1989 PLP 1046 (SCMR)

SHAFIUR RAHMAN, J.‑‑Leave to appeal was granted to the landlords in proceedings under the Urban Rent Restriction Ordinance to 6aminc whether the reversal of the finding by the first appellate Court and the exercise of the discretion by it in not ordering the ejectment of the tenants was in accordance with the principles of law and practice. Since before 1972, the appellants had leased out two adjacent houses bearing No.F‑1916 and F‑1916‑A, at Ghaghar Gali, Dabi Bazar, Lahore to Modern Girls High School at the rate of Rs.450 per month and 100 per month respectively. In respect of Property No.F‑1916 Razi‑ud‑Din was the original landlord who has been succeeded by his widow and the four sons. In respect of Property No.F‑1916/A, one Mst. Rashida Begum was the original owner who has been succeeded by Ntst. inavat Begum, widow of Sh. Razi‑ud‑Din. After the nationalization of the privately managed educational institutions under M.L.R. No. 18 since 1‑10‑1972, the Province of the Puniab came to be lncharge of the nationalized educational institutions and became liable to pay rent. As there were delays and defaults in the payment of rent, the appellants instituted on 13‑9‑1984 two separate petitions seeking the eviction of the tenants on the ground that there had been default in the payment of rent since June. 1982. The default in payment of rent at the time of institution of the ejectment petitions was for the rent of 27 months. Another ground taken in both the petitions was that the houses were required bona fide for occupation by Ghulam Saqlain, one of the appellants, as he was in need of it. At the initial stages, while contesting the ejectment applications, the respondent took up the plea that the Rent Controller had no jurisdiction in the matter as both the properties from which ejectment of the respondent was sought stood requisitioned under the provisions of the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act, 1956. Property No.F‑1916 stood requisitioned on 19‑1‑1982 and Property No.F‑1916/A stood requisitioned on 20th July, 1982. Both the orders were passed by the Secretary to the Government of Punjab, in the Home Department. On this objection the landlords instituted two separate constitution petitions namely, Writ Petition No.5036/1984 in respect of Property No.F‑1916 and Writ Petition No.5043/1984 in respect of Property No.F‑1916‑A. Both these Constitution Petitions were dismissed by an order dated 18‑11‑1984 and the requisitioning order was found not to suffer from any taint whatsoever. Intra‑Court Appeals filed against these judgments succeeded on 8‑4‑1985. It was after this decision that the ejectment applications came up for contest on merits. The personal need of one of the landlords, namely Ghulam Saqlain was denied and on the ground of default the plea taken was that the rent used to be tendered but the landlords themselves delayed the realization of it at their convenience as was borne out by the past practice. On the pleadings the following issues were framed by the Rent Controller:‑ "(1) Whether the respondent is a willful defaulter: OPA (2) Whether the petitioners require the disputed property in good faith for their personal use? (3) Relief. After recording the evidence,, the Rent Controller on the question of default, recorded the following findings:‑ "In the circumstances I am not inclined to believe that there was any practice between the parties to pay rent after intervals of two years. The respondents are rent defaulters and the issue is decided against the respondents and in favour of the petitioners." The personal need was found to be not bona fide in the circumstances of the case. On appeal, the first appellate authority re‑examined the entire evidence afresh and reversed the finding of fact recorded on the question of default, by observing as hereunder:‑ "I accordingly conclude that the default in this case in view of the previous practice between the parties as pointed out above, was not at all wilful default: rather, it had become a practice because of the conduct of the respondent in collecting the rent after long intervals, which cannot be assumed as a wilful default within the purview of section 13 of the Ordinance. I accordingly decide issue No.1 against the respondent." Two Constitution Petitions were thereafter filed by the landlords which were both dismissed in limine on 28‑9‑1987, by the learned Judge observing as hereunder:‑ "I am of the view that the learned counsel for the petitioners has not been able to point out any jurisdictional defects in the impugned judgment of the learned Additional District Judge. After deep perusal of the entire evidence the learned Appellate Court has come to a finding of fact which finding of fact cannot be assailed in the exercise of extraordinary writ jurisdiction. It has clearly been held by the learned Additional District Judge that the default in payment of the rent cannot be termed as a wilful default. Thus, the finding thereon given by the learned trial Court was held to be against the evidence produced by the petitioners. Mr. Sair Ali, Advocate, the learned counsel for the appellants has taken us through the evidence and the antecedent facts pleaded as practice between the parties to demonstrate that the exercise of discretion by the First Appellate Court has followed no principle and appears to be infected with abuse of power. With regard to the default being wilful, according to the learned counsel, the finding is against the evidence and puts a premium on the erring conduct of the tenants. Mr. M. Saeed Beg, Advocate, the learned