Tuesday, 24 November 2015

Magistrate may acquit at any stage of the Trial

According to the provisions of section 249-A of the code of criminal procedure 1898 the magistrate has powers to acquit the accused at any stage of the trial.

A trial in a criminal case starts when challan is presented in the court of magistrate. Challan is also known as police report under section 173 of the code of criminal procedure 1898.

Once challan or police report is presented in the court of magistrate the accused has powers to move petition under section 249-A of the code of criminal procedure 1898.

There are two grounds mentioned in section 249-A. One is that the charge is groundless and the other is that there is no probability of conviction of accused. If the magistrate thinks that these two grounds are present in the case, he/she may acquit the accused at any stage of the trial.

Monday, 23 November 2015

Intra Court Appeal in Rent Case

PLJ 2006 Lahore 442 (DB)
[Rawalpindi Bench Rawalpindi]
Present: Muhammad Akhtar Shabbir and Abdul Shakoor Paracha, JJ.
S.M. ISMAIL--Appellant
versus
CAPITAL DEVELOPMENT AUTHORITY ISLAMABAD & 5 others--Respondents
I.C.A. No. 161 of 2004, heard on 28.6.2005.
(i)  Constitution of Pakistan, 1973--
----Art. 199--Maintainability of--Respondent proceeded against appellant and dispossessed him from the site in dispute in violation of mandatory provisions of requiring prior notice--Held: Writ petition before High Court is competent. [P. 449] E
(ii)  Constitution of Pakistan, 1973--
----Art. 199--Jurisdiction--Public functionaries deriving authority from or under law, are obliged to act justly, fairly, equitably, reasonably, without any element of discrimination and squarely within parameters of law, as applicable in a given situation--Held : Deviations, if of substance, can be corrected through appropriate orders under Art. 199 of Constitution.      [P. 451] H
(iii)  Constitution of Pakistan, 1973--
----Art. 199--Islamabad Rent Restriction Ordinance, (IV of 2001), Ss. 2(J)(i) & 17--Intra Court appeal--Capital Development Authority leased out plots to C.D.A. Staff Welfare Organization for setting Petrol Pump for thirty years in first instance and renewable for two subsequent terms of thirty years each--Staff Welfare Organization leased one plot to appellant for thirty years on 11.10.1973--Installation of petrol pump and C.N.G. Station by appellant--Application for renewal by applicant--Extention of lease for five years subject to payment of Rs. one lac per month--Appellant did not decline offer and requested extension for 30 years--Dispossession of appellant and sealing of premises--Constitutional petition of appellant disposed of--Validity--Action of dispossession of appellant by Staff Welfare Committee was without any lawful authority--Appellant has been dispossessed illegally, therefore, he is entitled for restoration of the possession--Rule of equity, good conscious and fairplay necessitates that period of lease of appellant be extended for further thirty years as same benefit has been availed by respondent for itself but they are relevant to extend such concession to appellant--Rejection of offer of appellant for extension of lease for 30 years is not only malicious act but this also shows the arrogant attitude of respondents--Intra Court appeal accepted, impugned order set aside and respondents directed to extent lease for thirty years.  [Pp. 448, 451, 452 & 453] C, I, J & K
(iv)  Islamabad Rent Restriction Ordinance, 2001 (IV of 2001)--
----Ss. 2 (j)(i) & 17--Dispossessed after expiry of lease period--Relationship of land lord and tenant between the parties and Rent Controller at Islamabad has jurisdiction--Contention of--It was a lease agreement originally executed between the parties and relationship between them is a lessor and lesse--Held: Contention is misconceived and cannot be accepted--Since it was a tenancy and did not cover under Islamabad Rent Restriction Ordinance, 2001.     [P. 449] D
(v)  Jurisdiction--
----Exercise of--Routine contractual disputes between private and public functionaries are not open to scrutiny under Constitutional jurisdiction--Breaches of such contracts which do not entail inquiry into or examination of minute or controversial questions of fact, if committed by Government, semi-Government or local Authorities or alike controversies if involving derelictions of obligation, flowing from a statute, rules or instructions can adequately be addressed to for relief under Constitutional jurisdiction.         [P. 450] F
(vi)  Obiter dicta--
----Contract carrying elements of public interest, concluded by functionaries of the State, has to be just, fair, transparent, reasonable and free of any taint of malafidies, and such aspects remaining open for judicial review.      [Pp. 450 & 451] G
(vii)  Possession--
----Status of--After expiration of the term fixed, lessee continuing in possession, will in absence of assent by the lessor or his representative in interest, only be a tenant by sufference--He can be sued in ejectment any time without any previous notice or demand of possession.                [P. 448] B
AIR 1919 Oudh 124; AIR 1929 Pat. 494; AIR 1919 Patna 254; AIR 1981 Raj. 206; AIR 1927 Bombay 192; AIR 1940 Lah. 410.
(viii)  Transfer of Property Act, 1882 (IV of 1882)--
----Ss. 106 & 116--Expiry of lease period of appellant--Continuing his possession over the site in dispute--Status of holding over possession falls within ambit of Section 116--Held: Provisions of Transfer of Property Act are not applicable to Islamabad Capital Territory, principle of Ss. 106 & 116 can be invoked as these provisions are not to be regarded being opposed by principle of equity and good conscious.        [P. 448] A
1988 SCMR 2268.
Mr. Mujeeb-ur-Rehman Kiani, Advocate for Appellant.
Malik Muhammad Nawaz & Mrs. Misbah Sharif, Advocates for Respondents.
Date of hearing : 28.6.2005.
Judgment
Muhammad Akhtar Shabbir, J.--This Intra Court Appeal arises out of the judgment dated 30.6.2004 passed by learned Single Judge of this Court in Chamber in a Writ Petition No. 346/2004 vide which, the learned Judge referred the case of the appellant to the Staff Welfare Committee of the C.D.A. to decide the fate of the lease of the appellant afresh.
2.  Facts leading to the filing of the present I.C.A. are to the effect that the appellant entered into a lease agreement in respect of a plot measuring 90 x 150 feet, Embassy Road, G-6/4,Islamabad. The lease agreement had been reduced into writing and the period of lease agreed between the parties was 30 years w.e.f. 1.1.1973. That vide letter dated 15.1.2002, the C.D.A. (S.W.A.) had agreed to renew the lease period of the site Petrol-pump for a further period of 5 years subject to payment of Rs. 1,00,000/- per month with immediate effect without waiting for expiry of current lease agreement and sought the consent of the appellant. The appellant was also required to hand over the possession of the site in question forthwith. The plot/site in dispute had been reserved for installation of a patrol-pump after the lease agreement. The appellant installed a patrol-pump at his own cost and thereafter installed a C.N.G. Filling Station with the approval of the respondents. That in response to the offer of the respondents, the appellant through letter dated 21.1.2002 consented to the extension of the lease agreement but nor for a period of 5 years as per term of 30 years with an increase of 15 times in the initial rent i.e. Rs. 1,000/- per month. The offer of the appellant had not been responded to by the C.D.A./respondent. However, vide letter dated 27.12.2002, the vacation of the site was demanded by the C.D.A. from the appellant till 31.12.2003.
3.  The appellant feeling aggrieved of this letter had instituted a civil suit for perpetual injunction seeking protection of his possession on the site in the Court of Civil Judge, Islamabad. The respondent entered appearance in response to the process issued by the Civil Judge and made a statement in the trial Court to the effect that the appellant shall not be dispossessed except in due process of law. On undertaking of the learned counsel for the respondent, the suit was accordingly disposed of.
4.  The appellant had also filed an application under Section 29(c) read with other provisions of Islamabad Rent Restriction Ordinance, 2001 for the determination of fair rent of the site in question before the learned Rent Controller, Islamabad on 20.1.2003. The respondents entered appearance filed written reply to the application of the petitioner and the learned Rent Controller vide his order dated 27.3.2003 fixed Rs. 20,000/- as tentative rent of the site in question and settled issue.
