' Briefly stated the facts of the case are that the appellants were tenants under Mst. Zainab Malik (predecessor-in-interest of the respondents) in property bearing No, 86-A, C.M.A. Colony, Lahore at monthly rent of Rs,4,000. The landlady executed an agreement to sell on 16-11-1987 for sale of the said property in favour of the appellants. The sale consideration was fixed at 9,00,000 out of which, a sum of Rs,1,00,000 was paid as earnest money. The sale-deed was to be registered on 30-4-1988.
However, the needful could not be done because the landlady fell ill seriously and died on 21-5- 1988. The legal heirs of the deceased declined to execute the sale-deed in favour of the appellants.
The appellants filed a suit for specific performance of the contract on 15-12-1988 in the Court of Civil Judge, Lahore which is still pending.
2. The respondents filed an application for ejectment of the appellants on 8-7-1989 under section 17 of the Cantonments Rent Restriction Ordinance, 1985 on the sole ground of personal need. The petition was resisted by the appellants who filed the written reply in the Court. Out of the pleadings of the parties, the learned Additional Rent Controller framed the following issues:- "(1) Whether the present petition is not maintainable in view of the objections taken by the respondents in their written statement? O.P.R.
(2) Whether the petitioners require the disputed premises in good faith for the occupation of petitioners Nos. 2 and 3? O.P.R.
(3) Relief."
3. One of the petitioners namely Malik Muhammad Siddique appeared as P.W.1 and stated that he required the property in dispute for use of his daughter (not named) whose two sons and a daughter were studying at Lahore. They also produced documents Exhs. P. 1 to P. 6 in support of their claim. Syed Sikandar Ali appeared as R.W.1 and produced documents Exh. R. 1 to R.6. He asserted that the property was not required by the respondents bona fidely for their own need. He also added that ejectment petition was a counter-blast to the suit for specific performance of the contract filed by the appellants. After perusing the material on the record, the learned Additional Rent Controller accepted the petition vide order dated 28-3-1991.
4. The appellants' learned counsel contends as under:--
(i) The respondents had raised a specific plea in the ejecment petition that the property was needed for the use of Mst. Abida respondent No, 3 and daughter of Mst. Khalida Tariq respondent No,
2. They could not deviate from the said position and set-up the requirements of any other petitioner/respondent. Even if evidence is recorded qua a fact not pleaded the same is of no value.
In this connection, he places reliance on the following judgments:- ' M/s. Choudhary Brothers Ltd., Sialkot v. The Jaranwala Central Cooperative Bank Ltd., Jaranwala and others (1968 SCMR 804).
' Saiyed Ali Amir v. M/s. Dalmia cement Ltd. (PLD 1961 (W.P.) Kar.255).
' Nadir Ali and another v. Muhammad Adam Khan (1985 CLC 373).
(ii) The persons who claimed to be in need of the property never entered the witness-box. He places reliance on the case Ghulam Ali and 4 others v. Muhammad Shafi and 2 others (1983 CLC 1418);
(iii) P.W. 1 Malik Muhammad Siddique claimed to be attorney of the other respondents but never placed any document on the record to support the same;
(iv) The mere wish or desire of the landlord is not enough to evict the tenant. The ejectment petition is only counterblast to the appellant's suit for specific performance of the contract and is mala fide.
5. On the other hand the respondent's learned counsel submits as under:--
(i) Being a rent matter the technicalities of the C.P.C. Relating to pleadings and evidence are not strictly applicable. Some divergence in pleadings and evidence is not fatal to the petition.
(ii) Non-appearance of the person for whom the property is required does not militate against the bona fide requirements. In this connection he relies on the following judgments:-- ' Muhammad Bashir v. Vensimal and 4 others (PLD 1980 Karachi 409).
' Khushi Muhammad v. Mst. Anwar Begum etc. (PLD 1982 Lahore 295).
' Zahoor Din v. Mirza Ayub Baig (1981 SCMR 1081).
' Dilshad Muhammad v. Mst. Zubaida Begum (1981 SCMR 895) and Sh. Abdul Ali v. Zaheer Ali Jaura (1982 CLC 153).
(iii) The landlord has a choice qua the property which is suitable for his needs. Even if it is admitted that property No, 86 is lying vacant or physically occupied by the landlords, it will not debar them to seek eviction of the tenant from another property which is most suitable for their requirements.
Reliance is placed on Ishaq v. Haji Wali Muhammad (1983 CLC 1653) and Abdul Rehman v. Nazeer Ahmad (1984 CLC 3054).
