1983 PLP 755 (CLC)

Ss. 13 & 15(4)-Ejectment -Bona fide personal requirement-Evidence available on record sufficiently establishing that landlord required premises for bonafide personal use-Finding recorded by lower Appeal late Court on this issue based on misreading and non-reading of evidence, held, not sustainable-Order of lower appellate Court set aside and that of Rent Controller directing ejectment of respondent/tenant restored. Zia Mahmood Mirza and Muhammad Sharif Rana for Appellants. Abdul Razza4 for Respondent. Date of hearing : 20th December, 1982. This second appeal is directed against the order dated 24-5-1977 passed by the learned Additional District Judge, Lahore, whereby he accepted the appeal of the respondent against 'the order dated 29-1-1977 passed by the learned Rent Controller, Lahore, and consequently dismissed the ejectment applica tion of the appellants.

2. The tenanted premises, bearing property No. SE-6-R-I 17-A/ 1, Allama Iqbal Road, Garhi Shahu, Lahore, were purchased by the appellants in January, 1975. These premises were already in occupation of the respondent and his father Mir Khairat Ali, as tenant under the previous -landlord. After purchasing the 'premises, the appellants served a notice under section 13-A of the. West Pakistan Urban Rent Restriction Ordinance, 1959, on Mir Khairat Ali and the respondent. It appears that after receipt of -notice under section 13-A Mir Khairat Ali left the premises while the respondent continued residing therein. The respondent instead of paying the rent for the month of January,' 1975 to the app0lants deposited the same in the treasury. Subsequently, however, he paid thereat to the appellants at the rate of Rs. 515 p.m. through crossed-cheques.

3. In April 1976, the appellants filed ejectment application against the respondent under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 11159, seeking his eviction on the grounds of default in payment of rent, damage to the tenanted premises and the bonafide personal- require ment of the appellants. As regards - bonafide personal requirement, it was' contended in the ejectment application that Mian Ahmad Hussain Khan, father of appellant No. I and husband of appellant No. 2, had been serving in the Railways and the family thus resided in the official accommodation, provided by the Railways. The said Mian Ahmad Hussain Khan, however, retired from the Railways' service with effect from 3-2-1976 and was required To vacate the -official accommodation within two months of his retirement. It was thus urged that the appellants needed the tenanted premises or their personal residence.

4. The ejectment application was vehemently opposed by the respondent who inter alia pleaded that in fact previously Mir Khairat Ali, the father of the respondent, occupied the premises in question ' as tenant who pursuant to receipt of notice under section 13-A of the Ordinance, vacated the premises. Thereafter appellant No. 1, received a sum of Rs. 10,000, in cash as 'pagri' from the respondent and agreed to give the premises on rent to the respondent at the rate of Rs. 1,030 per mensem. Subsequently, however, the respondent instead of paying Rs. 1,030 as monthly rent to the appellants; deposited the rent for the month of January, 1975, at the rate of Rs. 515 in the treasury. Thus according to the respondent, the appellants did not need the house in question for their personal use. They only wanted to enhance the rent as they bad alre3dy received 'pagri'. A number of other preliminary objections also raised. The pleadings of the parties were, however, reduced to the following issues (1) Whether the petition does not disclose any cause of action? O. P. R. (2) Whether the petition is legally incompetent ? O P R. (3) Whether the petition is mala fide? O. P. R. (4) Whether the ground of personal requirement is not available to the petitioners in view of preliminary objection No..5? O.P.R. (5) Whether the petitioners in good faith require the premises in dispute for personal use and occupation?

0. P. R. (6) Relief. It appears that -prior to t e taming o payment -of rent and damage to the premises were given up by the petitioner appellants. 5.' The appellant; examined P. W. l Soofi Abdul Ghani from whom they have rented the house to live in, situate in Surayya Park, Baghbanpura, Lahore, P. W. 2 Ahm4d Hussain and P. W.