5.  That vide letter dated 10.4.2003 issued by the respondents, the appellant had been intimated that a meeting was scheduled to be held on 12.4.2003 to discuss the matter of renewal of leases of the Petrol-pumps including the Petrol-pump of the appellant. In response thereto, the appellant gave consent to attend the meeting. On 7.2.2004, a notice was again issued by the Respondent No. 2 requiring the appellant to vacate the premises within 24 hours otherwise dispossession of the appellant from the site in question was threatened forcefully. The appellant sent reply to the said notice but through an illegal and arbitrary process on 8.2.2004, the respondents forcefully dispossessed the appellant from the site in question and sealed the premises including assets valuing of Rs. 30 million. Feeling aggrieved, the appellant instituted Writ Petition No. 346 of 2004 in the Lahore High Court, Rawalpindi Bench, Rawalpindi and the Hon'ble Judge in Chamber vide order/observation dated 30.6.2004 disposed of the writ petition with the direction contained in Para Nos. 42 to 44 of the judgment.
6.  The learned counsel for the appellant contended that the appellant was initially granted lease of the plot by the respondent for the terms of 30 years w.e.f. 1.1.1973. The said plot was leased out to the appellant for installation of petrol-pump. The appellant installed Petrol-pumps well as the C.N.G. Filling Station at his own expenses and remained in possession till the time, but he has been forcefully dispossessed by the respondents. Further contended that the appellant in view of provisions of Section 2 (J)(i) of the Islamabad Rent Restriction Ordinance was still a tenant and was not liable to be evicted from the site premises in his possession except in due process of law which has been prescribed in Section 17(1) of the said Ordinance and that the legal status of the appellant was that of a tenant with regard to site in dispute. Further contended the appellant had been dispossessed in violation of existing law. Further contended that despite the statement made by the counsel for the respondent before the Civil Judge, the appellant was forcefully dispossessed from the site in dispute and the statement given by the learned counsel for the C.D.A was binding upon it. The act of respondents dispossessing the appellant was illegal and without lawful authority. Further contended that the controversy for determination of the rent of the disputed site was subjudice before the Rent Controller Islamabad, who has directed the appellant to deposit the tentative rent of Rs. 20,000/- per month. Further contended that the Transfer of Property Act is not applicable to the Islamabad Territory. And there was only one legal remedy available to the appellant before the Rent Controller. Further that the contract of lease was executed inter se between the appellant and the Staff Welfare Committee. Further contended that the relationship between the appellant and respondent was that of tenant and landlord which is governed under the Islamabad Rent Restriction Ordinance and the remedy against his dispossession though a Constitutional petition in the High Court was competent. In this context, he has placed reliance on the case of Abdul Haq and 2 others vs. The Resident Magistrate, UCH Sharif, Tehsil Ahmadpur East,Bahawalpur (P.L.D. 2000 Lahore 101). Further contended that the High Court is competent to restore the illegal possession of the appellant through a writ jurisdiction. In this context, he has placed reliance on the cases of Sikandar and 2 others vs. Muhammad Ayub and 5 others (P.L.D. 1991 S.C. 1041) and Muhammad Aslam vs. Station House Officer and others (1993 M.L.D. 152). Learned counsel further contended that the action of the respondents of forceful dispossess of the appellant is illegal, without lawful authority, based upon mala-fide and liable to be set-aside.
7.  On the other hand, learned counsel for respondents Malik Muhammad Nawaz & Mrs. Misbah Gulnar Sharif, Advocates vehemently opposed the arguments of the learned counsel for the petitioner contending that after the expiry of period of 30 years of lease of the appellant, an offer was made to him by respondents for extension of further time for five years for demanding Rs. 1,00,000/- as lease money per month. The said offer had not been accepted by the appellant, who has claimed the extension of lease for 30 years on the basis of Rs. 1,000/-, the original consideration of lease. Further contended that the matter was put up before the C.D.A. authorities and the offer made by the appellant was declined by the Authorities. Further contended that the appellant neither deposited the rent nor any further agreement of lease has been executed, therefore, after expiry of lease period, he was liable to be ejected forthwith. Further contended that required notice was issued to the appellant either to accept the offer of the respondent or vacate the premises. Further contended that the appellant is a lessee under the lessor/respondent and not a tenant and no relationship of landlord and tenant exist between the parties. Further contended that the case of the appellant is not covered within the provisions of Section 2(J)(i) of the Islamabad Rent Restriction Ordinance. Further contended that the notification was required to be issued in accordance with law declaring the area to be covered by the Islamabad Rent Restriction Ordinance, which had not been issued at the time of institution of the rent petition of the appellant. Further contended that lease period could be extended with the mutual consent of the parties. Further contended that under the direction of this Court, the Staff Welfare Committee considered the case of the appellant and declined to accept his offer for extension of his lease at the rate of Rs. 1,000/- per month for further 30 years. Learned counsel further contended that the provision of Section 106 of T.P. Act can be followed as principles of justice, equity and good conscience. Under this provision notice was issued to the appellant and compliance of law has been made. In this context, he has placed reliance to the case of Barkat Ullah Khan vs. Abdul Hamid (1981 S.C.M.R. 1200).
8.  We have heard the arguments of the learned counsel for the parties and perused the record.
9.  It is an admitted position that in the year 1973, two plots measuring 90 x 150 fee (1500 sq. yards) located at Embassy Road, Sector
G-6/4, Islamabad, were allotted to the CDA Staff Welfare Organization vide letter dated 9.10.1973 for setting up Petrol-pump. The period of lease was thirty years in the first instance, which was renewable for two subsequent terms of thirty, years each on such terms and conditions as may be prescribed by the Authority. The annual ground rent was liable to be enhanced by 20% per month on expiry of first term of thirty years and then 40% for the next term. The Staff Welfare Organization further leased out one of the plots to the appellant for a period of thirty years at the rate of
Rs. 1,000/- as rent per month for fifteen years and after fifteen years increase in the rent would be subject to the ceiling of 20% per month. Consequently, a lease agreement dated 11.10.1973 was executed between the appellant and the Staff Welfare Committee.
10.  After obtaining the lease, the appellant installed a Petrol-pump at the site and continued payment of rent to the respondent Staff Welfare Committee as per terms and conditions of the agreement. Before the expiry of the lease period, the appellant applied to the respondent for renewal of rent agreement of the Petrol-pump and in response to the letter dated 18.5.2001, the respondent through letter dated 15.1.2002 informed the appellant for extension of lease period only for five years subject to payment of Rupees one lac per month as rent. The appellant had applied to the respondent before the expiry of the term of lease period i.e. 31.12.2002 meaning thereby that the appellant proposed to get extended further period of lease. The appellant did not decline the offer of the respondent Staff Welfare Committee and requested for extension of the period of lease for further thirty years. A meeting of the Staff Welfare Committee had been convened to discuss the matter regarding renewal of the rental agreement of the Petrol-pump site. In the meeting, it was decided that the negotiation with the lessees for new lease at the rate of Rs. 1,00,000/- per month may be carried out by the Chairman (SWC) and in the light of those negotiations Secretary (SWC) may bring a revised summary in the Board for consideration. In case no settlement is reached then the lease may be cancelled.
