1980 PLP 604 (CLC)

S. 100-Second appeal-Concurrent findings of fact-Held, cannot be upset by Court sitting in second appeal. even though such Court. might have taken a different view of evidence.-[Second appeal Finding of fact]. A. F. M. Mokaram for Appellant. M. L. Shahani for Respondent. Date of hearing : 21st January, 1978. The appellant Fahmida Jahan Begun is the owner of House No. 146/6/2, P. E. C. H. S., Karachi. By an agreement in writing dated 23-10-1971 the appellant let out the aforesaid house to the respondent for a period of 4 years commencing from 1-11-1971 at a monthly rental of Rs. 1,200. The covenants of the agreement inter alia provided that the lessor (appellant) shall not interfere with the peaceful possession and enjoyment of the .premises during the period of tenancy and further that the lessor shall not construct any building above the premises without the written consent of the lessee. At the time of agreement, in terms of the covenants of the lease the respondent paid one year's rent amounting to Rs. 14,400 in advance and as 'to the future it was stipulated "that the lessee shall pay after one year, one year's rent in advance'". 2. However, the appellant sought the eviction of the respondent on 16-4-1974 on three grounds, namely default in the payment of rent, bona fide personal requirement of the premises by the appellant and damage to the building. The Controller after hearing the evidence of the parties, however, rejected all the pleas advanced by the appellant and dismissed the application for eviction by his order dated 31-3-19`r5. On appeal by the appellant the learned Additional District Judge and Appellate Authority. Karachi armed the decision of the Controller and dismissed the appeal by his judgment dated 16-9-1976. Consequently the appellant seeks by this Ill Appeal under section 15(4) of the Urban Rent Restriction Ordinance, [959 (hereinafter referred to as the Ordinance) to challenge the concurrent finding of the two courts below. 3. In support of the appeal it was first contended that the respondent committed default in the payment of rent by no! paying in advance the rent for the 3rd successive year. It has been admitted in the evidence by Anwar Ali Khan, the husband of the appellant who was the main witness in support of the eviction application that the rent from 1st November, 1972 to February. 1974 was duly received. The grievance of the appellant seems to- he that after the expiry, of the 1st two years of tenancy the respondent refused to pay yearly rent in advance and offered to pay monthly rent. It was accord ingly contended that the agreement of tenancy created the yearly tenancy whereby it was the duty of the respondent to pay rent in advance for the 3rd year of the tenancy. Having regard to the terms of tenancy embodied in the agreement however, the contention is without force. 1 have persued the contents of the agreement and find express stipulation to. the effect that the rent agreed between the parties was Rs. 1,200 per month but for the purposes of the Ist two years, since it was agreed to be payable in advance it was computed on a yearly basis at Rs. 14,400. As stated earlier the agreement very clearly and unambiguously provides for payment of advance rent for the lst two years and therefore, non-payment of yearly rent in advance for the subsequent period does not amount to default in the payment. of rent. There is thus no justification for interference with the finding of the two courts below on this question. 4. The main point urged on behalf of the appellant in this appeal relates to the question of bona fide requirement of the premises by the appellant. In this behalf the case of the appellant is that at the time of agreement she living with her husband at Islamabad as the latter was in Government service and was posted there. Subsequently, the appellant's husband has retired from the Government service and therefore. the appellant had to return to Karachi. Upon her return to Karachi she took up residence in a rented house but the owner of those premises has given notice to her to vacate the premises and therefore, she needs the premises for her personal occupation. The next reason in support of this point advanced by the appellant is that she is suffering from high blood' pressure and the premises presently in her occupation being situated on the Ist floor, she would like to occupy her own house which is un the ground floor. The learned Controller rejected these grounds as in his view the eviction application was motivated on account of bad blood between the parties. It may be stated that in January, 1974 the appellant admittedly started to construct .the Ist floor over the present premises to which the respondent objected. Thereupon appellant filed a suit in the civil Court for an , injunction to restrain the respondent from interfering in the construction' work of the 1st floor, The respondent also filed a suit in the civil Court to prevent the construction. Learned counsel for the