Appeal in Rent Cases

PLJ 2008 Lahore 1053

[Rawalpindi Bench Rawalpindi]

Present: Abdul Shakoor Paracha, J.

Major (Rtd.) SHAKIL-UD-DIN AHMED--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, ISLAMABAD and another--Respondents

W.P. No. 2211 of 2006, decided on 28.11.2008.

Islamabad Rent Restriction Ordinance, 2001 (IV of 2001)—

----S. 21(7), 17(8) & 17(9)--Civil Procedure Code, (V of 1908), O.XLI--Applicability--Defence struck off due to non-depositing amount--Appeal dismissed--Held: First Appellate Court is final Court of facts, therefore, dismissal under Order XLI, S. 21(7) of CPC is not a general rule and provisions of CPC have not been made applicable to an appeal under Islamabad Rent Restriction Ordinance, 2001.

      [P. 1055] A

Islamabad Rent Restriction Ordinance, 2001 (IV of 2001)—

----S. 21(7)--West Pakistan Rent Restriction Ordinance, 1959, S. 15(3)--Appellate Jurisdiction of Court--Summoning of record in appeals--Disposal of appeals by and without summoning record--Guidelines--There are two categories of cases which come before the appellate Court--Where the facts are simple and are not disputed, the first appeal is generally dismissed in limine and examination of record of rent controller is not necessary--Second category is that if the facts are not simple or disputed, the first appeal is not generally dismissed in limine in that case the appellate Court can send for record, provide opportunity of being heard to the appellant.    [P. 1055] B

Malik Qamar Afzal, Advocate for Petitioner.

Mr. Muhammad Ilyas Sheikh and Mr. Tariq Khurshid, Advocates for Respondents.

Date of hearing  28.11.2006.

Order

This order shall dispose of this writ petition as well Writ Petitions No. 2212/2006 to 2214 of 2006, all titled as Major (R) Shakil-ud-Din Ahmad vs. Additional District Judge, Islamabad and another, as in all of them similar question of interpretation of the orders passed under Section 17(8) and (9) of the Islamabad Rent Restriction Ordinance is involved and further that the order dated 28.6.2006 of the learned Rent Controller and the order dated 13.7.2006 of the learned Additional District Judge, Islamabad, have been assailed. Through the former order the rent application of the respondent-landlord Ms. Zubaida Azam under Section 17(9) of the Islamabad Rent Restriction Ordinance, 2001 has been accepted after striking off the defence of the petitioner, and through the latter order dated 13.7.2006 the learned Addl: District Judge has dismissed the appeal of the petitioner challenging the order dated 28.6.2006 of the Rent Controller.

2.  Brief facts of the case are that Respondent No. 2 Mrs. Zubaida Azam, wife of Brig (r) Muhammad Azam, filed an ejectment petition against the petitioner on the ground of willful default The petitioner/tenant resisted the same by filing the written reply. On 13.6.2006 the learned Rent Controller, Islamabad passed an order under Section 17(8) of the Islamabad Rent Restriction Ordinance, 2001 directing the petitioner to deposit the past rent due and fixed the case for 28.6.2006 for production of the proof of the rent deposited by the petitioner. On the said date the petitioner, instead of depositing the rent, filed an application for extension of time of 15 days for payment of rent The learned Rent Controller in exercise of jurisdiction under Section 17(9) of the Ordinance struck off the defence of the petitioner/tenant, consequently ordered for ejectment of the petitioner vide order dated 28.6.2006. Feeling aggrieved by the said order, the petitioner filed an appeal under Section 21 of the Ordinance ibid before the learned District Judge, and the said appeal has been dismissed by the learned Additional District Judge in limine, hence this Constitutional petition.