1. Soofi Irshad Abroad one of the appellants. The respondent produced R. W. I Shaukat Ali, R. W. 2 Malik Ghulam, Nabi, R. W. 3 Muhammad Sharif, R. W. 4 Ghulam Farid, R. W. 5 Wazir All, R. W. 6 Abmad Hassan, R. W. 7 Muhammad Javid R. W. 8 Mahmood Ahmad, R. W. 9 Muhammad Rafiq, while Raza Karnal Mir, the respondent, has also come into the witness-box as R. W.

10. Mir Khairat Ah, the father of the respondent, has also been examined as R. W. II.

6. After considering the evidence adduced by the parties, the learned Rent Controller vide his judgment dated 29-1-1977, decided issues Nos. I to 4 against the respondent. As regards issue No. 5, the same was decided in favor of the appellants and 'it was held that they needed the tenanted premises for their bonafide personal need. Consequently, the respondent's ejectment from the house in question was ordered and he was allowed six weeks' time for vacating the same.

7. On appeal by the respondent, the learned Additional District Judge vide his impugned judgment dated 24-5-1977, reversed the findings of the learned Rent Controller and thus accepted the appeal. The appellants ejectment application was, therefore, dismissed. In the impugned judgment the learned Additional District Judge has observed that the learned Rent Controller wrongfully rejected the evidence produced by the respondent to prove 'pagri . He further concluded: "I also find that the respondent No. I was occupying a house. in the same urban area before the "filing of ejectment application at the rate of Rs.

425. It has never been pleaded by the respondents that Mian Hussain Ahmad Khan was fully dependent on them it been stated that the premises already occupied by them in the same are that property in dispute was required for their, own use." He, however, not record .4ay clear finding on the question of bonafide personal need the appellants a not also about the alleged payment of Rs. 10,000 as pagri the respondent to the appellants. 8. - In the circumstances of the under consideration case, the sole question requiring determination is as to whether the appellants needed the premises in question for their bona fide personal use. Three witnesses including one of the appellants have supported the appellants' contention in this behalf. One of them is a person from whom the appellants have rented the house to live in, in July, 1976, at the rate of Rs. 425 p.m. The appellant himself has stated that presently they were residing in a rented house and were facing great inconvenience. They needed their personal house to reside in and that they never demanded the respondent to increase the rent. This is not denied that prior to July, 1976, the appellants used. to live with Mian Ahmad Hussain Khan, the father of appellant No. 1 and husband of appellant No. 2, in the official accommodation provided by the Railways department. It is also not denied that the said Mian Ahmad Hussain Khan has retired from Railways' service in February, 1976 and he bad to leave the official accommodation within a few months of his retirement. These facts have been disclosed by none else but Mian Ahmad Hussain Khan while appearing as P. W.

2. The appellants' contention about the bona fide personal requirement, in the circumstances of the present cafe, is sought to be repelled by the; respondent by contending that the: appellants received a sum of Rs. 10,000 as pagri from him. They wanted payment .of the increased rent at the rate of Rs. 1,030 per month and that they were already suitably accommodated in the house in which they were currently living. Most of the witnesses produced by the respondent have simply stated that Mir Khairat Ali, the father of the respondent, after receipt of notice under section 13-A- of the Ordinance, left the premises in question and was presently residing in his own house at. Circular Road. Three witnesses including the respondent have, however, deposed that a sum of Rs. 10,000 was paid in cash by the respondent to appellant No. 1 on account of pagri. These witnesses have also stated that on that occasion Soofi lrshad Ahmad, appellant No. 1, also demanded payment of Rs. 1,030 on account of monthly rent but the respondent did not pay and subsequently he deposited a sum of Rs.-515 as monthly rent in the treasury. The oral evidence with regard to payment of pagri which is otherwise totally denied by the appellants, has not been believed by the learned Rent Controller, The learned Additional 'District Judge has, however, observed that one of the witnesses about the A alleged payment of pagri happened to be an Advocate and, therefore, he should have been believed. It is true that an Advocate is a respectable person in the society but in case of oral 'evidence, allied circumstances have also to be taken into consideration. The respondent's contention is that he had agreed to pay Rs. 10,000 as pagri and had further agreed to pay monthly rent at the. rate of Rs. 1,

