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First Rent Appeal No. 1025 of 1982, decided on 9th January, 1984
‑‑‑Ss. 15 & 21‑Eviction‑Personal requirement‑Evidence regard ing requirement of premises at variance with pleadings ‑Fact of personal requirement not taken as a ground of eviction in applica tion for ejectment although need for accommodation arisen before filing application‑Subsequent affidavit in evidence, held not per missible and Rent Controller fell in error in allowing to lead such evidence.
---‑‑Ss. 13, 15 & 21 ‑Eviction of tenant‑Section 13 providing protection to tenant against eviction and creating impediment in way of landlord in recovering possession‑Fulfilment of requirement of one or more clauses given in S. 15, held, removes obstacles in way of landlord and making it possible for him to recover pos session. ,‑
‑‑O. VI, r. 2‑Sind Rented Premises Ordinance (XVII of 1979),---Ss. 15 & 21‑Pleadings‑Decision of case, held, cannot be passed on grounds outside pleadings of parties and it is ease pleaded that bas to be found.
‑‑‑Ss. 15 & 21 ‑ Eviction‑Personal requirement, ground of---Shifting of round of personal requirement in favour of son, held, not open to landlord without seeking amendment of ejectment application‑Rent Controller not justified to grant relief on ground snot made in pleadings.
Kanda v. Waghu A I R 1950 P C 68 ; Siddik Muhammad Shah v. Mst. Saran A I R 1930 P C 57 ; Muhammad Hanif v. Mst. Sara P L D 1982 Kar. 182 ; Syed Muhammad Murtaza v. Rehman and others 1982 C L C 1728 ; Taiyab A. Kapadia v. Agha Ziauddin Barni 1981 C L C 1267 and Amir Ali v. Ali Muhammad P L D 1981 Kar. 150 rel.
‑‑Ss. 15 & 21‑Civil Procedure Code (V of 1908), O. VI, r. 2 Eviction‑Personal requirement--Landlord shifting ground of personal requirement in favour of his son without seeking an amendment of ejectment application but by producing affidavit in evidence‑Evidence adduced as such, held, could not be made foundation for granting a relief to landlord who was at variance with cause made out in ejectment application‑Order of ejectment by Rent Controller on looking at evidence at variance with pleading set aside and case remanded for decision afresh after allowing amendment in ejectment application.
A. I. Chundrigar for Appellant.
Muhammad Ibrahim Memon for Respondents.
Date of hearing 16th November, 1983.
This First Rent Appeal is directed against the order dated 29th August, 1982 passed by the learned VIIIth Senior Civil Judge/A. S. J. and Rent Controller, Karachi, whereby he accepted the ejectment application of the respondent and directed the appellant to vacate and hand over the possession of the premises within a period of two months from the date of order.
The facts which give rise to this appeal are as follows;-----
2. The respondents are the landlords and owners of the premises bearing No. 296‑297 Nasarwanji Street, Garden East, Karachi. The appellant is the tenant of the respondents in respect of the ground floor annexe of the said premises since 1954. This tenement was already in occupation of the appellant as tenant when the respondents purchased the premises from the previous owners. The original rent was Rs. 259 per month which was enhanced to Rs. 450 per month. On 12th July, 1981, the respondents filed ejectment application against the appellant under section 15 (vii) of the Sind Rented Premises Ordinance, 1979, seeking her eviction on the ground of reasonable and bona fide requirement of the respondents. It was averred in the application that the said premises in occupation of the appellant was reasonably and bona fidely required by the respondent No. 1 in good faith for her own use and occupation of his children and spouse of respondent No. 1. The ejectment application was vehemently opposed by the appellant who inter alia pleaded that the demised premises were not required by the respondents for the use of respondent No. 1, her spouse and 3 children. It was denied that the present accommodation of the respondents is insufficient. The appellant occupied the said premises on payment of Rs. 1,00,000 as "pugri", and the respondents wanted to evict the appellant in order to relet the premises on higher rent and on getting higher Pugri. That the respon dents filed other ejectment application on the ground that the arrears of rent which is pending in the Court of XIIIth Senior Civil Judge and Rent Controller, Karachi, being Rent Case No. 357/1978. She further averred that the ejectment application was not maintainable and is hit by the principles of res judicata. The following two issues were framed by the learned Rent Controller :‑-----
(1) Whether the premises in dispute is required by the applicant bona fidely and in good faith "
(2) "What should the order be "
The respondent No. 2 filed his own affidavit‑in‑evidence and the appellant was examined through her daughter and attorney. The learned Rent Controller after examining the evidence and hearing the arguments, allowed the ejectment application by his impug ned order dated 29th August, 1982, and directed the appellant to hand over the vacant possession of the disputed premises to the respondent within a period of two months from the date of the impugned order.
3. The appellant being aggrieved by the impugned order dated 29th August, 1982 of the learned Rent Controller has preferred this appeal on‑ the grounds mentioned in the memo. of appeal.
