1990 PLP 337 (MLD)

(6) Whether the present eviction petition against the respondents is incompetent and mala fide. (7) Relief.

3. After recording such of the evidence as the parties wished to adduce before him, pro and contra the above issues, the learned Controller decided all the issues against the landlords and dismissed their application, vide order, dated 30‑10‑1985 and hence the instant first appeal.

4. I have heard learned counsel for the parties for sufficient length of time and have gone through the record of the case with their assistance.

5. The learned counsel for the landlords/ appellants vehemently argued that under section 17(4)(b) of the Cantonments Rent Restriction Act, 1963, the landlord is entitled to the eviction of his tenant if he requires the premises in good faith for his own use. According to him, since Altaf Hussain one of the landlord retired from service, he genuinely thought of starting business and for the said purpose he needed the suit shop for opening Departmental Store jointly with his other co‑heirs/landlords and that the good faith of the landlords could not be questioned. He further contended that the tenant had volunteered to pay rent at the rate of Rs.3,000 per month and had instructed their Banker to pay at the same rate vide letter, dated 25‑2‑1979, copy Exh. P.W.1/3, on the 5th of each succeeding month, but his subsequent conduct of issuing another letter to the Banker to make payment at the rate of Rs.2,500 reflects on his mala fides. He also challenged the findings of the learned Controller regarding the ground of damage to the suit property. The learned counsel for the tenant, on the other hand, controverted these submissions and relied on the reasoning advanced by the learned Controller in support of the impugned order.

6. I have given my anxious consideration to the arguments advanced by either side. The reasons which prevailed with the learned Controller to decide issue No.1 against the landlords are:‑‑ (i) That the suit premises are located well away from the main business Centre Saddar Bazar and consequently the allegation of starting business of Departmental Store therein was neither possible nor feasible; (ii) That the tenant has established business of Motors Show Room and allied service station etc. and that it would be very harsh and highly un just if the same is uprooted and they are asked to pack up at this stage; (iii) That the landlords are residing at Abbottabad and being non‑resident would not be able to successfully operate the proposed venture and: (iv) That the instant application is not bona fide but to pressurise the tenant for increase in the rate of rent.

7. For the proper appreciation of the controversy in hand, it is worthwhile to reproduce the relevant law dealing with the eviction of a tenant occupying commercial building within the Cantonment area. Section 17 of the Cantonments Rent Restriction Act, 1963 has imposed a bar on the eviction of tenant except in accordance with the provisions of the said Act and subsection 4(b) thereof provides for the condition under which a tenant can be evicted from commercial building in his possession. The same is to the following effect:‑‑ (4) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession: (b) in the case of commercial building, if‑‑ (i) he requires it in good faith for his own use; and (ii) he is not occupying in the Cantonment area concerned or in any local area in the vicinity thereof in which such building is situate for the purposes of his business any other such building suitable for his needs at the time; and (iii) he has not vacated such building in the said area or vicinity without sufficient cause after the commencement of this Act: (5) The Controller shall, if he is satisfied that the claim of the landlord under subsection (4) is bona fide, make an order directing the tenant to put the landlord in possession of the building on such date as may be specified by the Controller and if the Controller is not satisfied he shall make an order rejecting the application: Provided that the Controller may give the tenant a reasonable time for putting the landlord in possession of the building and may extend such time so as not to exceed three months in aggregate."

8. Sub‑clauses (ii) and (iii) referred to above are not attracted because admittedly the landlords have no such premises situated in the Cantonment area Peshawar and as such the learned Controller was required only to see whether premises were required in good faith for their own use by the landlords or not he was not legally concerned to address himself to any other extraneous consideration. The above statutory provision nowhere lays down that in spite of the good faith of the landlord if it causes inconvenience or hardship to the tenant, the Rent Controller is at liberty to refuse the eviction. It thus follows that the dominant consideration has to be as to whether the landlord seeks the eviction of the tenant in good faith and for his own use or not and if he is able to satisfy the Rent Controller in this regard, the eviction has to be ordered irrespective of the consequences which may befall on the tenant from such art order. Evidently every eviction order does cause interruption and inconvenience to the occupant, particularly in case of commercial building and if the Legislature had desired the Rent Controller to consider the hardship of the tenant as well in a situation like this, they could make provision for the same in the statute. There being no such provision in the Act itself, the Rent Controllers have to restrict themselves to the provisions of law and are not to import anything which is not there.

