MRS. IRSHAD QAISER, J.---Appellants Mushtaq Ahmed and Javed Khan filed the present appeal against the judgment and order dated 30-10-2013 passed by Rent Controller Cantonment Board Abbottabad whereby application filed by respondent landlord Tahir Adam for ejectment of appellants was accepted on the basis of order dated 18-9-2013 by which the defence of appellant was struck off.
2. The brief but relevant facts of the case are that respondent Tahir Adam filed an eviction petition under section 17 of the Cantonments Rent Restriction Act, 1963 for ejectment of tenants on the ground of personal need, rent default and subletting of shop. In the petition it is contended that he is owner and landlord of Mehtab Plaza situated in Pine View Road Cantonment Bazaar Abbottabad which consists of 32 shops. That he rented a shop to tenant Mushtaq Ahmed and a rent agreement was executed which though has been expired but the tenancy is continuing on some terms and conditions. But respondent/appellant No.1 has sublet the shop to appellant No.2 with the consent of petitioner. That the petitioner requires the suit shop along with other shops and basement situated in the above plaza for his personal bona fide need for his business as he has to establish a trading company. That they are also defaulters of monthly rent w.e.f. October, 2011 which come to the tune of Rs.18216. That he has no other such property in the Urban Area of Abbottabad to establi0 such a business. That appellant were asked for several time to vacate and handover the peaceful possession of the shop but they refused to do the needful. Legal notice was also given to them to vacate the shop but they refused hence he filed the ejectment petition on 9-1-2012.
3. Applicants/ tenants were summoned. On 21-1-2012 they attended the Court through their counsel and they were directed to submit their written statement. On 16-2-2012 counsel for respondent/land-lord submitted application for amendment of rent petition which after contest was allowed and on 29-3-2012 landlord/ respondent submitted amended petition and tenants/applicants were directed to submit written statement who submitted the same.
From the divergent pleading of the parties the trial Court framed the following issues:--
(1) Whether the petitioner has got cause of action?
(2) Whether the respondent is defaulter?
(3) Whether the respondent had enhanced statutory rent in accordance with law?
(4) Whether the shop is personally needed by the petitioner for his business and he has got no other property in his possession?
(5) Whether the rent agreement had expired?
(6) Relief.
4. After fulfilling legal formalities respondent/landlord produced his evidence which was completed and concluded 'on 5-7-2013 and case was fixed for 12-7-2012 for recording the evidence of tenant/ petitioner. But when they failed to produce defence in spite of availing more than 12 adjournment, the trial Court vide order dated 20-2-2013 struck off their defence and they were directed to vacate the suit shop and hand over the possession of the shop to the petitioner within two months. Feeling aggrieved they filed W.P No,373-A/2012 which was allowed vide order dated 30-4-2013 and eviction order was set aside. After remand case was fixed for evidence of respondent for 19-6-2013 but he failed to produce it. On 3-7-2013 he submitted application for amendment of written statement.
Their application was allowed and they submitted the amended written statement wherein they raised an objection that the suit property is not required to the landlord for his personal need.
Rather he intends to sell the same and in this respect he executed a sale deed with other tenants namely Muhammad Saeed, Muhammad Tariq and Muhammad Zahid in the year 2011 and also received Rs,50000000 as sale consideration. There is mala fide on the part of landlord and petition is liable to be dismissed. Respondent/landlord was cross-examined in this respect and in spite of repeated directions including the warning and fine the detail of which is given in order sheet Nos.36 to 43, the appellants failed to produce evidence. Ultimately the trial. Court vide order dated 18-9- 2013 struck off the defence of the appellant and case was fixed for arguments. On 10-10-2013 both the parties submitted their written arguments and vide order dated 30-10-2013 ejectment order was passed and they were directed to hand over the possession to the landlord within two months.
Feeling aggrieved they filed the present appeal.
5. Valuable arguments of the learned counsel for the parties heard and available record perused with their assistance.
6. Learned counsel for the appellants contended that the impugned judgment and order of the Rent Controller are the proved example of one sided and harsh decision. That Rent Controller, being a quasi judicial forum of Military hierarchy, was clearly influenced by the respondent who hails from strong military back ground. That every effort was made by the appellants to persuade the Rent Controller to bring such evidence on record but nothing prevailed with him and he did not allow such evidence to be adduced which favoured the appellant. That in order to give benefit to the respondent, the Rent Controller wrote false order sheets. To prove this factum counsel for the appellants submitted affidavit. It is further contended that respondent does not require the suit property for his personal need. He tried to sell it He entered into a deed of sale of Plaza with Muhammad Saeed and others and an agreement to sell dated 24-9-2011 has been executed.
