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First Rent Appeal No. 1127 of 1982, decided on 21st October, 1986.

‑‑‑O.VI, R.2‑‑Pleadings‑‑Plea not taken in pleadings‑‑No evidence can be led or looked into in support of such plea. No evidence can be led or looked into in support of plea that had not been taken in the pleadings. In any civil proceedings, it is essential for a proof to plead the ingredients of any facts in the pleading on which he wants to rely and in proof of which he may produce evidence. Order VI, Rule 2, Code of Civil Procedure, 1908 specifically provides for the same.

‑‑‑5. 13‑‑Civil Procedure Code (V of 1908), O.VI, R.2‑‑Application for ejectment‑ ‑Pleadings‑‑Principles forming basis and foundation for administration of justice as incorporated in O.VI, R.2, C.P.C. were applicable to proceedings in ejectment applications under Sind Rented Premises Ordinance, 1979‑‑Purpose in following such principles for framing issues in ejectment applications was intended to pinpoint parties to matter in controversy between them so that none may be taken by surprise and subsequently none may allege prejudice.

Though all the provisions of the Code of Civil Procedure, 1908 are not applicable to the proceedings in applications for eviction under the Sind Rented Premises Ordinance but the principles which are the basis and foundation for the administration of justice as the one incorporated in Order VI, Rule 2 of the C . P. C . will undoubtedly be applicable to these proceedings also. The purpose in following the proceedings for framing of issues in eviction applications is also intended to pinpoint the parties to the matter in controversy between them so that none of the parties may be taken by surprise and subsequently none of them may allege that he was in any way prejudiced. If there is no specific pleading about certain matter, the other party would have no opportunity to controvert the same and consequently no issue would be framed. In these circumstances, the parties will be in the dark as to whether to lead evidence in affirmation, or in rebuttal and thus, some important matter in controversy may be overlooked deliberately or inadvertently.

Siddique Mahmood Shah v. Saran A I R 1930 P.C. 57 (1) and Mst. Jana Bai v. Mst. Ghulshan and another 1984 C L C 1061 ref.

‑‑‑Ss. 13 & 14‑‑Ejectment on ground of personal requirement of landlady's son‑‑Landlady owning several shops in same building and some of which falling vacant before commencement of proceedings but landlady not putting her son in possession of one of same‑‑Evidence as to such vacancy not very positive and clear‑‑Question as to which premises would be appropriate for landlord was a matter to be exclusively left to landlord to decide.

‑‑‑Ss. 13 & 14‑‑Ejectment on ground of requirement of shop of landlady's son‑‑Assertion in eviction application about requirement of landlady for her son fully supported in depositions of her husband and son and nothing brought out to controvert same was sufficient evidence on record to satisfy requirement of law‑‑Bona fide and reasonable requirement of premises by landlord established‑‑Application for eviction granted.

Syed Ishtiaque Ali for Appellant.

Mansoorul Arfin for Respondent.

Dates of hearing: 7th, 8th and 9th September, 1986.

This First Rent Appeal is directed against the order dated 14‑11‑1982 passed by the VIth Senior Civil Judge/Rent Controller, Karachi, whereby he dismissed the eviction application filed by the appellant.

The facts giving rise to this appeal are that the appellant is the owner and landlady of the building on Plot No. 2/230, Commercial Area, Liaquatabad, Sarafa Bazar, Karachi and the respondent is tenant in respect of a Shop No. l thereof at the monthly rental of Rs.70. The appellant filed eviction application on the ground of personal requirement of her son. The respondent resisted the eviction application.

The appellant filed affidavit‑in‑evidence of her husband and constituted attorney Abdul Aziz and his son Abdul Hafiz and Ghulam Ali. In rebuttal the respondent filed his own affidavit‑in‑evidence besides the affidavit‑in‑evidence of Rana Maqbool Ahmed, Muhammad Younis and Muhammad Haroon. They were cross‑examined by the learned counsel for the respective parties.

The learned Controller after taking into consideration the evidence adduced by the parties and taking into consideration the arguments advanced by the learned counsel for. the parties dismissed the eviction application vide order dated 14‑11‑1982.

The appellant being aggrieved against the order dated 14‑11‑1982 of the VIth Senior Civil Judge/Rent Controller, Karachi, has preferred this First Rent Appeal on the grounds mentioned in the memo of appeal.

Mr. S. Ishtiaque All, the learned counsel for the appellant has raised the following contentions:‑

(1) The learned Controller erred in accepting the plea raised by the respondent in his evidence and without pleading in written statement that the appellant is allegedly in possession.

(2) The learned Controller has gravely erred in law and totally ignored the evidence of the appellant.

On the other hand Mr. Mansoorul Arfin the learned counsel for the respondent has submitted that the provisions of Code of Civil Procedure are not applicable in rent proceedings. The learned counsel for the respondent has submitted that the learned Controller is right in holding that the evidence on record does not prove sufficiently that the shop in question is required in good faith for the use and occupation of the appellant's son for establishing a jewellery shop.