11.  In the present case, now the question to be determined between the parties was the period of lease and the amount of rent/lease money per month. There was correspondence between the parties and no specific denial or refusal by the appellant is established on the record for extension of the lease period. After the expiry of the lease period, the appellant continuing his possession over the site in dispute and his status of holding over possession clearly falls within the ambit of Section 116 of the Transfer of Property Act. Though the provisions of Transfer of Property Act are not applicable to Islamabad Capital Territory, but the principle of Sections 106 and 116 can be invoked as the provisions of Section 106 are not to be regarded being opposed by the principle of equity and good conscious. This proposition was discussed by the Hon'ble Judges in the case Messrs Airport Support Services vs. The Airport Manager, Quaid-e-Azam International AirportKarachi and others (1998 SCMR 2268). After the expiration of the term fixed, the lessee continuing in possession, will, in the absence of an assent by the lessor or his representative in interest, only be a tenant by sufferance. He can be sued in ejectment at any time without any previous notice or demand of possession, as laid down in AIR 1919 Oudh 124, Pratap Udai Nath Sahi Deo and another vs. Jagannath Mahto and others (AIR 1929 Pat. 444), E.W.C. Moore and another vs. Makhan Singh (AIR 1919 Patna 254), AIR 1981 Raj 206, Maganlal Dulabhdas vs. Bhudar Purshottam and others (AIR 1927 Bombay 192), and Banwari Lal vs. Mt. Hussaini and another (AIR 1940 Lahore 410).
12.  The plot has been allotted on lease for about ninety years to the respondent/Staff Welfare Committee, which is an Organization of the employees of CDA, therefore, they being a private party could not proceed against the appellant except in due process of law. The Staff Welfare Committee has no authority or power and their action of dispossession of the appellant from the plot in dispute was without any lawful authority. After allotment of plot on the basis of lease agreement, the CDA Authorities, during the period of lease, have become functus officio and they have also no power to authority to act against the appellant without due process of law. Thus, the action of the respondents, either by the CDA or by the Staff Welfare Committee regarding dispossession of the appellant from the site in dispute was illegal, without lawful authority and based upon mala fide.
13.  The appellant has though requested for extension of the lease period for further thirty years and also wanted that the rent may be fixed at the rate of Rs. 1,000/- per month for fifteen years and thereafter 20% increase for further fifteen years. But the request of the appellant for extension of lease period for thirty years at the rate of Rs. 1000/- per month was declined and vide notice dated 7.2.2004, the respondents issued a notice to the appellant to hand over the possession of the site within 24-hours.
In all the above said circumstances, the appellant was only liable to be dispossessed through a suit for possession and not illegally or forcibly, as has been done by the respondents in the case of the appellant.
14.  The most important feature of the case is that the CDA had leased out two plots to CDA Staff Welfare Committee for establishing Petrol-pumps. The Organization instead of establishing the Petrol-pump itself has further leased out the said plots to another party including the present appellant. It is an admitted fact that the CDA has allotted the plots to the Staff Welfare Organization for a period of thirty years in the first instance, which was renewable for two subsequent terms of thirty years each with increase of 20% and 4-% increase after every fifteen years on such terms and conditions as has been prescribed by the Authority.
In the instant case, before expiry of contract of lease, the appellant has requested the Staff Welfare Committee to extend the lease period and this offer was accepted by the Staff Welfare Committee and offered the extension for a period of further five years at the rate of Rs. 1,00,000/- per month as rent but the appellant did not decline this offer. The appellant only requested for extension of lease for further thirty years at the same rate.
15.  After obtaining the lease of the site in dispute, the appellant has installed a Petrol-pump and CNG Station from their own expenses and spent a colossal amount of rupees 3-4 Crors, as such the offer by the respondents regarding extension of lease only for five years was not based upon bona fide; rather it was with malicious intention. Since the appellant was under the impression that the Staff Welfare Committee/respondent is the lessee of the plots for ninety years, therefore, the respondent will also treat the appellant with the same terms and conditions and his lease would be extended for further thirty years.
16.  Admitted, that it was a lease agreement originally executed between the parties and the relationship between them is a lessor and lessee. As to the argument of the learned counsel for the appellant that there was a relationship of landlord and tenant between the parties and the learned Rented Controller at Islamabad has the jurisdiction to determine the fair rent, as Rent Restriction Ordinance has been enforced in Islamabad Capital Territory being misconceived cannot be accepted. Since it was not a tenancy and did not cover under Islamabad Rent Restriction Ordinance, certainly it was a lease agreement and the argument of the learned counsel for the respondent that to constitute the agreement, necessary requirement would be unconditional and acceptance thereof by the competent person/authority. In the present case, the offer was not categorically refused or declined by the appellant, therefore, a right has accrued to the appellant to approach this Court for enforcement of legal right.
17.  In the present case, the Staff Welfare Committee/respondent under the shed of the CDA has proceeded against the appellant and dispossessed him from the site in dispute and in such circumstances if in violation of the mandatory provisions of the requiring prior notice the appellant has been dispossessed, the writ petition before the High Court is competent, as laid down in the case, referred to above, wherein the rule is founded on the premises that the public functionaries, deriving authority from or under law, are obligated to act justly fairly, equitably, reasonably, without any element of discrimination and squarely within the parameters of law, and deviations, if of substance, can be corrected through appropriate orders under Article 199 of the Constitution. In another case Suleiman Khan & Co. vs. Pakistan Railways through General Manager, Railways Headquarters & 2 others (2003 SCL 331) it has been observed that the fee of leased property was enhanced and the High Court set aside the order of the Authority and remanded the case for decision afresh in accordance with law.
18.  The learned Single Judge of this Court while disposing of the Writ Petition No. 346 of 2004 filed by the appellant has observed that the question with respect to the renewal of lease has now independently be decided by the Staff Welfare Committee as the offer of the respondents with regard to the rate of rent of rupees one lac has been admitted by the appellant, therefore, their one condition has been accepted. The respondents have already offered the extension of lease for a period of five years, which is not declined by the appellant, but his request is for extension of lease period for thirty years, as he has spent a huge amount, therefore, keeping in view the expenses incurred by the appellant on the installation of Petrol-pump and CNG Station at the site in dispute, he is fully entitled for extension of further longer period of 30-years.
