1988 PLP 444 (CLC)

Taqi Ahmed Khan for Petitioner. Khuda Dad Khan Barki and Asghar Ali for Respondents. Dates of hearing: 5th and 6th December, 1987. The petitioner Muhammad Yousuf has moved this Constitutional petition praying therein that the judgment dated 27‑9‑1986 passed by the Rent Controller respondent No.2 and the judgment dated 15‑7‑1987 passed by the appellate Authority respondent No.l may be declared without lawful authority and of no legal consequence.

2. Briefly stated, the facts of the case are that the petitioner is a tenant under respondent No. 3 in respect of a shop bearing No.21/1207 Bazar Kalan Chowk Poorbian Sialkot City. The respondent landlord moved an ejectment petition under section 13 of the Rent Restriction Ordinance, 1959, against the petitioner on the grounds of default in payment of rent and bona fide personal requirement of the premises in question. It may be noted that the original owner of the shop in question, namely, Mirza Muhammad Abbas transferred the shop in question by a registered deed dated 12‑4‑1986, in favour of his son Mirza Muhammad Asif Nadim, respondent No.3. The petitioner was holding the said shop at a monthly rent of Rs.665, under the above‑referred original owner. The case of the respondent is that after the change of ownership of the shop in question in his favour, he sent a notice as required by law which was not received by the petitioner. The petitioner resisted the eviction petition and denied the allegation of wilful default in payment of the rent. He further controverted the bona fide requirement of the respondent. The plea of the petitioner .was that the respondent was a student and as such, he did not require the shop in question for his own bona fide requirement. It was further averred by the petitioner that a device had been invented by the new landlord to enhance the rent of the premises in question as had already been done by the father of the respondent. In the past, rent of the premises was enhanced from Rs.325 to Rs.665 per month. Further, the petitioner had already paid a huge amount of Rs.20,000 in advance to the father of the respondent which amount had to be adjusted against rent of the property in question at the rate of Rs.100 per month. The admitted position was that so far a sum of Rs.8,300 has been adjusted but a sum of Rs.11,700 is still to be adjusted against the rent. In this special backgound of the case, following issues %ere framed by the learned Rent Controller:‑ (1) Whether the applicant has no cause of action, as the application is premature? (2) Whether the respondent is a rent defaulter? O.P.A (3) Whether the applicant in good faith requires the premises shop for personal use and occupation? (4) Relief. The learned Rent Controller after recording the evidence as well as hearing the parties, proceeded to accept the eviction petition on 27‑9‑1986 on the ground that the shop in question was required by the respondent bona fide for his personal use and occupation. It may be noted that the learned Rent Controller gave the finding on issue No.l that there is no evidence available on the record to show that the petitioner is guilty of the commission of default in payment of rent. He observed that the petitioner is entitled to receive back the balance amount from the original owner of the property in question which amount was paid by the present petitioner to him as payment of advance rent. The petitioner feeling aggrieved of this order went in appeal which was heard and dismissed by the learned Additional District Judge, Sialkot, vide his judgment dated 15‑7‑1987.

3. It is argued by learned counsel for the petitioner that it is established on record that the shop in question has been rented out to him for a particular period by the father of respondent No.3 and that the particular period has not so far expired. Learned counsel stated that the earlier round of litigation between the petitioner and Mirza Muhammad Abbas, father of respondent No.3, ended with a written compromise dated 18‑7‑1979. Learned counsel submitted that on the face of it, Mirza Muhammad Abbas is guilty of fraud by transferring the ownership rights to the respondent No.3, his son, with ulterior motive of grabbing the amount of rent received by him in advance from the petitioner and further under this new device, the petitioner be ousted from the property in question. Learned counsel stated that the compromise deed Ex. C/1 dated 18‑7‑1979 entered into between the petitioner and the father of respondent No.3, will amply demonstrate beyond doubt that the petitioner cannot be evicted from the shop in question till such period for which the amount of rent has already been paid by the petitioner to him. In reply to the arguments submitted by learned counsel for the petitioner, learned counsel for the contesting respondent submitted that a clear finding of fact has been given by the learned Rent Controller as well as by the learned Additional District Judge, Sialkot, and accordingly, this being so, this finding of fact cannot be successfully assailed in the exercise of Constitutional jurisdiction of this Court. Learned counsel maintained forcefully that no doubt Mirza Mohammad Abbas is the original owner of the shop in question and that he has transferred his ownership rights of his own free will in favour of respondent No.3. Learned counsel urged that in view of the transfer of ownership rights in favour of respondent No.3, he has practically stepped into the shoes of his father. Under these circumstances, learned counsel stressed that the respondent No.3 has rightly been found out by the two Tribunals that he needed the shop in question bona fide for his personal use and occupation. So far as the question of the advance payment was concerned, learned counsel took the position that the balance amount could be received back by the petitioner in accordance with law. So much so, in the Court it was offered that the respondent is ready to pay back the balance amount to the petitioner.

