1983 PLP 958 (CLC)

Date of hearing : 13th February, 1983., These are two connected second appeals. Since common point of law and facts are involved, I intended to dispose of the same by this common judgment. (a) IInd Appeal No. 14/80 The relevant facts leading to the filing of the above appeal are that the appellant is the tenant in respect of a tene ment on upper floor of the building in question at Rs. 20 per month. The respondent filed Rent Case No. 37/76 for ejectment against the present appellant on 3 grounds namely default, causing damage to the property and personal requirement. The learned Rent Controller by his order dated 10th January, 1978 allowed the above Rent Application on 2 grounds, namely, default and personal requirement. The respondent being aggrieved by the above order filed Civil Misc. Appeal No. 8/78, which was disposed of by the learned III Additional District Judge, Sukkur, by his order dated 5th April, 1979,.whereby he reversed the finding on the question of personal require ment, but maintained the finding of the learned Rent Controller on the question of default and, therefore, dismissed the aforesaid appeal. The appellant being aggrieved by the above two orders has filed the present appeal. (b) IInd Appeal No. 1680‑The relevant facts leading to the filing of the above appeal are that the appellant is the tenant of the ground floor of the building in question at the rate of Rs. 11 per month. The respondent filed Rent Application No. 36/76 on three grounds, namely, default, causing damage to the property and personal requirement. The learned Rent Controller by his order dated 10th January, 1978 allowed the application on two grounds, namely, default and personal requirement. The appellant being aggrieved by the above order filed Rent Appeal No. 7/78, which was disposed of by the learned III Additional District Judge, Sukkur, by his order dated 5th April. 1979, whereby he maintained the finding on the question of default but reversed the finding on the ground of personal requirement with the result that the appeal was dismissed. The appellant aggrieved by the above orders has filed the present appeal. 2. (a) In support of the above appeal Mr. S. Abdul Rehman, learned counsel for the appellants, has urged that since the respondent admittedly continuously refused to accept the rent for the period commenc ing from May, 1971 to October, 1971 in both the appeals, though the rent was remitted six times through money orders Exhs. 36/ 1 to 36/6 and Exhs. 34:1 to 34/6 and demanded enhanced rent, there could not have been any wilful default. (b) On the other hand Mr. Ghani, learned counsel for the respondent, has urged as follows: (i) That it was the duty of the appellant to tender the rent for each month and, therefore, refusal on the part of the respondent to accept the rent for the period commencing from May 1971 to October, 1971 would not have absolved the appellants from their obligation to tender rent from month to month. (ii) That the learned first appellate Court was not justified in revers ing the finding of the learned Rent Controller on the question of personal requirement and that though the respondent has not filed any appeal or cross‑objection he is entitled to support the order on the above ground.

3. From the oral and documentary evidence on record, it seems that the appellants remitted rent from month to month (Exhs. 36/1 to Exhs. 34/6 in II Appeal No. 14/80 and Exhs. 34/ 1 to Exhs. 36/6 in IInd Appeal No. 16/80 for the period commencing from May, 1971 to October, 1971 at the agreed rate i.e. Rs. 20 and Rs.11 respectively through money orders, which were refused by the respondent. The respondent in his testimony has admitted that he wanted the vacant possession of the tenements and also wanted to recover the rent at the rate of Rs. 70 instead of Rs. 20 per month ands Rs. 30 instead of Rs. 11 per month. In my view, both the Courts below have erred in not exercising the discretion properly. Since the respondent has continuously refused to accept the rent for a period of six months though the rent was remitted month to month and as the respondent admitted that he was tenements and wanted to recover the rent at the enhanced rate of rent, there could not have been any wilful default on the part of the appellants. Mr. Rehman has referred to the case of Mian Rahmat Ali v. Khadija Hakim (P L D 1967 Lah. 29) in which it was held by a Division Bench of the earstwhile High Court of West Pakistan Lahore Bench that the ejectment may not be ordered if the default was not wilful. Whereas, Mr. Ghani has referred to the case of Yousaf Shah through his brother v. Haji Ghulam Jan Khan (1975 S C M R 464) in which it was held by the Supreme Court while declining to grant leave to appeal that mere refusal of the landlord to accept rent tendered on an earlier occasion does not absolve the tenant from his continuous liability to tender rent. It may be observed that the above Supreme Court case is distinguishable in as much as in the instant cases the respondent refused to accept rent conti nuously for a period of six months without any plausible justification though the rent was tendered from month to month. He has also admitted in his cross‑examination as pointed out hereinabove that he was interested in getting vacant possession of the tenements and to recover rent at the aforesaid enhanced rent. In this view of the matter, I am inclined to hold that default. if any, on the part of the applicants was technical default and not a wilful default. The finding of the two Courts below on the above ground is not sustainable and, therefore, it is hereby reversed. 4. (a) As regards the question of personal requirement, it has been contended by Mr. Rehman that since the respondent has not filed any appeal or cross‑objection, he is not entitled to urge the question of personal requirement. However, since the present second appeals have arisen under the late W. P, U. R. R. O., 1959 and as C. P. C. is applicable to such appeals, the respondent can press into service the principle contained in Order XLI, rule 22, C.P.C. However, I am inclined to concur with the view found favour with the learned first appellate Court on the above ground. It may be observed that in the rent application the averment was that the respondent needed the two tenements for his personal requirement, whereas in the evidence a new case was set up, namely, that he wanted to get his three unmarried daughters married and to provide them and to their husbands accommodations. It may be pointed out that there are two categories of personal requirement under section 13 (3) (a) of the late W. P. U. R. R. O, 1959, namely. (i) Personal requirement which will include the requirement of other members of his family like dependent children and any other close relation e.g. parents, dependent younger brother or sister etc. and (ii) The requirement of children. This category will cater for the requirement of married sons or married daughters. (b) Since in the instant cages in the rent applications the respondent pleaded his personal requirement, he could not have led evidence to prove the requirement of would be married daughters and their would be husbands (5) For the aforesaid reasons, I allow the ‑two ‑appeals and set aside the two orders under appeal with the result that the two rent applications filed by the respondent are dismissed, but there will be no order as to costs. M. Y. M. Appeal accepted.