19.  Learned counsel for the appellant has submitted that the appellant has accepted the lease when nobody was willing to install a Petrol-pump on the said place because at that time,Islamabad City was not thickly populated and its roads were not so busy and the rush of traffic was not like the present one. However, after the arguments of the case, while dictating the judgment, learned counsel for the appellant has entered appearance in our Chamber and made a statement that his client/appellant is willing to accept the offer of the respondents for extension of the lease for a consideration/rent of Rupees one lac per month. In this respect, one condition of the respondent has been accepted by the appellant and his other demand is that the lease period be extended for further fifteen or thirty years. The appellant is a licensee of the Oil Company who supplies petrol to the appellant's Petrol Pump. The appellant has also installed CNG Station. As it is the requirement of the Oil Company marketing for long term lease rights at least for fifteen years, extendable for further fifteen years' term, the renewal period should also not be less than thirty years.
20.  So far as the objection of the learned counsel for the respondents that the writ petition is not maintainable, suffice it to say that routine contractual disputes between the private parties and public functionaries are not open to scrutiny under the Constitutional jurisdiction, breaches of such contracts, which do not entail inquiry into or examination of minute or controversial questions of fact, if committed by the Government, semi-Government or Local Authorities or alike controversies if involving derelictions of obligations, flowing from a statute, rules or instructions can adequately be addressed to for relief under the Constitutional jurisdiction. Further a contract, carrying elements of public interest, concluded by functionaries of the State, has to be just, fair, transparent, reasonable and free  of  any  taint  of  mala  fides, all such aspects remaining open for judicial review. The rule is founded on the premises that public functionaries, deriving authority from or under law, are obligated to act justly, fairly equitably, deriving authority from or under law, are obligated to act justly, fairly equitably, reasonably, without any element of discrimination and squarely within the parameters of law, as applicable in a given situation. Deviations, if of substance, can be corrected through appropriate orders under Article 199 of the Constitution.
21.  the appellant has been dispossessed by the C.D.A. authority which is a statutory body and the dispossession has been made by them without performing requirement of law and it has been held in the case Messrs Airport Support Services Vs. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others (1998 SCMR 2268) that the question before the High Court in Constitutional petition under Article 199 of the Constitution was not one of enforcement of contractual obligations but of violation of mandatory provisions of the requiring prior notice as envisaged in Section 3, Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965, writ petition was maintainable.
22.  In another case, M/s. Wak Orient Power & Light Limited Gulberg-III Lahore vs. Govt. of Pakistan, Ministry of water and Power through its Secretary Islamabad & 2 others (PLJ 1998 Lahore 665 (FB) it has been observed by the Full Bench of the High Court that trend of authorities has now changed and remedy of writ is permitted to be resorted to in cases involving contract between private person and state/statutory functionary as it is considered to be more efficacious and speedy remedy as compared to civil suit or arbitration proceedings. The lessees/tenants have enforceable rights against their landlords/lessors to protect their tenancy rights through Courts and it is settled proposition that if a person is dispossessed forcibly, he has a legal right for restoration of his possession on the basis of the protective legislation vis-a-vis by filing a suit for possession under Section 9 of the Specific Relief Act. This argument is strengthened by the dictum laid down in Sikandar and 2 others vs. Muhammad Ayub and 5 others (PLD 1991 Supreme Court 1041) and Muhammad Aslam vs. Station House Officer and others (1993 MLD 152) wherein the writ petitioner had challenged the action of the police functionaries whose duty is to protect the citizens against all kinds of excesses from any corner, but instead of performing their duty strictly within the four corners of law, the guardians of law themselves sided with the law-breakers and acting in a  most indecent haste had deprived the petitioner of his possession of the Petrol-pump in spite of existence of status quo order issued by the Civil Court. The police functionaries were overzealous in completing the illegal mission. The whole action of police functionaries in depriving the petitioner of his possession of filling station was consequently declared as illegal having got no sanction of law and the petitioner was directed to be put back in possession forthwith by the High Court in exercise of its Constitutional jurisdiction. The same is the case  of  the  present  petitioner,  who  has been  dispossessed  illegally  and forcibly by the CDA Staff Welfare Association without due process of law, therefore, the appellant is entitled for restoration of the possession.
23.  So far as the consideration/price of the lease per month at the rate of Rs. 1,00,000/- is concerned, learned counsel for the appellant has made a statement that the appellant has authorized him to accept the offer of the respondents in respect of the lease at the rate Rs. 1,00,000/- per month, meaning thereby that the condition imposed by the respondents offering the appellant to accept the extension of lease for further period at the rate of rupees one lac having been accepted.
24.  Now the question remains in respect of the period of lease. Admittedly, the respondents have themselves offered the extension for a period of five years and the appellant wanted extension in period for thirty years. The appellant has spent colossal amount at the site in dispute for installation of Petrol-pump and the CNG Station and if the lease period is not extended, the appellant's family would be financially ruined and doomed. In such circumstances, we are of the view that the rule of equity, good conscious and fair play necessitate that the period of lease of the appellant be extended for further thirty years as the same benefit has been availed by the respondent/Staff Welfare Committee for itself but they are reluctant to extend this concession to the appellant. The Staff Welfare Organization having it upper hand as lessor should consider the difficulties and hardship of the other party/appellant.
25.  the offer letter issued by the Staff Welfare Organization for extension of the lease of the appellant for further five years has not been declined by him rather a request was made for extension of lease for a longer period. The offer for extension of lease period is impliedly accepted by the appellant and his learned counsel while entering appearance in our Chamber has made a statement whereby he accepted the payment of lease consideration of Rs. 1,00,000/- (Rupees one lac) per month. It means that the appellant is ready and willing to fulfill his obligation but so far as the decision of the Staff Welfare Committee rejecting the offer of the appellant for extension of lease for further period of thirty years is concerned, it is not only their malicious act but this also shows the arrogant attitude of the respondents. When the leased plot has been allotted by the C.D.A. to the Staff Welfare Committee for ninety years by two subsequent terms of thirty years each why the respondent/CDA (SWA) is not giving the same benefit to the appellant who has also accepted its demand regarding the rate of rent of Rs. 1,00,000/- per month.
26.  In view of the above discussion and keeping in view the principle of equity, good conscious as well as fairness and also in order to save the appellant's family from financial ruinous, we are constrained to accept this Intra Court Appeal and the impugned order passed by the learned Single Judge in Chamber is set aside and the respondents are directed to extend the lease  in  favour  of the appellant for further period of thirty years in two consecutive terms of fifteen years each at the rate of rupees on lac per month with increase of 20% rent after fifteen years. There is no order as to costs.
 (M.A.R.)         Appeal accepted.