4. I have heard learned counsel for the parties and have perused the record very carefully. I have given my anxious consideration to the arguments raised by learned counsel for the parties. I am of the view that the conduct of the original owner, namely, Mirza Muhammad Abbas, in the case is not definitely above board. To begin with, in the first round of litigation betwen the petitioner and Mirza Muhammad Abbas, admittedly the rent of the shop in question was Rs.325 and the same was raised to Rs.665 by the petitioner during the continuance of the first eviction petition before the learned Rent Controller. Besides the increase in the rent, raising the same to Rs.665 par month, additionally a sum or Rs.20,000 in advance was paid towards the payment of future rent by the petitioner to the original owner Mirza Muhammad Abbas vide the same compromise deed dated 18‑7‑1979. Therefore, two things are quite clear from the above‑referred compromise deed between the petitioner and Mirza Muhammad Abbas. Firstly, the rent was increased from Rs.325 to Rs.665 per month and that a sum of Rs.20,000 as rent was paid in advance to the original owner. It was specifically agreed by the petitioner and the landlord that the amount of Rs.20,000 shall be adjusted in the payment of rent at the rate of Rs.100 per month. The learned Courts below have calculated the amount so far adjusted from the total amount of Rs.20,000 and according to the calculation there is still a sum of Rs.11,700 which has still to be adjusted against the future rent to be paid by the petitioner to the respondent. I am absolutely clear in my mind that the eviction petition is based on mala fides inasmuch as it is established that the original landlord Mirza Muhammad Abbas got the increase in the rent of the shop in question and further that he got a huge amount of Rs.20,000 from the petitioner. After receiving this benefit from the petitioner, he proceeded with mala fide intention to defeat the ends of justice and to cause damage to the petitioner inasmuch as to eject him from the disputed shop which he transferred in favour of his son, respondent No.3. Obviously, the respondent No.3 is not at all competent to file the eviction petition against the petitioner till such time the whole amount received by his predecessor in‑interest is exhausted. The admitted position in the case is that a sum of Rs.20,000 received by the original landlord has not at all been adjusted so far in its entirety. Learned counsel for the respondent has placed much emphasis on the last clause of the compromise deed Ex. C / 1 that at the most the petitioner had a right to claim back the payment of the balance amount from the respondent No.3. However, he submitted that he has an independent right of getting the shop in question vacated from the petitioner. I am not persuaded to agree with the argument of learned counsel for the respondent for the simple reason that the plain reading of the compromise deed will show that the father and son are one and that cleverly a device was invented by Mirza Muhammad Abbas as well as his son, respondent No.3 to deprive the petitioner of the shop in question in this way. I have very carefully read the compromise deed Ex.C/1 and I am of the view that the said compromise deed is wholly in favour of the petitioner inasmuch as he cannot be ousted from the shop in question till such time the whole amount paid by the petitioner is exhausted. The father of respondent No.3 was bound by a clause contained in the compromise deed that a sum of Rs.100 shall stand adjusted every month out of the advance amount of Rs.20,000 paid by the petitioner to him. This clearly means that this practice shall continue till the whole amount of Rs.20,000 is exhausted. In other words it is clear that the ejectment petition cannot be filed by the landlord against the petitioner till such time the whole amount paid in advance comes to an and. This is the plain and clear meaning which could be given to the compromise deed Ex . C / 1 executed by the petitioner and the father of the respondent No.3. It was also clearly agreed by the parties in the same compromise deed that the petitioner shall continue to enjoy the possession of the premises in question. It was further agreed in the compromise deed that the father of the respondent shall be competent to raise further construction over the shop in question. This aspect of the case has not at all been considered, neither by the learned Rent Controller nor by the learned Additional District Judge Sialkot, as to what is the effect of the compromise deed Ex.C/1 about the rights of the petitioner over the shop in question for keeping the same by the petition till the time the sum of Rs.20,000 is exhausted towards the payment of future rent of the shop in question. The intention of the parties from the compromise deed is crystal clear that the petitioner shall not be subjected to ejectment from the shop in question, neither by the original landlord Mirza Muhammad Abbas, nor for that matter, by his successor‑in‑ p interest. In my considered view, the eviction petition of the respondent was wholly misconceived in law and facts of the case. Rather the same has been instituted with the active connivance of the original owner of the shop and certainly law cannot allow such a party to reap the fruit of his own fraud. Even otherwise, it is established on the record that the respondent No.3 is the only son of Mirza Muhammad Abbas, the owner of the shop and that he is admittedly still unmarried. The respondent has failed to produce reliable and trustworthy evidence to show that he was living separately from his father and that he needed the premises in question for his bona fide requirement. There is absolutely no evidence available on the record to justify the judgment of the two Courts below on issue No. 3. 1 am, therefore, of the considered view that the respondent No.3 does not need the shop in question for his bona fide need.

5. The upshot of the above discussion is that the impugned orders passed by the learned Rent Controller as well as by the learned Additional Distict Judge, Sialkot, dated 27‑9‑1986 and 15‑7‑1987, respectively, are declared to have been passed without lawful authority and of no legal effect. The result is that the petition succeeds and is allowed with costs throughout. H . B . T . / M‑487 / L Petition allowed.