There is mala fide on the part of respondent landlord. That no opportunity was given to the appellants to produce evidence in this respect. These arguments were rebutted by counsel for respondent/landlord and supported the finding of Rent Controller and impugned judgment.
7. Now the main question for determination is that whether appellants themselves are responsible for delay and sought adjournment on one pretext or other and failed to produce the evidence in rebuttal as they have nothing to produce? Whether Rent Controller has been influenced by the Status of the respondent/ landlord who hails from strong, military background and he has given much concession to the landlord against the tenants and deprived the appellants to produce evidence to prove their contention. Whether order sheets dated 13-9-2013, 16-9-2013 and 17-9-2013 are self created, false and were written afterward? Whether petitioner/landlord required the suit property for his personal need or his only intention is to sell out the same in order to get rid from the respondents.
8. After the perusal of entire record I could not find myself in agreement with the contention of learned counsel for the appellant that Rent Controller has been influenced by the strong military back ground of the respondent as I have not been able to reach to the conclusion that either during the trial, the Rent Controller has not adopted proper procedure or has given any concession to the landlord. Record shows that all the proceedings have been conducted in accordance with law. Rather in rebuttal there is material evidence on record to suggest that hindrance had been created and delay had been caused by the tenant for the quick disposal of the case as it is the essential requirement of rent cases. In the first round of litigation the appellants sought repeated adjournments for recording of evidence. In spite of warning and fine appellants did not produce evidence and thus Court was compelled to strike off the defence of appellants vide order dated 20-2-2013.Though their writ petition was allowed and case was remanded back to trial Court to give opportunity to appellants to produce evidence but in spite of availing off more than 18/19 adjournments they failed to produce evidence, and did not mend themselves. In such situation Rent Controller had no other option except to pass the order of striking off defence of the appellants. Order sheets Nos.36 to 43 reflected the conduct of the appellants. Though learned counsel for the appellants had challenged the validity of order sheets dated 13-9-2013, 16-9-2013 and 17-9-2013 being not true and were written afterward and also submitted an affidavit in this respect. But no strong and unimpeachable evidence has been produced in this respect. In spite of the fact that the case was pending for trial till 30-10-2013 but appellants had not made any complaint etc to the competent authority including this Court (appellate Court) in respect of the drafting of wrong order sheets. Though appellants filed Writ Petition but no allegation in respect of these order sheets has been given. It is settled law that in such situation preference has to be given to the order passed by the Court. Reference in this respect is given to 2007 CLC Lahore 1084 wherein it is held; "The order passed by the Court has precedence over the assertions of the parties or their learned counsel to the contrary". Case of Fayyaz Hussain V. Akbar Hussain and other, 2004 SCMR 964 can be referred wherein it is held; "Learned counsel attempted to persuade us, accept the affidavit of Ch. Muhammad Afzal Kowloon Advocated over the judicial proceedings recorded in the Court of Additional District Judge in view of unfair reputation of the presiding officer but we are not inclined to adopt this cause of action which may lead to a large number of legal complications. There is always a presumption of correctness in favor of judicial proceedings and credibility is attached to the proceedings before a judicial forum. Strong and -unimpeachable evidence is required to rebut the presumption which is badly lacking in the case in hand"
Reference is also made to PLD 1993 SC 68.
9. All the order Sheets Nos.1 to 47 recorded from day one i,e, from 9-1-2012 till the ejectment order dated 30-10-2013 disclosed the attitude of appellants who sought adjournments on one pretext or the other just to cause delay. Record shows that the Rent Controller adopted legal procedure and provided full/sufficient and complete opportunity to tenants/appellants whereas the tenants in spite of availing opportunities failed to produce evidence. Reference in this respect is made to case Abdul Majeed represented by legal heirs v. Lutfi Siddiqui and 2 others (1987 CLC Karachi 455) wherein it is held; "Where tenant failed to adduce evidence in spite of proper and sufficient opportunities, Rent Controller was perfectly justified in closing his defence and decided issue accordingly".