Personal Bonafide Need

PLJ 2005 Lahore 1107
[Rawalpindi Bench Rawalpindi]
Present: Abdul Shakoor Paracha, J.
ALLIED BANK OF PAKISTAN LTD. through its MANAGER/ATTORNEY--Petitioner
versus
ADDITIONAL DISTRICT JUDGE ISLAMABAD and 2 others--Respondents
W.P. No. 1698 of 2004, decided on 3.12.2004.

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


----S. 10--Ejectment--Personal bonafide need of landlord--Evidence on record indicated that just in order to enhance monthly rent at exorbitant and unjustified rate, ejectment application was filed--Such aspect having escaped notice of Courts below resulted in misreading of contents of ejectment application and non-reading of evidence of landlord--Finding recorded by Courts below on bonafide personal need of landlord was thus, not maintainable and was reversed.      [P. 1112] B

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

----S. 10--Enhancement of Rent--Default in payment of enhanced rent--No notice for enhancement of rent was served upon tenant--Default in payment of rent to justify ejectment of tenant was thus not proved.
      [P. 1113] C
(iii)  Partnership Act, 1932 (IX of 1932)--
----S. 69--Islamabad Rent Restriction Ordinance, (IV of 2001), S. 10--Ejectment application filed by un-registered firm in the name of firm--Maintainability--Un-registered firm cannot file ejectment application against tenant.      [P. 1112] A
PLD 1997 SC 564; 2000 CLC 126; 1985 CLC 2514; 1996 CLC 1205; PLD 1976 Karachi 808; PLD 1965 S.C. 459; 1982 CLC 1241; PLD 1997 SC 564 and 2000 CLC 126 ref.
Mr. Tariq Mehmood Jahangiri, Advocate for Petitioner.
Ch. Ghazanfar Ali, Advocate for Respondents.
Date of hearing : 3.12.2004.
Order
Petitioner Allied Bank of Pakistan Limited through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, impugns the judgments and decrees dated 31.7.2003 and 20.4.2004, respectively passed by the Rent Controller and Additional District Judge, Islamabad, Respondents Nos. 2 and 1 herein. Through the former order the ejectment petition filed by Respondent No. 3, Al-Hadeed Enterprises, Islamabad, against the petitioner-Bank was accepted, whereas through the latter order the appeal of the petitioner before the Additional District Judge was dismissed.
2.  Brief facts of the case are that Respondent No. 3 Al-Hadeed Enterprises, Islamabad, through its seven partners, executed a lease agreement regarding Shops Nos. 10, 11, 12 and 14, measuring 1666.25 sq. ft alongwith basement measuring 979 sq.ft., on 16.12.1998, for establishment of the Branch of the Bank (Allied Bank of Pakistan Limited). The lease agreement was executed for a period of three years w.e.f. 1.12.1998 to 30.12.2001 at the rate of Rs. 31,000/- per month as rent. After the expiry of the above stated period, Respondent No. 3 initially agreed to extend the lease period with the enhanced rent at the rate of Rs. 38000/- per month but subsequently the respondent-landlord did not agree to the said enhanced rent and filed an ejectment petition on 21.9.2003 in the Court of Rent Controller against the Bank on the ground of personal use with bonafide intention and default in payment of rent by non-deposit of statutory increase of rent in violation of Section 10 of the Islamabad Rent Restriction Ordinance, 2001.
The said petition as resisted by the petitioner by filing the written statement. The allegations leveled in the petition were denied and it was contended that the petition was hit by the provisions of Partnership Act.
3.  The learned Rent Controller proceeded to frame the following issues:--
1.    Whether the building is required to the petitioner for his personal use with bonafide intention? OPA
2.    Whether the respondent has violated the Section 10 of the Islamabad Rent Restriction Ordinance, 2001? OPA.
3.    Whether the respondent has estopped depositing rent in his account without notice? OPA
4.    Whether the petitioner is entitled to get vacate the premises in dispute? OPA.
5.    Whether the petitioner is estopped by his words and conduct to file this petition? OPR.
6.    Whether the petition is hit by the provisions of Partnership Act, if so, its effect? OPR.
7.    Relief.
4.  The parties produced evidence in support of their respective contentions. Regarding violation of Section 10 of the Islamabad Rent Restriction Ordinance, 2001, and deposit of enhanced statutory rent under Issues Nos. 2 and 3, the learned Rent Controller observed that,"......the respondent is in possession of suit premises, but he has not increased the rent in accordance with Section 10 of Islamabad Rent Restriction Ordinance, 2001. When the respondent has not vacated the suit property as per demand of the petitioner, the respondent was required to pay the increased rent after lapse of three years of tenancy which has not been done by the respondent. So it may be concluded that the respondent has violated the Section 10 of Islamabad Rent Restriction Ordinance, 2001." Finding on Issue No. 1 was also recorded in favour of the landlord-Respondent No. 3 holding that the suit property was required by the Respondents-landlords for their personal need. Under Issue No. 6 the trial Court observed that, ".......seven persons are co-owners of the suit property and further the lease agreement Ex-A/2 was also executed by all the seven persons and instant suit has been instituted by Muhammad Aslam Yaseen as attorney of all the co-owners, therefore the instant petition is not hit by Section 69 of the Partnership Act and is maintainable." Regarding default in payment of rent-Issue No. 3, the learned trial Court concluded that, "....the applicant has failed to prove this issue through cogent evidence. Further petitioner has also failed to prove default on the part of the respondent, hence this issue is decided in favour of the respondent and against the petitioner." On the basis of the findings on Issues Nos. 1, 2 and 4, the ejectment petition was accepted vide order dated 31.7.2003 and the petitioner--Bank was directed to vacate the suit premises within a period of two months. The appeal filed by the petitioner-Bank against the aforesaid judgment of the Rent Controller dated 31.7.2003 failed and the same was dismissed through the impugned judgment of the learned Additional District Judge dated 20.4.2004, hence this petition.
5.  The learned counsel for the petitioner contends that the finding of the learned Rent Controller on Issue No. 1 regarding personal use with bonafide intention of the respondent landlord qua the property in dispute is result of complete misreading of evidence on the record. Further contends that the petitioner has not violated the provisions of Section 10 of the Islamabad Rent Restriction Ordinance, 2001; nothing was brought on the record to suggest that the landlord in consequence of statutory increase in rate of rent had sent any notice of such increase to tenant therefore the finding of the Courts below that the tenant had become defaulter by mere non-payment of rent according to enhanced rate was not warranted. Reliance has been placed on the cases reported as National Development Finance Corporation, Shahrah-e-Quaid -e-Azam, Lahore vs. Shaikh Naseem-ud-Din and 4 others (PLD 1997 SC 564) and Javed Iqbal vs. S.M. Khurram Wasti, Advocate (2000 CLC 126). It is further contended that the ejectment petition brought by Respondent No. 3 being an un-registered firm was hit by Section 69 of the of the Partnership Act and was not maintainable. To substantiate his argument the learned counsel has made reference to the cases reported as M. Aslam Awan vs. Ras Tariq Chaudhary (1985 CLC 2514) and Province of Sindh through Secretary, Public Works Department, Government of Sindh, Karachi and 6 others vs. M/s. Royal Contractors (1996 CLC 1205).
6.  On the other hand, the learned counsel for the respondent contends that concurrent findings of facts recorded by the two competent Courts of jurisdiction on the basis of evidence cannot be interfered with by this Court in exercise of Constitutional jurisdiction. Further contends that the respondent has successfully proved the personal bonafide use therefore the finding on Issue No. 1 has been correctly recorded by the Rent Controller which has been maintained in appeal. Adds that the rent of the non-residential building stands automatically increased at the end of every three years of tenancy by 25 percent of rent; the rent was fixed at the rate of
