1989 PLP 3914 (MLD)

In November, 1970, the landlord returned to Pakistan, and took a smaller house on rent. But he immediately met the attorney of the tenant requesting him to vacate the premises as he required it for his personal bona fide use. He was allegedly put off on one pretext, or the other, and finally when the negotiations in this direction failed he was forced to serve a notice through his advocate calling upon the tenant to vacate the same within one month. It was also alleged in the notice that the landlord was not allowed any access to the house for the purposes of inspection, and that alteration had ' been made and damage caused to the property resulting in the impairment of the value and the utility of the same. In reply the tenant challenged the bona fides of the claim of personal use, alleging that the landlord did not have the means to live in the disputed premises. It was alleged that there were no stipulations, at the time of entering into the lease agreement of vacating the house as and when the landlord required it. On the contrary, it was alleged, the premises was leased out for an indefinite period. Allegations regarding refusal to access and damage to property were denied. The landlord then on 1st July, 1972, brought the ejectment application under section 13 of the West Pakistan Rent Restriction Ordinance, 1959 (hereinafter to be called the Ordinance) basing his claim on personal bona fide requirement. Additionally it was claimed that there were apprehensions of damage to the property resulting in the impairment of its value and utility, and that the tenant was not a proper pay master. In the written statement filed on behalf of the tenant, the bona fides of personal requirement were again challenged and a detailed account of events is given to show that only when the landlord failed to sell the house to the 4enant that he started eviction proceedings; and that the real object of the landlord was to let out the premises to a new tenant to be able to get a year's rent in advance. The allegation of denial of access to the house was also refuted and it was alleged that the landlord had inspected the premises in December, 1970 and April, 1972. It was denied if any damage had been caused to the property. On the contrary it was claimed that the house had been maintained unexceptionably and that the landlord had expressed his complete satisfaction on this score when he visited the house in December, 1970.1t was denied if any term of the lease had been violated or any default committed in the payment of rent. The learned Rent Controller framed the following issues:-- (1) Whether the applicant requires the demised premises for his personal bona fide use ? (2) Whether the opponent has made such additions and alterations in the demised premises which have impaired the value or utility of the same and whether she had not allowed the applicant to inspect the premises, if so, what is its effect ? (3) Whether the opponent has unlawfully made adjustment from the monthly rent the amounts alleged by her by way of installations viz. water heater, wire netting, fans etc., and, if so, whether she is a defaulter? (4) What should the order be ? The learned Rent Controller found the first two issues in favour of the landlord. On the third issue he came to the conclusion that such adjustment against rent was not unlawful and therefore the tenant was not a defaulter. In view of the findings on first two issues the ejectment of the tenant was ordered. In appeal the learned Additional District Judge, Karachi, confirmed the findings of the Rent Controller on the first two issues and on the third issue held that the landlord could not be made liable to the cost of fittings installed by the tenant. Consequently the finding of the Rent Controller on the issue of default in payment of rent was reversed by the learned Additional District Judge. This appeal is directed against the judgments and directions contained therein, of the two Courts below. On the question of bona fide personal requirement of the landlord the first difficulty being faced by the learned counsel for the appellant is that there is concurrent finding of the two tribunals below against the appellant. The learned counsel .had tried to meet this difficulty firstly by contending that a finding regarding good faith involves both a question of law as well as fact and therefore can be interfered with in terms of S. 100 of the Code of Civil Procedure. It is contended that if there be any legal defect present, as contemplated by that provision of law, it can always be corrected in second appeal. Secondly, an appellate Court is always at liberty to draw its own inferences from admitted facts on record, and as good faith is to be inferred from facts on record, there would be no bar against this Court coming to its own finding which way happen to be contrary to that of the Courts below. In support of his first contention the learned counsel seeks support from a decision of the Chancery Division reported as Smith v. Morrison,. [(1974) 1 All E.R. 957] wherein Plawhan, J. observed that the question of good faith then is partly one of law and partly one of fact.' As to the second contention the learned counsel has relied upon the following passage in judgment of the Privy Council in Benmax v. Austin Motor Co. Ltd. (1955 A.C. 370): "Fifty years ago, in Montgomerie & Co. Ltd. v. Wallace-James, Lord Halsbury L. C. said: "But where no question arises as to truthfulness, and where the question is as to the proper inferences to be drawn from truthful evidence, then "the original tribunal is in no better position to decide than the 'judges of an Appellate Court." "In the case like that under appeal where, so far as I can see, there can be no dispute about any relevant specific fact, much less any dispute arising out of the credibility of witnesses, but the sole question is whether the proper inference from those facts is that the patent in suit disclosed an inventive step. I do not hesitate to say that an appellate Court