1996 PLP 377 (CLC)

The case of the appellant is that there is no relationship of landlord and tenant between the parties and the notice, under section 18 of the Ordinance, was not served upon her. According to her, the rent is Rs.70 p.m. and not Rs.100 as claimed by the respondents. It is also her case that respondent No. l Muhammad Zainul Haq, who is son‑in‑law of late Wajahat Hussain and husband of deceased Mst. Tayyaba Khatoon, was all the time insisting for increase in rent, but said Wajahat Hussain had assured the appellant that the rent would be Rs.70 p.m., but receipt would be issued to her of Rs.100 p.m., only to pacify his said son‑in‑law. It is also her case that since October, 1984 said Wajahat Hussian also demanded rent at the rate of Rs. 100 p.m. and the rent at the rate of Rs. 70 p.m. was not accepted by him (Wajahat Hussain). Therefore, on 17‑3‑1985 the appellant through Miscellaneous Rent Case No. 1214 of 1985, deposited rent from the months of October, 1984 to February, 1985 in the Court at the rate of Rs. 70 p.m. She has claimed that no default in payment of rent was committed by her. She has denied the allegations of causing damages to the premises. At trial the respondents had filed affidavit‑in‑evidence of Zainul Haq and the appellant her own affidavit. Both were cross‑examined. From the pleadings of the parties, learned Rent Controller had settled the following Issues:‑‑ (1) Whether there exists relationship of landlord and tenant between the parties? (2) Whether the Opponent has committed default in payment of rent? (3) Whether the Opponent has impaired the value and utility of the premises? (4) Whether the applicant needs the premises in question for her personal bona fide use and for her sons? (5) What should the Order be? On assessment of evidence brought on record, learned Rent Controller decided Issues Nos. 1, 2 and 4 in affirmative and Issue No.3 in negative. Consequently, she allowed the eviction application by the order, which has been impugned in this appeal. Learned counsel for the appellant argued that there was no relationship of landlord and tenant between the parties, as such, the appellant could not be evicted from the said premises. Elaborating it, he submitted that deceased Wajahat Hussain was the owner of the premises and no notice about change of ownership, as required under section 18 of the Ordinance, was served upon the appellant, when the ownership of a premises which is in, possession of a tenant, is transferred, the new owner shall send such intimation in writing to the tenant and the tenant shall not be deemed to have defaulted in payment of rent for the purpose of clause (ii) of subsection (2) of section 15 of the Ordinance, if the rent due is paid within 30 days from the date of such intimation should have reached the tenant. The main object of section 18 of the Ordinance is that the tenant must have positive knowledge about the change in ownership. Even an eviction application filed by a new owner is sufficient notice to the tenant about the change in ownership. It is an admitted fact that deceased Tayyaba Khatoon was the daughter of deceased Wajahat Hussain. The appellant, in F.R.A. No. 548 of 1987 had herself stated that said notice was served upon her. Besides, no question was put up to the respondents' witness in cross‑examination, on this point. Accordingly, I hold that the said notice was served upon her and there is relationship of landlord and tenant between the parties. Learned counsel for the appellant also contended that learned Rent Controller failed to appreciate the evidence and recorded incorrect finding to the effect that default in payment of rent was committed by the appellant. Learned counsel argued that when the rent was not accepted by the predecessor‑in‑interest of the respondents, the appellant had no alternative but to deposit the same in the Court and she did so by filing the Rent Case No.1214 of 1985. Above contention have no force. There are rent receipts on record (Exhs. A/2 and A/3), which show that the rate of rent was Rs.100 p.m. The appellant herself stated that she was issued rent receipts at the rate of Rs.100 p.m., but maintained that the predecessor‑in‑interest of the respondents had issued those receipts only to pacify his son‑in‑law. There is nothing on record to substantiate this assertion. It appears that initially the rent was Rs.70 p.m. and later on it was enhanced to Rs.100 p.m. and the appellant had paid rent from 1980 onward at the latter rate, as is evident from the receipts available on record. In F.RA. No. 548 of 1987, the appellant had stated that rent from October, 1984 onward was not accepted by the predecessor‑in‑interest of the respondents. Since she offered rent at the rate of Rs.70 p.m. the predecessor- in‑interest of the respondents was justified in not accepting it at said rate. The tentative rent order in this case was passed on 23rd January, 1988 by the Rent Controller and thereafter the appellant had deposited rent in the Court at the rate of Rs.100 p.m. From October, 1984 till the aforesaid date, she deposited rent by making short payment of Rs.30 p.m. without any justification. Even after receipt of Legal Notice dated 22‑11‑1986, she deposited the rent @ Rs.70 p.m. instead of Rs.100 p.m. Accordingly, I hold that the default in payment of rent was wilful and the finding of the Rent Controller is perfectly correct. On the point of personal bona fide use the case of the respondents is that their family now consists of 6 respondents, shown in the title of F.RA. in question. The appellant, in her cross‑examination, clearly admitted that the respondents reside in a house of two rooms and all the sons and daughter of deceased Mst. Tayyaba Khatoon, are major. Exact definition of the expression of `personal bona fide use' covering all sort of cases is not possible. Much will depend upon the circumstances of each case. The requirement emanates from the circumstances, which are parameter for determining its validity. Therefore, the credence, if any, would have to be given to a particular fact to reach the conclusion if the requirement of landlord is bona fide or not. It is not always the paucity of accommodation which brings the case within the scope of bona fide requirement, but these are the circumstances which provide tangible guide line for determining the Issue in affirmative or negative. When the stress is upon paucity of accommodation, the reasonable requirement of the landlord, keeping in view present accommodation and the strength of his family members, would have to be determined. In the instant case, the family of the respondents/landlord consists of 6 major persons. Presently, they are in occupation of only two rooms, which by any standard are insufficient for their requirements. Finding of learned Rent Controller on this point is also correct and is not open to any exception. The finding of learned Rent Controller that the appellant has not impaired the value and utility of the premises has not been challenged by the respondents. In consequence, I do not find any merit in this appeal and the same is dismissed with no order as to costs. Four months time is granted to the appellant for handing over vacant possession of the premises in question to the respondents. H.B.T./J‑193/K Appeal dismissed.