1979 PLP 805 (CLC)

3. The following issues were framed :- (1) Whether the respondent has committed default in payment of rent to the petitioner? (2) Whether the petitioner in good faith requires the premises for personal use? (3) Whether the present petition is barred on the principle of res judicata? (4) Whether the petition is not properly stamped? (5) Relief.

4. Issues Nos. 1 and 2 were decided against the respondent, issue No. 3 against the appellant on merits, issue N3. 4 against the appellant since it was not pressed. As a result of these findings on Issues Nos. I and 2, the learned Rent Controller dismissed the respondent's application.

5. The learned Additional District Judge in appeal agreed with the learned Rent Controller that there was no default. He found that the rent for the month of March was sent by money order to the respondent on 8-5-1975, who refused to receive it. Similarly he refused to receive the rent for the month of April sent by money order on 10-5-1975. Then on 15-5-1975 three months' rent, March to April was sent by money-order which too was not accepted. He found that rent had been deposited throughout with the Rent Controller. It was also found that since the rent had been sent by money orders and deposited within 60 days of the date on which the rent for the month of March 1975 became due, no case of default was made out.

6. On the second issue the learned Additional District Judge did not discuss the evidence in regard to the plea of the appellant that the respondent had been demanding the enhanced rent and it is for this reason that the application for ejectment was filed.. He merely discussed the evidence to the effect that the respondent was a businessman and was engaged in the import of stainless steel sheets. Since he had no other shop in the same urban area in his occupation, a case was made out for ejectment of the appellant on ground of the personal requirement of the respondent. On the other hand he proceeded on the assumption that the question whether the respondent wanted to enhance the rent or demanded higher rent, was not material for casting any doubt on the plea of personal requirement, once it was established that the shop was required for the business of the respondent.

7. I have gone through the record. Several witnesses have been produced by the appellant to prove the demand of enhanced rent at the rate of Rs. 300 p.m. and the refusal of the appellant to pay the same. P. W. 1 Munir Hussain admitted that a demand of Rs. 300 as rent was made but then he changed his version and said that he had no knowledge of this fact. From the evidence it appears clear that the demand of enhanced rent immediately preceded the ejectment application. Then there is another important point and that is that no reference has been made in either of the application about particulars of the business which the respondent intended to carry on. In answer to a query put by me to the learned counsel for the respondent he submitted that the respondent had been carrying on his business of import of stainless steel sheets for the last 7/8 years and he had given the shop in dispute on rent to the appellant for last 4/5 years.

8. It appears that the learned Additional District Judge also was convinced that the demand4of higher sent was made by the respondent but he proceeded on the assumption that this was not material. The learned counsel for the respondent also argued on the same lines and placed reliance on Badr-ur-Din Hassan Farooqi v. Manghi Industrial Home (P L D 1976 Kar. 620), that a demand of higher rent by itself does not cast any doubt about the personal bona fide requirements if the factum of bona fide requirements is independently proved.

9. This observation cannot be applied as a general dictum in each case. Rather each case should be decided on its own facts.

10. In the present case it is clear that the respondent had not been accepting the rent although it was being sent to him by money orders apparently with an intention to make out a case of ejectment of the appellant. According to what the learned counsel stated the respondent had been carrying on his business for more than 7/8 years and despite that business he had given the shop on rent to the appellant. As stated above he had not given any particulars of the business that he wanted to carry on. The evidence on the point of bid to enhance rent clearly establishes that but for that this application would not have been filed. From these circumstances, it appears clear that the respondent did not require the shop for personal use, but had filed this application with the ulterior object of ejecting the appellant from it.

11. I, therefore, allow this appeal with costs of this Court as well as of the Court of Additional District Judge and setting aside the order of the learned Additional District Judge restore the order of the Rent Controller. M. Y. M. Appeal allowed,