9. Keeping the above considerations in view it is to be seen whether the reasoning advanced by the learned Controller are borne out by the legal and factual aspects of the case or not. The distance between the main Saddar Bazar and the suit premises is not discernible from the record: The learned Controller being the Executive Officer of the Cantonment might be well aware of the same. Anyhow, the site plan, EXh.P.W.l/6, on the file shows that Fakhre Alam Road on which the suit premises are situated, joins Saddar Road towards the South and the Mall on the North. Another site plan, dated 10‑11‑1938 available on the file also corroborates the same situation. According to the tenant's own version the suit shop is comprised of four Halls wherein the business of Motors Show Room and Service Station etc. is being run. The two site plans referred to above reveal the underneath area thereof as 140 feet X 70 feet, and no other Service Station or Workshop is shown adjacent to it but National Bank of Pakistan is shown on the northern side while a residential Bungalow No.1 is shown on its southern and western side. The considerations for the successful running of a Departmental Store normally are that the premises must be spacious, it should be on a popular road side, it should be nearer other business centres and there must be sufficient vehicle parking place in front, for the convenience of the well‑to‑do customers. Fakhre Alam Road admittedly joins on one side with Saddar Road and on the ether with the Mall Road now known as Shahriah Quaid‑e‑Azam Road and its length is hardly a furlong or so. Evidently the suit premises possesses the above are‑requisite being situated on famous road and nearer Saddar and the Mall Road. If the suit shop could be profitably put to the use of Motors Show Room, there is no reason why it cannot be conveniently converted into a Departmental Store, the success whereof depends much on its publicity and the efficient service besides honesty in dealings towards the customers and not on its existence within the busy Bazars. I fail to understand how the learned Controller opined that the suit premises were not suitable for the purpose.

10. The record shows that as far back as 1977 a notice, dated 11‑12‑1977 (Exh.P.W.I/1‑X) was served upon the tenant to vacate the suit premises as the landlord needed the same for personal use. This was followed by another similar Notice, dated 22‑2‑1979 (copy Exh.P.W.l/5) through Munawar Ahmad Mirza, Advocate wherein also the ground of requirement for personal use was mentioned. They clearly indicate the bona fides of the landlords and the tenant sought to have made alternative arrangements for shifting their business thereto bout 12 years have since elapsed but the tenant did not care to find other suitable place for their business and now it does not lie in their mouth to make issue and cry that their business is being uprooted. I feel that the learned Controller has concerned himself more to the inconvenience likely to accrue to he tenant from the order of his eviction than to the bona fide claim of the landlords for personal use. The view of the learned Controller in this respect is not tenable in law. All the heirs of Faqir Hussain, the original landlord, have joined in the instant application for the eviction of the tenant but even one of them namely Altaf Hussain alone can legally seek the eviction of the tenant on j the ground of bona fide personal use if his co‑landlords do not object to it in view of the dictum of his Lordship Judges of the Supreme Court in case Pervez Akhtar v. Dr. Muhammad Asim and others reported as PLD 1988 SC 734.

11. The landlords no doubt reside at Abbottabad but there is no bar for any one of them to change their place of abode. Altaf Hussain, one of the landlords, was already out in connection with his service and as already held by the learned Controller he is more interested in the new venture and is supposed to be incharge of the business and he can; therefore, conveniently settle at Peshawar for the purpose.

