and order. The order dated 20-2-2009 reveals that the arguments were heard on the said date and the case was adjourned for 23-2-2009, on which date once again the order of "arguments and order" was passed. From the order i.e "arguments and order", it cannot be inferred that the learned Presiding Officer has done so with some mala fide. The landlords cannot be knocked out on technical grounds or due to some omission on the part of the court, when they otherwise are entitled for some relief. Moreover, presumption of truth is attached to the judicial proceedings. The petitioner has attached affidavit of Ms.Nusrat Parveen Advocate along with this petition to show that arguments were heard on 2-9-2008. The order sheet dated 2-9-2008 reveals that arguments were not heard on the said date. From the file it appears that said Ms.Nusrat Parveen Advocate is an associate of learned counsel for the petitioner and thus she has no independent status. The attachment of affidavit at this stage cannot be given much weight, when she has not faced the test of cross-examination. Moreover, if the arguments were heard on 2-9- 2008, the petitioner should have agitated the same earlier, but he kept mum till the filing of this constitutional petition, which speaks volume against the petitioner.
13. As far as, the decision of learned Appellate Court on same evidence is concerned, since the previous order had been set aside by the High Court and the same was not in field, therefore, the fresh findings rendered by the said court were not barred under the law. Moreover, the appeal was remanded with the direction to decide the same after hearing the parties and not after recording of evidence. The learned appellate court after appreciating the evidence of the parties, had based its findings on legitimate conclusion drawn from the evidence and in the light of order of High Court.
14. Moreover, interference of this court in the extraordinary constitutional jurisdiction can only be made when glaring misreading or non-reading of any material floats on the file, which fact is unfortunately missing in the instant case. Learned counsel for the present petitioner has also failed to point out any misreading or non-reading of evidence or any irregularity committed by the learned appellate court. Further the impugned judgment is well-reasoned and no exception can be made to the same.
15. For the foregoing reasons, I find no merits in this constitutional petition, which is dismissed.
16. Since the main writ petition has been dismissed on merits, therefore, C.Ms Nos.1231 and 1550 of 2009 have become infructuous, which are dismissed accordingly.