should form an independent opinion, though it will naturally attach importance to the judgment of the trial Court. Another contention raised in this regard is that where material facts on record are ignored by the tribunals below or there is misreading evidence even a finding of fact warrants interference at the stage of Second appeal. In this connection he relies upon Muhammad Afs4r v. Allah Ditta (1970. S C M R 118) Muhammad Matin Mirza v. Jehangir 9d`stdmji (1971 SCMR 578) and Kalsoom Akhtar v. Muhammad Yaqoob (PLD 1976 Karachi 992). The term bona fides can be equated with good faith. In order that a landlord may seek ejectment of his tenant on the ground of personal requirements he has to establish the bona fides of such requirements.. As to the question if finding about bona fides is a mixed question of law and fact, the dicta of our own A Supreme Court, as expressed in A.R.Khan v. Muhammad Ishaq (1972 S C M R 437) is that in the last analysis the question becomes one of fact whether a landlord does, or does not require certain premises for his bona fide requirement, although their Lordships of the Supreme Court have also taken note of the fact that the intention behind the move is purely subjective. Again in Khushi Muhammad v. Muhammad Rashid (1968 S C M R 1158(2), one of the grounds on which special leave to appeal was granted was whether the question of good faith is a pure question of fact. Following observations on the point are relevant:-- "The learned counsel for the appellant has contended that the inferences from facts found on evidence are questions of law and hence the High Court should have considered whether on the evidence bona fide requirement had been established. Now, the determination of the question whether the shop is required bona fide, does not involve application of any legal principle to facts established by the evidence. It was a pure question of fact and the Court with a view to find out whether the requirement of the landlord is bona fide must look to all the relevant facts and the surrounding circumstances." It is further observed that when the finding is one of fact, the fact that it is itself an inference from other basic facts will not alter its character as one of fact. The pronouncements of our highest Court have to prevail as against the views of any foreign tribunal, howsoever high it may be placed m its own judicial hierarchy. This is a constitutional requirement as enjoyed by Art. 189 of the Constitution. The views of the Privy Council as reported in 1955 A.C. 370 would not apply on another ground as well, namely that the principles governing the scope of interference in second appeal were not to be followed in the case dealt with by their Lordships of the Privy Council. However, the authorities of the Supreme Court referred to above clearly lay down the law that in second appeal a finding of fact can be disturbed only if it cannot be supported on the evidence on record or if it has failed to take into account a material piece of evidence or if it does not reveal a logical basis for differing from the finding of the trial Court, or is otherwise found to be arbitrary or capricious, (PLD 1969 S C 617). In Abdul Majid v. Khalil Ahmed the view taken was, and that view holds good, that in second appeal a finding of fact if arrived at after considering evidence on record, cannot be disturbed by the High Court, even though such finding be erroneous. The question therefore would be if in the present case the finding of fact of the Courts below suffers from any of the disabilities referred to above. The attack of the learned counsel on the bona fides of the landlord is three fold. He contends that absence of bona fides is patent because the landlord tried to sell the house to the tenant and only when he failed in his such design that he put up the claim of bona fide personal requirement. The learned counsel very strongly argues that in such circumstances mala fides on the part of the landlord should be presumed and in this respect relied upon Central Estate (Belgravia) Ltd. v. Woolgar (1971) 3 All. E R 674). In the cited case the tenant had violated the covenant by running a brothel in the demised premises resulting in forfeiture of the lease, and in such circumstances his application for purchase of freehold under the lease-hold Reform Act, 1967, was held not to have been made in good faith, having been made only to defeat the forfeiture. The mala fides on the part of tenant is patent on record. But in the present case the absence of bona fides is alleged on the ground that the landlord wanted to sell the house and having failed set up the claim of bona fide personal requirement. The question would be if the landlord in actual fact wanted to sell the premises. The learned Rent Controller as well as the first appellate Court have come to a contrary finding. The contention that an offer for the sale of the house was made to the attorney of the tenant is not denied. But in this context it is contended that it was made under pressure of circumstances prevailing then and which were mostly the creation of the tenant. The circumstances were that the landlord had come back from West Germany and wanted to settle down in Karachi. His own house, which was, according to him, leased out on the tacit understanding that it will be vacated as and when required by him; but the house was not being so vacated. Not only that an impossible period of another seven years occupation by the tenant was being mentioned after which the house would be made available. In such circumstance, in the presence of his own beautiful house he was being forced to live in a rented house; a house which is much below his requirements. In the same context we have to take into account the statement of the landlord when he says that he wants to sell the house as he did not want to be a mere rent collector. The offer to the attorney of the tenant is made with the realisation that the tenant and her family had developed a strong liking for the house. Viewing in this