1984 PLP 521 (CLC)

‑ O. XLII, r. 2‑'West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 15(4)‑Second appeal‑‑Photo copy of certified copy of judgment of Rent Controller fled alongwith memorandum of appeal, held, a sufficient compliance of O. XLII, C. P. C. Muhammad Ismail v. Muhammad Yousuf 1981 C L C 1731 and Muhammad Usman (represented by his legal heirs) v. Begum Bilqees Nazir Ahmad 1981 C L C 771 ref. (b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑ ‑‑ Ss. 13‑A & 15(4)‑Notice, non‑service of‑Written statement of appellant‑tenant showing that he had not disputed respondent as his landlord ; had known that original landlord had since died, and not taking plea that notice under section 13‑A had not been served upon him and that he had not committed any default in payment of rent‑ Tenant, held, admitted respondent as his landlord‑‑Plea of non service of notice under section 13‑A having not been taken in Courts below, could not be allowed to be raised in second appeal. Muhammad Hussain v. Haji Chaudhry Umar Bakhsh and another P L D 1982 S C 212 and Muhammad Elias v. Muhammad Hassan Yacoob (through his legal heirs) P L D 1976 Kar. 1173 ref Muhammad Ishaq and others v. Sh. Ghulam Rasul 1982 C L C 1526 and Muhammad Elias v. Muhammad Hussain Yacoob P L D 1976 Kar. 1173 rel, (c) West Pakistan Urban Rent Restriction Ordinance (V1 of 1959)‑ ‑‑‑‑‑ Ss. 13(3) & 15(4)‑Default in payment of rent-Tenant not challenging execution of rent deed with enhanced rate of rent (allegedly made under coercion by landlord through Martial Law Authorities) by filing a suit in a competent Court but continuing to send rent at a lower rate through money orders to landlord which were refused to be accepted‑Tenant, held, committed default in, pay ment of rent in circumstances. (d) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑ ‑ ‑‑‑‑ S. 13(3)‑Bona fide personal need of landlord‑‑Simple and casual statement of landlord that he requires residential premises for personal use, held, not sufficient for purpose of S. 13(3)‑Landlord to show justification for his personal need which should also be bona fide by proving some cogent circumstances to get property vacated. Kazim Alt v. Mst. Musharaf Bano 1982 C L C 1380 ; Abdul Rehman v. Atta Muhammad Khan 1982 C L C 1838 and Mst. Nasim Akhtar and others v. Sh. Muhammad Riaz 1982 C L C 1875 rel. (e) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑ ‑‑‑‑ Ss. 13(3) & 15(4)‑Second appeal‑Default in payment of rent proved‑Appeal against ejectment order dismissed. By this second appeal, the appellant, Gul Rahim Khan, has challenged the judgment, dated 13th July, 1980 of the Rent Controller, Bannu, (Senior Judge, Bannu) whereby he was ordered to be ejected from. the suit property, and the judgment, dated 24th May, 1981 of the District Judge, Bannu, in appeal upholding the judgment of the learned Rent. Controller.

2. Muhammad Naeem, respondent herein, has instituted an application in the Court of Senior Civil Judge, Bannu, exercising powers of the Rent Controller, against Gul Rahim Khan, for ejectment of the latter from the suit Balakhana on the grounds of default in payment of rent, personal need and damage to the suit property. Gul Rahim Khan, respondent‑appellant, contested the petition. He mentioned in his written statement that all the landlords had not been joined as parties, that he had spent Rs. 600 on repairs of the suit Balakhana, that the rent deed had been executed on the coercion of the Martial Law Authorities, that he had been paying rent which was refused by the landlord and that the landlord had other property and he did not need the suit Balakhana for his personal occupation. From the aforesaid pleadings of the parties, the learned Rent Controller framed the following issues :‑ (1) Whether the‑ suit bad for non‑joinder of necessary parties ? (2) Whether the respondent has spent Rs. 600 on the repair of the suit property and is, therefore, entitled to receive the same the case of ejectment ? O.P. (3) Whether the rent deed is the result of coercion exercised by the Officer of the Martial Law and is, therefore, not to be acted upon ? O.P.D. (4) Whether the respondent is a rent defaulter .and hence liable to be ejected ? O.P.P. (5) Whether the petitioner requires the suit property for his personal use and as such he is entitled to get a decree for ejectment was prayed for ? O.P.P. (6) Relief.

