MEHMOOD ZAMAN KHAN Versus MUHAMMAD ANWAR FAROOQ
ANWAR HUSSAIN, J.--- Through this First Rent Appeal, the Appellant impugned the Final Order dated 22.8.2013, whereby the learned Rent Controller, Cantonment Area, Hyderabad, allowed the Rent Application No. 07/2011, and ordered ejectment of Appellant from the Rented Shop on the ground of personal need only and ground of default was not proved.
1. The Respondent No.1, is the Owner/Landlord and Appellant is the Tenant in respect of Shop No.541, Salahuddin Road, Cantonment Hyderabad, initially rented out on 05.03.2004, for three years at the rate of Rs.30,000/- per month in advance vide Agreement dated 05.03.2004, further renewed for three years up to 31st March, 2010, at the same rate and rents were paid in advance by the Appellant. The Respondent demanded vacant possession of the said Rented Shop and Appellant agreed to vacate the same after 31.03.2010, thereafter, the Respondent again demanded the vacation of the shop for personal bona fide use. As such, on 15.02.2010 the Respondent No.1, served Legal Notice to the Appellant for the vacation on the ground that his son namely Sarosh Anwar, who has completed his education and is doing the business with the Appellant in small shop, which is insufficient for them to manage their business of Mother Care Items and his another son namely Tehwar Anwar is going to complete his Education and wants to start his business of Garments in the said shop. The Appellant replied the same by way of their Reply to the Legal Notice dated 01.03.2010, and again the Respondent sent second Legal Notice dated 14.04.2010, which was also replied vide two Replies dated 26.04.2010 and 21.05.2010. Moreover, lastly the Respondent No.1, sent third Legal Notice dated 28.02.2011, to the Appellant and thereafter filed Ejectment Application bearing Rent Application No.07/2011, before the Rent Controller, Cantonment Area, Hyderabad, on the ground of personal bona fide use and default in payment of monthly rent from April 2011 onward. The Appellant filed Written Statement denied the aforesaid grounds for the ejectment and prayed for the dismissal of the Rent Case/Application. The Respondent filed his Affidavit-in-Evidence and was cross-examined and filed Affidavits-in-Evidence of his two sons namely Tehwar and Hafiz Sarosh, but only Tehwar was produced and was cross-examined. Thereafter, the Appellant filed Affidavits-in-Evidence of his Attorney and one witness, who were cross-examined.
2. After hearing the arguments, learned Rent Controller ordered ejectment of Appellant from the Rented Shop on the ground of personal use, but the finding on the ground of default went against the Respondent vide Final Order dated 22.08.2013, which is impugned by way of this Appeal filed by the Appellant/Tenant.
3. Heard arguments of the Learned Counsel for the Parties, gone through the Impugned Order, evidence and record in the matter.
4. Learned Counsel for the Appellant submitted that Ejectment Application is not maintainable in view of the provision of section 17(4)(b)(i) of the Cantonments Rent Restriction Act, 1963, whereby landlord shall seek ejectment of tenant only for his own use in case of commercial premises. He further submitted that the Impugned Order is bad in law and facts and the Respondents personal bona fide need is mala fide as the Respondent agreed to let out Rented Shop at the rate of Rs.1,50,000/- per month, that the Respondent is not the sole owner of the Rented Shop, and has got other shops, which aspects have not been considered by the learned Rent Controller. He relied on the case of Akbar Hussain v. Zehra Bai reported in 2002 SCMR 789 and case of Muhammad Yousuf v. Noor Jehan Bi, reported in 2000 CLC 1252 (Karachi).
5. Whereas Learned Counsel for the Respondent contended that the Ejectment Application was very much maintainable in law and facts and the Rented Shop is required in good faith for their personal bona fide need, which includes the need of Respondent as well as of his sons, for which legal notices were issued and the Respondent has proved his case and the Impugned Judgment in respect of finding of personal need is legal and proper. Per Counsel, finding of learned Rent Controller that the Appellant is not defaulter in payment of rent are not legal and proper and he sought ejectment of the Appellant on the ground of default also. Learned Counsel relied on a) 1991 SCMR 1307, Muhammad Zaman v. Hasbunnisa, b) 1994 SCMR 355, Mst. Firdous Sabir v. Mushtaq Ahmed Pervaiz, c) 2000 CLC 1252, Muhammad Yousuf v. Noor Jehan Bi, d) 1986 CLC 1628, Bombay Corporation v. Amna Begum, e) 2009 YLR 1087, Mehmood Lakhani, v. Zubaida Khatoon, and f) 2006 SCMR 1501, Yasmeen Khan v. Abdul Qadir.
6. It has been observed that since the learned Rent Controller has held that the Respondent has proved the case of personal requirement for the Rented Shop as to personal bona fide use of his sons, which has been impugned by the Appellant by way of this Appeal, whereas the Respondent has not filed any Appeal against the finding of default, but has only filed Counter Affidavit to this Appeal, rather has not filed any cross Appeal or Objections in the matter, even after effecting appearance in this Appeal, in order to challenge the finding of default in the matter.
7. The ground of maintainability of the Ejectment Application in terms of section 17(4)(b)(i) of the Cantonments Rent Restriction Act, 1963, was not specifically raised by the Appellant in his defence before learned Rent Controller nor even specifically pleaded in the Memo of this Appeal, which is the outcome of Rent Case Application and as per the rules of practice and procedure the parties are to remain adhered to the pleadings and they cannot be allowed to prove or argue a case not pleaded.