(iv) The execution of the agreement to sell or the pendency of a civil suit for specific performance of contract are no bar to the ejectment proceedings. In this connection he relies on Iqbal and 6 others v. Rabia Bibi etc. (PLD 1991 SC 242).
(v) The tenant is not entitled to the benefit of section 153 of the Transfer of Property Act. Reliance is placed on Kalimuddin Ansari v. Director, Excise and Taxation (PLD 1971 SC 114).
(vi) In the present case when P.W. 1 appeared as a witness and stated about the need of his "daughter" who was also a co-owner, that would amount in law to be the need of the said witness, therefore, non-production of the daughter for whom the property was needed was not fatal to the ejectment petition. Relies on Zahoor Din v. Mirza Ayub Baig (1981 SCMR 1081).
6. After hearing learned counsel for the parties at length and perusing the material on the record carefully, I am convinced that the respondents have failed to establish their bona fide personal requirement of the disputed property. It may be mentioned that the property in dispute originally belonged to Mst. Zainab Malik who had agreed to sell it in favour of the appellants through an agreement dated 16-11-1987. However, before executing the sale-deed, unfortunately, she passed away on 21-5-1988. After her demise the property devolved on her husband, sons and daughters, the respondents herein who refused to honour the agreement whereupon the appellants filed a suit for specific performance of the agreement in the Civil Court. Thereafter, the respondents filed the ejectment petition under section 17 of the Cantonments Rent Restriction Ordinance, 1985 for eviction of the appellants on the sole ground of personal need of Mst. Khalida Tariq respondent No, 2 and Mst. Abida respondent No,
3. The said ground is embodied in para. 4 of the application which is reproduced below:- "That the petitioner No, 3 is a medical student studying in Fatimah Jinnah Medical College, Lahore and is residing in the hostel. Petitioner No, 2 Mst. Khalida Tariq wants to shift to Lahore in order to educate her daughter and for this purpose the petitioners require the house in good faith for their personal use and occupation. No other suitable building is under the occupation of the petitioners in Lahore Cantonment."
' On behalf of the respondents only Malik Muhammad Siddique respondent No,7 appeared as P.W. 1 purportedly as attorney of his daughter. He did not say anything in the Court about the requirement of Mst. Abida respondent No,
3. The appellants' learned counsel stated in a frank and fair manner that he did not press the personal requirement of Mst. Abida respondent No,
3. So far as the requirement of the other daughter is concerned the same has not been established in accordance with the law. Firstly it will be seen that Malik Muhammad Siddique, one of the co- owners did not hold any power of attorney on behalf of the other co-owners so as to entitle him to make a statement on their behalf regarding their personal need. The learned A Rent Controller misread the record while recording a finding that Malik Muhammad Siddique P.W. 1 held general power of attorney on behalf of the other respondents/co-owners. No doubt as a co-owner he could initiate the ejectment proceedings either for his own need or that of the co-owners. However, as the property vests in several co-owners through inheritance one of whom happens to be the father, he cannot make a statement on behalf of the other co-owners unless specifically authorised to do so. Therefore, it was essential for the daughter who needed the property to have entered the witness-box or authorised Muhammad Siddique respondent No, 7 to make a statement qua her personal need. Moreover, Malik Muhammad Siddique respondent No, 7 has 5 daughters all of whom are residing at Karachi. While appearing as P.W. 1 he did not mention the name of the daughter for whom the property was allegedly needed. In the ejectment petition the need of Mst. Abida (which is neither established nor pressed) and that of Mst. Khalida Tariq was mentioned. It was also mentioned that Mst. Khalida Tariq needed the property as her daughter was studying at Lahore. However, in his statement Malik Muhammad Siddique P.W. 1 stated that he needed property for his "daughter" (name not mentioned) who had five children and whose two sons and one daughter were studying at Lahore. In view of the apparent contradiction and ambiguity in the pleadings and evidence, it was essential for the daughter/co-owner to have entered the witness-box to assert her personal need of the property. Even otherwise, no material whatsoever was brought on the record to show that any son or daughter of Mst. Khalida Tariq or for that matter children of any other daughter of Malik Muhammad Siddique were studying at Lahore.
