' ABDUL RASOOL MEMON, J.---The appellant being aggrieved and dissatisfied with the order dated 10-8-2012, passed by the Rent Controller Malir Cantt., Karachi, in Rent Case No, 3 of 2012 filed by the respondent, whereby the appellant was directed to vacate the demised premises within a period of 45 days, the appellant has preferred this appeal.
2. Brief facts of the case are that respondent Mst. Wajiha Saleem rented out the demised premises to the petitioner Zulfiqar vide tenancy agreement dated 23-10-2010 and the rate of rent was fixed at Rs, 38,000 per month; that respondent in the ejectment application contended that the demised premises is owned by her brother-in-law namely Zahid Sultan and she is attorney of Zahid Sultan.
The respondent claimed that the owner of the demised premises Mr. Zahid Sultan has been retired and came back from Canada and wants to reside in his own house i,e, demised premises, therefore, the demised premises is required for his own personal use. The respondent alleged that the appellant has committed default in payment of monthly rent for the month of December, 2011.
On the basis of such claim and allegations the respondent prayed for directing the petitioner to vacate the demised premises and put the owner of the demised premises in possession whereof.
3. The petitioner who was respondent before the Rent Controller in his written statement denied the default in payment of rent as well as personal need of the respondent and claimed that he is tenant in the demised premises for another term of 11 months after expiry of second term of tenancy on 31-12-2012. He made prayer before the Rent Controller for dismissal of rent application.
4. On the pleadings of the parties, following issues were framed by the Rent Controller:-
(1) Whether the petitioner required the demised premises for the use and occupation of the owner of the demised premises Mr. Zahid Sultan or not ?
(2) What should the order be?
5. The respondent who was landlord filed her affidavit in evidence and power of attorney executed in her favour by the original owner Zahid Sultan in tenancy agreement and notice, while the present petitioner who was opponent in the Rent Application filed his affidavit in evidence. They were cross- examined by the respective counsel for the parties.
6. The Rent Controller answered the point No,1 in affirmative and directed the appellant to vacate the same within 45 days. The same order is impugned in this appeal.
7. Learned counsel for the appellant has argued that the ejectment application itself was not maintainable as the same has been filed by a person not competent in law to do so. Per learned counsel the respondent in her own name has instituted ejectment application and has not cited the original owner as party nor she sued the petitioner in such a capacity but claimed herself to be owner of the property in the case, which shows mala fide on the part of the respondent; that no evidence has been brought on record that the actual owner of the premises is in Pakistan; that he along with his family is permanently settled in Canada and doing his work there while his sons are studying; that actual owner Zahid Sultan never appeared before the court of Rent Controller nor at any time demanded the possession from the appellant on the said so called ground of his personal need; learned counsel further contended that the landlord has failed to prove his bona fide need of the demised premises in good faith. He further argued that attorney or agent is not competent to apply for ejectment on the ground of personal need of the owner. He has placed reliance on the cases reported as (1) Muhammad Hafeez v. District Judge (2008 SCM R 398) (2)
Shahbaz Khan v. Muhammad Fazal Kiani (1988 CLC Kar. 811) (3) Sultan Press Ltd. v. Muhammad Hasan (PLD 1985 Kar. 624) (4) Atoomal v. Allah Bux (PLD 1985 Kar. 650) (5) Muhammad Yamin v.
Mrs. Khaliq Begum (1988 CLC 1297) (6) Abdul Rahman v. Pakistan State Oil Co. Ltd. (1997 CLC 1085)
(7) Vector Joseph v. M. Amin (2000 A.C. 11) (8) Mst. Ashraf Alia v. Dr. Asif Majeed (1991 CLC 53) (9)
Muhammad Moosa Khawaja v. Muhammad Umar (1995 M LD 1880) (10)- Mst. Noorunissa v.