Reverting to the first contention of the learned counsel for the appellant that the Controller erred in accepting the plea raised in evidence. The respondent's pleadings in this regard are contained in paras. 4 and 9 of the written statement which are in the following terms:‑

"That the contents of para. 4 of the application are denied. The good faith of the applicant in this regard is denied. It is submitted that the applicant demanded exorbitant increase in the rate of rent from the opponent of the shop/premises to the extent of Rs.450 p.m. from Rs.70 p.m. and also a substantial sum of Pagree. The opponent did not agree with the unreasonable demand of the applicant as the same was arbitrary and unreasonable demand. The applicant, therefore, became infuriated and filed as a result, the instant case mala fide and in bad faith.

That the contents of last unnumbered payer para. of the application are false and without any base. Therefore, the same are denied in its entirety. It is submitted that the application has been filed in bad faith, with ulterior motive and simply to extort a substantial amount of Pagree amount which has been quoted at a very high goodwill amount. The applicant, therefore, has become greedy and, therefore, has been resorting repeatedly to futile litigation so that his ulterior object may be obtained. Even otherwise the application has no merits or any legal base as the applicant or his son has ever stated or demanded from the opponent the premises in the case in the applications already filed and disposed."

A perusal of the aforesaid pleadings would indicate that the appellant demanded exorbitant increase in rent and the respondent did not agree with the unreasonable demand of the appellant as the same was arbitrary. The appellant became infuriated and filed the instant case. The respondent further stated that the appellant became greedy and, therefore, had been resorting repeatedly to futile litigation so that his ulterior object may be obtained.

Evidence was, however, led to establish the defence that two shops namely, Shama Jewellery and the other shop adjacent to it are lying vacant and in possession of the appellant for the last several months. This evidence evidently was irrelevant to the pleadings, for it was not the case of the respondent in his pleadings that these shops are lying vacant and are in possession of the appellant.

It is well‑established that no evidence can be led or looked into in support of plea that had not been pleaded in the pleadings.

It is well‑established and salutary principle of law that in any civil proceedings, it is essential for a proof to plead the ingredients of any facts in the pleading on which he wants to rely and in proof of which he may produce evidence. Order VI, Rule 2, Code of Civil Procedure, specifically provides for the same. It is reproduced below:‑

"Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved and shall, when necessary, be divided into paragraphs, numbered consecutively. Dates, sums and numbers shall be expressed in figures."

Though all the provisions of the Code of Civil Procedure are not applicable to the proceedings in applications for eviction under the Ordinance but the principles which are the basis and foundation for the administration of justice as this one incorporated in Order VI, Rule 2 of the C.P.C., will undoubtedly be applicable to these proceedings also. The purpose in following the proceedings for framing of issues in eviction applications is also intended to pinpoint the parties to the matter in controversy between them so that none of the parties may be taken by surprise and subsequently none of them may allege that he was in any way prejudiced. If there is no specific pleading about certain matter, the other party would have no opportunity to controvert the same and consequently no issue would be framed. In these circumstances, the parties will be in the dark as to whether to lead evidence in affirmation, or in rebuttal and thus, some important matter in controversy may be overlooked deliberately or inadvertently.

In Siddique MHhmOOd Shah v. Saran A I R 1930 P C 57 (1), which is the basic judgment on the subject, it is held:

"Whether a claim has been never made in the defence presented, no amount of evidence can be looked into upon a plea which was never put forward."

The ratio of the decision in the above case was followed by me in the case of Mst. Jana Bai v. Mst. Ghulshan and another 1984 CLC 1061.

Such being the position, the inescapable conclusion follows that the Controller committed the error of taking into consideration evidence which he ought not to have done so. Once the evidence in justification of the plea of two shops are lying vacant and in possession of the appellant is ruled out of consideration as already observed, had not been pleaded, then the plea that survives or the defence that survives is that the landlord demanded exorbitant increase in rent and also a substantial sum of Pagree. Such a defence is not recognized if the bona fide requirement is proved.

Admittedly the landlady has several shops in the building which have been rented out to different tenants. As it appears, some of the shops had fallen vacant before the commencement of this proceedings. The landlady did not put her son Abdul Hafeez in support of such premises for his business venture. The evidence as to the vacancy is not very positive and clear, besides it has been the consistent view of the superior Courts that ( sic ) which would be an appropriate premises for the landlord is a matter exclusively left to him to decide and it would become difficult for the Controller to such a dispute. I am, therefore, not inclined to accept the submission of Mr. Mansoorul Arfin that the application for eviction should have failed on the ground that other shops were lying vacant when the landlady was pressing for eviction of the respondent from the present shop.