3. After recording the evidence as produced by the parties, the learned Rent Controller decided issues Nos. 1 to 3 against the respondent‑appellant and issues Nos. 4 and 5 in favour of the petitioner‑respondent and ordered the ejectment of the former vide his judgment, dated 13th July, 1980. The aggrieved tenant preferred an appeal before the learned District Judge, Bannu who upheld the findings of the learned Rent Controller on all the issues and dismissed the appeal vide his judgment, dated 24th May, 1981. The tenant Gul Rahim Khan, then filed the present second appeal.

4. A preliminary objection was raised by the learned counsel for the respondent herein that the second appeal had been filed without a copy of the Judgment of the learned Rent Controller and so the appeal merited dismissal. In this connection, he relied upon the case of Muhammad Ismail v. Muhammad Yousaf (1981 C L C 1731) whereby appeal under section 15(4) of the West Pakistan Urban Rent Restriction Ordinance, 1959, was dismissed because the appeal was filed without placing a certified copy of the order of the Rent Controller within period of limitation and the appeal was also held to be not properly instituted. In another case, Muhammad Usman (represented by his legal heirs) v. Begum Bilqees Nazir Ahmad (1981 C L C 771), the second appeal was held barred by time because the same was filed without placing certified copy of the order of the Rent Controller. No doubt, under Order XLII, rule 2, C. P. C. as inserted by way of amendment, a memorandum of second appeal is to be accompanied by a copy of the judgment of the Court of first instance and if the same is not filed or filed after the period of limitation, the second appeal would be barred under section 15(4) of the Rent Restric tion Ordinance and under section 5 of the Limitation Act. However record of the second appeal shows that a photo copy of attested copy of the judgment of the learned Rent Controller has been filed alongwith memorandum of appeal. In my opinion, this is a sufficient compliance of Order XLII, C. P. C. The preliminary objection is, therefore, overruled.

5. In so far as the merits of the case are concerned, although the plea of causing damage to the property was also alleged by the landlord in his petition for ejectment, but no issue was framed by the learned Rent Controller in that regard. However, the landlord did not file any appeal or cross‑objection in this regard and hence: this plea shall be taken to have abandoned at the time of evidence. The learned counsel for the appellant herein urged that the original landlord, Fazal Muhammad, predecessor -in‑interest of the respondent herein, had since died and that no notice as required under section 13‑‑A of the Rent Restriction Ordinance had been served upon the appellant herein and consequently there was no question of default in payment of rent on the part of the appellant. He also contended that the respondent herein had failed to prove his bona fide personal require ment.

