PLJ 2012 Islamabad
Present: Noor-ul-Haq N. Qureshi ,
J.
NADEEM
ASGHAR--Petitioner
versus
Dr. SHEIKH
SIRAJ-UL-HAQUE and 4 others--Respondents
W.P. No. 1724 of
2009, decided on 21.3.2012.
----S. 17(6)--Ejectment petition--Counter blast on ground of default in
payment of rent, personal need subletting damages and expiry of lease
period--Intention of landlord--Question of--Whether bona fide or mala fide or
in good faith or for enhancement for rent was to be determined--It was rather,
prerogative of landlord to get his premises vacated for his personal need and
doctor since intend to get his premises vacated for construction of hospital
for his own and his daughter, she was also a doctor, therefore, landlord cannot
be deprived of from his right--However, in case if it appeared that tenant
would be ejected from rented premises or building or premises not being used
for the purpose, it was got vacated in any manner, he has to be re-inducted in
premises on making an application to Rent Controller u/S. 17(6) of Ordinance. [P. 264] A
Mr. Muhammad Ilyas Sheikh, ASC for Petitioner.
Syed Ishtiaq Haider, ASC for
Respondent Nos. 1 to 3.
Date of hearing:
15.3.2012.
Judgment
Tenant Nadeem Asghar has preferred the
instant writ petition, impugning judgment dated 04.5.2009 passed by Mr. Nisar Baig, learned Additional
District Judge, Islamabad and order dated 01.11.2008 passed by Mr. Awais Muhammad Khan, learned Rent Controller, Islamabad.
2. Briefly the
facts narrated in the petition are that Respondents No. 1 to 3 are
owners/landlord of property consisting of Ground floor, first floor and second
floor having total covered area of 18000 square feet, be assessing each floor
covered area about 6000 sq. feet., situated in Block No. 4-B, F-7 Markaz, Islamabad.
3. Respondents No. 1 to 3 leased out southern,
eastern and western portion of first floor, measuring 3500 sq. ft alongwith toilet and stair hall to petitioner vide
agreement dated 01.7.2003. The said agreement is extendable after expiry of
three years subject to enhancement of 25% rent settled between the parties.
First quarter commencing from July 2006 with 25% increase rent was paid at the
rate of Rs. 47,250/- per month vide Pay Order dated 10.7.2006, which the
respondents refused and threatened to dispossess, therefore, the petitioner
constrained to file a suit for permanent injunction as well as application for
deposit of rent.
4. Allegedly, the ejectment
petition under Section 17 of Islamabad Rent Restriction Ordinance, 2001 was
filed as a counter blast on the ground of default in payment of rent, personal
need, subletting, damage to the property and expiry of lease period. The
petitioner after service appeared in the Court and resisted the ejectment petition by filing written reply as well as
preliminary objections raised thereby controverted
the ejectment petition.
5. The learned Rent Controller, Islamabad
ISSUES:
(i) Whether the
suit premises, is required in good faith for establishing hospital? OPA
(ii) Whether the respondent is willful rent
defaulter? OPA
(iii) Whether the respondent has damaged the
suit premises in violation of lease agreement and has impaired its value? OPA
(iv) Whether the respondent
has sublet the suit premises without permission of the petitioner? OPA
(v) Whether the ejectment
petition is not maintainable? OPR
(vi) Relief.
6. Both the parties adduced their evidence while
learned Rent Controller, Islamabad
7. The petitioner, therefore, preferred the
instant writ petition seeks setting aside both the order/judgment passed by the
Courts below as without lawful authority, jurisdiction and illegal.
8. Learned counsel for the petitioner while
arguing referred lease agreement dated 01.7.2003 showing such condition of
increase of 25% rent after three years, whereas ejectment
petition was filed on 12.10.2006. Initially there were following five grounds
raised in the ejectment petition:--
(i) Personal
need.
(ii) Default
(iii) Damage to property
(iv) Subletting, and
(v) Expiry of lease period.
9. It is argued that learned Rent Controller has
only established grounds of personal need and default in payment of monthly
rent. Learned counsel for the petitioner referred Para-4(a) of ejectment petition and emphasized that area in occupation
of the petitioner has not been specified and respondents have not disclosed the
purpose for personal use based area under occupation of the petitioner i.e.
