2007 PLP 1495 (CLC)

MAULVI ANWARUL HAQ, J.

On 7-5-2002, the respondent filed an application for ejectment of the appellant from a shop located in Lahore urban area. The rate of rent with effect from February, 2001 was stated to be Rs.675 per month. Ejectment was sought on the ground of default in payment of rent with effect from February, 2001 and bona fide requirement for personal use and occupation. The appellant admitted relationship between the parties and also the rate of rent. But according to him the said rate of rent was with effect from May, 2002 and that he has been paying rent at the said rate from May, 2002. With regard to the pica of personal requirement, the appellant pleaded that the respondent is already in possession of shops Nos.1 and 2, as he was asked to vacate the Shop No.1 which was in his possession earlier and in lieu he was given present Shop No.4 by the appellant. I may here also refer to the order passed-by the learned Rent Controller on 4-2-2003 under section 13(6) of Punjab Rent Restriction Ordinance, 1959. Learned Rent Controller noted his satisfaction about the payment of rent with effect from May, 2002 to December, 2003 and directed the appellant to pay future rent at the rate of Rs.750 per month before 15th of each succeeding month. Thereafter he framed the following issues:-- (1) Whether the respondent has committed wilful default in the enhanced rent w.e.f. February, 2001'? OPA (2) Whether the petitioner required the property in question for his personal bona fide use and occupation'? OPA Evidence of the parties was recorded. Vide order, dated 31-3-2006, under Issue No.1, learned Rent Controller found that the rent stood enhanced to Rs.765 per month with effect from February, 2001 and not May, 2002. He found that the appellant has committed default in payment of rent at the said enhanced rate. He calculated the exact amount of default in terms of arrears as Rs.8,

100. Issue was found in favour of the respondent Issue No.2 was found against the appellant and ejectment order was accordingly passed. First Appeal, filed by the appellant was dismissed by the learned Additional District Judge, Lahore on 18-12-2006.

2. Learned counsel for the appellant contends with reference to the case National Development Finance Corporation, Shahrah-e-Quajd-e-Azam, Lahore v. Sh. Naseem-ud-Din and 4 others PLD 1997 SC 564 that his client could not have been ordered to be ejected on the ground of default in payment of rent at the enhanced rate in accordance with statutory provisions contained in section 5-A of the said Ordinance, 1959. As admittedly no notice of demand of rent at the enhanced rate was ever served. Regarding the question of personal requirement, learned counsel draws my attention to the application filed by him before the learned Appellate Authority for additional inquiry as the respondent has admitted to be in possession of two shops and thereafter had also got vacated other shops and instead of occupying the same had let the same out. The contention is that without considering the said pleas, the impugned order was passed. Learned counsel for the respondent, on the other hand, contends that in fact the appellant has been ordered to be elected on the ground of default as he had failed to comply with the order passed by the learned Rent Controller under section 13(6) and then of the Court of first appeal under section 15(5) of the said Ordinance and it is apparent on the face of the judgment. He also supports the findings of the learned Courts below in the matter of personal use.

3. I have gone through the records of both the learned Courts below with the assistance of learned counsel for the parties. The issue as framed was as to whether the respondent has failed to pay the enhanced rent with effect from February, 2001. The finding recorded by the learned Rent Controller is that the rent stood statutorily enhanced with effect from February, 2001 and the appellant has failed to pay the same at the said increased rate. Learned Appellate Authority has insisted that the appellant has failed to comply with the order passed by the learned Rent Controller under section 13(6) of the said Ordinance. I called upon the learned counsel for the respondent to demonstrate from the record as to whether any default in compliance with the said order passed by the learned Rent Controller was reported and if so what arc the, particulars of the said default; as to whether the appellant was confronted with the said allegation and how the matter was dealt with. He is unable to do so. On my part, I have not been able to find that any default in. compliance with the said order was ever reported and the appellant was confronted accordingly. I am also in agreement with the learned counsel for the appellant that in absence of notice of demand, ejectment could not have been ordered for failure to pay rent at the entranced rate in accordance with the statutory increase. The said judgment cited by the learned counsel for the appellant fully supports his plea.

4. Coming to the issue of personal requirement, the respondent while appearing as A.W.1 had admitted that he is in occupation of two shops where he is doing his business. Apart from this, I do not find any denial spelt out in reply to the said application filed by the appellant for additional inquiry before the learned Appellate Authority that some other shops have also been got vacated and these were let out to other persons.

5. This application was taken up by the learned Appellate Authority on 12-10-2006 and was disposed of with the observation that these points will be agitated at the time of final arguments and considered. However, the impugned judgment is completely silent about the said matter. Needless to state that the landlord has to explain his possession over the shop in the same urban area and further he has to explain his conduct if he has got vacated a shop and then let it out.

6. Having thus, examined the record, I do find that the learned Courts below, particularly, the Appellate Court has acted against law in exercise of his jurisdiction while passing the impugned order. The S.A.O. is accordingly allowed. The impugned order dated 18-12-2006, passed by the learned Additional District Judge is set aside. Result would be that the first appeal filed by the appellant will be deemed to be pending in the Court of learned District Judge, Lahore before whom the parties shall appear on 21-7-2007. The respondent shall file an application demonstrating any default committed by the appellant in the matter of compliance either with order passed by the learned Rent Controller under section 13(6) or by the learned Appellate Authority under section 15(5) of said Ordinance, 1959. This application shall be decided in the first instance after hearing both the parties and examining the records and whatever material the parties intend to bring to the notice of the Appellate Authority in case it is decided to proceed further, then the appeal shall be decided on its merits and Issue No.2 will be decided afresh after considering the contents of the said application and its reply (in the matter of further inquiry) and other evidence on record. Learned District Judge shall take all steps to ensure that this exercise is concluded on or before 30-11-2007.

7. No order as to costs.

8. A copy of this judgment along with records to be remitted to the learned District Judge, Lahore immediately by the office. S.A.K./D-8/L Case remanded.