Rasaal Hasan Syed, J. Order dated 11.11.2021 of the learned Addl. District Judge, Lahore, accepting appeal of respondent No.1 and directing eviction of petitioner, has been challenged in this Constitutional petition.
2. Respondent No.1/Ishfaq Ahmad filed a petition under sections 15 and 19 of The Punjab Rented Premises Act, 2009, for the eviction of petitioner/Mushtaq Ahmad from the residential/demised premises inter alia on the grounds of default in payment of rent from 01.7.2016 till filing of eviction petition; unauthorized changes in the nature and character of property and for his personal use and occupation. The stance taken therein was that the petitioner was real brother of respondent No.1; the residential property was purchased by respondent No.1 through a registered sale deed dated 11.8.1999; the petitioner got the property on rent from respondent No.1 on the basis of oral tenancy agreement @ Rs.35,000/- per mensem; the possession was handed over by respondent No.1 to the petitioner as tenant; the petitioner did not pay the rent after June 2016; and that all utility bills of the premises used to come in the name of previous owner of property, namely, Muhammad Yaqoob copies whereof were being attached with the petition for consideration of the learned Special Judge (Rent). In his application for leave to contest filed under section 22 of the Act ibid. the petitioner, amongst other legal objections, alleged that the respondent had concealed the facts in the eviction petition. It was averred that petitioner was owner-in-possession of the property to the extent of his share as all the legal heirs were the owners of property; that two suits (i.e. for partition and for declaration of benami transaction) were pending in the competent court of law inter se the parties; that the respondent incorrectly claimed renting out of the premises to the petitioner and that the learned Special Judge
(Rent) lacked jurisdiction as relationship of landlord and tenant did not exist between the parties. Vide order dated 15.1.2019 application for leave to contest was allowed and issues qua existence of relationship of landlord and tenant inter se and with regard to default were framed; whereafter evidence of respondent No.1 was recorded while the petitioner's right of cross-examination and thereafter the right to produce evidence, after certain opportunities, were closed.
3. Considering the oral and documentary evidence the learned Special Judge (Rent) vide order dated 01.3.2021 recorded findings to the effect that the respondent' s stance in the ejectment petition was that he had rented out the property to the petitioner on the basis of oral agreement of tenancy and that he had been receiving the rent prior to the period of default while the evidence produced had completely destroyed the respondent' s case as the evidence contrarily reflected an inconsistent and different version, wherein the mother of respondent No.1 appeared and claimed that the property had been given to her by her son and that she had been renting out the property and that she inducted the petitioner as a tenant and also inducted other tenants and that she had been receiving the rent till June 2016. The evidence was, therefo re, not in line with the pleadings of respondent No.1 and since the respondent did not lead any evidence to prove the assertions in the ejectment application or to prove the case accordingly he had failed to establish the existence of relationship of landlord and tenant between the parties. The ejectment application was accordingly dismissed. In appeal, the learned Addl. District Judge despite taking note of the fact that Mst. Irshad Begum had not filed eviction petition against the petitioner/Mushtaq Ahmad (yet deposed a different case that the house was given to her by her son and that she rented it out to the petitioner and allegedly used to receive rent) observed that she was included in the definition of landlady and could seek eviction of the petitioner and, under this perception, allowed the eviction of petitioner by the impugned order in appeal.
4. Main objection of the petitioner against the impugned order is that learned Addl. District Judge ignored the pleadings and accepted the evidence which was inconsistent with the plea raised in the petition for ejectment which apart from being self-contradictory was also inconsistent with the affidavit submitted by the witnesses. The objection appears to be that no one could be permitted to produce evidence contra ry to what has been pleaded nor any case could be set up on the basis of evidence for which no foundation was placed in the pleadings. As against this the impugned order has been supported by the learned counsel for respondent who vehemently submitted that the mother of the respondent was covered by the definition of landlady as contemplated by law and, as such, she could legitimately seek eviction of the petitioner on the ground of default and that the relationship was duly established and that no plausible ground was made out to seek interference in the impugned order.
5. Points raised by the learned counsel for the parties have been duly considered. Original record of the case was also requisitioned as all the documents forming part of record did not appear to have been annexed with the instant Constitutional petition. Perusal of the record reveals that ejectment application under sections 15 and 19 of the Act ibid. was instituted by respondent No.1 himself on 06.7.2018. In the ejectment application he asserted to be residing in London but being present in Lahore was filing the ejectment application himself. It was asserted that the petitioner was real brother of respondent No.1 who got the property in question on rent on the basis of oral rent agreement @ Rs. 35,000/- per month in the year January 2016 and in the same month the possession was handed over by the petitioner to the respondent/tenant.
