1986 PLP 279 (MLD)

On the other hand Mr. Akhtar Mahmood the learned counsel has submitted that the eviction application is maintainable as the appellant was let out a portion of plot and not an industrial concern. I have considered the arguments of the learned counsel for the parties and have come to the conclusion that the appellant was let out only a portion of land and there is nothing on the record that with the disputed premises, machinery was also let out to him. In Messrs Rehman Cotton Factory's case P L D 1976 S C 781 where a running Cotton. Ginning Factory, equipped with machinery was let out the Hon'ble Supreme Court held that the repealed Ordinance stood excluded in the case as, in essence, the lease was for the use of the machinery which was permanently fixed in the disputed premises and not of the said premises simpliciter. In Noor Muhammad, Khan v: Haji Muhammad Ali Khan and 24 others P L D 1973 S C 218 the dispute was in respect of an open plot of land. The Hon'ble Supreme Court held that the property in dispute fell within the definition of "building" or, "rented land" and the Rent Controller had jurisdiction in the matter to determine the dispute between the parties. In Raja Qurban Khan v. M.M. Sharif 1980 S C M R 590 a house in Murree was let out on rent by the owner. It was, however, used by the tenant as a hotel. The Hon'ble Supreme Court held as follows:‑‑ "We are, therefore, in agreement with the concurrent view taken by the two Courts below, as well as the High Court, that in the absence of any permission having been obtained from the Controller under section 11 of the Ordinance in this, case, the suit house would continue to retain its character as a house notwithstanding the fact that it was actually being used as a hotel. After all if the pre‑emptory mandate of section 11 of the Ordinance is found to have been violated by a landlord or tenant, with the result that a residential building is put to commercial use, how can the Controller be expected to take notice of the said change except for the purpose of section 19 of the Ordinance to proceed against a person for having contravened the provision of section 11 thereof." In the case of Muhammad Saleem and others v. Begum Musarrat Bashirul Hassan and others P L D 1981 S C 578 the dispute was that the landlady rented out ground floor of bungalow in Gulberg, the tenant converted the premises in dispute into a non‑residential building without the permission of the Controller and had installed a Printing Press in the building in dispute. Their Lordships held that the matter has been set at rest by the above judgment 1980 S C M R

590. In Muhammad Umer and another v. Bashir Ahmed and others 1983 S C M R 1269(2) the premises when let out was open` plot. The tenant set up a mill. The Controller dismissed the eviction application on the ground of lack of jurisdiction. The landlord filed appeal which was accepted. The tenant filed second appeal which was dismissed. The tenant filed petition before the Hon'ble Supreme Court. The Hon'ble Supreme Court while refusing leave to appeal held as follows:‑‑-- "The learned counsel for the petitioner admitted that it has been clearly stated in the lease‑deed that only the plot in question was leased out and not any industrial concern. It is also stated therein that on the expiry of the lease, the super‑structure was to be removed. As such we are in respectful agreement with the observation of the High Court." I am of the view that the Rent Controller had jurisdiction to entertain eviction application. The finding of the learned Controller seems to be in accordance with law. It seems that the Controller has rightly held that the application is maintainable. The second contention of the learned counsel for the appellant is that the appellant had not committed default. The case of the respondent as set out in the eviction application is that he purchased the plot from the previous landlord, vide registration sale‑deed, dated 12‑5‑1979. He was impleaded on 15‑8‑1979 in second appeal No.236 of 1978 filed by the appellant. He sent notices, dated 21‑2‑1979, 23‑4‑1979 and 25‑5‑1979 which were refused by the appellant. It is averred in the eviction application that the appellant despite service of notices failed and neglected to pay/tender rent to the respondent. The tender of rent to an unauthorised person is no valid tender. The appellant stated in his written statement that no notice was served upon him. The appellant was depositing the rent before the 15th of each calendar month, vide order, dated 28‑6‑1978 passed in the second appeal. He had not committed default. Mr. Akthar Mahmood, the learned counsel for the respondent has contended that the reason for a notice under section 13‑A is to inform the tenant that the landlord has sold the property to another person so that rent could thereafter be paid by the tenant to the new landlord. In this case knowledge of the transfer admitted by the appellant and hence even if a notice had not been served under section 13‑A, it would not stand in the way of the Controller in granting the relief and the Controller has granted the same in the instant case. His contention is that 'the respondent was impleaded in second Appeal, vide order, dated 15‑9‑1979 and the appellant admittedly sent money order on 15‑12‑1979 for seven months amounting to Rs.308. The appellant had committed default. I have perused the photostat copies of deposit of rent in Court‑. The receipts indicate that the appellant deposited Rs.44 on 8‑10‑1979, Rs.44 on 7‑11‑1979 and Rs.88 on 9‑12‑1979. It is admitted position that the second appeal was decided in favour of the appellant on 18‑10‑1979 and he deposited rent on 8‑10‑1979. The