1980 PLP 1332 (CLC)

This is tenant's second appeal seeking to challenge the order of his ejectment passed by the Rent Controller on the ground of personal requirement by the landlord.

2. Briefly the facts of the case are that the disputed premises were transferred to one Farrakh Sajid under the Settlement Scheme. The appellant being the occupant of the premises was served with notice under section 30 of the Displaced Persons (Comp. & Rehab.) Act, 1958 (hereinafter referred to as the Act), by the transferee on 1st March, 1962. The appellant replied to this notice and called upon the transferee to supply him with the copy of the transfer documents and expressed his willingness to pay the rent at the rate of Rs. 29 per month which was being paid to the Custodian after he received the proof of ownership. Farrakh Sajid the transferee filed ejectment proceedings against the appel lant on the ground of default in the payment of rent, but this application was dismissed by the Rent Controller on 10th April, 1964 on the ground that no wilful default was committed by the appellant inasmuch as he had tendered all the arrears of rent due upto July 1962 which were refused by the transferee. The learned Rent Controller without framing any issue on the point made some passing remarks in his order that the notice served by the transferee under section 30 of the Act was defective.

3. The transferee did not challenge the said order by way of appeal. However, on 20th November, 1968 the transferee once again served a notice upon the appellant expressly referring to the previous notice served on him under section 30 of the Act and alleging that he had committed default in the payment of rent with effect from 11th September, 1967. In this second notice the transferee also demanded the premises on the ground of his personal requirement for the occupation of himself and his two children, mother and other members of his family. Thereafter on 11th January, 1969 transferee Farrukh Sajid filed the second ejectment applica tion from which the present appeal arises more the ground of default in the payment of rent as alleged in the notice as well as the ground of personal requirement.

4. The appellant resisted the proceedings and urged in his defence several legal pleas including the plea that no valid notice under section 30 of the Act had been served on him. On the merits the allegations of the transferee/landlord were denied. The learned Rent Controller on the aforesaid pleadings of the parties framed two preliminary issues including the issue whether valid notice under section 30 of the Act was served on the appellant. The parties were allowed to adduce evidence on the preliminary issues and finally the learned Rent Controller by his order dated 11th November, 1969 held the notice dated 1st March, 196: served on the appellant as a valid notice under section

30. Pending the proceedings before the Rent Controller, transferee Farrukh Sajid died and was substituted by the present respondents as his Legal Representatives The Rent Controller then took up the determination of the other issues on merits and after considering the evidence of the parties came to the conclusion that the appellant had not committed wilful default in the payment of rent. However, he gave a finding in favour of the respondents on the issue of personal requirement and by his order dated 8th November, 1971 directed the ejectment of the appellant. The appeal filed by the appellant against the aforesaid order was also dismissed by the learned Ist Additional District Judge, Karachi by his judgment dated 20th April, 1974.

5. Mr. Anis Ahmed, learned counsel appearing for the appellant first sought to impeach the validity of the notice under section 30 on the ground that the rent was not specified in the notice. This contention has no merit as it is well settled that non-mention of the rate of rent or every demand of excessive rent does not have the effect of invalidating a notice under section

30. Reference in this behalf may be made to Ghula Hussain v. Mohammad Afzal (1978 S C M R 269).

6. It was next contended that the application for ejectment filed or 11th January, 1969 was premature as according to the learned counsel the six years protection period provided for under section' 30 of the Act would commence from the date of receipt of the second notice served by the transferee on the appellant on 20th November, 1968. 1 find no force in this contention as well. As rightly held in the two Courts below am as held by me the notice doted 1st March, 1962 was a valid notice and consequently the terminus a qua for the commencement of the period of protection would be the date of the aforesaid notice. Computed in the manner the protection period would expire by 28th February, 1968, as such the ejectment application was filed after the expiry of the protection period in 1969.