It was further held "the contention that deceased was not given proper opportunity to adduce evidence is not borne out from the facts of the record. He was in fact given sufficient opportunities spreading over period of 6/7 months to adduce evidence." Reference may be given to Col. (Retd.) Sadiq Hassan Sheikh v. Lt. -Col. Farooq Ahmed (1987 SCMR 1887) wherein it is held; "Proceeding adjourned on three occasions to enable petitioner to produce his evidence but Rent Controller, after being satisfied that petitioner was purposely prolonging the proceeding, closed his evidence. No infirmity could be found in order of Rent Controller in such regard."
10. In the present case the contention of learned counsel for the appellants, that the appellants were not given sufficient opportunity to lead evidence is without any substance. As already mentioned, the respondent landlord concluded his evidence on 5-7-2012 vide order sheet No,18.
The order closing the evidence of the appellants/tenants was made on 18-9-2013 vide order sheet No,43. In between these two days the proceedings were adjourned on 25 occasions to enable the appellants to produce their evidence and when Rent Controller was satisfied that appellants were purposely prolonging the proceeding then he passed the order of closing their evidence. No illegality, irregularity or infirmity has been pointed out by the learned counsel for the appellants.
11. The other question for determination is that whether the landlord required the suit property for his personal need or his intention is to sell out the same to enhance the agonies of tenants? The claim of the landlord is that he is owner/landlord of Mehtab Plaza Pine View Road, Abbottabad and respondents are his tenants. That the disputed shops along with 10 other shops situated in the same Plaza are required to him for his personal bona fide need for his business as he is going to be retired in August 2013. These allegations were denied by the appellants and contended that landlord is not in need of the suit property or other shops situated in the plaza for his personal need as he has already entered in the sale transaction of the suit shops. In Para No,2 of the amended written reply it is specifically mentioned that in the year 2011 he had sold out the suit plaza to Muhammad Saeed, Muhammad Farooq and Muhammad Zahid sons of Rehmatullah for sale consideration of Rs,50000000 and the sale consideration has already been received by him. It is further contended that the entry in this respect has been made in register of petition writer pertaining to the year 2011 at Serial No,596 dated 24-9-2011.
12. In the present case the relationship of landlord and tenant exists between the parties. The respondent raised the plea of mala fide on the ground that he had already entered into sale agreement with Saeed etc and his intention is only to increase the agonies of appellant. In order to prove his contention the respondent/landlord himself was examined as P.W.1 and fully corroborated his version. In this respect he also submitted affidavit Exh.P.W.1/1. One Aurangzeb appeared as P.W.2 and also supported the version of landlord. He also submitted his affidavit Exh.P.W.2/1. When the appellant for the first time raised an objection in respect of the execution of sale deed before this Court in Writ Petition No,373-A of 2013 decided on 30-4-2013, which was filed against the order of Rent Controller dated 20-2-2013, the respondent/landlord submitted an affidavit which for its proper appreciation is reproduced as under:-- "I, Adam Khan do hereby solemnly affirm and declare on oath that I have filed eleven eviction petitions against the tenants of Mehtab Plaza Abbottabad for my personal use; I have formulated a registered company by the name of SHALIMAR TRADING COMPANY Abbottabad.
After getting the vacant possession of the shops I will setup my own business in the name of SHALIMAR TRADING COMPANY and will supervise the business myself. Neither I have entered into any sale agreement nor I intend to do so in near future. I have not yet decided to dispose of the impugned property to anyone, though previously I have advertised the sale of entire plaza through internet and newspapers to ascertain the actual market value at that moment of time, the same had been withdrawn once I had decided to start my own business. My affidavit is signed this 27th day of April 2013."
13. This fact was also mentioned by this Court in Para No,6 of the order dated 30-4-2013 passed in above writ petition which is reproduced as under:-- "On 23-4-2013 learned counsel for the respondent stated at the bar that the suit shops were required by the landlord for his personal need and he had not received any payment from anybody for sale of suit shops."
14. After the remand of the case the appellant filed application for amendment of written reply which was allowed and wherein he raised this plea of sale by landlord. Now it is to be seen whether appellants have been able to prove the plea. It is proved from record that opportunities were given to appellant to prove their version by adducing evidence but even after obtaining 15 adjournments, they failed to produce their evidence. On 18-9-2013 official witness attended the Court but.
