Possession can be restored to Tenant

PLJ 2012 Islamabad 161 Present: Riaz Ahmad Khan, J. SAEED AHMED--Petitioner versus Mrs. REHANA ZAHID and 2 others--Respondents W.P. No. 1008 of 2010, decided on 21.2.2012. Islamabad Rent Restriction Ordinance, 2001-- ----S. 17(4-A)-- Ejectment petition--Personal bonafide need--Expiry of lease agreement-- Ejectment can be passed, if landlord require premises for occupation of any member of the family--If premises was not occupied by landlord or any member of family within six months, then tenant will have right to apply to rent controller for an order, directing landlord to restore possession of premises building to tenant--Mere statement of landlord regarding personal bonafide need is sufficient for passing an order of ejectment --Rent agreement between parties had expired and same had not been extended, so tenant was liable to vacate suit premises. [P. 163] A & B Mr. Nazir Ahmed Bhutta , Advocate for Petitioner. Mr. Mumtaz Ahmed Bilal , Advocate for Respondent No. 1. Date of hearing: 13.2.2012. Judgment This judgment is directed to dispose of W.P. No. 1008 of 2010.

2. Brief facts of the case are that the petitioner is tenant under the Respondent No. 1/landlord in House No. 2, First Floor, Street No. 31, Sector G-6/1-3, Islamabad . The respondent/landlord filed ejectment petition against the petitioner, on the grounds of personal bonafide need as well as expiry of lease agreement. As according to the respondent/ landlord, her mother-in-law is a `cancer patient' and needs treatment at CMH Rawalpindi. She being resident of Wah Cantt . brings her mother-in-law frequently to Islamabad and that causes a lot of inconvenience to her as well as her mother-in-law. For that purpose, the respondent/ landlord needs demise premises for the personal bonafide need. The learned Rent Controller vide order dated 11-9-2008 dismissed the ejectment petition. The respondent/landlord filed appeal against the said order, which was accepted by the Addl. District Judge, Islamabad vide judgment dated 15-1-2010 and the petitioner/tenant was directed to hand over vacant possession of the demise premises to the landlord within 60-days of the order. Feeling aggrieved of the said order, the present writ petition was filed.

3. Learned counsel for the petitioner submitted that the respondent/landlord had earlier filed ejectment petition on the same grounds and was withdrawn and thereafter second petition was filed. It was further submitted that since at the time of earlier withdrawal, permission for filing fresh petition was not sought, therefore, second petition was not competent. It was admitted that the lease agreement had expired, but the same was orally extended.

4. Learned counsel for the respondent submitted that the learned Rent Controller while dismissing the ejectment petition had erred in holding that probably the respondent/landlord was a cancer patient, whereas, infact not the respondent/landlord, rather her mother-in-law was cancer patient. This fact was appreciated by the learned lower appellate Court. The teamed counsel further submitted that since the premises in dispute is required in good faith for a personal need, therefore, the order of learned lower appellate Court is required to be maintained. Regarding the earlier ejectment petition, the learned counsel submitted that though the earlier petition was withdrawn, however, no order on merits was passed. It was further submitted that provisions of the Civil Procedure Code are not applicable to the rent proceedings, but eve otherwise, principle of resjudicata was not applicable in this case, as no order on merits was passed.

5. I have heard learned counsel for the parties and have also perused the record.

6. Admitted position in the present case is that the landlord/respondent had earlier filed an ejectment petition, which was afterwards withdrawn. However, the contention of learned counsel for the petitioner is not correct that the second ejectment petition is not competent on the ground that permission for filing fresh petition was not sought from the Rent Controller. Infact , provisions of the Civil Procedure Code, 1908 are not applicable to the procedure before the Rent Controller. However, under Section 20 of the Islamabad Rent Restriction Ordinance, 2001 there is restriction on the second application, so for the sake of convenience, Section 20 ibid is reproduced herein below: "20. Decision which have become final not to be re-opened.--The Controller shall summarily reject any application under sub-section (2) or sub-section (4) of Section 17 which raises substantially the same issue as has been, finally decided in any former proceedings under this Ordinance unless new grounds or circumstances have arisen after the final decision in such proceedings." In the present case, the earlier ejectment petition was not decided by the Rent Controller and there was no final decision. In these circumstances, the second ejectment petition could be filed.

7. The main ground of the landlord is personal bonafide need and U/S 17 (4-A) of the Islamabad Rent Restriction Ordinance, 2001 the ejectment can be passed, if the landlord require premises for the occupation of any member of his or her family. This section is to be read with sub-section (6) of Section 17 ibid, which provides that if the premises is not occupied by the landlord himself/herself or any member of his/her family, within six months, then the tenant will have a right to apply to the Rent Controller for an order, directing the landlord to restore the possession of the premises/building to the tenant.

8. Since, in law rights of the tenant have been safe guarded, so mere statement of the landlord regarding personal bonafide need is sufficient for passing an order of ejectment . In present case, the need as expressed by the landlord is genuine, that she needs the house for the occupation of her mother-in-law, who is patient of cancer and needs constant treatment at Rawalpindi/Islamabad.

9. It is also admitted that rent agreement between the parties has expired and the same has not been extended, so on this score too, the tenant is liable to vacate the suit premises.

10. In the above said circumstances, finding no force in this writ petition, the same is accordingly dismissed. (R.A.) Petition dismissed