3500 sq. ft. rest other area has already been vacated by other tenant.
Therefore, a sufficient portion was available for establishing hospital. He
also referred preliminary objections, whereby Paras
No. 1 and 3 specifies the objections raised that no sanction or permission for
reconstruction or alteration from CDA has been appended as well as occupation
of respondents respecting entire ground floor and second floor has been
highlighted and fact was so concealed by Respondent No. 3. While
referring affidavit Ex.A-1 of Dr. Sheikh Siraj-ul-Haq
(Respondent No. 1), which was tendered in evidence, showing further
improvement, which in fact not contended in the ejectment
petition. Learned counsel for the petitioner also referred
cross-examination of Respondent No. 1, wherein allegedly he has not contended
about subletting. Likewise, he also referred the order of learned Rent
Controller, which as a result of discussing Issue No. 1 has observed that to
the extent of personal need, there is no cross-examination, hence goes
un-rebutted and erroneously it is being established that demise premises is
required to Respondents No. 1 to 3 for personal need while referring the
vacation of premises by other tenant, which is lying vacant for last two years.
While referring cross-examination upon Respondent No. 1, it is argued that no
sublet is proposed, therefore, both the Courts below have failed to appreciate
the evidence available on record. It is also argued that through
out proceedings, no where the Respondents No. 1 to 3 slightly alleged
that the portion in occupation with the petitioner,
will not be useable for owners, therefore, the order of learned trial Court is
based upon un-pleaded grounds. It is further argued that unless the landlord
plausibly explained personal use with particularity that the vacated portion is
insufficient for the purpose he is getting the premises vacated. He in support
of his contention relied upon case laws reported in "2008 SCMR 398
(Muhammad Hafeez and another Vs. District Judge,
Karachi East and another), 2006 SCMR 152 (Allies Book Corporation through L.Rs
Vs. Sultan Ahmad and others), 1991 CLC (Karachi) 53, (Mst.
Ashraf Alia Vs. Dr. Asif Majeed) and 2005 MLD 1184 (Sohail
Ahmad Bajwa through Special Attorney Vs. Muhammad Riaz).
10. Learned counsel while relied upon above case
laws also referred Section 17(4)(b) proviso (ii), whereby earlier the
possession of residential or commercial building rented out has been obtained,
the landlord shall not be entitled to apply again the said clauses for the
possession of any other building unless showing previously taken possession for
his needs.
11. Learned counsel for the respondents while
referring again ground 4(a) of ejectment petition
argued that Respondents No. 1 to 3 while seeking ejectment
elaborately submitted the reason and purpose. He argued that no ground for
reconstruction has been raised throughout the petition but on the contrary Para
4(a) has clearly and sufficiently provided suitable requirements according to
the need of the hospital and the clinic. Para 4(a) is reproduced as under:
"That the
respondent is doctor by profession and demised premises is required by him in
good faith for establishing hospital and allied institutions and for this
purpose the petitioner intending to make improvement, alternation or
reconstruction of the building if required according to the need of the hospital
and clinic."
12. It is also argued that the demise premises
was required by the petitioner in good faith for establishing hospital and
allied institutions. With intention to make improvement, alteration and
reconstruction of the building if required, which could only be farmed out when
possession is delivered, otherwise it will be impossible to ascertain as to
which portion is required for which purpose when duly design through a
recognized architect. Learned counsel for Respondents No. 1 to 3 argued that
through the cross-examination referred by learned counsel for the petitioner no
where such plea raised even with regard to the pleas now raised respecting
Section 17(4)(b) proviso (ii) nor any specific question regarding stance now
taken was ever raised during cross-examination or through the pleadings. It is
wrongly argued by learned counsel for the petitioner that it was duty casting
upon Respondents No. 1 to 3 that they should have submitted permission or
sanction from CDA for reconstruction, which is a secondary step could be
initiated after vacation of the; demised property for the purpose of
establishing hospital and clinic as well as allied institutions, for which, it
is needed. So far concern of point raised that the building is not reserved for
the hospital, it requires a specific plea with permission, ignoring the facts
that hospital by itself is, to be established for commercial purpose when the
building already in use of such purpose, which is not disputed fact as the
petitioner himself running a commercial business (fact so not disputed). It is
also argued that the landlord was not cross-examined on such point of opening
hospital and the area required for such purpose nor any slight suggestion has
brought on record, therefore, the improvement now has been raised cannot
support the petitioner to seek relief.