rent for the month of November was payable on 1‑1‑1980. The appellant tendered rent on 15‑12‑1979. The tender of rent contemplated under section 13(2) (i) of the Ordinance within sixty days of the rent becoming due. The fact that the rent was tendered on 15‑12‑1979 was within a period of sixty days when the rent became due 'this view of the Rent Controller is based on a misconceived notion of law. I am, therefore, of the view that the finding of the Controller on the issue of default was not at all justified. In this view of the matter the order on this issue is reversed. The last contention of the learned counsel for the appellant is that the Controller has misread the evidence on record and the respondent has not established bona fide requirement. On the other hand the learned counsel for the respondent has submitted that the finding of the Controller is in accord with the evidence on record and the respondent has established bona fide requirement. The respondent stated in his eviction application that he required the premises for his bona fide personal use and occupation as the present accommodation was insufficient to meet his bona fide needs. The appellant denied that the respondent required the premises bona fide for his own use. He further stated that "it is a mala fide ground with a sole purpose to eject the opponent by filing frivolous application on all available grounds under the Ordinance. After purchase of the property the applicant has sold the machinery and there is ample space available for his requirement in the same plot; hence his requirement is not bona fide. Applicant has another plot bearing No. L.R. 212 in the 'name of Sadruddin A. Rahim is comprising an area of 2019.20 square yards and L.R.6/17 where the applicant has installed a saw‑mill having an area of 900 square yards". The respondent filed affidavit in evidence stating therein that he required this space for the purpose of expanding his timber business wherein he had acquired more than twenty‑five years experience. He stated that "the nature of the business is such which require sufficient space for storing, stocking and preserving large quantities of timber supplied from the interior. As a matter of fact I had purchased this plot for the purpose of expanding my timber business. That I say that I have no other suitable accommodation of my own where I can store, stock and preserve my timber. I have to store, stock and ‑preserve this timber on footpath and passages. I say that for want of proper storing and stocking facilities, the best quality timber is decayed, its value and utility is diminished and does not attract customers, with the result I have to sell it at a very low price causing me sufficient monetary loss. I have better prospects of expanding my business but for want of accommodation my business is not showing any sign of improvement on the contrary it is towards decline as large quantity of timber, which is lying in the open space unprotected and unpreserved from rain, sun, storm, moisture and other climate condition, is diminished in value and utility. Besides the plot is situated in the timber market area where the large number of customers can be attracted for purchasing timber." The respondent further stated in his affidavit in evidence that "I have experience in timber business and I am requiring this portion of plot in occupation of opponent for expansion of my business and for bettering my future prospects." The respondent admitted in his cross‑examination that "I am also a tenant of previous landlord in one portion of the property since 1955/56. About 700 square yards was in my tenancy and opponent is in possession of 200 or 250 square yards. It is incorrect that opponent is/was in occupation of 475 square yards as tenant. The area of full plot is about 1400 square yards. It is correct that I took possession of all property except portion in possession of opponent. Constructed building is also included in building for which I had taken possession. After 12‑5‑1979 I got possession of additional area. I am timber merchant." He denied the suggestion in cross‑examination that he stores goods, of others at his place of sale. He denied the suggestion that the premises of appellant containing industrial concern required by him for timber business in bad faith and mala fide. He denied the suggestion that he has sufficient place to run his timber business. He denied the suggestion that "I do not preserve timber at footpath. I do it in violation of law and I was challaned but I have not filed any document. It is incorrect that allegation in paras. 13 and 14 are incorrect. I have not filed document of alleged losses". He also denied the suggestion that the eviction application is based on enmity. As against the above evidence the appellant stated in his affidavit in evidence that it is denied that the respondent required the premises bona fide for his own use. He further stated that "It is mala fide ground with a sole purpose to eject the opponent by filing frivolous application on all available grounds under the Ordinance, after purchase of the property the applicant has sold the machinery and there is ample space available for his requirement in the same plot; hence his requirement is not bona fide. Applicant has another Plot bearing No.L.R. 2/2 in the name of Sadruddin A.Rahim comprising of an area of 2019 square yards and L.R. 6/17 where the applicant was installed a saw mill having an area of 900 square yards." It is pertinent to note that the respondent was cross‑examined at length but no suggestion was made to him about owning another plot. The appellant in his affidavit in evidence as well as in his cross-examination stated that