1991 PLP 1655 (MLD)

Date of hearing: 26th February, 1991. This second appeal is directed against the consolidated order dated 8-9-1990 passed in four rent appeals by the learned District Judge, Lahore as appellate authority accepting the respondent's four appeals against the consolidated order dated 16-11-1989 passed by the Rent Controller, Lahore, through which four ejectment petitions filed by the respondents were dismissed.

2. The respondents filed four ejectment petitions against the appellant for seeking his eviction from three shops occupied by him as tenant on grounds of default to the payment of rent, subletting, damage and requirement for personal use bona fide in good faith. It may be mentioned here that on each ground separate ejectment petition was instituted. The Rent Controller passed an order for consolidation of the four ejectment petitions and consolidated evidence was recorded in one of the ejectment petitions.

3. After recording evidence the Rent Controller through order dated 16-11-1989 dismissed the ejectment petitions holding that none of the grounds on the basis of which ejectment was sought was established.

4. The respondents feeling aggrieved filed four appeals before the learned District Judge, Lahore which have been accepted through consolidated order dated h-9-1990 by which the eviction of the appellant has been ordered from one of the three shops on the grounds of default, personal need and damage which has been challenged in this second appeal.

5. Learned counsel for the appellant argued that the findings of the learned lower appellate Court regarding default in the payment of the rent are based on misreading as also misapplication of 'taw. He has pointed out that in the ejectment petition the default was alleged from 1-3-1986 whereas according to the findings of the learned lower appellate Court there was no default upto the period prior to 7-6-1986 and further that it was proved through the receipts issued by the respondents that they had been receiving rent in lump sum some times even for more than two years, as such, the non-payment of the rent from 7-6-1986 upto 30-7-1987 as held by the learned lower appellate Court could not be construed as wilful as, the appellant was given understanding by the respondents themselves that the rent would be collected in lump sum.

6. The argument of the learned counsel for the appellant has considerable force. No doubt there was an agreement between the parties regarding payment of rent of each month in advance against the receipt. The respondents themselves in the past had been receiving rent in lump sum. as is clear from the record for a period sometimes more than two years. This practice the respondents themselves adopted and the appellant could very well get an impression that the rent could be paid in lump sum which he had been paying. The finding of the learned lower appellate Court is that the default was from the period commencing 7-6-1986 which also falsifies the stand of the respondents that they were not paid rent from 1-3-1986. The case can be viewed from another angle that under the law a discretion is vested in the Rent Controller to decline to pass an order of eviction even if non-payment of rent was established. In this case in my view it was eminently a fit case for holding that there was no wilful non-payment of the rent and the discretion in the case regarding the default should have been exercised in favour of the appellant which having been rightly and legally exercised by the Rent Controller could not justifiably be interfered with as the same, was neither arbitrary nor illegal.

7. The eviction of the appellant on the ground of default is not legally justified, therefore, the findings of the learned lower appellate Court regarding default in payment of rent is hereby reversed and the findings of the Rent Controller o m issue No.1 relating to default are hereby restored and eviction of the appellant on the ground of default is set aside.

8. Learned counsel for the appellant, however, argued that it is clear from Exh.A.S. that the appellant had paid an amount of Rs.5,400 on account of property tax on behalf of the respondents, therefore, he was not defaulter and no amount was recoverable from him as rent even from 7-6-1986 onward as this amount was payable by the respondents to the appellant. I am afraid the contention has no force. The said document shows that after deducting this amount from the amount which was due from the appellant as rent further amount was paid and there is nothing in this document that the said amount paid by the appellant on account of property tax was still recoverable because after mentioning the said amount further amount was paid which shows that even after deducting the said amount still more amount was payable by the appellant. The argument is repelled.

9. Learned counsel for the appellant argued that during the pendency of the ejectment petition the respondents got vacated the adjoining shop which was occupied by Muhammad Saeed their tenant, therefore, the personal requirement was neither bona fide nor in good faith as such the learned lower appellate Court committed illegality in answering the issue of personal need in favour of the respondents.