Appellants were reluctant to examine them. Order sheet No,43 dated 18-9-2013 is very relevant which is reproduced as under:- {{URDU TEXT}}
15. When the right of defence was struck off on 18-9-2013 and case was fixed for arguments, counsel for appellants produced a copy of statement of one Ghulam Daud Petition Writer dated 22-10-2013 wherein he has given the detail of alleged agreement to sell dated 24-9-2011. Since the appellants failed to produce witness in spite of availing more than 15 adjournments and no right of cross-examination was given to the landlord, therefore, it cannot be considered as piece of evidence as it has no value in the eye of law. Rather this shows the conduct of the appellants and tried to mock the process of law. Thus it is proved from record that appellants failed to prove that land-lord wanted to sell the property/plaza and he has obtained the sale consideration i,e, Rs .50000000.
16. The other objection raised by appellant is that landlord failed to disclose the nature and type of business. That neither he has registered the Company mentioned in his statement nor he has any experience to establish company. It is established principle of law that no legal requirement exists to the effect that landlord in seeking ejectment of tenant from commercial premises on the ground of personal and bona fide need must disclose the nature of business which he intended to start in the premises. It is not necessary for the landlord to prove his personal need of such premises that he must possess experience in the trade or business which he intends to set up in the premises after the eviction of his tenants. Reference is made to 1980 SCMR 593, PLD 1976 Karachi 832, 1989 SCMR 1368 and 1997 SCMR 1062. Reference is also made to case Muhammad Iqbal v. Syed Sohail Wajid Gillani reported in 2004 SCMR 1607 wherein it is held; "Landlord was not bound to mention the nature of business in the statement as he keeping in view his financial position, margin of profit and chances of success might select any suitable business after obtaining possession of premises. In absence of choice of business the bona fide personal need of land-lord was not affected." Guidance is also sought from judgment of apex Court in case Haji Mohibullah and others v. Khawaja Bahauddin reported in 1990 SCMR 1071 wherein it is held; "For the landlord seeking ejectment of tenant on ground of his personal bona fide need, it was not a legal requirement to disclose in his ejectment petition nature of business for which he required premises in dispute."
In case Shahid Mehboob v. Muhammad Ismail reported in 2008 CLC 87, wherein it is held; "Even if a son of landlord was carrying of his own and not dependent upon his father/ landlord, such son was also entitled to have premises vacated from tenant for his personal use on such application having been made by his father---Ejectment application was maintainable on such plea."
Reference may be made to 1994 SCMR 355, 2001 SCMR 550 and PLD 2007 SC 31.
16A. It is admitted fact that respondent was govt. Employee and he was retired in August, 2013.
Nothing was brought on record to show that the respondent was in possession of any other property/plaza in the Cantonment area suitable for his needs and requirement. It has been held by the apex Court in case Messrs. F.K.Irani Co. v. Begum Feroza 1996 SCMR 1178, that even the sole testimony of landlord is sufficient to establish the personal and bona fide requirement of landlord.
In the present case, the statements of respondent and P.W.2 on oath supported by affidavits were quite consistent with his averment made in the ejectment petition and neither his statement was shaken nor anything was brought in evidence to contradict this statement.
17. In fact the appellants did not even step in the witness box to controvert the testimony of the respondent in the case. Respondent/landlord was cross-examined for two times but appellants failed to extract any piece of evidence either in their favor or shatter the contention of respondent.
Reference is made to 2011 YLR 182.
18. If the landlord failed to use the suit premises for his personal need then remedy is available to the appellants under subsection (6) of section 17 of the Cantonment Rent Restriction Act, 1963. The relevant provision is reproduced as under:-- "17(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 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 order accordingly."
19. In these circumstances, I hold that Rent Controller was fully justified in accepting the evidence of the respondent and ordering eviction of appellants from the premises. There is no ground whatsoever to interfere with the order passed by the Rent Controller. Learned counsel for appellants has not been able to point out the non-recording or mis-recording of the evidence.
Thus the appeal being without force is hereby dismissed. Appellants are directed to vacate the premises and hand over the possession to the respondent within 6 (six) months.