1986 PLP 735 (CLC)

Khalilur Rehman for Respondent. Dates of hearing: 12th, 15th and 18th August, 1985. This order will govern the disposal of two cross appeals First Rent Appeal No. 737 of 1982 and 798 of 1982. First Rent Appeal No. 737 of 1982 is filed by the tenant challening the order of Rent Controller, dated 24‑5‑1982 directing his eviction from the premises on the ground of default in payment of rent while First Rent Appeal No. 798 of 1982 is filed by the landlord against the same order rejecting his ejectment application on the ground of personal and bona fide requirement and nuisance. In order to avoid any confusion I will refer in this order the appellant Appeal No. 737 of 1982 and respondent in Appeal No. 798 of 1982 as 'the tenant' while respondent in Appeal No. 737 of 1982 and appellant in Appeal No. 798 of 1982 will be described as 'the landlord'. I will first deal with the tenant's appeal (First Rent Appeal No. 737 of 1982) which is directed against the order of Rent Controller granting his ejectment on the ground of default in payment of rent. The ejectment case was instituted by the landlord alleging default against the tenant from February, 1975. The application for eviction was presented in Court on 22‑4‑1975. The tenant in his written statement denied the default and raised a preliminary objection that the application is pre‑mature as it was presented before expiry of 60 days period mentioned in section 13(2)(i) of the West Pakistan Urban Rent Restriction Ordinance, 1959. On merit it was contended by the tenant that he was a joint tenant alongwith one Muhammad Shoab who has already paid rent to the landlord upto January, 1976 and as such there was no default. The landlord in his affidavit of evidence before the Rent Controller stated that the tenancy between the parties is governed under a written agreement of tenancy which provides for payment of rent in advance every month. It was also stated by the landlord that after filing of ejectment case he instituted the following cases against the tenant for recovery of rent for the period from February, 1975 to 31st December, 1977 which were decreed in his favour:‑

(1) Suit No. 482 of 1985 filed in November, 1975 for recovery of arrears from February, 1975 to October, 1975. (2) Suit No. 316 of 1976 filed in July, 1976 for recovery of arrears from 1‑11‑1975 to 30th June, 1976. (3) Suit No. 61 of 1977 filed in February, 1977 for recovery arrears from 1‑7‑1976 to 31st January, 1977. (4) D.W. 291 of 1977 filed in September, 1977 for recovery of arrears from 1‑2‑1977 to August, 1977. (5) D.W. 3/1978 filed in January, 1978 for recovery of arrears from 1‑9‑1977 to 31st December, 1977. It was accordingly contended by the landlord before the Rent Controller that the above proceedings fully established default in payment of rent by the tenant. The institution of the aforesaid proceedings were not disputed and accordingly, relying on the above admitted position the Rent Controller held the tenant to be defaulter in payment of rent and ordered his eviction from premises on that ground. Mr. Anwar Muhammad, the learned counsel for the appellant contends that the order of the Rent Controller is illegal as on the date eviction application was filed there were no arrears due against his client. It is contended by the learned counsel that there was no written agreement of tenancy between the parties and such rent for February, 1975 could be paid upto 30‑4‑1975 Whey, as the rent application was filed on 22‑4‑1975 which was pre‑mature and Rent Controller should have dismissed the same. He also contended that the rent upto January, 1976 was already paid by the co‑tenant Muhammad Shoab but the Rent Controller did not consider the receipt dated 22‑2‑1976 produced by the tenant in evidence. It was lastly contended by the learned counsel that Muhammad Shoab being a co‑tenant of the premises, the ejectment application was incompetent without joining him as respondent in the case and rent controller should have rejected the same on this ground alone. The learned counsel for the landlord on the other hand contended that the contention of the tenant that Muhammad Shoab was a co‑tenant in the premises with the tenant was considered at length .by this Court in Civil Revision No. 144 of 1977, 145 of 1977, 58 of 1978, 61 of 1978, 90 of 1978 and 263 of 1978 filed by the tenant and repelled vide order dated 30th November, 1980. It is also contended that in the same order the tenancy agreement which is described by the tenant as forged was also taken into consideration and upheld while receipt dated 22‑2‑1976 relied by the tenant was disbelieved by the Court. A certified copy of the judgment of this Court dated 30‑i1‑1977 in the above Civil Revision was produced before the Rent Controller as Exh. P.2. After going through the above judgment I find that a learned Single Judge of this Court rejected all the six revision