6. It is manifest from the contents of the application that respondent No.1 specifically claimed that he had inducted his brother as a tenant in the premises through an oral tenancy and that the rent was received from January to June 2016 but thereafter from July 2016 rent was not paid and that the petitioner allegedly violated the terms and conditions of oral rent agreement of January 2016. The ejectment application was signed and verified by the respondent No.1 himself which was supp orted by his affidavit wherein the contents of the ejectment application inclusive of those referred supra were reproduced and were verified on oath at Lahore on 04.7.2018. An affidavit of Muhammad Idrees son of Haji Muhammad Siddique who appeared as A.W.2 in evidence was also filed with the ejectment application, perusal whereof shows that it was a replica of ejectment application and same was the position qua the affidavit of Sharif who was later not produced as witness. It is obvious that the case set up in the ejectment application was that the respondent No.1 had himself inducted the petitioner as a tenant in the property through an oral tenancy agreement and that he had been receiving rent and that he was asked by respondent No.1 to vacate the premises whereafter the ejectment application was filed. The ejectment application does not give even the remotest impression that the mother of respondent No.1 was ever given the premises or was vested with the authority to rent out the same or to receive the rent and induct tenants or that she had ever acted under instructions and with authority from respondent No.1 as a rent collector.
7. Contrary to the pleadings a different story was presented in the evidence. Mst. Irshad Begum appeared as A.W.1 and also produced affidavit Ex.A1 as her affirmative statement. In the affidavit it was alleged that oral tenancy was settled in January 2016 @ Rs. 35,000/- per month between her sons Ishfaq Ahmad and Mushtaq Ahmad and that possession was delivered to Mushtaq Ahmad. She did not state in the affidavit that she had inducted the petitioner as a tenant or that she had been receiving the rent or that the property was given to her by respondent No.1 or that she used to be in control of its administrative matters like renting it out and receiving rent. Contrary to the contents of the affidavit, A.W.1 in her statement deposed that Ishfaq Ahmad is her real elder son, who had given the house to her and that she had been receiving the rent and that she rented it out in January 2016 @ Rs. 35,000/- per month to the petitioner Mushtaq Ahmad and that he committed default after June 2016 and embroiled them in frivolous litigation. It is manifest that the affidavit and the statement as A.W.1 are self-contradictory apart from being inconsistent with the contents of the ejectment application. In the affidavit she deposed that the oral tenancy was between the petitioner and respondent No.1 but in her deposition on oath she took a U-turn and made a different statement that she had given the premises on rent to the petitioner . It is obviou s that the statement is not only contradictory in the context of the affidavit but it did not support the stance of the respondent in the ejectment application either . Same is the case with A.W.2 Muhammad Idrees. His affidavit Ex.A5 was a total replica of the contents of ejectment application wherein it was stated that respondent No.1 himself inducted the petitioner as tenant and delivered the possession. In his deposition as A.W.2 he, however , took the inconsistent stance and deposed that Mst. Irshad Begum A.W.1 had given the premises to petitioner Mushtaq Ahmad @ Rs. 35,000/- and that till June 2016 he paid the rent and that the house was constructed by Ishfaq Ahmad with his own funds.
Obviously this statement on oath and the statement of affidavit Ex.A5 are contradictory apart from being in contradiction to the contents of ejectmen t application wherein the respondent' s claim was that he inducted the petitioner as tenant and that he purchased the house and that the utility bills were being issued in the name of the previous owner . The third witness was one Muhammad Yousaf A.W.3 who appeared as alleged special attorney of respondent No.1. Notwithstanding the fact that as per contents of the power of attorney, he was expected to make statement as per case set up in the ejectment application by the principal (i.e. the respondent No.1) himself, he as special attorney made a contradictory statement while the affidavit of A.W.3 produced as Ex.A6 is a replica of ejectment application in which he claimed that the house was rented out by respondent No.1 himself. In his statement on oath it was deposed that the house had been given by respondent No.1 to his grandmother i.e. A.W.1 and that she had been receiving the rent of the disputed premises and that in January 2016 his grandmother A.W.1 gave the house on rental basis to the petitioner Mushtaq Ahmad and that he had been paying rent for six months to the grandmother and further that respondent No.1 wanted to sell the house. In the ejectment application, as noted supra, the respondent No.1's stance was that he had himself rented out the house which he required for his personal need and also for the need of his family but the attorney, though in his affidavit made the same statement, contradicted it in his deposition on oath. Being so, the statement of A.W.3 was not only contradictory to the contents of affidavit but also was against the contents of the ejectment application.
8. The net result is that the respondent No.1 did not produce any evidence in suppo rt of his own case which was to the effect that he had himself rented out the house to the petitioner and that he inducted him as a tenant under the oral tenancy agreement, while the evidence produced in this regard is altoge ther different apart from being contradictory to the ejectment application as also affidavits filed as statements-in-c hief. Another notable fact is that prior to the filing of ejectment application the respondent No.1 issued a notice of eviction to the petitioner , copy of which is available on record which is also mentioned in the ejectment application. Even in that notice respondent No.1 did not take the stance of any indulgence of his mother in the matter of renting out the property or of receiving rent from the petitioner . The plea taken in the notice is also founded in the ejectment application but unfortunately the respondent did not produce the evidence to prove the case as pleaded. So much so his stance in paragraph "4" of the application under Order VII, Rule 11, C.P.C. dated 05.7.2018 filed in suit for partition of petitioner was the same as given in the ejectment application.