12. M. Altaf Hussain has appeared in the witness‑box and has deposed on oath that the landlords/appellants require the suit shop for bona fide personal use. He is supported by the circumstances of the case, and there is no material evidence in rebuttal. The apprehension of the tenant that the landlords may rent it out on enhanced rent are unfounded in view of the clear safeguard contained in section 17(b) of the Act ibid which entitles the tenant to seek restoration of possession if the landlord fails to occupy the. premises within one month of the dis‑possession of tenant. Consequently the finding of the learned Controller on issue No.1 being not tenable is set aside and the same is decided in favour of the landlords/appellants. 13, As regards the default in payment of rent it is not disputed that the tenant has been in possession of the suit premises since 1937 on payment of rent which was increased from time to time and in the year 1978‑79, it was enhanced to Rs.2,000 per month. It is stated by Mr. Salim Qadir R.W.1, the Director of the tenant, that on the death of late Faqir Hussain, the original landlord, his heir Altaf Hussain landlord demanded Rs.4,000 per month but through mutual agreement it was fixed at Rs.2,500 per month and thenceforth the tenant has been depositing rent at the same rate in the Account of the landlords. However, under cross‑examination he admitted to have addressed the letter Exh.P.W.l/3 to the Grindlay Bank for payment of Rs.3,000 per month as rent to the Account of the landlords but stated that the amount mentioned in the letter viz. Rs.3,000 was wrongly written through typographical mistake instead of Rs.2,500 which was clarified to the Bank through another memo. EXh.P.W.I/4. However, he deposed in the examination‑in‑chief that the landlords did not agree to the rate of rent of Rs.2,500 per month. The question requiring determination, therefore, is as to whether Rs.3,000 was agreed to by the tenant as the rate of rent vide Exh.P.W.l/3 or that the rate agreed upon was Rs.2,500 and that the amount mentioned in the memo was a typographical mistake as alleged by the tenant. The perusal of the letter shows that the amount is, mentioned in figures as well as words and the plea of typographical mistake does not appeal to common sense. It is specifically stated by R.W.1 that the landlords did not agree to the enhancement in rent and insisted on the vacation of the suit premises. It appears that the tenant was able to pursuade the landlords to allow them certain grace period for the shifting of their business and in the return the tenant agreed to pay rent at the enhanced rate of Rs.3,000 per .month for the intervening period. It is the case of the tenant that the landlords demanded rent at the rate of Rs.4,000 per month and if the tenant agreed to pay at the rate of Rs.3,000 per month in black and white vide Exh.P.W.l/3 directing the Banker to pay at the same rate to the Account of the landlords, there is no reason why it should not be considered as a binding contract so far as the rate of rent was concerned. The tenant was, therefore, legally bound to pay at the same rate thereafter and the lesser payment makes the tenant wilful defaulter of rent and in consequence liable to ejectment on this score as well. The finding of the learned Controller on the issue of default is also set aside and the issue is decided in favour of the landlords /appellants,

14. So far as the question of damage to the property is concerned, the landlords have failed to bring convincing evidence on record to show that any alteration was made in the suit premises without their consent, resulting in damage to the suit property. The alleged construction apparently was made during the life time of their predecessor‑in‑interest Faqir Hussain and his acquiescence to the same till his death disentitles his heirs to eject the tenant on this ground, The finding of the learned Controller in this respect is maintained.

15. The upshot of the above discussion is that the instant appeal is accepted, the impugned order, dated 30‑10‑1985 of the learned Controller of Rents, Peshawar Cantonment, Peshawar is set aside and order for the eviction of the tenant‑respondent is passed in favour of Altaf Hussain and others landlords appellants against Peshawar Motors Limited tenant‑respondent. The tenant respondent is directed to vacate the suit premises within three months and hand over possession to the landlords‑appellants, failing which the tenant‑respondent shall be ejected through the process of law. Z.S./884/P Appeal accepted.