3.  The learned counsel for the petitioner contends that the learned Additional District Judge had no jurisdiction to dismiss the appeal of the petitioner in limine. Reliance is placed on the case reported as Abid Hussain vs. Mst. Afsar Jehan Begum and others (PLD 1973 SC 1) and Haji Muhammad Aqil vs. Ghulam Muhammad and another (2002 CLC 969). Further contends that the order of dismissal of the appeal was in illegal exercise of jurisdiction as the Learned Judge did not follow the prescribed procedure under Section 21 of the Ordinance. Adds that the order for deposit of the tentative past rent being interlocutory order could have not been challenged during the proceedings and there is sufficient material on the file to justify that the petitioner had paid

Rs. 40 Lacs (Rupees forty lacs) as good-will and the rent was not payable.

4.  I have heard the learned counsel for the parties and perused the record as also examined the impugned order. Before I proceed to interpret the provisions of sub-sections (8) and (9) of Section 11 of the Islamabad Rent Restriction Ordinance, 2001 regarding deposit of rent and striking of  defence  of  the  petitioner  due  to  non-deposit  of  rent, I would deal with the argument of the learned counsel that the appeal could have not been dismissed in limine. At the out-set, I observe that the above referred cases of Abid Hussain vs. Mst. Afser Jehan Begum and Haji Muhammad Aqil, supra, do not apply to the facts of the present case for the reason, firstly that both the cases were out-come of the decision of the First Appellate Court dismissing the appeal against the decree in civil suit passed by the Civil Judge. Secondly, the appeal was dismissed by the District Judge in violation of Order XLI Rule 11 CPC read with High Court Rules and Orders (Lahore) Volume-V, Chapter 3-B R. 1(i) preferring an appeal from the original decree. Thirdly, the appeal is both on facts and law. The First Appellate Court is final Court of facts, therefore, dismissal under Order XLI CPC of first appeal is therefore not a general rule and the provisions of CPC have not been made applicable to an appeal under sub-section (7) of Section 21 of the Islamabad Rent Restriction Ordinance, 2001. Now sub-section (7) of Section 21 of the Ordinance ibid reads as follows:--

"(7)  The Appellate Authority shall after perusing the record of the case and given, the parties an opportunity of being, heard and, if necessary, after making such further inquiry, as it thinks fit, either personally or through the Controller, make an appropriate order which shall be final."

Now, Section 15 (3) of un-amended West Pakistan Rent Restriction Ordinance, 1959 (Ordinance No. VI of 1959) provides as follows :--

"The Appellate Authority shall decide the appeal after sending, for the record of the case from the Controller and. after giving the parties an opportunity of being heard and, if necessary, after making such a further inquiry as it thinks fit either personally or through the Controller."

It was obligatory for the learned Appellate Court under Section 15 (3) of the Urban Rent Restriction Ordinance to send for the record of the case from the Controller and provide an opportunity of hearing to the parties before making decision of the appeal. But, while exercising jurisdiction, under Section 21(7) of the Islamabad Rent Restriction Ordinance, the Appellate Court is not required to send for the record and it depend on facts of each case that if the Appellate Court feels it necessary after perusing the record may give the parties an opportunity of being heard and decide the appeal. It means that there are two categories of cases which come before the Appellate Court. The first category of the cases is where the facts are simple and are not disputed the first appeal is generally dismissed in limine, and examination of record of the Rent Controller is not necessary. Second category of the cases is that if the facts   are   not   sample  or  disputed,   the  first  appeal  is  not generally dismissed in limine. In that, case the Appellate Court may send for the record, provide an opportunity of being heard to the appellant. In that case the appellate authority will not dispose of the appeal without first sending for the record from the Controller and hearing the parties and further if necessary making such further inquiry as it deems fit. The duty to call for the record in the first instance is imperative. In the latter case it is difficult therefore to agree that the appellate authority could dismiss the appeal in limine. In the case reported as Begum Humayun Zulfiqar Ismail v. Begum Hamida Saadat Ali (1968 SCMR 828), provisions of Sections 15(3), West Pakistan Urban Rent Restriction Ordinance (VI of 1959) read with Order XLI Rule 11, CPC and Section 96 CPC came up for consideration before the honorable Supreme Court and it had been ruled that dismissal under Order XLI Rule 11 CPC of first appeal is therefore not a general rule. If the facts are not simple or disputed a first appeal is not general dismissed in limine, meaning thereby that if the facts are not disputed and are simple and the appeal on the face of it is frivolous and the record need not to be examined, it can be dismissed. Now, Section 15(3) of the Urban Rent Restriction Ordinance has been amended and there is no need of sending for the record of the Rent Controller.