So far as Zeshan son of one daughter of Malik Muhammad Siddique is concerned, his name was not mentioned in the ejectment petition. On 1-3-1990, it was stated by P.W. 1 that he (Zeshan) was studying in B-Com Part-I. No document regarding his admission in B-Corn Class was placed on the record. Moreover, the respondents' learned counsel was not in a position to say whether Zeshan was still studying at Lahore. It appears that the property was neither bona fidely required by Malik Muhammad Siddique nor by Mst. B Khalida Tariq respondent No, 3 and that the ejectment petition was brought with ulterior motives and by way of counter-blast to the appellants' suit for specific performance of the contract. As mentioned above, the original owner of the house namely Mst.
Zainab Malik deceased had entered into an agreement to sell the disputed house in favour of the appellants. The respondents were not prepared to execute the sale-deed in favour of the appellants whereupon they filed a suit for specific performance of the contract which is pending in the Civil Court. It appears that due to their displeasure over the civil suit filed by the appellants, the respondents initiated ejectment proceedings against them on the laboured pretext of personal need. It is also significant to mention that the respondents got house No, 86 vacated from the tenant Irshadullah and could have conveniently used it for their residential purposes. They tried to show that House No, 86 had been given to Azhar Siddique respondent No, 1 through family partition but no material whatsoever was placed on the record to establish the alleged family partition. The documents Exhs. P. 2 to P. 6 placed on the record are wholly irrelevant because the same pertain to property Nos. 96 and 96-A and not property No,
86. The claim of the respondents that House No, 86 was occupied by Azhar Siddique is belied by their own document Exh. P. 6 which shows that he holds occupancy rights in Plot No,
96. P.W. 1 did not say that property No, 86 was not suitable or sufficient to fulfil the requirements of Mst. Khalida Tariq respondent No,
2. Thus, I am convinced that the respondents had miserably failed to prove their bona fide personal requirement of the disputed house for the use of respondent No, 2 or her children.
7. The argument of the respondents learned counsel that the technicalities of the C.P.C. Relating to pleadings and evidence are not strictly applicable, is correct in its own place. However, the salutary principles embodied in the C.P.C. Regarding pleadings and evidence are not to be necessarily ignored. The object of clear pleadings is to provide a fair opportunity to a party to know the case set up by the other, and that no party should be taken by surprise and required to meet a new plea at the evidence stage. In the case of Ayub Khan and another v. Fazal Haq and others (PLD 1976 SC 422) the Supreme Court of Pakistan was pleased to hold that the Rent Controller in exercise of his discretion was entitled to follow equitable principles of the C.P.C. The relevant part from the judgment is reproduced below: ' As the Rent Controller is not bound by the Civil Procedure Code, the question of procedure and especially the procedure for effecting service on defendant is within his exclusive discretion, therefore, he would be entitled in the exercise of his discretion, to follow the equitable principles of the Civil Procedure Code. Similarly, he would be free not to follow the technical provisions of the Code. But the converse does not follow, and because he has the discretion not to follow the provisions of the Civil Procedure Code, it does not mean that he has been divested of the discretion to follow the Civil Procedure Code when he considers it necessary so to do."
' The judgments in the cases of Dilshad Muhammad, Muhammad Bashir, Khushi Muhammad, Zahoor Din and Sh. Abdul Ali relied upon by the appellants' learned counsel support his contention that non-appearance of the son (or family member) for whom the rented premises are required does not militate against the bona fide requirements of the landlord. There is no cavil with the said proposition of law. However, in the present case the landlady who actually required the property for her children did not enter the witness-box. Instead, a co-owner (father of the landlady) appeared as a witness claiming to be an attorney of the landlady though he did not possess any power of attorney from her. He stated that he needed the property for his personal use because his "daughter" (not named) was residing at Karachi and her two sons and one daughter were studying at Lahore and were residing in hostels. As mentioned above, Malik Muhammad Siddique has five daughters all of whom are residing at Karachi. In the ejectment petition the need of Mst. Khalida Tariq and her daughter was mentioned. Under these circumstances, it was necessary for the E daughter (one of the co-owners) who really needed the property to have entered the witness-box to remove the apparent contradiction and ambiguity in the pleadings and evidence. Since it was not done and no cogent material was placed on the record to prove that children of any daughter of Malik Muhammad Siddique were studying at Lahore, the case of bona fide personal need either of Malik Muhammad Siddique or any of his daughters (co-owners) was not established.
8. For the foregoing discussion, the appeal is accepted and the impugned order dated 28-3-1991 passed by the Additional Rent Controller, Lahore Cantt is set aside. The parties are left to bear their own costs.