The next question for consideration is as to the bona fide requirement of the premises. The appropriate plea in support of the am ground for eviction is to be found in paras. 2, 3 and 4 of the eviction application where it was stated that her son had grown up and as such her son had decided to run business of silver and gold (jewellery) in the shop in dispute. The appellant further averred in her application that the said son was working with Firdous Jewellery and as such he acquired complete knowledge and experience of the business. The appellant averred that she required the shop in dispute in good faith for use and occupation of her son so that he would be in a position to set up his independent life. The respondent filed written statement in which he denied contents of para. 2 of the eviction application and stated therein that it is false that the appellant's son has decided to run the business of silver and gold (jewellery) as alleged.

There is nothing on record to show that the appellant is occupying any shop in the same building or that she owned or possessed any such property in that urban area. Even the P. T. I is not helpful to the respondent.

A perusal of the aforesaid pleadings would indicate the details which were given as to the nature of the business proposed to be set up by Abdul Hafeez. The eviction application was filed on 25‑10‑1981. Abdul Hafeez had acquired seven years complete knowledge and experience of the business. The appellant averred in para. 3 of her eviction application that since last seven years (sic) was working with Firdous Jewellery and had acquired knowledge and experience. The respondent denied contents of para. 3 of the eviction application P.W. Abdul Aziz reiterated the same facts in his affidavit‑in‑evidence. Abdul Aziz denied the suggestion that his son Abdul Hafeez had no experience of a goldsmith. P.W. Ghulam Ali filed affidavit‑in‑evidence. He is the proprietor of Firdous Jewellery. He stated that appellant's son was his employee and had got sufficient experience of the said business and was able to do the business of silver and gold independently and was satisfied with his work. It is pertinent to note that this witness was cross‑examined at length and in his cross‑examination it was only suggested that Abdul Hafeez was working as a peon. This witness to a suggestion in cross‑examination stated that "he works as a goldsmith and also as a saleman". P.W. Abdul Hafeez filed his own affidavit in support of the eviction application and reiterated the facts stated therein. He also stated in his affidavit that he decided to open the shop in the premises in question for silver and gold (jewellery) comparatively in a better way and for better earning. He denied the suggestion in cross examination that he had no funds and technical knowledge in goldsmith to start jewellery shop.

In rebuttal the respondent filed his own affidavit‑in‑evidence besides affidavits‑in‑evidence of Muhammad Haroon, Muhammad Younis and Rana Maqbool Ahmad. All of them admitted that the appellant's son Abdul Hafeez was working in Firdous Jewellers shop.

In the present case the appellant's attorney and her son Abdul Hafeez have made a statement that his son decided to establish a jeweller's shop. Nothing has been brought on record to show that their statements are not correct. I am of the view that the learned Controller has erred in law in not taking this aspect of the case into consideration. The appellant's son was admittedly doing jewellers work and has got sufficient experience of business, nothing has been brought on record to show that he is incapable of running jewellers shop in the premises.

It was averred in the eviction application that the appellant's son required the shop in dispute in good faith for his use. As against all the evidence led by the respondent that the appellant had two shops in her possession.

It is well‑established legal position that the assertion in the eviction application about requirement of the appellant for her son's use has been fully supported in her husband's deposition and her son's deposition and nothing has been brought out in cross‑examination which could show that claim of personal requirement for her son is to be false or is based on wrong statements.

It is contended by the learned counsel for the respondent that it was incumbent upon her to show that she had sufficient finance for establishing her son in the business. Besides experience the finances were also required to start the business. In the instant case the landlady had asserted in her eviction application that her son decided to commence jewellery business and her son and her husband deposed that he had the means and experience.

The appraisal of evidence recorded by the Controller clearly indicates that there is sufficient evidence to satisfy the requirement of law that the premises in question are required for the use of her son. It seems that in the instant case she has not only established bona fide but has also proved the reasonable requirement. The respondent has not taken such a plea in the written statement. It is not necessary that landlady must produce evidence of the availability of the finances unless such plea is taken by the tenant specifically in the written statement necessitating recording of evidence on the point. When such a plea is not taken by the respondent initially in the written statement, it is necessary for the landlady to produce such evidence voluntarily. In the instant case had the respondent taken such plea in the written statement, the appellant would have been on her guard and would have produced such evidence. Apart from this I am of the view that existence of ready money need not be proved to support bona fides. It is only potential capacity to raise required funds and the same has been proved in this case. The question of mala fide raised by the learned counsel for the respondent is otherwise of not much relevance now in view of complete safeguard provided to tenant in the Ordinance by insertion of section 15‑A in the said Ordinance.

In these circumstances I hold that the appellant succeeded in establishing her son's bona fide requirement in the case.

In view of the above discussion I accept this appeal and reverse the impugned order of the Controller and grant the application for eviction of the respondent. The respondent is directed to put the appellant in possession of the shop in dispute within four months subject to deposit of rent as ordered by the Controller. In the circumstances of the case, the parties will bear their own costs.

S. Q. Appeal accepted.

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