6. So far as the first point raised by the learned counsel for the appel lant is concerned, it may be stated that no such objection was taken by the tenant before the learned Rent Controller. This is a new plea which was taken for the first time in the second appeal. The learned counsel for the appellant urged that the provisions of section 13‑A of the Ordinance are mandatory and non‑service of a notice by the person who succeeds the land lord after his death is fatal and no relationship of landlord and. tenant is established in the absence of such a notice. In this connection he has relied upon the case of Muhammad Hussain v. Haji Chaudhry Umar Bakhsh and another (P L D 1982 S C 212). Wherein it was held that if the prescribed notice is not given by transferee landlord, tenant not deemed to have defaulted in payment of rent and default would only arise when rent is not paid within 30 days from the date of notice. On the contrary, the learned counsel for respon dent landlord contended that the landlord had clearly mentioned in his petition that his father had since died and this fact was .known to the tenant but he did not raise the plea of notice of change of landlord in his written statement and that he had waived his right to receive the notice. His contention was that the tenant could give up the plea of mandatory notice of change of landlord if he had knowledge of this fact. In this connection, he relied upon the case of Muhammad Elias v. Muhammad Hassan Yacoob (through his legal heirs) (P L D 1976 Kar. 1173) wherein it has been held that if the tenant had acknowledged applicant as landlord of disputed premises and admitted default, eject ment application was not affected by non‑service of notice under section 13‑A and question of transfer of property in dispute by gift and question of notice were not pure questions of law or of jurisdiction but mixed question of fact and law and such questions of fact and law could not be raised for the first time in second appeal. Thus, such concurrent findings on facts of Courts below could not be challenged in second appeal. The written statement of the appellant herein would show that he had not dis puted the applicant as being his landlord and. that he had also known that the original landlord had since died. He did not take up the plea that the notice under section 13‑A had not been served upon him and that he had not committed any default in payment of rent. It shall thus be seen that the appellant had admitted the applicant as being his landlord. It was further urged by the learned counsel for the respondent‑landlord that this plea was taken up for the first time in the second appeal and according to the afore said Muhammad Elias v. Muhammad Hassan Yacoob's ease. he could no be permitted to raise this new plea in second appeal. It is admitted that B this plea was for the first time taken up in the second appeal but be could not be allowed to do so. In this connection, reference may be made to Muhammad Ishaq and others v. Sh. Ghulam Rasul (1982 C L C 1526) and Muhammad Elias v. Muhammad Hassan Yacoob's case. I would, therefore, uphold the contention of the learned counsel for the applicant‑ respon dent. In the circumstances of this case, the tenant knew that the original landlord had died and the applicant had succeeded him as landlord and that this plea having not been taken in both the learned lower Courts, can not be allowed to be raised in the second appeal. The evidence produced in the case would show that the tenant had committed default in payment of rent even in the lifetime of father of the applicant. In this connection, learned counsel for the appellant contended that the original rent of the suit Balakhana was Rs. 15 P. M. but the tenant was put under coercion' by the landlord through Martial Law Authorities into executing' a new rent deed whereby the rent was raised to Rs. 60 P. M. and that the tenant bad been sending rent at the rate of Rs. 15 P. M. through' money orders which were not accepted by the landlord and thus, they tenant had committed no default. This plea is also not available to the tenant for the reason that he did not challenge the alleged rent deed executed on 21st August, 1977. He had never denied the tenancy no: ever challenged the said rent deed. He could have gone to a competent Court and file a suit to avoid it but his failure to resort to that course of action shows that he had agreed to enhance the rent. He was, therefore, supposed to pay or tender rent at the rate of Rs. 60 P: M. whereas he had been sending Rs. 15 P. M. through money orders, which were rightly refused to be accepted by the landlord. The tenant had clearly committed default, in payment of rent in terms of the agreement dated 21st August, 1977. I would, therefore, uphold the finding of both the learned lower Courts on this point.

7. So far as the question regarding personal need of the applicant is concerned, there is only one sentence in the application for ejectment showing that he needed the Balakhana for his personal use. In his evidence also, the applicant has only stated this much that the suit property is needed by them for their personal need. Although this is a statement on oath, but the applicant has not produced any evidence to show as on what grounds he needed the suit property for his personal occupation. He had to show some justification for proving his personal need which should also be bona fide. Under section 13 (3) of the Rent Restriction Ordinance, the landlord is required to prove that he requires p the residential building in good faith for his own occupation. ‑But the applicant has failed to give any reason, not to say of the good faith, to get the suit property vacated for his personal need. There are a host of authorities on the point of bona fide personal need of the landlord by showing some justification for that purpose. The simple statement of the applicant that he requires the premises for his personal use is not sufficient for the purpose of section 13 (3) of the Ordinance. Moreover, the applicant and his brothers and sisters have inherited more than one house from their father. The applicant has not shown as why after the death of his father, his personal need as suddenly arisen. In this connection, reference may be made to Kazim Ali v. Mst. Musharaf Bano (1982 C L C 1380). In this case, the landlord had proved by ample evidence the bona fide personal requirement by giving cogent reasons. In yet another case, reported as Abdul Rehman v. Atta Muhammad Khan (1982 C L C 1838) the facts were that the landlord was residing in his father's house with his father, mother, one adult brother and 10 members of his family in house consisting of 3 bedrooms and a drawing‑cum‑dining room and such accommodation was held insufficient for 14 peoples. In the case of Mst. Nasim Akhtar and others v. Sh. Muhammad Riaz (1982 C L C 1875) the landlord was residing in a house of one of his relatives and was called upon by him to vacate it. It shall thus be seen that the landlord was required to prove some cogent circumstances to get the property vacated for his personal occupation. Such a justification is entirely lacking in the case in hand. I have, therefore, come to the conclusion that the casual statement of the applicant to justify his personal need is not enough and as such findings of both the learned lower Courts on this issue are set aside and it is decided against the applicant.

8. The plea of default in payment of rent having been proved against the appellant herein, I would dismiss this appeal with no order as to costs. M. Y. H. Appeal dismissed.