context of things it would be safe to presume that the offer to sell the house did not amount to the need of the landlord to sell it. He was not forced into selling the house because of financial pressures, as the counsel for the appellant contends on the basis of an alleged statement of the landlord made to the attorney of the tenant. On the other hand it was an effort on the part of the landlord to extricate himself from a difficult situation in which the intransigent attitude of the tenant had thrown him, where he could neither have the enjoyment of living in his house nor have the means to purchase another one for himself. Any reasonable man, under such circumstances would like to purchase another house with vacant possession, if he can get rid of the one with disputes about its vacation. Second contention raised to show absence of bona fides is that the landlord did not have the means to live in this house. In this context the learned counsel has contended that the attorney of the landlord was forced to take Rs. 5,000 as loan, over and above the advance rent of Rs. 13,200; that the landlord indicated his desire to sell the house as he wanted to start business for which he had no money; and that it were the proceeds of rent through which he paid the instalments of the House Building Finance Corporation, paid the rent of the house in which he lived and made a living out of the balance. The landlord on the other hand claims that he has all the means to live in this house, that it made no difference if he received the rent of this house or not. As to the total monthly income of landlord a question eras disallowed by the learned Rent Controller. The receipt of additional amount of Rs. 5,000 at the time of the start of tenancy is not disputed. But as against the claim of the attorney of the tenant that it was by way of loan, it is contended that it was towards further advance of rent. Whatever the character and nature of this amount the argument put forward is that the landlord was in such dire need of money that he needed such amount in spite of having received the advance rent for one year. But this line of argument ignores one fact that the landlord was away to West Germany when the lease agreement was executed and therefore no assessment of the financial status of landlord can be made from this fact. The landlord states that it was the conduct of his attorney, which could not have any reflections on his own financial resources. Furthermore this transaction admittedly took place in April, 1968. We have to judge the means of the landlord with respect to the point of time when he demanded to be allowed to live in his own house, which demand was made, in Court, in July 1972. Such transactions, will therefore lose relevance if any. The contention of the landlord that he was living in a rented house paying Rs. 700 per month as rent is not denied. The total rent received by him for the house in dispute is Rs. 1,100 out of which he has to pay taxes, which take away more than Rs.

300. These facts clearly indicate that there is no force in the contention that the only source of income of the landlord is the rent of the disputed premises. The landlord contended in his statement that he was paying Rs. 1,215 towards the repayment of loan of the House Building Finance Corporation. The learned counsel for the appellant contended that there was obvious contradiction in the statement of the landlord because in another part of the same statement he stated that the monthly instalment for the repayment of loan is Rs.

405. The rate of monthly instalment at which the loan is repayable is one thing and the actual amount being paid for such repayment is a different thing. It is always the choice of the debtor to repay the loan m a shorter period by increasing the amount of the instalments. The House Building Finance Corporation however lays down the maximum, beyond which the repayment period should not extend, and the minimum amount of monthly instalment below which it should not fall. If a debtor chooses to reduce the payment period by increasing the amount of F instalments, it is always permissible. The two statements of the landlord, when viewed in this context would not show any contradiction. The learned counsel for the landlord drew my attention to Ex. 1(e), statement of credits made towards the loan from 1-8-1972 to 30-6-1973. Excepting for the first month, when amount credited was Rs. 810, the landlord has regularly paid Rs. 1,215 each month towards the payment of the loan of House Building Finance Corporation. The correctness of this statement is not disputed. The learned counsel for the landlord also made a statement at the bar that the entire loan has since been paid off. This conduct could not have been expected of a man who did not have the means to live in this house. A person who can spare Rs. 1,215 for the repayment of a loan must have means enough to live in a house of the type which is in dispute before me. The learned counsel for the appellant has particularly relied upon the following passage from judgment reported as Adamali Hassanali v. Rubab Bai (PLD 1965 Karachi 408):-- "The writer could add that personal characteristics of a landlord, when relevant, also constitute a necessary set of considerations for determining his needs. If he is a poor man his genuine needs must be within his means. If he is a non-believer he is not likely to need a room for prayer and if he is an illiterate person he is not likely to need a room for a library. The point is what life he leads, can lead and may lead. It is such life, and not merely the need to occupy a place for having a roof over his head, that is significant." I am in very respectful agreement with these observations. But because of my findings about the means of the landlord they do not have any relevance to the facts of the present case. The third contention in regard to absence of bona fides is with reference to needs of the aged and ailing mother of the landlord. It has come on record that the mother of the landlord