P L D 1976 Karachi 233 Before M (PLP)

S. 13(3)(a)(ii)-Ejectment-Second appeal-Question of fact found in favour of landlord by two Courts below-Could not be agitated in second appeal before High Court unless any legal error committed in finding. Muhammad Ikhlas v. Muhammad Ismail P L D 1963 S C 466 ref. Fazalbhoy for Appellant. Shahenshah Hussain for Respondent. Dates of hearing s 5th and 9th December 1975. Appellants Messrs Punjab Hardware and Machine Tools Ltd. are the tenants of shop No. 8 in Wazir Mansion. Respondent Wazir Ali the owner of the Mansion moved an application before the Rent Controller for eviction of the appellants on the ground that he needed the shop in question for the bona fide need of his son Rajabali who bad completed his education and training in the Hardware business and wanted to start the same in the shop in dispute. The tenant appellant alleged that the real object of the landlord was to enhance the rent and as the tenant had refused to comply with that request, therefore, this malicious application on a supposed ground has been moved. The only issue framed was if the applicant required the premises for personal use in good faith. The learned Rent Controller found this issue in favour of the landlord and directed the eviction of the tenant/appellant. This finding was confirmed by the first appellate Court. Hence this appeal. In order to substantiate the allegations of mala fides brought by the tenant/appellant against the landlord the learned counsel for the appellant has relied upon three sits of arguments. Firstly, according to section 13 (3) (a) (ii) (b) the landlord was bound to declare that he or his said child was not in occupation of any other suitable shop for his needs. In this regard the learned counsel contends that his son Rajabali is by his own admission occupying room on the third floor of Wazir Mansion. Having suppressed this fact, the learned counsel contends, that the landlord had not come with clean hands and, therefore, deserves that his application should be rejected. Rajabali has in his statement stated that he is occupying a room on the third floor of Wazir Mansion and that he is running his hardware 'business from-that room. But the fact remains that the business of hardware, where sale of goods has to be carried out, can best be run in a shop on the ground floor. It, therefore, cannot be contended that that room is 'suitable for 4he needs' of Rajabali. He is no doubt in occupation of commercial premises 'but that premises is, by no means, suitable for his needs. The fact that he is already running hardware business substantiates, on the other band, the 4, contention of the landlord that his son needs the shop in question for run ning his business. The additional ground taken in this regard is that section 13 (3) (a) (ii) enumerates three ingredients for moving an application under this provi sion, and that the landlord was bound to contend each of these three ingre dients in his application. Not having done so his application was not maintainable. This argument again is not available to the learned counsel. The proceedings before the Rent Controller are of the nature of quasi judicial proceedings and technicalities of law are not expected to be ob3erv ed by them. Strict standards of pleadings, as required in the normal Courts, cannot be expected in the rent proceedings. In Khudabux v. Fida Hussain (P L D 1963 Kar. 446) it was observed that proceedings before a Rent Controller could not be judged strictly from the point of view of mere technicalities, as observ ed in law Courts. And by no means should a litigant landlord's case fail merely because he has failed specifically to plead in his application that he requires the non-residential building in good faith for him or his male children's use, that he or his child is not occupying any such building suitable for his needs or that he had not vacated such building within the statutory period. So long as cogent evidence is brought on record-to prove the requirements of section 13 (3) (a) (ii) of the Ordinance, he would always be entitled to an order id his favour. The plea that the premises is required in good faith for personal use, would cover the other elements or this sub-clause of-section 13 of the Ordinance. The second and the main emphasis of the learned counsel, in his allega tions of mala fides against the landlord, are that the landlord had demanded the rent at the enhanced rate of Rs. 290 per month as against the existing rent .of Rs. 185 per month. In this regard he relies upon two notices dated 9-1-69 and 11-2-69. He contends that the application having been brought on 19th March 1969, was purely because of the tenant's refusal 4o accede to this illegal demand for the increase of rent. It has also been contended on behalf of the tenant that any increase due to payment of rates etc. cannot be demanded except with the permission of the Rent Con troller. In this behalf it would be necessary to refer to the relevant part of the notice dated 9-1-69 which reads as follows:-- "You are aware that the Excise and Taxation Department has raised the assessment of the premises in Wazir Mansion, Nicol Road, Karachi in spire of your objections and appeal. Thus now you have to pay Rs. 290 for shop premises and Rs. 191.40 for Godown premises from 1st July 1968 as per fresh assessment. Thus you are in arrears of Rs. 1.030.80 from July 1968 to 31st December, 1968." The very language of the notice clearly indicates that the demand of in creased rent has been necessitated because of fresh assessment. The conten tion of the learned counsel is that the demand of such increase is illegal because the landlord was bound to approach the Rent Controller, in vie of the provisions of section 9 of the Ordinance, and only then to demand this increase in rent. No doubt section 9 makes it incumbent