Rs. 31,000/- per month for three years which was for the fixed period of lease but the petitioner did not vacate the suit property and further he deposited Rs. 31000/- as rent per month and did not pay or deposited the increased rent therefore the petitioner Bank has violated the Islamabad Rent Restriction Ordinance, 2001 and eviction was rightly ordered by the Court. Further contends that Section 69 of the Partnership Act pertains to the suit for dissolution of partnership by a registered or un-registered firm; section ibid has no bearing on the ejectment petition. Moreover all the partners of the firm have filed the ejectment petition therefore the same was not hit by Section 69 of the Partnership Act.
7.  I have considered the arguments of the learned counsel for the parties and perused the record with their assistance. Before I advert to the question of personal bonafide need and violation of Section 10 of the Islamabad Rent Restriction Ordinance, 2001 by non-payment of 25 percent of the enhanced rent by the petitioner-Bank to the Respondent, I would deal with the question of maintainability of the ejectment petition, filed by Respondent No. 3 Al-Hadeed Enterprises, Islamabad, an un-registered firm, against the Bank, and would see whether the petition was barred under Section 69 of the Partnership Act. Section 69 of the Partnership Act reads as under:--
"69.  (1) No suit to enforce a right arising from a contract or conferred by this Act shall be instituted in any Court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm.
(2)   No suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the person suing are or have been shown in the Register of Firms as partners in the firm.
(3)   The provisions of sub-sections (1) and (2) shall apply also to a claim of set-off or other proceeding to enforce a right arising from a contract."
The Partnership Act, 1932 (Act No. IX of 1932) was enacted to define and amend the law relating to partnership. Provisions of Section 15 of the Partnership Act show that the assets of the firm are only to be held and used by the partners exclusively for the purposes of the business. It is to be noted that the rent case is to be filed against a tenant, who may be a living person or a juristic person. A registered firm is a juristic person which can sue and be sued. The above principle applicable to the Civil Courts can be pressed into service in rent proceedings. In the case reported as Cooperative Development Funds and Projects through its Project Manager, Karachi vs. Glimmer Textile Printing Industries, Karachi (PLD 1976 Karachi 808) while interpreting Section 69 of the Partnership Act (IX of 1932) in the case in which the tenant had claimed the right of fixation of fair rent conferred by Section 4 of the Ordinance ibid, it was held that, "Such right does not arise out of contract--Provisions of S. 69 of the Partnership Act do not apply to the proceedings before Rent Controller." By relying on the judgment of Khadim Hussain Mohy-ud-Din and another vs. Ch. Rehmat Ali Nagra and another (PLD 1965 SC 459) it was held that the Court of Rent Controller is not a Court. Further, on the mandate of Sections 2(1) and 4 of West Pakistan Urban Rent Restriction Ordinance (VI of 1959), where `tenant' has been defined, it was held that this definition extends even to body of persons acting as firm, whether registered or not. In the case reported as Messrs Construction Services (Pakistan) vs. Ali Hussain (1982 CLC 1241) it has been ruled that even an unregistered firm can be sued but cannot sue itself. This being so, I observe that the un-registered firm (Al-Hadeed Enterprises, Respondent No. 3), could have not filed the ejectment petition against the petitioner. Suffice to say that the cases of M. Aslam Awan (1985 CLC 2514) and Province of Sindh through Secretary, Public Works Department Government (1996 CLC 1205) (supra) are not attracted to the facts and circumstances of the present case.
8.  Now I come to the merits of the case. Respondent No. 3 has mentioned in ground (A) of the ejectment petition that the premises is required for personal use because the plaintiff-Respondent No. 3 wanted to have his office in the disputed building, but in the evidence Muhammad Aslam, AW-1, has negated his own case, and stated that he wanted to establish hotel business in the premises. Further AW-1, one of the landlords, has admitted in his statement that if the petitioner pays the monthly rent at the rate of Rs. 1 lac per month then the landlord will extend the lease agreement. These facts clearly show that just in order to enhance the monthly rent at exorbitant and unjustified rate the ejectment petition was filed. This aspect had escaped notice of the two Courts below. The finding of the learned Rent Controller, which was maintained by the appellate Court, was result of misreading of the contents of the ejectment petition and non-reading of the evidence of AW-1 Muhammad Aslam. The said findings are not sustainable and are hereby reversed.
9.  Now coming to the question of consequence of statutory increase in the rate of rent and non-payment as envisaged in Section 10 of the Islamabad Rent Restriction Ordinance, 2001, it is observed that it was held by the two Courts below that the petitioner had committed the default by non-depositing the monthly rent at the enhanced rate. Section 10 of the Ordinance ibid is identical and pari materia to the provisions of Section 5-A (as added by the Punjab Urban Rent Restriction (Amendment) Ordinance XIII of 1990). While interpreting the provisions of Section 5-A of the Ordinance ibid the Hon'ble Supreme Court in the case reported as National Development Finance Corporation, Shahrah-e-Quaid-e-Azam, Lahore vs. Shaikh Naseem-ud-Din and 4 others (PLD 1997 SC 564) has ruled that:--
"Word `default' would denote something more than mere non-payment of rent--Nothing was brought on record to suggest that landlord in consequence of statutory increase in rate of rent sent any notice of such increase to tenant--Findings of High Court that tenant had become  defaulter  by  mere  non-payment  of  rent  according  to enhanced rated, was not warranted--Default in payment of rent to justify rejectment of tenant was not proved in circumstances."
The above ruling was followed by this Court in the case of Javed Iqbal (2000 CLC 126), supra, and it was held that:
"Though 25% enhanced rent in terms of S. 5-A of West Pakistan Urban Rent Restriction Ordinance, 1959, would become automatically due, but for seeking ejectment of tenant on that ground on plea of non-payment of 25% enhanced amount of rent, landlord had to allege that tenant was served with a noticed and that despite noticed tenant had failed to increase rent--In absence of any notice, willful default could not be assumed--Mere non-payment of statutory increase of 25% rent without notice, could not per se result in increase of willful default."
It is an admitted position on the record that the landlord had not alleged that the tenant had been served with a notice and despite that the tenant failed to pay the increased rent. No notice has been placed on the record. This being so, the finding of the learned Rent Controller on Issue
No. 2 is result of mis-interpretation of Section 10 of the Islamabad Rent Restriction Ordinance, 2001, the same is, therefore, not sustainable. Issue No. 3 regarding default has been decided in favour of the petitioner and against which no cross-objection was filed by the landlord, Respondent
No. 3.
For what has been discussed above, this writ petition is allowed. The judgments dated 20.4.2004 and 31.7.2003 passed by Additional District Judge and Rent Controller, Respondents Nos. 1 and 2, are set aside. Consequently, the ejectment petition filed by Respondent No. 3 against the petitioner-Bank is dismissed. Parties to bear their own costs.
(A.A.)      Petition accepted.