030. He claims to have made payment of. Rs. 10,000 but according to his own showing, he did not pay the monthly rent at the rate of Rs. 1,030 to the appellants. The rent for the first month i.e. for January, 19'.'5, was admittedly deposited by him in the treasury and the rent for the subsequent months which was paid by him to the appellant through crossed-cheques was also at the rate of Rs. 51 5 p.m. If there bad been a mutual agreement in regard to the rate of rent as Rs. 1,030 per t month, the appellants would not have accepted the crossed-cheques at the rate of Rs. 515 per month. The respondent's version about the payment of pagri and about the enhancement of the rent is, therefore, not believable.

9. Apart from "the question of enhancement of rent, the' main question to be considered is . as to whether the appellants needed the premises for their bona fide personal use and this, they have been successful to prove. Incase of independent proof of the bona fide personal requirement, the fact that at one stage, the landlord demanded rent at enhanced rate could not negate his bona fide requirement. In Pirzada Rajiq Ahmad v. Ch. Abdul Rehman (1), it was held that demand of higher rent by landlord does not by itself cast any doubt about the personal bona fide-requirement of premises by landlord if factum of bona fide requirement is independently proved. Similar view. was expressed in. Badaruddin Hassan Farooqui (through his 5 legal representatives) v. Manghi Industrial Home (2).

10. The respondent's plea that the appellants were fully accommodated in the house in which they were presently living is also without substance inasmuch as the house in which they are living currently is a rented house and Soofi Irshad Ahmad appellant has stated that they were facing a lot of inconvenience. In Abdul Salam Akhtar v. Dr. Najatn Parvez (3) it has been ruled by the Supreme Court of Pakistan that the proposition that the landlord should not be in occupation of another residential building suitable for his need at the time, did not extend to cover rented premises, for, other wise the result would be that no landlord would be able to get his own premises vacated for his own occupation unless he could show that he was actually on the streets and had no place to live at all. It was further observed that it would be more reasonable to hold that the other residential accommodation, which the landlord was occupying at the time, must be shown to be busy own and not merely rented premises. .

11. It has been argued on behalf of the respondent that the appellants needed the tenanted premises for the use of Mian Ahnlad Hussain Khan and his (Mian Ahmad Hussain Khan's) need cannot be treated as their personal bona fide need within the meaning of section 13 of the Ordinance. This argument is absolutely devoid of merit because the appellants themselve3 being the son and wife of Mian Ahmad Hussain Khan lived with 'him in official accommodation during his service in Pakistan Railways. After this retirement, they have also to live with him somewhere else. They thi4slE require the premises in question for their personal use.

12. It has also been vehemently argued on behalf of the respondent that the learned Additional District Judge has recorded a finding of fact to the effect that the tenanted premises were not required by the appellants for their bona fide personal use and, therefore, on this question no second appeal was legally competent. Reliance has been placed on Haji Pir Bakhsh v. MST. Almas Begum and others (1), Sh. Atta Muhammad v. Mian Muhammad Abdullah and 10 others (2), Raja Saheb Mehrban-i-Dostan, Sri Raja Venkala Kurma Mahipati Rao Bahadur Garu Raja of Pittapur v. The Secretary for Slate of India in Council represented by Collector of Godaver (3). In all these cases. it was ruled that finding of the lower Court on question of fact, however erroneous, could not be disturbed in the second appeal.

13. In the circumstances of the present case, as already observed, the learned Additional District Judge has in fact failed to record any positive finding on the question of personal need of the appellants. 'He has decided the appeal on extraneous considerations. While deciding the 'appeal, he has not at all taken in' to consideration the evidence led by the appellants about their plea of bona fide personal requirement. His conclusion, therefore, is based on no evidence or on misreading of evidence. In such an eventuality, High Court can competently look into the question of correctness of the finding. . In Muhammad Zaman v. Mahboob Ellahl (4), it has been held by this Court that a concurrent finding on question of fact arrived at by the lower Courts as a result of misreading or non-reading of record of based on extraneous considerations is not sacrosanct and can be gone into by the High Court in second appeal.

