' MRS. IRSHAD QAISER, J.---This appeal is pending since 22-8-2009 against the order of learned Controller of Rents, Peshawar Cantonment who had dismissed the ejectment petition of landlord by order dated 30-6-2006. Being aggrieved from the order the landlord (appellant) had filed appeal under section 24 of Cantonments Rent Restriction Act, 1963 in this Court.
2. Brief facts of the case are that appellant Zikria filed an ejectment petition before Controller of Rents, Peshawar Cantonment, with the contention that he is the owner of Shop No, 275 situated at Chik Center Tipu Sultan Road, Peshawar Cantt., on the basis of registered gift deed dated 1-2-2002.
That respondent is his tenant at the rate of Rs,1200 per month. He sought ejectment of respondent from the shop on two grounds firstly that respondent is rent defaulter and secondly he requires the shop for his personal need. In Para No, 3 of the ejectment petition it is contended that respondent also failed to pay the rent for the last two years and 11 months and he is rent defaulter since October 2001. That since his education has been completed therefore he requires the suit shop in good faith for his personal use to run a business as he is jobless and he needs the shop for earning his livelihood. That he had no other shop except the disputed one. Respondent was summoned. He attended the Court and contested the petition by submitting his written reply wherein he denied the allegation of the petitioner and contended that neither he is rent defaulter nor the petitioner required the suit shop for his personal need rather the main interest of the petitioner is to enhance the rent. Petitioner submitted his rejoinder. The learned Rent Controller framed the following issues from the pleading of the parties.
' Whether the petitioner has got no cause of action?
(ii) Whether the transfer of property by the mother of the petitioner in favour of the petitioner is India fide and it only created for the cause of action against the respondent?
(iii) Whether the shop in question is required for personal need of the petitioner?
(iv) Whether the suit is brought only for the enhancement of rent?
(v) Whether the petitioner is stopped by his own conduct to institute the present suit?
(vi) Relief.
3. Both the parties produced pro and contra evidence as they wished to adduce. After recording the evidence and hearing of arguments learned trial Court dismissed the application on the ground that the Court is not satisfied with the bona fide personal claim of the petitioner.
4. Feeling aggrieved appellant filed the, present appeal and assailed the impugned judgment and decree on the ground that it is illegal, against material available on record and in utter disregard of relevant provision of law; hence not tenable. That the findings of the trial Court on issues Nos. 2 and 3 are against the material available . On record and are ridiculous. Once the respondent admitted the relationship of landlord and tenant between the parties then the Rent Controller having limited jurisdiction to discuss the validity of registered gift deed dated 1-2-2002. The finding on issues Nos.
1, 4 and 5 are also illegal. Respondent was summoned; he attended the Court and contested the appeal.
5. I have heard learned counsel for the parties and perused the record with their assistance.
Learned counsel for the appellant contended that petitioner- has been able to prove its case that he required the suit shop for his personal need in good faith and that respondent is, rent defaulter.
He relied on PLD 1990 Lahore 42, 1992 CLC Peshawar 418. These arguments were rebutted by learned counsel for the respondent and contended that he (appellant) has agricultural property and doing farming on his own land. He does not require the suit shop for his personal need. His only intention is to enhance the rent and that he is not rent defaulter. He used to deposit the rent in Court. He further contended that since no issue in respect of rent default has been framed by the trial Court therefore, the case has to' be remanded back to Rent Controller to determine the default. That there are material contradictions in the statements of P. Ws. Petitioner failed to prove his real and genuine intention as mere desire of landlord cannot be equated with bona fide. The detail of requirement must be established to the satisfaction of the Court either through reliable evidence or by way of convincing and confidence inspiring version of landlord which he failed to prove. He relied on 1997 MLD Lahore 560, 2004 CLC Quetta 1282, 2006 SCMR 117.
6'. Now the main question for determination is that whether appellant has any mala fide to get transfer the suit shop in his name through gift? Whether he being the owner of shop on the basis of the gift deed has required the suit shop for his personal need in good faith and he is not owning the shop except the shop in dispute? Whether he. Has any intention to raise rent and that whether respondent is rent defaulter?
7. Appellant has contended that he became the owner of the shop on the basis of registered gift deed dated 1-2-2002. In order to prove his contention he produced the registered gift deed vide which the shop was transferred through gift to appellant by his mother. He also issued notice Exh.P.W.1/2 with regard to the transfer of the shop in his name Respondent admitted the ownership of the petitioner and he failed to prove any mala fide of the appellant and his mother to execute gift deed dated 1-2-2002. Record shows that since the appellant required the suit shop for his' personal need therefore in order to fulfil the requirement of section 17(4)(b) of the Act, his mother had transferred the property in his favour through gift. She had exercised here legal right and fulfilled all the requirements of gift.
8. Now question is whether appellant has been able to prove his contention of personal need?
Appellant in order to prove his case has examined himself as P.W.1. He also filed affidavit Exh.P.W.1/4. In his cross-examination certain questions were put on him by the respondent which further confirmed his bona fide requirement of doing, business in the shop and at present he is jobless. e.g. In reply to a suggestion he stated that his father has landed property measuring about 8 Kanals which was previously cultivated by his father but now it is cultivated by his brother. Ghalib. He denied the suggestion that his intention is only to enhance the rate of rent and stated He was cross-examined at length but nothing material was extracted from his mouth rather by putting certain suggestions, respondent admitted the claim of appellant. P.W.2: Ashraf also produced an affidavit Exh.P.W.2/ 1 and supported the contention of appellant. He was also subjected to searching cross-examination but respondent failed to extract any material against the appellant or in his favour. Respondent was examined as RW 1. He stated that since he (appellant) is getting religious education therefore he is not in need of shop. Here he is resiled from his earlier contention that he is farming his land. In cross-examination he clarified {{URDU TEXT}} ' In this way he admitted in cross-examination that there was no mala fide on part of the landlord in filing ejectment petition against the tenant. Nothing was on record to suggest that landlord ever demanded enhanced rent from tenant. Respondent also produced Idrees and Wilayat but they failed to rebut the contention of appellant, while the landlord in his evidence before the Rent Controller has substantiated his claim of bona fide personal use beyond any doubt that he requires the suit shop for running his business who is jobless and was not ready to accept the enhanced rent, but he pressed for vacation of the suit premises on the ground of his personal use.