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.

Evidence in a Rent Case

PLJ 2012 Islamabad 128
Present: Shaukat Aziz Siddiqui, J.
M/s. KING CLOTHING--Petitioner
versus
MUHABAT KHAN etc.--Respondents
W.P. No. 259 of 2010, decided on 20.12.2011.
Islamabad Rent Restrictions, Ordinance, 2001 (IV of 2001)--
----S. 17(8)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Ejectment petition--Tenant was directed to deposit monthly rent--Ejectment petition was allowed--Challenge to--Direction to make entire payment of outstanding rent--Tenant side was mum and silent--Validity--If any part of testimony of a witness remains unchallenged through cross-examination, said part is tantamount to admission--Petition was dismissed.      [P. 132] A
1991 SCMR 2300, 1992 CLC 807, 1999 CLC 266, 2003 CLC 1294, 1999 YLR 2604, 2001 MLD 1277 & 1992 MLD 810, ref.
Mr. Abdul Rauf Rohaila, Advocate for Petitioner.
Mr. Khalid Zaman, Advocate for Respondent Nos. 1 to 8.
Date of hearing: 20.12.2011.
Order
By invoking the constitutional jurisdiction of this Court, petitioner has sought declaration against concurrent findings, to the effect that order dated 20.04.2007 passed by the Rent Controller, Islamabad and order dated 22.12.2009 passed in appeal by the Additional District Judge, Islamabad are illegal against the facts and evidence available on the record, which are liable to be set aside.
2.  Brief facts, as glean out from the writ petition are that Respondent Nos. 1 to 8 are owners/landlords (hereinafter called as landlord) of Shop Nos. 7, 8 and 68-E, PaktelPlaza, Blue Area, Jinnah Avenue, Islamabad (hereinafter called as premises).
3.  Premises were leased out through Deed dated 15.10.2003 to petitioner (hereinafter called as tenant) the period of which expired on 14.10.2005. Landlord of the premises filed ejectment petition u/S. 17 of the Islamabad, Rent Restrictions, Ordinance 2001. In pursuance of process issued, tenant put his appearance and filed reply to the ejectment petition. In light of stance taken by parties, the learned-Rent Controller passed order under Section 17(8) of I.R.R.O whereby tenant was directed to deposit monthly rent @ Rs. 50,820/- starting from October, 2005 up to 19.06.2006. Tenant was further directed to deposit monthly future rent in the Court before 15th of each month.
4.  Out of divergent pleadings of parties, following issues were framed :--
(i)         Whether demised shop is required by the petitioners for their bona fide personal need? OPA
(ii)        Whether the respondent has encroached upon the Verandah in violation of lease agreement and CDA bylaws? OPA
(iii)       Whether the lease agreement has expired on 14.10.2005. If so, its affect? OPA.
(iv)       Whether the respondent failed to hand over the possession of demised shop in spite of legal notice dated 11.07.2005? OPA
(v)        Whether the respondent is liable to be ejected? OPA
(vi)       Whether the petition has been filed with mala fide intention? OPR.
(vii)      Order.
Vide order dated 20.04.2007, ejectment petition was allowed. Feeling aggrieved, tenant preferred an appeal u/S. 21 of I.R.R.O. The learned appellate Court upheld the findings of rent controller, vide impugned judgment dated 22.12.2009.
5.  Perusal of order sheet shows that my learned brother Mr. Justice, Ijaz-ul-Ahsan, J; of Lahore High Court, entertained the writ petition and vide order dated 25.01.2010 directed issuance of pre-admission notice to the respondents/landlord. And vide order of even date passed in C.M. No. 1 of 2010. His Lordship further directed that:--
"Subject to notice and till the next date of hearing, the petitioner shall not be dispossessed. The petitioner shall keep the demised premises intact and shall not cause any damage or destruction of any nature. It is, however, clarified that unless specifically extended, this restraining order shall automatically lapse on the next date of hearing. The petitioner shall deposit the up-to-date agreed rent with the executing Court. This will of course be without prejudice to any legal objections/pleas taken by the respondents regarding default, committed in the past or that may be committed by the petitioner in the future."
6.  Petitioner/tenant moved C.M. No. 420/2010 for seeking permission to place on record documents mentioned in Paragraph No. 3 of C.M. which was allowed vide order dated 5.03.2010. Another C.M. No. 421/2010 was also moved through which ad-interim injunction granted vide order dated 25.01.2010 was directed to be continued till next date of hearing.
7.  On receipt of writ petition from Hon'ble Lahore High Court, Rawalpindi Bench, notices were issued, in response to which parties have put their appearance.