9. Learned Addl. District Judge proceeded on perception that the rent collector is also covered by the definition of landlady and can legitimately file ejectment application. It is axiomatic that the concept of landlord includes a person who has been authorized to rent out the property or who had been acting as rent collector under instructions and permission of the landlord , such evidence could only be accepted if the case was so pleaded in the ejectment application as supported by the respondent No.1 himself; but the ejectment application as also the notice of eviction did not give even remote indication or impression of A.W.1's acting as rent collector or as a person who had rented out the property or had been collecting rent nor respondent No.1 had so pleaded. As such the ejectment could not allowed by receiving evidence different than the case set up in the ejectment application. In "Faizan Shabbir v. Shaikh Abdul Wahab through Attorney and 2 others" (PLD 2019 Sindh 559) it was observed that evidence could not be allowed or led beyond the pleadings and the case set up in the pleadings could not be improved at the stage of evidence. In the cited precedent the ground of personal need had not been taken in the pleadings and the question for determinat ion was as to whether an issue could be framed on a ground not raised or whether finding could be given in respect thereof. The view taken was that the party if intended to raise any ground for the first time in evidence it is well-settled that evidence could not be allowed or led beyond the pleadings and that the case set up in the pleadings could not be improved at the stage of evidence and, therefore, the order of the appellate court could not be allowed to remain in field to that extent. In "Abdul Ghani through L.Rs. v. Messrs Caltex Oil Pakistan Limited" (2010 SCMR 771) the plea was attempted to be raised on the basis of the evidence which was not allowed as it was not the case in the ejectment application and was an improvement in the course of evidence.
10. As per provision of section 22 of the Act ibid. the Rent Tribunal cannot allow the tenant to defend the application unless he seeks leave to contest and an application for leave to contest is required to be filed in the form of written reply containing grounds on which the leave was sought, accompanied by the affidavit, copy of all relevant documents in possession as also the affidavits of not more than two witnesses and the tribunal could not allow leave to contest unless the application discloses sufficient ground for the production of oral evidence. It is obvious that in the ejectment proceedings, the tenant is required in law to move an application for leave to contest, containing legal grounds replying to the grounds taken in the ejectment application as also attending the facts raised therein . In the instant case, the ejectment applic ation raised the ground that the petitioner was inducted by respondent No. 1 as a tenant and that the relationship between the parties was of real brothers. Defense taken was that the petitioner was not a tenant but was in occupation as a shareholder and that the property was joint and partition suit was pending and further that the respondent No.1 never inducted the petitioner .
11. Obviously, the respondent was expected to produce evidence to amplify the facts and grounds taken in the ejectment application and not to lead evidence of which there was no foundation in the pleadings. No effort was made to produce evidence consistent to the plea taken in the ejectment application nor any attempt was made to prove that the petitioner was inducted by respondent himself as tenant and a new stance was raised in the evidence wherein the mother was involved to set up a case different from the one pleaded in the ejectment application which was obviously inadmissible. So much so that neither respondent No.1 ever appeared in the witness-box nor any document showing delegation of authority by respondent No.1 was produced. Even the pleadings were never amended to raise such a plea. The argument that as rent collector the mother of respondent No.1 could seek eviction, could have only been considered if the case of respondent No.1 in the pleadings had been that the property was rented out by the mother of the petitioner while acting on behalf of respondent or that he had given the authority to collect the rent or that the mother had inducted the petitioner in the property as tenant but having not done so evidence contrary to pleadings being inadmissible could not be entertained nor any eviction order on the basis thereof was permissible. In "Afzal Ahmad Qureshi v. Mursaleen" (2001 SCMR 1434) it was observed to the effect that there was no cavil with the proposition that non-establishment of relationship of landlady and tenant as envisaged in the statute will not attract its provisions and that the factum of ownership has nothing to do with the position of relationship of landlord and tenant inter se the parties and that where any agreement of tenancy was not produced nor any documentary evidence showing that rent was being paid to the said individual, no counterfoil of any receipt, letter from tenant or any notice or other document could be produced, in such instances oral version of landlord shall be insufficient to hold in favor of existence of relationship of landlord and tenant. As noted supra in the instant case the respondent No.1 himself did not appear in the witness-box nor oral evidence of the witnesses produced was consistent or in accord with the ejectment application, the affidavits submitted or the plea raised by the respondent himself and, being so, the learned Special Judge (Rent) correctly dismissed the ejectment application while in appeal the learned Addl.
District Judge illegally interfered with and set aside the order of the learned Special Judge (Rent) on the basis of reasons that could not be adopted in view of specific stance set up in the ejectment application and also in the absence of any statement on oath of respondent No.1 who had not appeared in the witness-box.
12. For the reasons supra, instant Constitutional petition is allowed; the impugned order dated 11.11.2021 of learned Addl. District Judge is declared to be illegal and without lawful authority and accordingly the same is annulled and set aside while the order of the learned Special Judge (Rent) dismissing the ejectment application is affirmed.