was operated upon for her foot and that she is unable to climb stairs. The learned counsel for the tenant contends that the total accommodation at the road level of the house consists of a garage, two servant quarters and a bath, and that the regular living quarters of the house can only be reached by climbing up the stairs. In view of this factual position the learned counsel contends that the claim of the needs of the mother is not correct. On the other hand the argument put forward on behalf of the landlord and which argument has found favour with the Courts below, is that this garage and the servant quarters could be converted into proper living area for the mother. I find nothing wrong with this contention. The owner of a house is always at liberty to make such structural changes in the house as would make it most comfortable from his point of view, for himself and his dependents. The next ground which prevailed with the Courts below for forfeiture of lease is the alleged damage to the disputed house. The contention is that cement honey-comb grill on the first floor has been plastered by the tenant resulting in damage to the elevation of the house. Thus, it is contended, the balcony has been converted into a room, without the permission of the landlord. The plastering of the grill is admitted. The damage to the elevation is not denied, though there is general denial of any damage to the building. The tenant however contends that the plastering was necessitated because of the fact that rain water used to enter the staircase landing and through it to the inner part of the building, which not only damaged the furniture of the tenant but the building itself. Thus in plastering the grill the tenant had acted, in accordance with the terms of the lease agreement, as a reasonable and prudent person. In this context the attorney for the tenant has also mentioned the provision of nine rain water escapes to protect the house from the ravages of rain. In any case the question for determination is if plastering of the honey-comb grill has, firstly, damaged the elevation of the house amounting to material impairment of the value or utility of the property, and secondly, if conversion of balcony into a room has taken place without the permission of the landlord and in violation of the terms of agreement. The learned counsel for the appellant has relied upon the dissenting judgment of Buckley, J. in Rose v. Hyman (1911) 2 K B 234) and that of the House of Lords when the same case went in appeal before their Lordships (1912 A C 623). The relevant portion of the judgment of Buckley, J. is -- "As regards any alteration of the structure the matter must be regarded from two aspects first, upon the covenants of the lease, and, secondly, upon the doctrine of waste. It would be waste to make such alteration as to change the nature of the thing demised. The thing demised is premises which the lessee may consistently with the lease use for many purposes for which they are without alteration and adaptation not suitable. A right reasonably to alter and adapt is to be implied. It would be breach of covenant so to alter the structure as substantially to cease to perform the covenant to support, uphold, maintain, and so on, the building, walls, and fences in good repair." Proceeding from this reasoning it was held that opening of a door in the western wall was no breach of the covenant. This view was confirmed by the House of Lords. But the difficulty here is that the landlord is alleging damage to the value of the house, while the tenant, without saying a word if such damage to the value has been done or not, has led evidence to show that by her acts utility of the house has increased. The Ordinance in section 13 (2) (iii) talks, in the alternative, of acts as are likely to impair materially the value or utility of the building. Here the contentions of the landlord is that by plastering the honey-comb grill the elevation of the house has been damaged. These days, as always, a structure carries its value not only by accommodation it provides or facilities it makes available, but also by the image it presents as a whole. A honey-comb grill, apart from providing passage to light and air, serves to provide proper elevation and projection to the building. As has been observed earlier, the contention of the landlord regarding impairment to the value of the house are not denied specifically. It was therefore correct to hold that the plastering has impaired the value of the building. But the statute does not require mere impairment of the value of the building. Such impairment or damage to the building has to be of a material nature in order that the penalty of ejectment should follow. This is obviously because of the recognition by the legislature of the fact that some impairment in the value or utility of a building is bound to take place by the passage of time and the use of the building. But in order that a tenant should be held to have incurred the penalty of forfeiture of tenancy and consequent ejectment it has to be shown that he has materially impaired the value of such building. This clause of the Ordinance is obviously penal in nature, though provisions regarding requirements of a landlord's personal bona fide need or for reconstruction may not be so. This is because the ejectment order follows, in cases falling under clause (i) to (v) of subsection (2) of S. 13, as a result of violation of these provisions by the tenant. Being penal in nature the provisions have to be construed strictly. Reliance in this regard can be placed on London and other Eastern Railway Co., Barrimen (1946 A.C. 278) arid Remington Lord in (1921) 3 K.B. 405-7. It was therefore imperative for the landlord to show that the impairment was of a material nature. Not having done so the penalty may not fall on the tenant on this score. What should amount to a material impairment of the value or utility of a building would depend on the facts of each case. In the present case the only claim made is that the elevation has been damaged. But has it materially impaired its value is neither claimed nor shown. The landlord's case, on this score, therefore, must fail. The tenant had installed two fans and a geyser in the house soon after taking it over. The total cost of these items comes to less than Rs. 2,