14. It was also lastly argued on behalf of the respondent that the appellants presented their ejectment applicatb6n before the Senior Civil Judge,' Lahore, who happened to be a Rent Controller but he instead of decidin4 the case himself, entrusted the appellants' ejectment application to the learned Rent Controller who passed the ejectment orders of the respondent. . It is further contended that provisions of section 15 of the Civil Courts Ordinance, where under the Senior Civil Judge in exercise of his delegated powers entrusts the civil suits instituted in his Court to other Civil Judges, could not be exercised in the matter of entrustment of ejectment applications filed under the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959. It is thus pleaded that the Rent Controller who passed the order giving rise to the instant appeal had no jurisdiction as ejectment application was not origirially presented to him and the Senior Civil Judge had no legal authority to entrust the case to him. This argument too dots -not appear to hold the water because in practice, all the cases under the West Pakistan Urban Rent Restriction Ordinance are presented in the Court of Senior Civil Judge and for the administrative convenience, he entrusts these cases to other Civil Judges exercising powers of Rent Controllers. . Obviously, it is not possible for the Senior Civil Judge alone to try all the "rent matters instituted in his Court. Similarly, it. cannot be left to the discretion of the litigants to present applications under the Ordinance to a Rent Controller of their choice. West Pakistan Urban Rent Restriction Ordinance, 1950, being a brief piece of legislation, does not contain any provision with regard to the institution and entrustment of cases under this law. The practice of presentation of cases in the Court of Senior Civil Judge and entrustment of these cases to other Rent Controllers by him is a. practice of administrative convenience and does not offend against any provision of the Rent Restriction Ordinance. The learned Rent Controller who decided the instant matter did not lack jurisdic tion many respect. In Sh. Manzoor Hussain v. Mir Muhammad Mudassir and another (1), this Court has held "The Rent Restriction Ordinance does not contain any provision. about the entrustment of rent cases as has been made in section 15 of the West Pakistan Civil Courts Ordinance in respect of the entrustment of civil cases. Since the Rent Restriction Ordinance happens to be a very brief piece of legislation, a Rent Controller is, as of necessity ox for the and proper administration of this law, permitted to do certain things which are not warranted by any express provision thereof . . . . .The entrustment of cases by the Senior Civil Judge cum-Rent Controller is aimed at proper distribution of newly-instituted rent cases among the Rent Controllers. It is an administrative arrangement which does not offend against any provision of the Rent Restriction Ordinance or any other law. It is, therefore, not correct to say that the entrusfrnent of the present case by the Senior Civil Judge-cunt-Rent Controller to Mr. Kokab, another Rent Controller, was illegal or ultra vires." Similar finding has been recorded in Muhammad Umer v. Mst. Fatima Begum and two others (2) in connection with the entrustment of appeals under the West Pakistan Urban Rent Restriction Ordinance, 1959 by the District Judge to the Additional District Judges.

15. In the light of the above discussion, it is concluded that on the base of evidence available on record it is sufficiently established that the appellant; need the tenanted premises - for their bona fide personal use. Otherwise, findings recorded on this issue by learned lower appellate Court are not merely erroneous but are based on misreading and non-reading of evidence The same are thus not sustainable. In his view of the matter, the appeal is allowed, the impugned order dated 24-5-1977 passed by the learned lower appellate Court is set aside and that of the learned Rent Controller dated 29-1-1977 is restored with this modification that the respondent is allowed two months' time from today for vacating the tenanted premises. The parties are left to bear their own costs. M. Y. H. Order accordingly. (1) P L D 1979 Lah. 745 (2) P L D 1982 Lah. 47