8.  Learned counsel for petitioner submits that learned rent controller and First Appellate Court failed to appreciate the evidence brought on the record and law on the subject, more particularly when landlord was failed to prove his personal bona fide need. On the other hand, learned counsel for landlord/respondents submits that petitioner has no right of audience as in terms of order dated 25.01.2010, no rent has been deposited with the Court and through C.M. No. 420/2010, an effort was made to cover the default. Learned Counsel further states that there is concurrent findings of law and facts recorded by the Courts below; therefore, writ petition is not maintainable. He placed reliance on the cases of Javaid Ahmed Vs. Muhammad Imran Malik (PLD 2011, Islamabad 30) M/s. Zaki-ud-din Siddiqui Vs. ADJ, Islamabad(2011 CLC 652) and Muneer Khan Vs. Uzma Ufaq (2011, CLC 846).
9.  I have heard, learned counsel for parties and made perusal of record.
10.  One thing which is floating on the surface of the record is that order dated 25.1.2010 has not been complied, in its letter and spirit. Tenant tried his level best to linger on the proceedings and succeeded in it as period of almost 02 years has elapsed but no rent deposited till todate. Although, stance has been taken through C.M. No. 420 of 2010 that no application was pending with the executing Court, but to my mind it is nothing, except chicanery. In order to show bona fide, petitioner/tenant was required to seek permission to deposit rent in this Court, if any difficulty was ever faced by him.
11.  The High Court, in its constitutional jurisdiction is required to observe demeanour of parties as well, and to satisfy itself whether any litigant, invoked the jurisdiction of the Court with clean hands or stinking approach? Moreover, Court is not to sit as a spectator, if any party tries, to gain undue advantage. In such eventuality it is duty of the Court to provide shield to a victim of such designs. Superior Courts of the country have held time and again that the constitutional jurisdiction is always discretionary, and he who seeks equity must come with clean hands. Following Judgments of apex Court, provide guidance in this regard; Muhammad Saee Vs. Mst. Sharif Elahi and another (2010 SCMR 1358), Tasnim Jalil and others Vs. Deputy Director, A.N.F (2010 SCMR 72) Syed Kamal Shah Vs. Govt. of N.W.F.P (2010 SCMR 1377).
In these circumstances, petitioner/tenant is directed to make entire payment of outstanding rent by 31st. December, 2011 with the Deputy Registrar, Judicial of this Court. If he complies with the order then period of one month commencing from 1st. Jan. to 31st. Jan. 2012 will be available to tenant to vacate the premises and hand over its vacant and peaceful possession to landlords, otherwise landlord shall be at liberty to move an application before the executing Court. (Landlord present in Court has given assent in this regard). The Court shall ensure recovery of possession without notice, and to avoid law and order situation, may take appropriate measures like assistance of police etc.
12.  Even on merits, landlord successfully proved their case on Issue Nos. 1, 2, 3, 4 and 5. For instance, Paragraph No. 3 of the ejectment petition relates to Issue No. 2, which is reproduced hereunder:--
"That the respondent has also included the back veranda with the shops in his occupation by constructing the walls, not only without their permission but against specific instructions and CDA bylaw and has thus prejudice their cause before CDA for completion certificate which is the violation of lease agreement and his possession over the area of veranda is as of illegal occupant/trespasser. His above said action has also impaired materially the utility of the building that is also a violation in the eyes of law."
Petitioner/tenant replied the same with following assertion:--
Abdul Qayyum S/o Sher Bahadar Khan one of landlords appeared as "AW1" and tendered his affidavit "Ex-A1". Contents of Para-3 of his affidavit are provided herein below:--
Entire cross-examination conducted from petitioner/tenant side is mum and silent on this aspect/it is well settled law with the mandate of the dictums of the superior Courts of the country that if any part of testimony of a witness remains unchallenged through cross-examination, said part is tantamount to admission. Reference is made to the cases of MstNur Jehan Begum Vs. Syed Mujtaba Ali Naqvi (1991 SCMR 2300), MstSahab Bibi Vs. Lal (1992 CLC 807), Jan Muhammad Vs. Mulla Abdul Rehman(1999 CLC 266) Abdul Sattar and others Vs. MstSardar Begum (2003 CLC 1294), Ali Yousaf Vs. The State (1999 YLR, 2604) Ghulam Rasool and others Vs. The State (2002 YLR 1996) Muhammad Akram Vs. Muhammad Rauf (2001 MLD 1277) and Arshad Mehmood Siddiqui Vs. Muhammad Haroon, (1992 MLD 810). When confronted about this omission, learned counsel for petitioner frankly conceded that no cross-examination was conducted, so much so, no suggestion is put to "AW-1".
13.  In this view of the matter, it is held that both the Courts below appreciated the evidence in its true perspective which does not call for any inference in the constitutional jurisdiction. The learned counsel for the petitioner failed to point out jurisdictional defect, illegality, non-application of judicial mind and lack of appreciation of material on record, therefore, this writ petition is dismissed.
(R.A.)  Petition dismissed

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