appellant stated at the bar that the plea of the appellant in this connection was that the construction was being carried on with the consent of the respondent but as the consent was not in writing, his contention was rejected by the civil Court. Considering the background of this litigation the learned Additional District Judge also maintained the findings of the Controller, It was further observed by the learned Additional District Judge that the appellant was residing in the rented house for about two years and 3 months before filing the ejectment application and till this period she never demanded the premises for her personal use. 5. Faced with this state of evidence on record the learned counsel sought support from the dictum laid down by 1. Mahmud, J. in Hasan Khan v. Manawar Begun (a ). It was held in this case that the assertion or claim on oath by the landlord that he requires the premises for his personal use, should be accepted. by the Rent Controller as bona fide, if such claim or assertion, although by itself max he insufficient, yet is consistent with his averments in the application and is not shaken in cross-examination or disproved in rebuttal. 6. 1 have examined the evidence in the light of the principles enunciated in the aforementioned dictum and find that the same is not attracted in the facts of the present case. The application for ejectment discloses only one ground for the purposes o!' personal requirement namely, that the appellant is living in a rented house upon her return from Islamabad where she was living along with her husband who has retired and therefore, the family requires the premises in dispute fur their bona fide personal use. The ground of her ailment was for the first time' disclosed in the evidence and was supported with no medical evidence that she was advised to stay on the around floor. No such plea was taken in the application "or ejectment There is a card of the National Institute of Cardiovascular Diseases, Karachi dated 25-4-1974 in the name of Mrs. Anwar Ali but the nature of the disease is not mentioned and in any case it is of a date subsequent to filing of the ejectment proceedings. It was admitted by P. W. Anwar Ali that no mention was made in the notices to the respondent that the premises were required fnr personal occupation. As regards the plea that the landlord of the rented premises presently. in occupation of the appellant had called upon her to vacate the same, no oral evidence was led through the said landlord and reliance was placed upon the notice dated 15-1-1974 by the said landlord asking the husband of the appellant to vacate the premises but this notice is also subsequent to the filing of the present ejectment proceedings. The Courts below therefore, rightly declined to place reliance on this evidence. Thus it will be seen that the dictum laid down in the cited decision is not applicable in this case as the same requires that the case disclosed in the' evidence must be consistent with the averments made in the application and not shaken in cross-examination or disproved in rebuttal. Cited case distinguishable on facts. 7. There is another important aspect of the case which although not taken into consideration by the Courts below cannot be ignored. Under section 13(3) (a) a landlord can obtain possession of the demised premises for his own occupation inter aha on the condition that he is not occupying another residential building suitable for his needs and has not vacated such a building without sufficient clause. It, therefore, follows that in case the landlord is shown to be in occupation of other premises even though as a' tenant himself, he must show that such premises arc not suitable for his' needs. In the present case admittedly the appellant is in occupation of another residential building but no effort was made to show how those premises are unsuitable for her needs except the alleged aliment, which as discussed above, cannot be relied upon in absence of a plea to that effect in the application and for want of sufficient medical evidence. The appellant has, therefore, failed to fulfil the conditions prescribed by law for being entitled to be put in possession on the ground of personal use. 8. It is now well settled that a Court sitting in II appeal over the concurrent finding of fact cannot upset such a finding simply for the reason that it would have taken a different view of the evidence. In this case, therefore, the concurrent finding against the appellant is not open to challenge upon a fresh reappraisal of evidence at this stage. There seems to be no warrant for holding that the view of evidence adopted by the two Courts below that the ejectment proceedings were motivated by malafides due to the dispute over the construction on the Ist floor of the' premises in question, was not justified. 9. For the foregoing reasons 1 find no. merit in this appeal and would accordingly dismiss the same but leave the parties to bear their own costs. k. M. A. Petition dismissed.