1998 PLP 607 (CLC)

(1) Whether the respondent is wilful defaulter in the payment of rent? OPA. (2) Whether the disputed shop is required by the petitioner bona fide for the personal use of occupation? OPA. (3) Relief.

2. The respondent examined Mazhar Ali as A.W.1, Muhammad Yousaf as A.W.2 and himself appeared as A.W.3 while the appellant examined Arshad as R.W.1, Riasat Hussain as R. W.2 and himself appeared as R.W.3. The learned Rent Controller after hearing the arguments proceeded to allow the ejectment petition vide order, dated 8th July, 1996, which was assailed through an appeal before the appellate authority, who dismissed the same vide order, dated 24th of November, 1996, therefore, present appeal, which came up for limine hearing on 5th December, 1996, when the record was sent for and notice for pre admission was issued to the respondent, who has entered appearance through an Advocate and contested the appeal, which has been treated as, a notice case.

2. The learned counsel for the appellant argued that the respondent has not come to the Court with clean hands and in the absence of the notice under section 13‑A of the Punjab Rent Restriction Ordinance, 1959, the petition was legally incompetent. The appellant has also moved Civil Miscellaneous No.823‑C of 1996 to place on record a money order receipt. It was added that the appellant remitted a sum of Rs.220 through money order on 26‑8‑1996 and the same was received by Mian Atta Muhammad Rabbani, the previous landlord, this was rent for months of July and August, 1995.

3. On the other hand the learned counsel for the respondent argued that the appellant was fully aware of the sale of the property by Mian Atta Muhammad Rabbani to the respondent. In this behalf learned counsel has referred to EXh.A.W.I which is report made to the Police by the appellant on 16‑7‑1995 wherein he has clearly admitted that the respondent has purchased the property. It was added that the remission of rent to the previous landlord was of no legal consequence in view of this clear knowledge of transfer of property and would not wipe off the default. It is added that as the transfer of the property in the name of the respondent was fully in the knowledge of the appellant, therefore; no notice under section 13‑A of the Rent Restriction Ordinance, 1959 was necessary. The learned counsel in this behalf referred to the cases of Ejaz Hussain v. Additional District Judge, Rawalpindi and 2 others (PLD 1991 Lahore 332), Miss Abida Riasat Razvi v. Philomena Mathew and 4 others (PLD 1994 Supreme Court 452), Khuda Bakhsh v. Muhammad Yaqoob etc. (1981 SCMR 179), Fazal Azam and another v. Tariq Mahmood and another (PLD 1982 Supreme Court 218).

4. It As argued that the service of legal notice under section 13‑A is not relevant as for personal use is concerned. It is added that it is a case of concurrent findings of facts, recorded by Courts of competent jurisdiction and the appellant has failed to make out a case for interference in second appeal.

5. I have given my anxious consideration to the arguments of the learned counsel for the parties and gone through the record and precedent cases. The appellant made the report Exh. A.W.1 to the police on 16‑7‑1995, therefore, remission of the amount of Rs.220 through money order on 26‑8‑1996 was of no legal consequence. The perusal of the receipt. shows that even the appellant has not mentioned in the same that it was a rent for months of July and August, therefore, this receipt is meaningless and will not advance the case of the appellant any further, therefore, the Civil Miscellaneous is dismissed.

6. Now coming to the service of the legal notice under section 13‑A. The same was only relevant on the issue of default. The learned counsel for the respondent has rightly referred to the case of Miss Abida Riasat Razvi, wherein the Hon'ble Supreme Court held that after acquiring knowledge of the ownership no explanation was furnished in non‑payment of the rent the above rule is fully applicable to the case in hand. It may be noted here that the ejectment petition was filed on 19‑12‑1995 and according to the appellant he had paid rent up to August, 1995 to the previous owner.

7. The other ground on which the ejectment was personal use and was subject‑matter of Issue No.2. No notice under section 13‑A of the Ordinance, 1959 is required to maintain the application on the ground of personal use. In fact section 13‑A only relates to default. The other argument was that the respondent has not come with clean hands. The appellant did not pray for issue on this preliminary objection at any stage of the trial of the ejectment petition and pendency of the appeal before the Appellate Authority: Even otherwise, once bona fide personal need is proved, the learned Rent Controller has hardly any discretion in the matter, therefore, the question of not approaching the Court with clean hands is beyond the controversy in issue. The learned counsel for the appellant in the end argued that the respondent has gone abroad for good, therefore, this issue was not proved. This argument was also urged before the Appellate Authority where the respondent agreed to file an affidavit in the Court to the effect that he had not received any visa or that would not settle permanently in Holland or anywhere else and in case he left the country for good, the vacant possession of the shop would be given back to the appellant. The affidavit was accordingly filed. The application of the tenant was disposed of by the learned Appellate Authority. The appellant has failed to make out a case for interference the concurrent findings recorded by the two Courts.

8. The upshot of the above discussion is that there is no merit in this appeal. The same is dismissed. However, the appellant is allowed one month time from today to hand over the vacant possession of the premises to the respondent. A.A./M‑516/L Appeal dismissed.