5.  In the instant case, the facts are very simple. The relationship of land-lord and tenant between the parties is admitted, therefore, on 13.6.2006 the learned Rent Controller correctly passed an order in exercise of jurisdiction under Section 17(8) of the Islamabad Rent Restriction Ordinance, 2001 directing the petitioner to deposit the past rent and fixed the case for 28.6.2006 for production of proof of the rent deposited. The petitioner did not challenge the jurisdiction of the Rent Controller at the time to passing of the order under Section 17(8) of the Ordinance, but he moved an application on the said date for extension of time of 15 days for payment of rent instead of depositing the same. Now he is estopped by his conduct to raise the objection that there is sufficient material on the file to justify that the petitioner had already paid Rs. 40 lacs as good-will and hence the rent was not payable and the restaurant was not operational Since the petitioner violated the order dated 13.6.2006 passed by the Rent Controller under Section 17 (8) of the Islamabad Rent Restriction Ordinance and did not deposit the rent as ordered by the Court, therefore, the Rent Controller had no option except to strike off the defence of the petitioner and passed the order of ejectment in exercise of the jurisdiction under Section 17(9) of the Ordinance. In the case reported as Zikar Muhammad v. Mrs. Arifa Sabir and another (2000 SCMR 1328), where the Rent Controller had struck off defence of the tenant and ordered him to hand over the vacant possession of premises to landlord and the High Court holding that there was no  good  cause  or  reasonable  explanation  for  delay/negligence  in payment of rent by the tenant dismissed the appeal, the honorable Supreme Court while interpreting the provisions of Section 13(6) of the West Pakistan Urban Rent Restriction Ordinance (VI of 1959), which are pari materia of Section 17 (8) of the Islamabad Rent Restriction Ordinance, 2001 (IV of 2001), has ruled that "High Court having rightly concluded that defence of the tenant was rightly struck off by the Court below, no valid ground existed for interference in the order of High Court" and refused leave to appeal.

6.  In the instant case, not only the rent has not been paid in pursuance of the order passed under Section 17(8) of the Ordinance, but the application was submitted and time was sought by the petitioner to comply with the order. The order of the learned Rent Controller dated 28.6.2006 was unexceptional. The appeal of the petitioner was rightly dismissed by the learned Additional District Judge. No ground to interfere in the well-reasoned order of both the Courts below is made out. This writ petition fails and the same is dismissed in limine.

7.  For the same reasons Writ Petitions Nos. 2212/06, 2213/2006 and 2214 of 2006 also fail and are dismissed in limine.

(W.I.B.)    Petitions dismissed.

Constitutional Petition in a Rent Case

PLJ 2012 Islamabad 157

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, 1973--

----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

Islamabad Rent Restriction Ordinance, 2001--

----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 beencontroverted 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 inMehmood 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, after hearing both the parties discussed the issues, declined the relief sought in the petition by the landlord. Resultantly, the same was dismissed. The landlord i.e. respondent, being aggrieved with the said decision of the Rent Controller, preferred an appeal against the order dated 02.01.2009. After hearing both the parties, the learned Additional District Judge, Islamabad while considering all legal and factual aspects involved, accepted the appeal. Consequently, the application filed by the landlord Rana Muhammad Zahid was accepted and the petitioner in the instant writ petition was directed to vacate the premises within two months.

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 below.

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 theejectment 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 is maintained.

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