10. I have examined the ejectment petition in which it has been categorically stated that the respondents needed the premises in dispute as also the shop occupied by Muhammad Saeed, for commencement, establishment, expansion and carrying on his business bona fide and in good faith. It was also averred that the premises in dispute as well as the shop in possession of Muhammad Saeed were suitable for the requirement of respondent No.1 as he resided in the upper portion of the premises whenever he came to Lahore.

11. The learned Rent Controller held that bona fide personal need in good faith was not established whereas the learned lower appellate Court recorded a finding after careful and elaborate appraisal of evidence that the personal need by Malik Khurshid Ahmad respondent No.2 was not established and it was held that respondent No.1 having stated on solemn affirmation that he was serious in coming down to Pakistan to start business there were no reasons to disbelieve him. The statement on oath of the respondent made by him when he appeared as his own witness has been accepted as evidence for the proof of personal need by respondent No. l which is not violative of any law. The statement of respondent No.1 inspires confidence when examined by me. The learned lower appellate Court held that the need of respondent No.1 to the extent of one shop was proved and not all the three shops, therefore, eviction of the appellant was ordered from one of the three shops. Learned counsel of the appellant failed to satisfy me that this finding of fact suffers from any illegality on account of misreading, misconstruction or non-reading of evidence. The findings of the learned lower appellate Court on issue No.4-A regarding personal need do not call for any interference, therefore, the same are upheld and so the eviction of the appellant on the ground of personal need calls for no interference.

12. Coming to the question of damage it has been rightly pointed out by the learned lower appellate Court that the appellant failed to establish that he constructed bath and latrine with the prior permission of the respondents. It is not the case of the appellant that any permission in writing was obtained by him from the respondents. His case was that it was an oral permission which fact was denied by the respondents. The learned lower appellate Court held that the construction was raised by the appellant without permission of the respondents and as such, issue No.3 relating to damage was established.

13. Learned counsel for the appellant argued that by raising construction of bath and latrine the appellant had in fact improved the value and utility of the property. I am afraid the argument is devoid of any force. Any structural addition or alteration in the rented premises, by a tenant without the prior permission of the landlord would be viewed from the point of view of the landlord and not the tenant. The tenant has no right to effect any such changes without the permission of the landlord. The appellant claimed an amount of Rs.1,00,000 as compensation for raising the said construction which was disallowed even by the Rent Controller on the ground that the same was raised without prior permission of the respondents. The spending of an amount of Rs.1,00,000 as alleged by the appellant itself was a proof that it was not a general type of repairs but an addition to the property which was not liked by the respondents, therefore, the appellant was certainly guilty of damaging the property and was rightly ordered to be evicted on that score. The findings recorded by the learned lower appellate Court on Issue No.3 relating to damage of the property are also upheld.

14. Before parting with this judgment I may deal with an objection raised by the learned counsel for the respondents that one appeal was not competent because there were four ejectment petitions and four appeals before the learned lower appellate Court, therefore, the appellant was required to file four separate appeals. I am not persuaded to accept this argument inasmuch as all the four ejectment petitions were consolidated and disposed of by one consolidated order. After consolidation as a matter of fact it became one ejectment petition seeking eviction of the same tenant from the same premises on four grounds. It is well -settled law that in such a case separate appeals are not required to be filed where more than one suits after consolidation are disposed of by one consolidated judgment.

15. For the foregoing reasons this appeal is partly accepted as mentioned above and the impugned order dated 8-9-1990 passed by the learned lower appellate Court so far as it relates to eviction of the appellant on the ground of default is set aside whereas the said order qua the eviction of the appellant from one of the shops on the grounds of personal need and damage is maintained and the appeal to that extent fails which is hereby dismissed with no order as to costs. The appellant is, however, granted three months time to vacate the shop. AA./N-429/L Appeal partly accepted.