8. In view of non-raising of such question in the pleading, learned Rent Controller has not framed any specific issue in respect of the same, rather simply framed general issues regarding personal bona fide use of the Respondent and accordingly the evidence recorded, wherein also no question has been raised as to the maintainability of the Ejectment Application in terms of section 17(4)(b)(i) of the Cantonments Rent Restriction Act, 1963, but for the first time in arguments the learned Counsel for Appellant verbally pleaded the same, which to my mind in the absence of such question in the pleading and evidence, and even in the memo of their Appeal, the same could not be considered and appreciated. However, the learned Rent Controller after considering and discussing the evidence has rightly concluded that the Respondent in good faith has got the personal need of the Rented Shop, as the Respondent has examined himself and his one son Tehwar, who have deposed that the Rented Shop is required in good faith by them for the personal bona fide need, as the Respondent's two sons are grownup and educated and intend to start and enhance their business from the Rented Shop and the Respondent and his sons are in genuine need of the same for which they stepped into the Witness Box and deposed the same on oath, and the Respondent and his son have not been shaken in cross-examination by the Appellant, who has also not been able to disprove anything in rebuttal in respect of the personal bona fide need, as such, Respondent has proved his case of personal need in the matter. Reference is made to the case of F.K. Irani and Co. v. Begum Feroz, reported in 1996 SCMR 1178, and case of Muhammad Shoaib Alam v. Muhammad Iqbal, reported in 2000 SCMR 903.
9. The contentions of the Appellant that the Respondent being co-owner of the property wherein the Rented Shop is situated cannot file Rent Case, Respondent has got other shops and agreed for the enhancement of the rent, so the personal need for the Rented Shop is not bona fide, are not of any help to the Appellant as such questions have already been settled, i.e. in the case of Muhammad Hanif v. Muhammad Jamil Turk, reported in 2002 SCMR 429, wherein it has been held that co-owner could file ejectment case without impleading the other co-owners, in the cases of F.K. Irani and Co., (Supra), and Haroon Kassam v. Azam Suleman Madha, reported in PLD 1990 SC 394, it has been held that the choice of premises is the prerogative of the Landlord and in the cases of Saira Bai v. Anis-ur-Rehman, reported in 1989 SCMR 1366, and Altaf Hussain v. Nuzhat-un-Nisa, reported in PLD 2000 SC 67, it has been held that demand of enhancement of rent could not cast any doubt on the personal bona fide requirement, where bona fide requirement proved independently. In this case the Respondent has got two grownup and educated sons, Rented Shop is required in good faith for the bona fide need of Respondent, which need has been proved in the matter by the Respondent and even otherwise there is written Tenancy Agreement in respect of the Rented Shop duly executed between the Respondent and Appellant, who have mutually extended the Tenancy, and the Appellant paid the monthly rents directly to Respondent, so the Appellant cannot plead that the Respondent is not sole owner and cannot seek ejectment, without impleading the other co-owners.
10. As to the ground of default, which has been answered against the Respondent in the Impugned Final Order, it has been observed that the Respondent has not filed any Appeal against the same, but has only supported the finding of personal need and not agitated the ground of default by way of his Counter Affidavit to this Appeal, wherein the issue of personal need has been impugned by the Appellant, but inspite of enter appearance in this Appeal by the Respondent no Cross Appeal or Objection against the finding of default has been filed by the Respondent.
11. Since for the first time after the arguments of the Appellant the Respondent verbally submitted that the finding of default against the Respondent is not proper and legal, but since there is no cross Appeal or Written Objections, such finding of default could not be argued or considered.
12. On the other hand there is no cavil to the proposition that the provisions of Civil Procedure Code, 1908, are not completely and strictly applicable to the proceedings under the Rent Laws, which include the Cantonment Rents Restriction Act, 1963, wherein section 27 of the Cantonment Rent Restriction Act, 1963, provide limited powers of Civil Procedure Code, and so provisions of Order XLI, Rules 22 and 33 C.P.C., would not be applicable in the matter and even otherwise no such Application has been filed by the Appellant and moreover since there is no provision of Cross Appeal under the Cantonments Rent Restriction Act, 1963, a separate Appeal under section 24 of the said Act, would to be filed against the finding whereby any party is aggrieved by the same and since the Respondent has not filed his separate Appeal under section 24 of the said Act, against the finding of default, which as such attained finality. Hence, I am of the opinion that here in this Appeal the Respondent cannot agitate the ground of default, which has gone against him before the learned Rent Controller, in this Appeal, which has been filed by the Appellant, against the finding of personal need. Reference is made to the case of Taj Muhammad Abbasi v. Feroze-sons (Rawalpindi) Pvt. Ltd., reported in PLD 1996 SC 97, case of Usman Bhai v. Ali Imam Zaidi, reported in 1994 SCMR 1918, and the case of Khyber Insurance Company Ltd. v. P.N.S.C., reported in PLD 1994 SC 725.
13. In view of the above, this Appeal is dismissed along with listed Application and the Appellant is directed to hand over the vacant and peaceful possession of the Rented Shop Premises in the matter within thirty (30) days hereof to the Respondent.
ZC/M-53/Sindh Appeal dismissed.