13. He in support of his contention raised, he
relied upon "2010 SCMR 837 (M/s. Captain PQ Chemical Industries (Pvt) Ltd Vs. Mrs. Romana Amjad and another), 2011 SCMR 487 (Major (Rtd) Ahsan-ul-Haque Vs. Muhammad Ejaz), 2010 SCMR 1925 (Shakeel
Ahmed and another Vs. Muhammad Tariq Farogh and
others), 2011 CLC (Quetta) 1606 (Mehmood Khan Vs.
Muhammad Ibrahim and another) and 2006 SCMR 145 (Ghulam
Mustafa Bughio Vs. Additional Controller of Rents,
Clifton and others).
14. I have heard the arguments of both the
learned counsel for the parties at length as well as perused the judgment/order
of both the Courts below carefully and evidence produced has been scrutinized.
15. Though the personal bona fide need severally
discussed by many High Courts and apex Court formed very confirm view that in
cross-examination if the averments in the application not shaken or disproved
in rebuttal would be sufficient to prove that need was bona fide and Courts would
normally not questioned such need. In the instant case, I find such a position
in the present matter. However, petitioner has subsequently improved the case
by such exaggeration that the landlord not obtained the permission from
concerned authorities of CDA. The very law envisaged by Section 17(2)(v) provides a very clear view, which is divided into two
parts, building or rented land required in good faith by the landlord for the
reconstruction or erection of new building or obtained the necessary sanction
for the said reconstruction or erection from the authority. A
clear concept that in other sense, when it is necessary to have a sanction for
the said reconstruction. But in the instant case, it is for the landlord
to get the building reconstruct or its change if needed when premises will be
vacated, whereafter a final opinion could be formed.
Above referred provision is reproduced as under:--
"The
building or rented land is reasonably and in good faith required by the
landlord for the reconstruction or erection of a building or the landlord has
obtained the necessary sanction for the said reconstruction or erection from
the Authority."
16. So far the concern
of intention of landlord, whether bona fide or mala fide or in good faith or
for enhancement for the rent is to be determined. From the evidence, it clearly
transpired that the entire building was got vacated through a notice and
definitely for the purpose of personal use being genuine demand, which appears
to be established. It is rather, prerogative of the landlord to get his
premises vacated for his personal need and the doctor since intend to get his
premises vacated for construction of the hospital for his own and his daughter,
she is also a doctor, therefore, the landlord cannot
be deprived of from such his right. However, in case, if it appears that tenant
would be ejected from the rented premises or the building, or premises not
being used for the purpose, it was got vacated in any manner, he has to be
re-inducted in the premises on making an application to the Rent Controller
under Section 17(6).
17. From the record, it appears that the points
now raised by the petitioner has never been agitated during pendency of the ejectment petition nor at the time of cross-examination
have been slightly such suggestions were made or highlighted by the petitioner,
therefore, his own affidavit or in cross-examination. Mere to that the case
laws relied upon mostly on different facts, therefore, not supporting the defence of the petitioner particularly when such pleas have
not been raised before the learned trial Court. So far the concern of
application of Section 17(4)(b)(ii) of Islamabad Rent Restriction Ordinance,
2001, it become crystal clear that petition for ejectment
showing elaborately the purpose in a wider meaning "establishing of
hospital and allied institution" then "building if required according
to the need of the hospital and clinic" clearly support the version of
Respondents No. 1 to 3 that they extended their need,
the building as
a whole for
the purpose of
establishing hospital on broad basis. The case laws in support of
petitioner's case fully inconsonance with the arguments advanced, therefore, I
feel that the Respondents No. 1 to 3 has strong case on the ground of personal
need. Particularly, the other tenants have vacated the premises, only on
account of petitioner, the purpose for which, Respondents No. 1 to 3 is not
going to achieve, is sufficient reason for getting premises vacated is however,
established. Therefore, in view of above circumstances
and evidence on record, I feel no interference is required in the judgment and
order of the Courts below.
18. In view of above discussion, I find no merit
in the writ petition, which is dismissed with no order as to costs.
(R.A.) Petition
dismissed
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