the respondent has another plot in joint ownership with Abdul Rahim. Mr. Abdul Naseer Khan, the learned counsel for the appellant has cited in support of his contention P L D 1975 Lah. 308, P L D 1985 Kar. 628, 1972 S C M R 437, P L D 1980 Kar. 223, 1984 C L C 2837 and 1983 C L C 2511. In Muhammad Siddique v. Mistri Muhammad Aslam P L D 1975 Lah. 308, the appellant filed eviction application against the respondent on the ground of personal requirement. The respondent denied all the allegations contained in the eviction application. The Rent Controller as well as the District Judge found all the issues against the appellant. The appellant filed second appeal before the Lahore High Court. The learned counsel for the respondent contended that the appellant failed to prove that he required the premises in good faith and bona fide. Mr. Zakiuddin Pal, J. while accepting appeal on this ground observed as follows:‑‑

"If a landlord asserts that he or his son needs particular premises for personal use and it is also proved on record that he or his son is not occupying in the same urban area any building for the purposes of his business suitable for his needs or has not vacated such a building or rented land, without sufficient cause then the question with regard to bona fides or good faith, will have to be determined in context of the provision as contained in subsection (4) of section 13 of the Ordinance. What is after all required by a landlord or his son to prove his good faith or bona fides in regard to personal use, he has to make a statement with regard to factual position as it stands and if the same is disproved in rebuttal in context of the conditions as laid down in sub‑paras. (b) and (e) of para. 11 of subsection (3) of section 13 of the Ordinance then it can be safely said that the landlord or his son has not been above to prove his bona fides or good faith." In Sultan Press Ltd. v. Muhammad Hasan P L D 1985 Kar. 624, he respondent filed eviction application on the ground of personal requirement. The appellant resisted the eviction application. The respondent in his eviction application gave a vague ground that he wanted to start his own business. In his affidavit in evidence he took a different stand. He did not disclose that he owned one building in Ratan Talab. In these circumstances I held as follows: "A mere ipse dixit of the respondent that he requires the premises in dispute in good faith is not enough. It must be supported by valid reasons as to how his requirement is genuine." In Dr.A.R. Khan v. Muhammad Ishaque 1972 S C M R 437 the appellant was running a clinic .in a tenanted premises which belonged to the respondent. The respondent filed eviction application on the ground of personal requirement. The appellant resisted the application. The Rent Controller allowed the application. The appellant went in appeal to the District Judge who accepted the same and reversed the finding of the Rent Controller. The respondent challenged the order of the District Judge by a second appeal in the High Court, which was accepted by a learned Single Judge. The Hon'ble Supreme Court held as follows: ‑‑ "A rightly contended by the learned counsel for the appellant, the provisions of subsection (4) of section 13 of the Ordinance have been enacted in favour of a tenant to restore him to possession, if a landlord has failed to prove by his subsequent action that his bona fide requirement, as alleged in the ejectment proceedings, has not come true. These provisions do not relieve the landlord of the basic onus on him to prove affirmatively that he does require the premises for his bona fide requirement or that of his male child". In Barkat Ali v. Sughra and others P L D 1980 Kar. 223 the respondent purchased the property in dispute for her three sons who were selling goods on the footpath in front of the shop in dispute. The respondent filed eviction application which was dismissed by the Rent Controller. The respondent filed appeal against the order which was allowed. He preferred second appeal in this Court. The contention of the learned counsel for the appellant was that the lower appellate Court had failed to examine the case in its proper perspective as the burden was on the landlord, for their personal use and this leaving burden is not discharged by mere appearance of the landlord in the box and stating that he requires the premises and that if the tenant fails to prove that the demand was ulteriorly motivated, the eviction order must automatically follow. Mr.Fakhruddin G.Ebrahim, J. held as follows:‑‑ . "I had in a recent case (Second Appeal No.478 of 1970) which was argued at length by counsel of eminence occasion to hold that the Rent Ordinance was eclectic in nature and ameliorative in purposes. The intention of the Rent Ordinance is, according to its preamble, to restrict in public interest eviction of tenants and under subsection (i) of section 13, a tenant could be evicted only in accordance with the provisions of that section and not otherwise. And that the onus was on the landlord to establish that he was entitled to the possession of the premises in occupation of the tenant by bringing himself within the exceptions to subsection (1) of section 13 of the Rent Ordinance." In Muhammad Azizullah v. Abdul Ghaffar 1984 C L C 2837 the appellant filed eviction application against the respondent under section 13 of the Ordinance on the ground of personal requirement. The respondent resisted the eviction application. The Rent Controller held that the appellant's bona fide requirement had not been established and dismissed the ejectment application. Mr.Saleem Akthar, J. held as follows: ‑‑ "Under law mere statement that the landlord wants