counsel for the respondent tenant has drawn our attention to the oral evidence, particularly the statement of the Headmistress to point out that the rent was at all times offered but declined and it used to be collected by landlords at their own convenience and after long intervals. In the circumstances, according to him, wilful default could not be held established. The fact of non‑payment of rent from June, 1982 till September, 1984, when the Ejectment Applications were filed, was admitted, the plea advanced was one of previous practice, and for examining it one has necessarily to go through the events antecedent to the filing of Ejectment Applications. There is on record a receipt dated 26‑6‑1973 by which Rs.1,800 were realized by the landlord stating it to be and it was also mentioned in the rent receipt that the rent of this property was still due and had not been fully cleared. Additionally, it was also mentioned in the receipt that the rent for the house No.F‑1916/A was till then not paid. A request was also recorded that the rent due and payable should be paid at an early date. The next, on record is a letter dated 20‑9‑1975 by the Headmistress addressed to Mr. Fasiud Din, informing him that a further sum of Rs.3,000 as rent of the building was available for payment for the period 1‑6‑1975 to 31‑5‑1976, at Rs.250 per month. After informing that this amount was available, the Headmistress went on to inform him as hereunder:‑ "You are advised for undertaking the repairs of the School buildings without any further loss of time. Failing which, you will be held responsible for the loss of lives if any roof falls down. , A very early action in the matter is requested . ... Then appeared an advertisement in daily `Imroze' on 2‑11‑1975 warning him that the building required repairs and he should get it done within ten days and that another sum of Rs.3,720 was lying as rent which he should collect otherwise it will be deposited in Court and if he failed to get the repairs done, the cost of it will be deducted from the future rents due. The next receipt is dated 29‑7‑1977, executed on behalf of the landlords for a sum of Rs.14,040 for house No.F/1916 and F/1916‑A. This rent is also stated to be and not full payment of the rent due. It is also noted that the property is in the dilapidated condition and it should be vacated and handed over. The third receipt is dated 27‑6‑1979 of Rs.6,000 which is also stated to be and showing that previous arrears arc yet to be realized and not the whole payment has been made. Again the attention has been drawn to the dilapidated condition of the property and the requirement of the landlords to get it vacated. The fourth receipt is dated 4‑10‑1981 by which a sum of Rs.18,480 was ralized showing Rs.5,280 as arrears, Rs.6,600 as rent for 1979‑80 and Rs.6,600 as rent for 1980‑

81. The next receipt is of 13‑9‑1982 whereby a cheque for Rs.6,600 dated 4‑9‑1982 was received for rent of both the properties for the period June, 1981 to May, 1982. This practice, of which documentary proof exists on the record, and the receipts, which are not denied by any of the parties, will establish beyond any reasonable doubt that the landlords were at the receiving end, that they had been protesting and demanding the full rent due and that the same was not being paid in time. The law itself makes a provision for sending the rent by money order or its deposit in case of refusal, with the Rent Controller. As the money had not to be paid in cash but only a chcque had to be transmitted, the same could be done by registered post every month. The default would clearly appear to be established and the practice not condoning it but aggravating it. There is, however, another aspect of the case which has not received attention of the Courts. The period of default for which tenants had been sued covers the period, the property remained under requisitioning order. As long as such an order existed, even though not justified in law as was held by the High Court in Intra Court Appeals, the tenants could not be placed under the statutory burden of discharging its responsibilities under the Rent Control Ordinance. What could be insisted during that period was that the provisions of Requisitioning Act should have been applied in the matter of payment of rent and the consequences determined accordingly. The fact of requisitioning order being in the field at the relevant time would be sufficient to justify and sustain the order passed by the appellate authority in the matter and for sustaining non‑interference by the High Court in the Constitutional jurisdiction. As regards the bona fide personal need of the landlords, no doubt the I. circumstances brought on record appear somewhat pathetic. The fact, however, remains that a more convenient and comfortable accommodation is being ' enjoyed by Ghulam Saqlain for whom this alternate accommodation is claimed. According to the receipts themselves it is clear that according to both the parties the premises which are required for residence are in dilapidated condition. dangerous and unfit for human habitation. Moreover for the last about forty years these premises have been used for housing educational institution. These factors make the need for occupation somewhat unsustainable and this concurrent finding of fact was beyond interference in Constitutional jurisdiction. In the circumstances, for reasons different from those recorded by the concerned Authorities, we find that the conclusions are sustainable and both the appeals are dismissed with no order as to costs. AA./1‑68/S Appeals dismissed.