7. The learned counsel relying on Afaque Zubair v. Mohammad haris (P L D 1978 Kar. 984) next contended that the ground of non-payment of rent for the ,; purpose of ejectment was not available to the landlord as he was requires, to give fresh notice under section 30 for each successive default. Consequently it was contended that the application was not maintainable so far as the aforesaid ground is concerned and, therefore, the emirs. appli cation was bad in law. I am not impressed by the submission of the counsel as the question of non-payment of rent is not being pressed as a ground in support of the ejectment order. In any case if the landlord is not entitled to the order for ejectment on a particular ground or for that matter even if the application for ejectment is incompetent on a particular ground, the entire proceedings. are not affected if the ejectment order can be sustained on other grounds.

8. It was then contended by the learned counsel that the application for ejectment was incompetent as no notice for ejectment was served on the appellant as required by clause fa) of subsection (1) of section 30 of the tact. The counsel made a very ingenious argument urging that the notice required under the aforesaid clause (b) is a notice for ejectment and, therefore, the word `which' During in this clause qualifies the word "eject" It will be advantageous to reproduce the proviso to subsection (1) of section 30 which is in the following terms ;- "Provided that

(a) it shall be lawful for the transferee to charge a rent on the basis of the latest assessment carried out by the Municipality or local authority, as the case may be, for ,other properties in the locality generally ; (b) it shall not be lawful for the transferee to eject such persons from the house or shop for a period of six years and from the industrial concern, cinema house or printing press for a period of three years :. from the date of transfer, notice of which shall be given by the transferee to the tenant within one month of such transfer by registered post (acknowledgment due)." The plain reading of the language of clause (b) makes; it clear that the word "which" refers to the "transfer" and not the word "eject". It is well settled that notice required under this clause is the notice intimating the occupant the fact of transfer in favour of the transferee. Any other construction of the language of this clause would lead to absurd results.

9. Learned counsel then contended that even if the notice was valid, the notice served for any future default by the tenant would have the effect of recommencing the period of protection from the date of such sub sequent notice. The argument is wholly misconceived and contrary to the clear provisions of section 30 of the Act which lays down that the period of protection would commence from the date of notice once and for all.

10. Mr. Anis Ahmed then urged that the finding of the two Courts below that the premises were bona fide required for the personal use of the respondents, is not sustainable on the evidence on record. I am afraid the appellant is not entitled to seek a reappraisal of evidence in second appeal an case of a concurrent finding of fact. The two Courts below have care fully assessed the evidence and reached the conclusion that the respondents were living with the brother of the deceased transferee in his house which was not sufficient for the needs of such a large family. No case of misreading of evidence has been made out to call for interference with this finding of fact. I find no force in the submission of the learned counsel that since neither the wife nor the children of the deceased landlord were put in witness box, no reliance can be placed on evidence adduced by the respon dents. The respondents had relied upon the evidence of the mother and the brother of the deceased landlord. The two Courts below have relied upon their testimony and there is no legal requirement that the landlord himself should appear as his own witness in support of his house. Be that as it may, the fact remains that Mst. Masoodi Begum, the mother of the deceased landlord who was examined as a witness in the case was one of the landlord having succeeded as a co-sharer to the premises in dis pute on account of death of her son alongwith the widow and the children of the deceased. The notice served by the deceased landlord prior to the institution of the proceedings as well as the pleadings, had mentioned the fact that the premises were also required for the use of the mother of the deceased. The case of the respondents was, therefore, consistent with their pleadings. Besides the expression "for his own occupation" as it occurs in section 13 (3) (i) (a) of the Urban Rent Restriction Ordinance, 1969 has received a liberal interpretation to include not only the need of the family of the landlord, dependents and persons, essential for such occupation, but also all other genuine requirements of the landlord including better and healthier accommodation vide Adamali Hasanali v. Rubab Bai (P L D 1966 Kar. 408) and Adamali Hasanali v. Rubab Bai (P L D 1967 Kar. 437).

11. For the foregoing reasons, there is no merit in this appeal which is accordingly dismissed with no order as to costs. However, the appellant is granted a period of four months for handing over the possession of the premises to the respondents subject to the condition that he regularly pays the monthly rent. M. Y. M. Appeal dismisses