PLJ 2012 Islamabad
Present: Noor-ul-Haq N. Quershi ,
J.
MUHAMMAD
YOUNAS--Petitioner
versus
Rana MUHAMMAD ZAHID,
etc.--Respondents
W.P. No. 390 of
2010, decided on 30.11.2011.
Constitution of Pakistan
----Art.
199--Islamabad Rent Restriction Ordinance, 2001, S. 17(6)--Ejectment
petition--Requirement of landlord not bona fide and not made in good faith and
it is for enhancement of rent--Maintainability of writ petition--Constitutional
jurisdiction of High Court could not be interfered normally--While exercising
writ jurisdiction u/Art. 199 of Constitution, High Court does not interfere
with findings of facts recorded by Courts below, unless there is misreading of
evidence or omission to consider the material, not applying rule of law, even
basic law statute or provision has been violated by Courts below, High Court
can interfere by invoking writ jurisdiction. [P.
160] A
----S. 17(6)--Ejectment petition--Essential--Agreement was executed for
period of three years--Protection to tenant--No legal bar upon landlord to
disclose nature of business he intends to conduct--When ejectment
sought for personal bonafide use is violates then
tenant be put into same premises which proposition of law has not been controverted by landlord--Tenant was at liberty to move
before proper forum on findings such a violation of personal ground after his ejectment as required by S. 17(6) of Ordinance, 2001. [P. 161] B & C
Syed Wusat-uI-Hassan Shah, Advocate
for Petitioner.
Mr. Atiq-ur-Rehman Kiyani, Advocate
for Respondents.
Date of hearing:
30.11.2011.
Order
The petitioner,
being tenant of Shop No. 5 along with basement situated in Mehmood
Plaza, Blue Area, Islamabad is aggrieved with the judgment passed by the
learned Additional District Judge, Islamabad for accepting the ejectment application of Respondent No. 1/landlord, has
preferred the present writ petition.
2. Brief facts of the case as per petition for ejectment initially filed before the Senior Rent
Controller, Islamabad are that Shop No. 5 along with basement situated in Mehmood Plaza, Blue Area, Islamabad was rented out to the
petitioner/tenant vide lease agreement dated 01.04.2003. The said agreement was
executed for a period of three years only w.e.f.
01.01.2003 to 31.12.2005 and the rent of the demise premises for the said
tenancy period was settled for Rs.15,000/-.
3. Since the period of tenancy expired on
31.12.2005, before its expiration, the petitioner/tenant was intimated that
said lease agreement would not be extended and further that respondent/landlord
requires the shop for his personal use. A legal notice was also served upon
petitioner/tenant, but with no response.
4. Therefore, he further urged that the amount
as per market rate of rent, which is more than Rs.45,000/-
per month, failed to tender the rent by the petitioner/tenant.
5. Preliminary objections were filed by the
petitioner/tenant wherein, the tenant denied the service of notice upon him. So
far as the expiration of the agreement on 31.12.2005 is concerned, he while
admitting the fact, further added that respondont/landlord
is receiving the rent on monthly basis. The Rent; Controller, therefore,
formulated the following issues:--
(1) Whether the suit property is required by
the petitioner for personal bonafide need? OPA
(2) Whether respondent is rent defaulter,
hence liable to be evicted? OPA
(3) Whether the petitioner has no cause of
action against the respondent, hence the petition is liable to be dismissed?
OPR
(4) Relief.
6. The parties, on the issues, adduced their
evidence and according to record, Rana Muhammad Zahid submitted affidavit as Exh.A-1 and he was
cross-examined by the counsel for the opposite side. Muhammad Younas, the tenant also submitted his affidavit Exh.Rw-1,
who too was cross-examined by the counsel for the opposite side.
7. However, the Rent Controller, Islamabad Islamabad
8. Being aggrieved, finding no further appeal,
the petitioner preferred the present writ petition for setting aside the
impugned order dated 04.01.2010 passed by the learned Additional District
Judge, Islamabad with additional prayer to set aside ejectment
petition filed by Respondent No. 1.
9. Arguments heard. Record perused.
10. At the very outset, both the learned counsel
agreed upon the issue of default that same could not be proved, not the learned
counsel for respondent/landlord concentrated to press upon the same in view of
the decision of Islamabad High Court in a writ petition between the same
parties, whereby the increase of rent is shown to have been deposited. Hence,
only the issue in respect of personal bonafide use
was taken into consideration.
11. Learned counsel for the petitioner/tenant
argued that since respondent/landlord while submitting the ejectment
application has not elaborated the reason of his personal use, therefore, the
same could not be proved nor can it be established in his favour.