500. This amount has been admittedly adjusted by him towards the rent. The landlord had made a grievance of this adjustment at the time he brought the ejectment application and claimed that by doing so the tenant had defaulted in the payment of rent. The allegation was denied and hence the third issue. The learned counsel for the appellant contends that the tenant had the permission of the attorney of the landlord to install these items; and alternatively it is claimed that there was acquiescence on the part of the landlord as no objection was taken when the bill. for these items was submitted on 19-12-1968, and finally that the claim is barr6d by limitation having been made long after three years of the finalisation of transaction by submission of such bill. The attorney of the tenant has stated that he brought the fans and got them fitted according to the agreement between him and the attorney of the landlord. This statement is the basis of the claim that there was approval of the attorney of the landlord to instal these items. But it is one thing to instal certain fixtures with the permission of the landlord and quite another to adjust the cost of such fixtures against rent. In the former case the landlord merely allows the tenant to make the tenement more comfortable according to the requirements of the agent. But at no stage it can be urged that by giving such permission the landlord also undertakes to pay the cost of such fixtures. In case he agrees to do so it would mean that he considers the tenant to be entitled to such comforts at the cost of the landlord and within the rent he agrees to pay. Same is the tenor of clause 9 of the lease deed whereunder the tenant has been permitted to instal air- conditioners etc. It could not be claimed, and very candidly conceded by the learned counsel of the appellant, that tenant could not, under this clause claim adjustment of the cost of installing air-conditioners, telephone or T.V. sets. Clause 5 makes the points further clear. In this clause the landlord is under obligation to provide the house in good order and tenantable condition complete with electric light, water and Sui-gas connections. It is an admitted fact that the house, when rented out to the appellant was newly built and Sui gas connection was not yet installed. Its installation was specifically provided for in the lease deed and the landlord had to foot the bill. While the items regarding provision of electric and gas connection at the cost of the landlord were specifically provided for in the lease agreement, it is completely silent about two additional fans and the geyser. In these circumstances mere approval of the attorney of the landlord to permit installation of the items could not amount to such installations being made at the cost of the landlord. As regards limitation the learned counsel depends on Article 110 of the Limitation Act, to contend that the claim is hit by limitation. This Article provides three years period for claiming arrears of rent from the date they become due. In the present case the rent deed came into operation with effect from 15th April, 1968. Admittedly rent for one year had been paid in advance and additionally Rs. 5,000 were also paid to the attorney of the landlord. The tenant claims that it was by way of loan whereas the attorney for landlord asserts it was towards further advance of rent. But it is not denied that the amount was finally adjusted towards rent. Thus a total of about 16 months rent has been paid to the landlord in advance. A claim of any rent for the period till July 1969 would not have been tenable, because any rent falling due till that month already stood fully paid. Any adjustment of the cost of fans etc. against rent could not have been made towards the rent for this period. Adjustment, if any, could be claimed against the rent for the month of August, 1969 falling due on Ist Sep. 1969. The application for ejectment having been brought on Ist July, 1972 was obviously within time. The question of acquiescence within the period of limitation cannot arise. Finally the learned counsel for the respondent has contended that the appellant is liable to forfeiture of tenancy as she has denied the title of the landlord over the disputed property. He has referred to clause 39(a), of the power of attorney executed by the tenant/appellant in favour of her husband. 1n its clause 11 she has shown the disputed property as her own and has authorised her attorney to sell, mortgage or otherwise deal with it. The attorney of the appellant was asked specific question, in his cross-examination, obviously to allow him an opportunity to explain this circumstance, and his simple reply was that the document spoke for itself. At that argument stage the learned counsel, who is the attorney of the appellant as well, tried to explain it by saying that it was the mistake of the clerk who included the disputed house m the list of properties owned by the tenant. But this statement does not help the appellant at this stage. And secondly the mistake would not have been committed by the clerk of the learned counsel for the appellant if, by conduct of the appellant, he had gathered the impression that the property is being treated by her as her own. In view of the fact that bona fide personal requirement of the landlord is established on record, and the tenant has unlawfully adjusted the cost of fixtures towards rent, and has been asserting her own title over the property, I find no reason to disturb the findings of the Courts below. I would therefore dismiss this appeal with costs throughout. She shall place the landlord in possession of the property within a period of one month from the date of this order. M.Y.H./B-130/K Appeal dismissed.