4. Mr. Abu Bakar Ismail Chundrigar, learned counsel for the appellant has contended that the case set up in the application and in evidence is different case which is not permissible. That the need of the respondent No. 1 as was set up in the application was not pressed in the evidence.
5. On the other hand, Mr. Muhammad Ibrahim Memon, learned counsel for the respondents has urged that the ejectment application was filed by both the respondents and bona fide requirement was duly proved before the learned Rent Controller.
6. As regards to the first contention of the learned counsel for the appellant, it is a clear from the record that the ejectment application was filed by the respondents and the respondents pleaded that the premises were required by respondent No. 1. It is advantageous to reproduce para. 3 of the application which is as under;----
That the said premises in occupation of the opponent is reasonably and bona fidely required by the applicants in good faith for the own use and occupation of the following children and spouse of the applicant No. 1.
(1) Applicant.
(2) Sadruddin (husband).
(3) Al‑Amin son aged 18 years.
(4) Miss Sharmeen Lakhdawal, daughter aged 11 years.
(5) Salim son aged 6 years.
That the present accommodation of the applicant No. 1 consists of three bed‑rooms. Since the children of the applicant has grown up the present accommodation is insufficient for the applicant No. 1, spouse and her children. That the accommodation available with the opponent consists of two bed‑rooms, the same shall be used for the occupation of the applicant No. 1, her children. The applicant shall shift her children to the said premises in occupa tion of the opponent. As the said premises in occupation of the opponent shall be best suited for their status."
7. The affidavit‑in‑evidence was filed by respondent No. 2 instead of respondent No. 1 in which he stated that the respondent No. 1 and he himself are the landlords and owners of the premises bearing No. 296/297, Nasarwanji Street, Garden East, Karachi. It was stated therein that the said premises consists of four flats and an annexe consists of one flat on first floor and other on the ground floor which is in occupation of the appellant. It para. 3 of the affidavit‑in‑evidence, he has stated that the premises in occupation of the appellant is reasonably and bona fidely required by respondent No. 2 for his own use and occupation and not by the respondent No. I for herself and her children. He has further stated therein that the respondent No. 2 requires the premises for his son Saleem Piyar Ali who is finishing his studies and is returning to Pakistan within six months. He is a bachelor and he got to be married at Karachi in their family. They live separately with separate kitchens. The details of the accommodation as described in the affidavit‑in‑evidence are repro duced hereinunder :‑---
"(a) Applicant No. 1 Three bed‑rooms flat on the first
floor. Besides alongwith three children.
(b) Applicant No. 2 Three bed‑rooms flat on first floor.
(c) Pervaiz son of Three bed‑rooms flat on the ground
applicant No. 2 floor, resides with his wife and two
children.
(d) Yamin daughter of appli‑ Three bed‑rooms flat on ground floor
cant No. 2 resides with her husband, mother‑in
law and father‑in‑law.
"Since the son of the applicant is coming to Pakistan the applicant No. 2 shall shift to ground floor alongwith his wife due to old age and heart trouble. Photo copies attached."
"That the present accommodation of the applicants is insufficient for the applicants, spouse and children. And the accommodation available with the opponent consists of two bed‑rooms, the same shall be used for the occupation of the applicant No. 2. The applicant No. 2 shall shift to the said premises in occupation of the opponent shall be suited for their status."
In his cross‑examination suggestions were made to him that in the eject ment application the premises were required for respondent No. 1. He replied to the suggestions as follows:‑
"I do not remember if in the rent application I have stated that premises are required for the applicant No. 1. The premises are also needed by me. My need arise in 1980."
8. It is pertinent to mention that the ejectment application was filed on 12th July, 1981 but it is silent about the personal need of the respondent No. 2. In para. 3 of the affidavit‑in‑evidence the respondent No. 2 stated that the accommodation available with the opponent/appel lant consists of two bed‑rooms the same shall be used for the occupation of the respondent No. 2. He further stated that he shall shift to the said premises as the said accommodation in occupation of the opponent/appellant shall be suited for their status. The evidence regarding the requirement of the premises for the respondent No. 2 are at variance with pleadings.
9. I am of the view that the application for ejectment cannot be granted on this ground as he failed to take a specific plea in the applica tion. According to him his own requirement or need has arisen in the year 1980 and the application was presented subsequently to 1980. The respondent No. 2 had knowledge of this fact at the time when the applica tion for ejectment was filed. He was aware of the fact that he requires the disputed premises for his own use and occupation but he failed to take it as a ground for eviction in the application, the subsequent affidavit- in‑evidence should not be allowed.
10. In this case the respondent No. 2 produced certain medical certificates of the year 1980 and such certificates were available with him when the ejectment application was filed and the respondents have not chosen to mention in the ejectment application and I do not think it would be open to the learned Rent Controller to permit such evidence. I think that the result would be to introduce a new element which was absent in the original ejectment application and the applicants are not entitled to lead any evidence. I hold that the learned Rent Controller was in error in allowing the respondents to lead such evidence.