to carry on business in the disputed premises is not sufficient. Additionally it has to be established that the requirement is bona fide and in good faith. It is only after all facts relating to the funds and arrangements made by the landlord have been established it is possible to prove bona fide and in good faith. In the present case the appellant has not produced any evidence of this nature except that he has made a statement on oath that he has retired and wants to carry on business." He further held:-- "The establish good faith and bona fide the landlord has to submit facts which are necessary to prove that he requires the premises for opening the business. In these circumstances the learned Controller has correctly held that bona fide use and requirement has not been established by the appellant." In Abdul Majid v. Anwar Ali 1983 C L C 2511 Mr. Manawar Elahi Rana, J. observed that it is incumbent on the landlord to show that his claim is bona fide. The landlord did not disclose in his eviction application about owning a house and another shop in his occupation with no explanation that it was not suitable for his needs. This entitles him to seek ejectment. Mr.Akhtar Mahmud, the learned counsel for the respondent has cited in support of his contention the following decisions: (i) P L D 1976 Kar. 832; (ii) 1980 S C M R 893; (iii) P L D 1985 Kar. 4; (iv) P L D 1975 Lah. 200; (v) 1968 S C M R 1158 and (vi) P L D 1979 Note 11 at p.7. In Haji Ghulam Muhammad v. Abdul Qadir P L D 1975 Lah. 200 the respondent filed eviction application against the appellant in respect of a shop on the ground of personal requirement. The Rent Controller accepted the application. The first appellate authority affirmed the order. Mr. Muhammad Afzal Zullah, J. agreed with the contention of the learned counsel for the appellant that the Controller shall not order eviction on the expression of the desire even in good faith by the landlord unless he (the Controller) himself is satisfied that the claim of the landlord is bona fide. In Hasan Khan v. Mrs. Munawar Begum P L D 1976 Kar. 832 Mr. I.Mahmud, J. held as follows:‑‑ "The effect is that the assertion or claim on oath by the landlord that he required the premises for his personal use, should be accepted by the Rent Controller as bona fide, if such claim or assertion, although by itself may be insufficient, yet is consistent with his averments in the application and is not shaken in cross‑examination or disproved in rebuttal." In Shahryar Ali Pataudi and 3 others v. Messrs Decors Furnishers P L D 1985 Kar. 47 the appellant filed eviction application against the respondent on the ground of default and personal requirement. The respondent resisted the eviction application. The Rent Controller dismissed the eviction application on both the grounds. In Mst. Toheed Khanam v. Muhammad Shamshad 1980 S C M R 573 the Hon'ble Supreme Court approved the dictum laid down by Mr.I. Mahmud, J. In the case of Hasan Khan v. Munawar Begum P L D 1976 Kar.

832. It is now established law that on the question of bona fide requirement of a landlord his statement should be taken to be sufficient proof of the fact if it is consistent with his averment, in the eviction application. It is apparent that the averment in the eviction application about requirement of the respondent for 'his use has been fully supported in his deposition and nothing has been brought out in cross‑examination which could show that claim of the personal use for himself is to be false or is based on wrong statements. After going through the record with the assistance of the learned counsel for the parties and after perusing the order of the learned Rent Controller, I find that the Rent Controller has rightly granted ejectment application. The finding of the learned Rent Controller on this point, which is based on the categorical statement of the landlord is unexceptionable. He was, therefore, justified in allowing the eviction application of the respondent on this issue. The finding of the learned Rent Controller on issue 3 that is, the appellant has sublet without consent of the landlord is un-exceptional as there does not appear sufficient evidence on record which can show that the appellant has sublet or handed over the possession to Gulab Khan and Abdul Wahid Khan. The appellant refuted the allegations. The finding of the learned Rent Controller on this issue is in accord with evidence on the record. Regarding the issue No.4 that is, the appellant has committed act which are likely to impair materially the value and utility of the case premises. The respondent deposed that the appellant has erected a small shed and a small wall near Bhatti/furnance after the filing of the case. The appellant denied the enlargement and extension of the new furnace. There does not appear evidence on record about the damage or extent thereof caused by furnace. This plea of the respondent should have been held as not proved. Regarding the issue No.5, that is, the appellant caused nuisance to the respondent and/or other neighbour. The respondent has stated in his affidavit‑in‑evidence that appellant has started keeping pigeon, birds, goats and other animals which are a source of annoyance and nuisance to him. There does not appear evidence on record about the annoyance or nuisance caused to the respondent. The plea of the respondent should have been held as not proved. However, as the personal requirement of 'the respondent has been proved, hence no exception can be taken to the ejectment order recorded by the learned Rent Controller. The appal is dismissed with no order as to cost. The appellant is, however, granted four months to vacate the premises. A.A. Appeal dismissed.