applications bearing Nos. 144 of 1977, 1415 of 1977, 58 of 1978, 68 of 1978, 90 of 1978 and 263 of 1978 which were filed by the tenant against the judgment in suit and D.W. proceedings mentioned earlier by me in this order. The learned Single Judge after discussing in detail the evidence produced in the suit and D.W. proceedings held that Muhammad Shoab was not the co‑tenant of the premises in dispute and also disbelieved the receipt of rent relied by the tenant now, showing payment of rent upto January, 1976. In view of these weighty observations and discussion in the judgment dated 30‑11‑1980, the Rent Controller rightly held that the tenant has failed to show that Muhammad Shoab is co‑tenant in the premises or that the rent upto January, 1976 was paid by him to the landlord. In the proceedings by way of suits and D.Ws., it is not disputed, that the landlord sought to recover rent from February, 1976 to December, 1977, which was allowed by the Court. It is quite clear from the above proceedings that from February, 1975 till January, 1978 the tenant did not tender or pay any rent to the landlord and as such there is hardly any scope for the argument that the finding of the Rent Controller holding the appellant as defaulter in payment of rent is not justified. However, the learned counsel for the appellant very vehemently contended that as the application for eviction was pre‑mature, the learned Rent Controller should have dismissed the same. This argument is now of only academic nature. A Even if it is assumed, that on the date the application for eviction was filed, 60 days period a contemplated under section 13(2)(1) of Ordinance VI of 1959 had not expired, it is an admitted position that within the statutory period of 60 days no rent was tendered by the tenant. On the contrary the position on the record is uncontroverted that from February, 1976 until there order was passed in the rent case in 1978 the tenant did not even once tender or pay rent to the landlord. The first suit for recovery of rent was instituted by the landlord in the Court in November, 1975 and thereafter proceedings for recovery of arrears of rent were instituted in July, 1976, February, 1977, October, 1977 and January, 1978 but during all this period the tenant paid no rent in respect of premises in his occupation. Apart from it in the case of Raj Muhammad v. Muhammad Zareen 1980 S C M R 339 the Supreme Court observed that if a petition presented to a Rent Controller was pre‑mature on the date of its institution but the result would not have been different if the landlord would have withdrawn and refiled the same petition, the order of ejectment passed by the Courts below could not be interfered on that ground. The following observations are reproduced herewith respect from the above Judgment:‑ "We do not agree with the learned counsel. It was held in the case of Mat. Amina Begum and others that the forums acting under the Rent Restriction law were not, in exercise of discretion vested in them, precluded to take note of events taking place during the course of the proceedings after the institution of an ejectment petition so as "to suitably would the relief on the basis of the altered circumstances in order to avoid multiplicity of litigation and shorten the proceedings". It was also observed that compelling the applicant landlord to withdraw ejectment petition which had already been tried, merely on the technical ground of the cause of action not having matured at the time it was filed so that it may be filed again, would not advance the interest of justice as "results on merits were not likely to be different. Learned counsel has not satisfied us that if the ejectment petition was withdrawn and refiled, the' results on merits would have been different. The cases of Abdur Rashid and Muhammad Shafi cited by the learned counsel, in view of the dictum in Mst. Amina Begum's case are of no help to the petitioners. There is no force in the argument advanced by the learned counsel in support of this petition. If fails and is accordingly dismissed." To the same effect are the observations in the case of Mst. Amina Begum and others v. Mahar Ghulam Dastgir P L D 1978 S C 200, referred in the above judgment. In view of above discussed legal position I find no justification to interfere with the order of Rent Controller granting ejectment on ground of default in payment of rent. I will now take up Rent Appeal No. 798 filed by the landlord against the order of Rent Controller refusing to grant ejectment of i tenant on the grounds of personal and bona fide requirements and nuisnace. Personal requirement is pleaded by the landlord in paragraphs 5 and 6 of the application. It is stated in the application that the premises are bona fidely needed by the landlord for his use and for the use of his children. It is further stated that the landlord is advised on medical ground to live on the ground