In cross-examination besides respondent other RWs also admitted that there was no mala fide on the part of the landlord in filing of ejectment petition against respondent.
9. Although there is nothing on record to suggest that the landlord ever demanded enhanced rent but the respondent plea is that the application is motivationally designed to pressurize him to accept the high rate of rent. Even if such a demand is presumed it would not by itself cost any shadow on the bona, fide personal requirement of the landlord. Reference can be made to 1989 SCMR 1366. The landlord's deposition on oath being in line with the averment of the application regarding his personal need in good faith for doing his business in the premises has not been shattered in cross-examination which sufficiently established his bona fide. It has been held by the Superior Courts that the assertion of claim on oath by a landlord that he required the premises for his personal use shall be accepted by the Controller as bona fide. If such claim or assertion is consistent with the averments of the application and . Is not shaken in the cross-examination or disproved in rebuttal. Reference is made to PLD 2002 Lahore 233 in case of Maj (Retd) Tariq Javed Afridi v. The. State. Wherein it is held that:-- "There is no legal requirement for a landlord to give a lengthy detail or to urge all ingredients in detail showing his bona ' fide requirement, if he has come forward and has made a statement on oath about his bona fide requirement and his statement is consisted with his petition".
10. Reference is also made to PLD 1976 Kara 747, 'PLD 1976 Karachi 832. Reliance is also placed on 1994 MLD 1809 Lahore. Wherein it is held that:-- "Where rented premises was required by landlord for his personal use, even sole statement of landlord in ejectment petition is sufficient to prove personal use particularly same was supported by documents and basic facts were not contradicted by tenant. Reference is also made to 1986 SCMR 1207, 1992 MLD 1240, 1992 MLD 331, 1985 SCMR 2012, 1984 CLC 3093, 1990 MLD 1217, 2005 CLC 461, 2000 SCMR 1613".
11. Respondent also raised an objection that the landlord had failed to disclose the business which he intend to start in the premises. Though in his statement landlord stated that he has the experience of business of cloths but if he failed to mention any business even then the landlord was not bound to mention the nature of business as he keeping in view his financial position, margin of profit and chances of success C might select any suitable business after obtaining possession of premises. In the absence of choice of business the bona fide personal need of landlord was not affected. Above all, under Article 18 of the Constitution every citizen is at liberty to do any lawful business. It is proved from record that he requires the shop for his need. If he failed then the legislation in its wisdom had provided a safeguard to tenant against misuse of provision of personal use by landlord by enacting subsection (6) of section 17. Reference is made to 1994 MLD Lahore 1809..
12. In his application appellant contended that respondent is .Rent defaulter and he failed to pay the rent since October, 2001. In his reply respondent denied the allegation and stated that he is not rent defaulter. That since appellant is demanding enhanced rent at the rate of 25% and refused to receive rent, therefore, he sent the rent through money order but due to his refusal it returned back.
Thereafter he deposited the rent in the Court. From the record it reveals that appellant seeks the ejectment of respondent on two grounds i.e, his personal need and rent default. These contentions were denied by respondent in his written statement. Evidence in this respect was also produced by both the parties. It was the duty of the trial Court to frame a specific issue on the point of rent default but it failed to frame that particular issue. During arguments learned defence counsel vehemently contended that case may be remanded back to the trial Court for framing of specific issue on rent default and fresh decision of the case. I do not find my self in agreement with the learned defence counsel and relied upon the Abdul. Karim v. Haji Noor Badshah (2012 SCMR 212) wherein it is held:-- "If on a question of fact a specific issue required to be framed in the light of the pleadings of the parties is not framed but parties have led evidence in support of their respective stances, the decision on such question can be rendered in the light of evidence available on record without framing the issues".
Reference is also made to Fazal Muhammad Bhatti v. Saeeda Akhtar (1993 SCMR 4).
"The pleadings and the issues as originally framed show that the parties were fully aware what was the subject-matter of controversy and what evidence was to be led by each one. The Court did not prevent the parties from leading evidence at the trial with regard to the defects in the gift. The non-framing of a specific issue in Such circumstances is inconsequential".
' In his petition as well in statement appellant has specifically stated that respondent is rent defaulter and he has to be ejected an this count too. These contentions were vehemently denied by the 'respondent and gave the detail in this respect in his written statement and in the evidence.
13. In cross-examination he (respondent) admitted that {{URDU TEXT}} ' Respondent was in the knowledge of transfer of shop in favour of appellant as he admitted in cross-examination.
' In spite of that he failed to pay rent to the new landlord. Thus I find substance and merit in the contention of the learned counsel for appellant that there has been wilful and deliberate default on the part of respondent in payment of rent for about 3 years. Reference is made to PLD 2010 Lahore 567, 2006 SCMR 1501, 2001 SCMR 762. His case falls under section 17(2)(1) of Act, 1963.
14. Keeping in view the above facts and circumstances of the case I hold that appellant has been able to prove his case beyond any shadow of doubt, thus the impugned judgment and order of the trial Court being with out any substance is hereby set aside. Application is accepted and ejectment order is passed in favour of appellant against respondent. Respondent is directed to vacate the shop within a period of four months positively.