Qamurul Huda.' (1988 CLC 1833) (11) Montessori Home v. Muhammad Shekoh Slaim (1995 CLC 1353)
(12) Saira Bai v. Anisur Rahman (1989 SCM R 1366) (13) Siddiqa Begum v. Irshad Ali Shah (PLD 1999 Kar. 311) (14) Muhammad Roshan Khan v. Ishtiaq Ali (1995 CLC 702) (15) Abdul Fayyaz Khan v. IIIrd Additional. District Judge (2012 CLC 793) (16) Raza Ali Shah v. Agha Hassamul Haque (1989 CLC 2003) (17) Mansoor Hamid Khan v. Farhat Jamal (1990 ALD 354(2)) (18) Mst. Aijaz Fatima v. New Standard Furniture Emporium (1989 ALD 313(1)) (19) Gulrez A. Shaikh v. Lt. Col. (R) Qadir Saeed (1992 M LD 1632) (20) Ahmed v. Aisha Tariq (2011 CLC 538) (21) Muhammad Lateef v. Nasima Warsi (2009 CLC 279) (22) Ahmed Jan v. Anjuman-e-Islam (2012 CLC 179) (23) Ghulam Mustafa Bughio v.
Additional Controller of Rents (2006 SCM R 145) (24) Muhammad Kashif Kamal Siddiqui v. Farooq Baig (1990 M LD 1009).
8. Conversely, learned counsel for respondent No,1 has argued that the petitioner can be termed as a landlord as for the time being she was authorized or entitled to receive the rent in respect of the demised premises. In this context he has placed reliance On section 2(g) of the Cantonments Rent Restriction Act, 1963; Per learned counsel in view of the definition of the landlord it is not necessary that such application should be filed by the owner of the premises and landlord need not necessarily being the owner of the property; that the petitioner has admitted that he was inducted as tenant in the rent agreement by the respondent, therefore, he cannot be allowed to challenge the title of respondent without first surrendering possession to her; that there is admission on the part of the petitioner regarding the status of the landlord and the petitioner and he is debarred from subsequently challenging to the status of the respondent in rent proceedings. He further added that the statement of attorney of landlord in support of his bona fide requirement cannot be brushed aside when it is in conformity with the statement made in the application. The landlord in his power of attorney executed in favour of the respondent which is produced in evidence has authorized the present respondent for filing rent application ; that in cross of the attorney by the learned counsel for appellant did not dispute or questioned the plea of landlord for personal need and non-appearance in the witness box by the owner cannot be taken adverse to the statement of the landlord. He further added that the contention of the respondent No,1 in affidavit, in evidence regarding the personal need of Captain Zahid Sultan owner of the property has gone un rebutted and unchallenged. In support of his contention, he has placed reliance on the cases reported as (1)
New Standard Furniture Emporium v. Mst. Ejaz Fatima (1999 M LD 2925) (2) Habibullah v. Shamim Akhtar (1992 CLC 1567) (3) Wazeeruddin v. Khalid Masood (1989 CLC 106) (4) Sardar Muhammad v.
Khawaja Muhammad Nazar (2004 CLC 289) (5) Madrissa Darul Uloom v. District Judge and another (PLD 1992 SC 401) (6) Israr Ahmad v. Abdul Aziz (1987 CLC 336) (7) Noori Trading Corporation (Pvt.) Ltd. v. Abdul Ghafoor (1997 CLC 205) (8) Khursheedul Islam v. Qamar Jehan (1989 CLC 1467) (9) Jehangir Rustam Kakalia v. Hashwani Sales Services (Pvt.) Ltd. (2002 SCM R 241), (10)
Muhammad Ishaque Qureshi v. Zahir Hussain Jafri (PLD 2013 Sindh 545) (11) Mst. Noor Jehan Begum through L.Rs v. Mujtaba Ali Naqvi (1991 SCM R 2300) (12) N.W.F.P. Peshawar and 2 others v. Mazhar Hussain and 2 others (PLD 2004 SC 682) (13) Sheraz Tufail v. The State (2007 SCM R 518) and (14) Dr. Javed Akhtar v. The State (PLD 2007 S.C. 249).
9. I have considered the arguments and perused the material available on record. Learned counsel for the appellant has made much emphasis on the point that the landlord did not appear in witness box and has examined his attorney. The other contention of the learned counsel for the appellant is that respondent No,1 is not the owner of the property, therefore, she cannot take the plea of personal need of original owner namely Mr. Zahid Sultan. As far as the default in payment of rent in concerned, during the course of arguments both the parties have not agitated this point.
