1998 PLP 106 (CLC)

(1) Whether the petitiqners require the disputed premises for personal bona fide need in good faith? OPA (2) Whether the respondents are rent defaulters? If so, for which period and with what effect? OPA (3) Whether the respondents have failed to make the payment of enhanced rent at the rate of 25 %? If so, for which period and with what effect? OPA (4) Whether the petition is mala fide and liable to be dismissed? OPR (5) Whether the petition is false, frivolous, vexatious and mala fide, as such respondents are entitled to special costs? OPR (6) Relief

3. Vide order dated 10‑10‑1996 the learned Rent Controller, Rawalpindi, accepted the eviction petition and directed the eviction of the appellants/tenants from the demised premises. The said order of ejectment was assailed by the appellants/tenants in appeal before the learned District Judge, Rawalpindi which on being entrusted to the Court of Ch. Muhammad Iqbal Naru, learned Additional District Judge, Rawalpindi, was dismissed by his order dated 9‑5‑1997. Hence this second appeal.

4. Mirza Sadaqat Ali, Advocate, learned counsel appearing for the appellants/tenants has raised the following contentions:‑‑ (i) that the Courts below have erred in law in holding that the shop in question was required in good faith by the respondents/landlords as they had admittedly got vacated two shops adjacent to the shop in dispute earlier on and after getting the possession of the same had re‑let' the same to some other tenants; and that they have been paying the rent agreed to between them and the respondents/landlords regularly. So far as the question of payment of enhanced rent was concerned the respondents/landlords had not given any notice calling upon the appellants/tenants to pay the enhanced rent. Resultantly, non‑payment of the enhanced rent could not in the absence of the requisite notice be held to be contumacious warranting their eviction; (ii) that the orders passed by the two Courts below suffered from mis reading and non‑reading of evidence and merited to be set aside and interfered with on that account.

5. I have considered the aforesaid submissions of learned counsel for the appellants/tenants but do not fell persuaded to interfere with the orders of ejectment passed by the two Courts below for the following reasons:‑‑ (a) that the two Courts below have recorded concurrent findings of facts as to the bona fide personal need of the shop in dispute by the respondents/landlords. The learned counsel for the appellants/tenants has not pointed out any legal defect in the said concurrent findings of facts recorded by the two Courts below without which the same cannot be upset in second appeal. Admittedly, respondent No.2 who was employed in the Pakistan International Airlines had retired from service and wanted to set up a business of his own in the disputed shop and required the same in good faith for the said purpose. No exception could be taken to his this right nor can any fault be found therewith. At the time when the respondents/landlords are alleged to have got vacated two shops adjacent to the shop in dispute, the respondent/landlord Jamil Ahmed Qureshi was in service and obviously could not occupy the shops in question for the purpose of his business nor could he be expected to start his business being in service. The vacation of the shops and re‑letting of the same, therefore, at a time when the said landlord was still in service and could not start a business of his own was in my view inconsequential and cannot be urged by the appellants/tenants in support of their, plea of his requirement being mala, fide or actuated by bad faith or ulteriorly motivated; (b) So far as the question of non‑payment of rent is concerned the issue as to this also has been concurrently found by the two Courts below against' the appellants/tenants. They have not brought on record anything which would show that they had paid the rent regularly. They have not paid the enhaced rent either. The rent of the demised premises was originally fixed at Rs.700 per month which pursuant to the amendment affected in the Urban Rent Restriction Ordinance, 1959, in 1991 had to be increased by 25 % at the end of every three years. This way, with effect from 1‑7‑1989, the rent had been automatically increased to Rs.875 per month and with effect from 1‑7‑1992 to! Rs.1,094 per month and with effect from 1‑7‑1995 the rent stood increased to Rs.1,367.50 per month. The admitted position on the record is that the appellants/tenants did never pay the enhanced rent. Learned counsel for the appellants/tenants frankly conceded at the bar that the enhanced rent pursuant to the amended law had not been paid by them. He submitted that the respondents/landlords were under a legal obligation to serve the appellants/tenants with a notice calling upon them to pay the rent, as enhanced, pursuant to the amended law and in the absence of the notice they could not be held to have defaulted in the payment of the rent and in any event the default could not be termed as contumacious. The submissions of the learned counsel as to this do not merit consideration. The increase in the rent pursuant to the amendment in the law was automatic. The appellants/tenants could not refuse to pay the enhanced rent on the pretext that a notice to that effect ought to have been given to them failing which they could not be held to have defaulted in the payment of rent. The contention of learned counsel to this effect cannot be accepted in view of the law laid down by this Court in judgment reported as Haji Muhammad Ibrahim v. Haji Abdul Salam Bhatti (PLD 1996 Lah. 308). The appellants/tenants having defaulted in the payment of rent, as enhanced, could not be exonerated of the same. The concurrent findings of the two Courts below as to their default in the payment of the same cannot be interfered with for the aforesaid reasons. Learned counsel though urged at the bar' that the findings of the two Courts below suffered from misreading and non‑reading of the evidence yet he preferred not to place on record of this Court the evidence produced by the parties before the learned Rent Controller so as to enable this Court to appreciate his contention as to the misreading and non‑reading. Since the burden of showing the same was on the appellants/tenants they must suffer for not placing the requisite evidence on the record to enable this Court to appreciate the submissions made in this behalf.

6. For the aforestated reasons this second appeal against the orders of the two Courts below is without any substance and is dismissed in limine. However, the appellants/tenants are given two months' time to vacate the demised premises. A.A./J‑25/L Appeal dismissed.