11. Section 13 of the Sind Rented Premises Ordinance, 1979, provides' that no tenant shall be evicted from the premises in his possession except in accordance with the provisions of this Ordinance. It provides a protec tion for tenant against eviction. It creates an impediment in the way of the landlord recovering possession. Section 15 of the Ordinance provide certain conditions under which the protection of the tenant is taken away and, the impediment in the way of the landlord recovering posses sion is removed. These conditions are termed "as grounds" of ejectment. The landlord sets out these grounds in the application for ejectment not because they constitute his cause of action, but in anticipation of the tenant claiming the protection provided in section 15 to show that con ditions have arisen which have taken away the protection of the tenant and removed the impediment in the way of the landlord recovering possession. It will, thus, be seen that section 13 of the Ordinance creates an obstacle in the way of the landlord in obtaining possession but the obstacle becomes ineffective if the requirements of one of the clauses of section 15 are fulfilled. The effect of the fulfilment of the requirements of one or more of the clauses is to remove the obstacle and make it possible for the landlord to recover possession.
12. It is well established that the decision of the case cannot be passed on the grounds outside the pleadings of the parties, and it is the case pleaded that has to be found. Applicant No. 2/respondent No. 2 wants to shift his ground for his son Saleem Piyar Ali. For that the only course open to him to seek an amendment of the ejectment application and without such amendment of the application, a Rent Controller is not justified in granting a relief on a ground which is not made in the application.
13. The learned counsel for the respondents, however, submitted that the evidence of the applicant No. 2 would justify the order.
14. 1t is needless for me to point out that the learned Rent Controller is not justified in looking into the evidence which is de hors the scope of pleadings. It is laid down in the case of Kanda v. Waghu (AIR 1950 P C 68) that it is an absolute necessity that the determination in a cause should be founded upon a case to be found in the pleadings or involved in or consistent with the case thereby made. Again in an earlier decision in the case of Siddik Muhammad Shah v. Mst. Saran (A I R 1930 P C 57) the Privy Council has ruled that the defendant is not entitled to lead evidence in support of a case not set up in his written statement.
15. If any precedents are needed references may be made to the cases of Muhammad Hanif v. Mst. Sara (P L D 1982 Kar. 182), Syed Muhammad Murtaza v. Rehman and others (1982 C L C 1728), Taiyab A. Kapadia v. Agha Ziauddin Barni (1981 C L C 1267) and Amir Ali v. Ali Muhammad (P L D 1981 Kar. 150).
16. The true scope of this rule is that evidence let in on Issues which the parties actually went to trial should not be made the foundation for decision of another and different issue, which was not present to the minds of the parties and on which the parties bad no opportunity of adducing evidence.
17. The argument was met by the learned counsel for the respondents by inviting my attention to the ejectment application filed by the respon dents. Therein it is specifically stated in prayer that the Court be plead ed to pass an order in favour of applicants) respondents. The applicant No. 1/respondent No. 1 filed the application for her bona fide requirement. The appellant has denied that the premises in question were deserved for her bona fide requirement. Hence, it cannot be said by any stretch of imagination that appellant went to trial with the full knowledge that applicants are going to shift their stand in the evidence and proving requirement of respondent No. 2.
18. Hence, I am constrained to hold that there is no substance in the submission made by the learned counsel for the respondents that appellant went to trial with the full knowledge of the case that respon dents have to make out in their evidence at variance with their pleadings. That being so, it is obvious that the trial Court was not justified in looking into the evidence which was variance with pleading. The learned Rent Controller was not justified in finding a claim for the applicants/ respondents which had no basis in the pleading. This contention is devoid ' of any force.
19. Thus, considering the case in the light of the arguments submitted before me, I am constrained to not agree with the finding of the learned Rent Controller that the respondent No. 2 has not shifted his ground in the course of his evidence without seeking an amendment of the ejectment application arid that, therefore the evidence adduced by the respondent No. 2 should not be made the foundation for granting a relief to him at variance with the cause of action made out by the respondents in their application. It' that be so, it becomes obvious that this appeal is allowed. The order of the learned Rent Controller is set aside.
20. I think it is unfair to drive parties to a new litigation of unknown duration but direct in the special circumstances of the case that the first rent appeal is allowed, the learned Rent Controller will take note of the subsequent development disabling the respondents/ applicants from seeking eviction on which there is already an adverse finding by me, the applicants are allowed to amend their application if they have a case for eviction on‑any other legally permissible ground and the parties be given fair and full opportunity to file additional pleadings and lead evidence thereof. But I make it clear that the requirement of the premises for respondents Nos. 1 and 2 cannot be canvassed over again I keep open for enquiry only ground of Saleem Piyar Ali, if any, which may be permitted by amendment ; if they are of any relevance or use for eviction.
With these observations, I allow the appeal as indicated above and direct the parties to bear their own respective costs.
M. Y. H. Appeal allowed.
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