In support of his contention, he relied upon the following case law: --
2005 CLC 1119
2003 YLR 1601
12. The case law reported as "2005 CLC
1119" focusing the requirements of Section 17 of Islamabad Rent
Restriction Ordinance, 2001, which nothing suggests that the tenant could be
ordered to be ejected from the building merely on the ground of expiry of lease
period, which is not in fact the issue in the present matter.
13. The other case reported as "2003 YLR
1601" delivered by the Hon'ble Lahore High
Court, which on such principles, to some extent, meeting with the arguments
extended, whereby the Hon'ble Court observed that the
landlord must enter in the witness box while deposing on oath about personal bonafide need and assigning reasons therefore. Assertion or
claim of landlord, if consistent with his averments in application and not
shaken in cross-examination or disproved in rebuttal, would be sufficient to
prove that need was bonafide and Court would normally
not question such need.
14. On the contrary, the case law suggests the
case of landlord because while going through the record and evidence adduced by
the parties, it positively infers from cross-examination of the landlord Rana Muhammad Zahid, wherein such
question was put to him, to which, he replied that earlier he was residing in
Saudi Arabia continuing the business of vegetable and here, he intends to
establish such business.
15. From the above portion of the evidence, it
becomes crystal clear explicitly that landlord might have not stated the
reason, but inquiries during cross-examination, such reason was disclosed by
him, therefore, that stands proved.
16. Learned counsel for the petitioner/tenant
emphasized on the ground that the respondent/landlord also owns some other
properties, but could not substantiate the same by bringing on record such
documents or through any other evidence, except the document submitted as
Mark-A during proceedings, which was not even confronted to the landlord during
cross-examination.
17. Learned counsel for the respondent/landlord
emphasized that the choice to retain some of the properties is a prerogative of
the landlord and question, as to which portion of the building would suit the
landlord, must be left to his discretion. In support whereof, he relied upon
PLD 1990 SC 394, which in my humble view, strongly supports his version.
18. As far as the contention raised that
requirement of landlord not bonafide and not made in
good faith and it is for enhancement of rent, the learned counsel relied upon
reported case law "1984 CLC 50", the decision of the Hon'ble Karachi High Court.
19. As far as the technical ground urged
respecting maintainability of the writ petition is concerned, learned counsel
for the respondent/landlord, while relying upon reported case law "1990
SCMR 1070", whereby the golden principle introduced that ordinarily, the
constitutional jurisdiction of the High Court, could not be interfered
normally.
20. With the precious assistance of learned
counsels for parties, I have gone through the order and documentary evidence on
record and giving anxious considerations to the arguments advanced. While
exercising writ jurisdiction under Article 199 of the Constitution of Islamic
Republic of Pakistan, the High Court does not interfere with the findings of
facts recorded by Courts below, unless there is misreading of evidence, or
omission to consider the material, not applying the rule of law laid down by
the superior Courts, even the basic law statute or provision thereof has been
violated by the Courts below, the High Court can interfere by invoking writ
jurisdiction. Hence both the counsels never ever pointed out any such error on
the port of Courts
21. It is a general principal and there is no
legal bar upon the landlord to disclose the nature of business he intends to
conduct in the shop, for which ejectment sought,
therefore, while going through the referred provisions of Islamabad Rent
Restriction Ordinance, 2002, particularly Section 6,
any provisions or provisos of Section 17 of such Ordinance.
Hence, it is a prerogative of the landlord to choose the suitable for his
personal use, as such it is not fatal for the
landlord's case, if fails to such an aspect, as wrongly erred by the Rent
Controller, cannot be considered as rule of law.
22. Learned counsel for the petitioner/tenant was
not able to controvert such legal points raised.
23. However, he concentrated the requirements of
Section 17(6) of the Islamabad Rent Restriction Ordinance, 2001, which provides
protection to tenant in case when the ejectment
sought for personal bonafide use is violated then the
tenant be put into the same premises by following Section 17(6)(vi) of Islamabad Rent Restriction Ordinance, 2001, which
proposition of law has not been controverted by the
learned counsel for respondent/landlord.
24. In view of the foregoing reasons, factual and
legal aspects considered above, I am of the considered view that the present
writ petition merits no consideration, hence the same is dismissed.
Resultantly, the order passed by the learned Additional District Judge, Islamabad
25. However, the petitioner/tenant is at liberty
to move before proper forum on findings such a violation of the personal
ground, after his ejectment as required by Section 17
(6) of the Rent Restriction Ordinance, 2001.
(R.A.) Petition dismissed
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