10. I have gone through the contents of application wherein at para-2 and affidavit in evidence respondent No,1 had taken plea that the demised premises is owned by Zahid Sultan the brother- in-law of the respondent who has executed the power of attorney in respect of the demised premises to look after, maintain control and rent out the same and to collect rent on his behalf. In written statement, the content of para-2 of the rent application has been admitted by the petitioner and has stated that though she is landlady but not the owner of the property. It is relevant to mention here that in cross-examination the petitioner in clear terms has admitted that the applicant is landlady but not owner of the demised premises. He has also admitted that he has not met Mr. Zahid Sultan the owner of demised premises till today. It is also admitted that the tenancy agreement was signed by the respondent No,1 with the petitioner. As per definition of landlord a person for the time being entitled to receive rent in respect of any building whether on his own account or for the benefit of another person for the time being deriving title from the landlord can be termed as landlord within the meaning of subsection 2(g) of the Cantonment Rent Restrictions Act, 1963. It is also admitted fact on record that the petitioner used to pay the rent to the respondent No,1 hence under the law the petitioner is landlady and relationship of landlord and tenant exists between the parties.
11. In view of above proposition of law the petitioner cannot dispute the ownership of Zahid Sultan and so also relationship of landlord and tenant with the present respondent.
12. It is worthwhile to note that landlord in order to prove the personal need can examine his attorney and there is no compulsion that he must appear in the witness box. Reliance is placed on the case of Abdul Rauf v. Abdul Sattar 1998 SCM R 2525 (2) Javed Ahmed v. Muhammad Imran Malik (PLD 2011 Isb. 30). The nonappearance of the landlord and his representation through attorney was not fatal for the landlord. Nothing has been brought on record by the appellant that due to non-appearance of attorney/landlady what injustice has been done to him.
13. The landlady/attorney in her affidavit in evidence in para 16 has stated as under:- "That the demised premises belongs to my brother-in-law namely Zahid Sultan son of Sheikh Sultan Ahmed, who is retired from service and recently have returned to Karachi Pakistan from Canada and such premises required to him for his personal bona fide use, therefore, he wants to get vacated the demised premises from the hands of opponent, but the opponent is avoiding to vacate the same. I produce the copy of passport and ticket."
14. The counsel for the petitioner cross-examined respondent No,1 at length but no question was put by the appellant with regard to any circumstance on account to which the power of attorney has been executed. It is also not disputed in the cross-examination that the said demised premises is not required by the said Zahid Sultan in good faith and it also not disputed that he is not retired from service and has recently returned to Pakistan from Canada. The above version of respondent No,1 Mst.Wajiha Saleem in Para-16 of the affidavit in evidence has gone unrebutted and unchallenged. It is the rule of law that where pivotal point/specific portion of the evidence goes unrebutted and unchallenged in cross-examination, the same are deemed to been admitted. On this point reliance is placed on the case of Mst. Nur Jehan Begum, Sheraz Tufail and Javed Akhtar supra. Moreover, in his affidavit in evidence the petitioner did not dispute the personal bona fide need in good faith of original owner Zahid Sultan. In the circumstances, the contention of the learned counsel for the appellant for nonappearance of owner, who requires the premises had not appeared in the witness box has no force. The original owner has examined her attorney and his evidence is found by the Rent Controller as trust worthy and consistent to the averments made in the Rent Application. The landlord has succeeded in leading reliable and sufficient evidence to prove that demised premises is required in good faith for personal need of original owner and the claim is based on sincerity and honesty and no flaw has been pointed out by the learned counsel for the appellant. Moreover, if the landlord does not occupy the demised premises got vacated on account of personal need, the rights of the tenant have been protected in subsection (6) of section 17 of Cantonments Rent Restriction Act, 1963 which reads as under:--
(6) Where the landlord who has obtained possession of building in pursuance of an order make under subsection (5), does not himself, or where possession of the building has been obtained for any member of his family, such member does not occupy the building within one month of the date of obtaining its possession, the tenant who had been evicted may apply to the Controller for an order directing that the possession of such building be restored to him and the Controller may thereon make an order accordingly.
16. In view of above discussion, I do not see any reason to arrive at any different conclusion, therefore, I find no cogent reason to interfere with the order of the learned Rent Controller and by upholding the same, dismiss this appeal with no order as to costs.