floor. The landlord claimed that one of his sons Ahmad Saeed alongwith his family is living with him while his sons Ejaz Ahmed Khan and Tariq Saleem Khan could not get married due to shortage of accommodation. It is also claimed that his widow daughter is also living with him. The respondent denied the allegation of personal and bona fide requirement and pleaded that the accommodation with the applicant is more than sufficient for his requirement. It is admitted position that at the time the eviction application was instituted in Court the landlord was in occupation of only second floor premises of the same building which comprised of 4 bedrooms, one dining and drawing with other amenities. The first floor premises having identical accommodation as that time was occupied by one tenant Qamaruddin while on the ground floor premises there were two tenants namely the respondent and one Mst. Farida. It is also admitted position that during pendency of above rent case the first floor premises was vacated by the tenant Qamaruddin while two rooms on the ground floor occupied by tenant Mst. Farida were also vacated and the same were occupied by the landlord. In his affidavit of evidence before the Rent Controller the landlord in addition to his sons mentioned in the rent application also claimed that he required the premises for the use and enjoyment by his sons Fayyaz Ahmed and Adeel Ahmed. The mention about the needs and requirement of his two other sons namely Fayyaz Ahmed Khan and Adeeb Ahmed, by the landlord at the trial of the case is obviously an improvement as he had specifically referred only to the needs and requirement of his sons Saeed Ahmed Khan, Ejaz Ahmad Khan and Tariq Saleem Khan in his application. The reason for this improvement is also obvious because during pendency of the rent case the landlord succeeded in getting possession of entire 1st floor and 2 rooms on the ground floor of the same building. The findings of the Rent Controller, in these circumstances, that the accommodation with the landlord was sufficient to meet his requirement cannot be described as arbitrary or contrary to material on record. Learned counsel for the landlord contended that the Rent Controller failed to take notice of the growing need of the landlord because of the large family which consisted of several sons and daughters. It is contended by the learned counsel that one of the sons of landlord namely Fayyaz Ahmed Khan had to come back from Canada while other son from Quetta, Lt.‑Col. Adeeb Ahmed Khan was likely to come back and live with the landlord. It is significant that the application for eviction was filed in 1975 in which requirement of the sons and daughters of the landlord were pleaded. The landlord filed affidavit in the case after 6 years of the institution of the case but till then neither his son who is a Lt.‑Col. in the Army had come from Quetta nor his son Fayyaz Ahmed had come back from Canada to settle in Pakistan. I enquired from the learned counsel for the appellant during the course of arguments if these sons of the appellant have now settled down at Karachi. In reply Mr. Khalilur Rehman after consulting his client stated that Fayyaz Ahmed Khan had come back from Canada after decision of the rent case but has gone back to Saudi Arabia due to shortage of accommodation. The learned counsel also stated that the other son of landlord Lt.‑Col. Adeeb Ahmed Khan is presently posted at Islamabad but his belongings are lying stored in the premises on the ground floor. It is an admitted position that two independent units in the buildings on the first and second floor, each one comprising of 4 bedrooms, drawing, dining and other amenities of life are presently occupied by the landlord. He is also occupying two rooms on the ground floor which were vacated by the tenant, Mst. Farida. In addition to it the landlord also admitted in his cross‑examination that there are three flats on the Garage each consisting of one room which are also in his occupation. In these circumstances the order of the Rent Controller declining to grant ejectment on the ground of personal and bona fide requirement is neither unreasonable nor unjustified. I, therefore, see no reason to interfere with the same. The landlord also sought ejectment of tenant on the alleged ground of nuisance. Besides bare statement of landlord in this behalf there is no other evidence to corroborate the same. On the contrary the appellant examined his two sons who are living with him in the same building but in their evidence they did not complain of any nuisance. The tenant in his statement categorically denied the allegation of nuisance. The Rent Controller, therefore, rightly l the plea of nuisance. As a result of above discussion both the appeals are dismissed but there will be no order as to costs. The tenant is allowed four months time to vacate the premises. H . B . T . Appeals dismissed.