1984 PLP 707 (MLD)

(e) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)

S. 13--Eiectment--Personal requirement--Landlords neither stating number of family members for whom house required nor stating even number of rooms in his occupation--In absence of such material facts it could not be held that landlords required premises for their bona fide use and occupation. Maroof Ali Khan for Appellants.?????????? Shaikh Mir Muhammad for Respondent. Dates of hearing: 28th and 30th August, 1984. One Muhammad Hussain, the transferee of house bearing No. C.S.No.C-437/1 (West Wing), Queens Road, Sukkur, filed an application for ejectment against the respondent on the ground that after service of notice under section 30 of the Displaced Persons .(Compensation and Rehabilitation) Act, dated 13-8-1979 the respondent has failed to pay the rent for three months. It was alleged that rent from September, 1967 to June, 1969 is due @ Rs.40 per month and from July, 1969 to August, 1970 @ Rs.150 p.m. It was further alleged that tic required the premises for his bona fide use and occupation and for his family members. The respondent denied the claim and pleaded that after the service of notice the matter was compromised between the parties with the good offices of respectable persons, whereby the appellant agreed to accept rent @ Rs.24 p.m. till such time the premises is sold out and then the respondent would vacate it on one month's notice. It was denied that he has committed any default. He, pleaded that rent was paid upto January, 1971, but therefore, the appellant did not receive the rent on the pretext that fresh compromise talks should be held. If was pleaded that the respondent never refused to pay the rent. The learned Controller held that the respondent has failed to pay the rent from February, 1970 to April, 1971 and having lost the protection Of' section 30 he was liable to be ejected. On the other issue also it wits held that the appellant requires the premises in occupation of the respondent in good faith for personal use. In appeal the learned 1st Appellate Court set aside the order of the learned Controller holding that as the rent has been paid upto January, 1981 the application filed by the appellant was premature and as the respondent had all along been ready and willing to pay the rent the discretion should be exercised in favour of the respondent. On question of bona fide need, it was held that the same was not established. Mr. Maroof Ali Khan, the learned counsel for the respondent contended that the finding of the learned 1st Appellate Court that the application for ejectment was misconceived and premature is complete wrong. The learned counsel has referred to notice under section 30 dated 13-8-1970 which was admittedly served on the respondent. The question, therefore, is whether the respondent paid rent according the latest assessment within a period of three months. The respondent pleaded that under a settlement the appellant agreed to accept the rent @ Rs.24 p.m. which ire paid upto January, 1971. Except the statement of the respondent no independent evidence to corroborate this fact has been produced by him. If the matter had been settled with the inter?vention of the neighbours, some of them could have been produced by the respondent to prove this fact. It is strange that although settlement has been pleaded in the written statement respondent in his affidavit of evidence has not stated a word about it. Mr. Mir Muhammad Shaikh referred to the written statement to establish that there was a settlement between the parties, but it is well-settled that the pleadings do not take the place of proof, and unless a fact pleaded is admitted by the other side or duly proved by evidence, no notice of such pleadings can be taken. Mr. Min Mohammad Sheikh, the learned counsel for the respondent contended that in his statement the appellant has admitted that he has received rent @ Rs.24. This fact was stated in the cross-examination, but the date and tire year in which it was received have not at all been mentioned. The learned counsel for the respondent referring to the statement of the respondent where he has stated that he has paid the rent upto January, 1971 contended that it has not been challenged in cross-examination, therefore, it would be accepted. It was also contended that both the Courts below have accepted it. I have examined the statement of the respondent which is reproduced hereunder:-- "I used to pay him Rs.24 as rent p.m. I was with the applicant in good family term, therefore, I did not take any receipt from him. I had paid him rent upto January, 1971. I had gone to pay him the rent for the month of February, 1971 in the month of March, 1971, he refused to accept the rent and compelled me to enhance the rent. After that he sent me notice for enhancement of rent." In cross-examination he stated that "???the applicant had sent me notice for enhanced rent. I see acknowledgement receipt Exh.24 bears my signature." It may be mentioned here that the appellant had produced notice, dated 8-8-1970 as Exh. 23 and its acknowledgement receipt as Exh.24. A close scrutiny of the statement of the respondent will show that he alleges to have paid the rent for the month of January, 1971 and in March, he went to tender rent for tire month of February, 1971 the appellant refused to accept it, and thereafter, served notice, dated 8-8-1970 which was received by him. The statement is contradictory in terms as notice, dated 8-8-1970 could not have been served in March, 1971. This clearly shows that the statement made by the respondent cannot be accepted. The learned Controller and the 1st Appellate Court have picked up one sentence of the respondent's statement out of context and relied on it for the purposes of holding that the rent was paid upto January, 1971. This finding is not based on judicial consideration of the evidence on record. Except this statement the respondent has not produced any evidence to show that after the service of notice the rent was paid by him. Mr. Maroof Ali Khan, the learned counsel for the appellant contended that even if it is accepted that the respondent had paid the rent upto January, 1971 it is very clear that according to his own admission he did riot pay rent for the months February, March and April. For three months no attempt was made by him to remit the rent by money order or? admission he did riot pay rent for the months February, March and April. For three months no attempt was made by him to remit the rent by money order or by depositing it in Court, particularly so when according to his own allegation in the month of March the appellant wanted to enhance the rent and had refused to accept and had further asked him to vacate the premises. In such hostile circumstances the natural reaction of the tenant would have been to immediately send the rent by money order or deposit it in Court and serve a notice stating all these facts. Even the notice under Section 30 was not replied by the respondent. These facts do riot justify the finding that the respondent was riot a wilful defaulter. Tire learned 1st Appellate Court held that discretion should have been exercised in favour of the respondent as in the face of the illegal demands of the landlord he had been making genuine attempt to pay tire rent. It is well-settled that even if a landlord makes an unreasonable demand of enhanced rent, the tenant should tender rent at the agreed rate. His duty is to pay rent at the agreed rate which he has been paying in the past months. In the present case, the demand of the appellant was in accordance with the latest assessment made by the Municipal Authority, and certificate to that effect has been produced. Therefore, the assumption of the learned 1st Appellate Court that the demand fur enhanced rent was illegal is completely misconceived. In these circumstances, when the demand made by the appellant was proper, and there is no evidence on record to show that the rent was paid by the respondent, the question of exercising discretion in his favour does not arise. The 1st learned Appellate Court has also held that notice under section 30 was premature. The notice was served on the respondent and no reply was sent by him, thereafter, there is no proof that the rent has been paid. Even if tire statement of the respondent is accepted that he has paid tire rent upto January, 197.1 then as held in P L D 1964 S C 536 and P L D 1964 Kar. 61, P L D 1967 Lah. 196 and P L D 1976 Kar. 867 a second notice was riot necessary. Tire finding of the learned 1st Appellate Court is contrary to the provision of law. The learned counsel for the appellant further contended that findings of the learned Controller that the premises is not bona fide required is riot correct. To my mind the finding of the learned 1st Appellate Court on this issue is justified. The appellant has not stated the number of family members for whom the house is required. He has not stated every the number of rooms which tire in occupation. In the absence of such material facts it is difficult to hold that the appellants required the premises for their bona fide use and occupation. In the result the appeal is allowed and the respondent is directed to vacate the premises on or before 31-12-1984. M.Y.H. ?????????????????????????????????????????????????????????????????????????????????????????????? Appeal allowed.