that, in case fresh rate, cess or tax is levied the landlord shall be entitled, subject to the approval of the Rent Controller, to increase the rent of the rented premises. But, if afresh rate of rent, subsequent to such fresh levy, can be arrived at by mutual negotiation, it would not be necessary that the approval of the Controller should be obtained. The notice, therefore, for demanding such enhanced rate of rent cannot be termed as illegal. In ease the tenant refuses to accept the enhanced rate of rent the landlord would no doubt be bound to approach the Rent Controller before charging the en hanced rate of rent. The bona fides of the landlord in demanding the enhanced rent find support from the averments in the lease-deed Exh. A/7. This deed was, executed between the respondent landlord and the members of the firm. Tapal Enterprises for the lease of shop No. 10 in Wazir Mansion. The rent of that shop was also fixed at Rs. 290.40 per month, but it was explained that this rent is per new assessment made by the Excise and Taxation De partment and that the previous rent of the premises was Rs. 185 per month. It was further agreed that if in revision pending before the Com missioner the rent is reduced both the parties shall be bound by such reduc tion and the landlord shall refund the difference. This lends further support to the contention of the learned counsel for the respondent that: the increase in rent was a general increase demanded from all the tenants. of the Mansion necessitated by the increase in taxes. By this averment in the lease deed the landlord had bound himself to accept the rent at the reduced rate. The second leg of argument put forward by the learned counsel for then appellant in this context is that the landlord, even if entitled to enhance the: rent, could increase only by one half of the amount of rate, cess or tax freshly levied and, therefore, this demand of Rs. 290, as against the old rent of Rs. 185 was illegal on the face of it. The learned counsel for the res pondent, on the other hand, contended that the landlord in case of fresh/ imposition of rates, cess or taxes, is entitled to pass on such increase to the tenant. In this context he relies upon Muhammad Hussain v. Ghaffar Wall Muhammad (P L D 1972 Kar. 421) where the majority held that in case of fresh taxes the landlord was entitled to recover the same from his tenant. The third main ground of the learned counsel for the appellant in regard to the mala fide of the landlord is that only a day before the filing of the present application for ejectment, the landlord bad rented out shop No. 10 in Wazir Mansion to Tapal Enterprises on a rental of Rs. 290 per month. The learned counsel for the appellants contends that that shop being in the same premises and carrying the same amount of rent should be presumed to be identical shop with the shop in dispute and that shop had fallen vacant and the landlord had not occupied it for the use of his son it should be held that his demand for eviction of the shop in dispute is purely mala fide. In this line of argument the difficulty with the learned counsel is that factually the position is slightly different. The landlord Wazir Ali when he appeared as his own witness has stated that the original tenant of shop No. 10, namely Jupiter & Co., had sublet the shop to Tapal Enterprises behind the back of the landlord. It was only to resolve the dispute and to avoid litigation that a lease agreement was executed with Tapal Enterprises. The shop in question bad not fallen vacant and was, therefore, not available for occupation. In any case, it is always open to the landlord to choose & any of the shops belonging to him and this prerogative cannot be denied to the landlord. Reliance in this regard is pleaded upon Sahmal v. Keekaram (1973 S C M R 185). The above discussion indicates that the appellant/tenant has been unable to establish his contention of mala fides on the part of the landlord. On the other hand, the landlord and his son, who have appeared as the witnesses for the respondent, have stated on oath that his son Rajabali needs the shop in question for running the business of hardware. The bona fides of that need is also established from the undisputed fact that Rajabali is running the hardware business for the previous three years, although in a room on the third floor of the same Mansion. He is, therefore, entitled to get a shop suitable for his requirements on the ground floor and if the choice has fallen on shop No. 8 the appellant/tenant cannot help it. A legal objection by the learned counsel for the respondent has bee taken that the question of bona fide requirement of the landlord is a ques tion of fact and having been found in favour of the landlord by the two Courts below it could not be agitated in second appeal before the High Court. This contention of the learned counsel is fully supported by Muhammad Ikhlas v. Muhammad Ismail (P L D 1963 S C 466). In this case a Single Judge of the High Court had came to a contrary conclusion regarding the necessity of the landlord. Their Lordships observed: "There was here no suggestion that the subordinate Courts had com mitted any error of procedure as provided by law, or even that their had approached the question for decision from a fallacious point of view. What the learned Single Judge did in this case is what is expressly forbidden by the provisions of section 100 of the Civil Procedure Code and consequently his order cannot be main tained." It is not urged in this appeal before me if any legal error has been' committed in arriving at the finding of fact. That being the case the appeal merits dismissal on this count as well. The appeal stands dismissed with costs. The appellant/tenant is directed to put the landlord in possession of the shop in dispute within one month. S. A. H. Appeal dismissed.