PLJ 2012 Islamabad 161
Present: Riaz Ahmad Khan, J.
SAEED
AHMED--Petitioner
versus
Mrs. REHANA
ZAHID and 2 others--Respondents
W.P. No. 1008 of
2010, decided on 21.2.2012.
----S. 17(4-A)--Ejectment petition--Personal bonafide
need--Expiry of lease agreement--Ejectment can be
passed, if landlord require premises for occupation of any member of the
family--If premises was not occupied by landlord or any member of family within
six months, then tenant will have right to apply to rent controller for an
order, directing landlord to restore possession of premises building to
tenant--Mere statement of landlord regarding personal bonafide
need is sufficient for passing an order of ejectment--Rent
agreement between parties had expired and same had not been extended, so tenant
was liable to vacate suit premises. [P.
163] A & B
Mr. Nazir Ahmed Bhutta, Advocate for
Petitioner.
Mr. Mumtaz Ahmed Bilal, Advocate for
Respondent No. 1.
Date of hearing:
13.2.2012.
Judgment
This judgment is
directed to dispose of W.P. No. 1008 of 2010.
2. Brief facts of the case are that the
petitioner is tenant under the Respondent No. 1/landlord in House No. 2, First
Floor, Street No. 31, Sector G-6/1-3, Islamabad . The respondent/landlord
filed ejectment petition against the petitioner, on
the grounds of personal bonafide need as well as
expiry of lease agreement. As according to the respondent/ landlord, her
mother-in-law is a `cancer patient' and needs treatment at CMH Rawalpindi. She being resident of Wah Cantt. brings her mother-in-law
frequently to Islamabad
and that causes a lot of inconvenience to her as well as her mother-in-law. For
that purpose, the respondent/ landlord needs demise premises for the personal bonafide need. The learned Rent Controller vide order dated
11-9-2008
dismissed the ejectment petition. The
respondent/landlord filed appeal against the said order, which was accepted by
the Addl. District Judge, Islamabad vide judgment dated 15-1-2010 and the
petitioner/tenant was directed to hand over vacant possession of the demise
premises to the landlord within 60-days of the order. Feeling aggrieved of the
said order, the present writ petition was filed.
3. Learned counsel for the petitioner submitted
that the respondent/landlord had earlier filed ejectment
petition on the same grounds and was withdrawn and thereafter second petition
was filed. It was further submitted that since at the time of earlier
withdrawal, permission for filing fresh petition was not sought, therefore,
second petition was not competent. It was admitted that the lease agreement had
expired, but the same was orally extended.
4. Learned counsel for the respondent submitted
that the learned Rent Controller while dismissing the ejectment
petition had erred in holding that probably the respondent/landlord was a
cancer patient, whereas, infact not the
respondent/landlord, rather her mother-in-law was cancer patient. This fact was
appreciated by the learned lower appellate Court. The teamed counsel further
submitted that since the premises in dispute is required in good faith for a
personal need, therefore, the order of learned lower
appellate Court is required to be maintained. Regarding the earlier ejectment petition, the learned counsel submitted that
though the earlier petition was withdrawn, however, no order on merits was
passed. It was further submitted that provisions of the Civil Procedure Code
are not applicable to the rent proceedings, but eve otherwise,
principle of resjudicata was not applicable in this
case, as no order on merits was passed.
5. I have heard learned counsel for the parties
and have also perused the record.
6. Admitted position in the present case is that
the landlord/respondent had earlier filed an ejectment
petition, which was afterwards withdrawn. However, the contention of learned
counsel for the petitioner is not correct that the second ejectment
petition is not competent on the ground that permission for filing fresh
petition was not sought from the Rent Controller. Infact,
provisions of the Civil Procedure Code, 1908 are not applicable to the
procedure before the Rent Controller. However, under Section 20 of the
Islamabad Rent Restriction Ordinance, 2001 there is restriction on the second
application, so for the sake of convenience, Section 20 ibid is reproduced
herein below:
"20.
Decision which have become final not to be re-opened.--The Controller shall
summarily reject any application under sub-section (2) or sub-section (4) of
Section 17 which raises substantially the same issue as has been, finally
decided in any former proceedings under this Ordinance unless new grounds or
circumstances have arisen after the final decision in such proceedings."
In the present
case, the earlier ejectment petition was not decided
by the Rent Controller and there was no final decision. In these circumstances,
the second ejectment petition could be filed.
7. The main ground of the landlord is personal bonafide need and U/S 17 (4-A) of the Islamabad Rent
Restriction Ordinance, 2001 the ejectment can be
passed, if the landlord require premises for the occupation of any member of
his or her family. This section is to be read with sub-section (6) of Section
17 ibid, which provides that if the premises is not occupied by the landlord
himself/herself or any member of his/her family, within six months, then the
tenant will have a right to apply to the Rent Controller for an order,
directing the landlord to restore the possession of the premises/building to
the tenant.
8. Since, in law rights of the tenant have been
safe guarded, so mere statement of the landlord regarding personal bonafide need is sufficient for passing an order of ejectment. In present case, the need as expressed by the
landlord is genuine, that she needs the house for the occupation of her
mother-in-law, who is patient of cancer and needs constant treatment at
Rawalpindi/Islamabad.
9. It is also admitted that rent agreement
between the parties has expired and the same has not been extended, so on this
score too, the tenant is liable to vacate the suit premises.
10. In the above said circumstances, finding no
force in this writ petition, the same is accordingly dismissed.
(R.A.) Petition
dismissed
No comments:
Post a Comment