' The present S.A.O. No.125 of 2004 as also the Cross-Objections are being decided together as these impugn the same orders of the forums below.
2. Before commencement of the judgment, it may be pertinent to state that the record of the forums below, though requisitioned, is not before me, however, it is specifically requested by the learned counsel for the respondent, that as the certified copies of the relevant documents are already on the file of the SAO, therefore, the matters should be decided without summoning the original record. The request is accordingly acceded, as it is not opposed by the appellant's counsel.
3. Briefly the facts of the case are:- ' That on 28-11-2000, the respondent filed an ejectment petition against the appellant stating therein, that the appellant has defaulted in the payment of the rent amounting to Rs.4000 per month w.e.f. March, 2000 and therefore, is a defaulter; besides that the premises, which are residential in nature, are needed by the respondent for his personal use and occupation. The learned Rent Controller framed the following issues:--
(1) Whether respondent has made wilful default in the payment of monthly rent? OPA
(2) Whether petitioner required the disputed premises for his bona fide personal need? OPR
(3) Relief.
4. The parties were put to trial and the learned Rent Controller vide order dated 28-1-2004 dismissed the ejectment application by returning its findings on both the issues against the respondent. The respondent challenged the aforesaid order in appeal, which has been accepted by the learned Additional District Judge vide order dated 8-9-2004. The findings of the learned Rent Controller on issue No.1 have not been upset but the learned Court has increased the amount of rent from Rs.4000 to Rs.6250 per month on the reasoning that the property in dispute was being used for commercial purpose by the appellant and, therefore, he was required to enhance the rent at the rate of 25% after every three years. In this regard, it has been concluded "In this way the respondent has not paid an automatic increased amount. The difference of non-payment of increased amount is Rs.54,600. The respondent is directed to deposit the Rs.54600 the non- payment of deposited amount of rent and difference of increased rent which has to be automatically increased. The rate of rent Rs.6250 will be per month since Jan, 2004, in future that would be increased in accordance with law." On issue No.2, the conclusion is that "the premises in dispute is situated within the four walls of more than 3 Kanal whereas the petitioner stated before the Court that he has personal need of premises. His wishes would prevail because he is owner of the said property, hence this issue is decided in favour of the petitioner."
5. The appellant through this appeal has challenged the impugned order, regarding the findings on the issue No.2 and not issue No.1. But, the order of the appellate forum increasing the rate of the rent and directing the appellant to pay the arrears has been assailed. Whereas, the respondent has filed the cross-objections upon the findings of the two forums below on issue No.1 and seeks the eviction on the ground of the default as well.
6. Learned counsel for the appellant contends that under the law, the landlord can only seek the ejectment of a tenant, if he is able to prove his bona fide requirement, which cannot be equated with his "wish"; besides, under the law, the landlord is obliged to assert and, establish through evidence, that he is not in occupation of any other premises suitable to his needs. But in the instant case, the respondent has deliberately concealed this aspect in his petition, however, while appearing as a witness, in the cross-examination, has categorically admitted that the property, the subject-matter of the lis, is part of a property, which comprises of about 2-Kanals and 15-Marlas, out of which, he is in possession of more than 2-Kanals, which consists of five bed rooms; the respondent has not been able to prove that such premises in his occupation, are unsuitable for his requirement, therefore, he was disentitled to ask the eviction on the ground of his personal requirement. As regards the issue of default is concerned, it has been argued that though the findings of the trial Court have been upheld, that there is no default, yet the increase in the amount of rent has been made and the appellant has been illegally directed to pay the arrears, especially when this was not even the case of the respondent.
7. Conversely, the learned counsel for the respondent, while arguing the appeal as also the cross- objections, has submitted that the appellant has illegally converted the residential property into commercial and thus, has violated the terms of the tenancy. It is also argued that the property has been impaired by the appellant and, therefore, he was liable to be ejected. He further submits that the statement of the landlord is the most important piece of evidence and if he states on oath that the rented property is needed by him, until and unless, there are factors militating against such an assertion and it is positively established by the tenant through evidence that the assertion/claim is dishonest, the landlord, as a matter of right, is entitled to the eviction.
8. Heard. The conversion of the property in violation of the terms of tenancy or impairment of the property, have not been set out as the grounds of eviction in the ejectment petition by the respondent. It is settled law that no one can be allowed to prove a case beyond the scope of his pleadings. Therefore, the respondent cannot be allowed to raise these pleas at this stage, which are extraneous to the record and the scope of the dispute between the parties. The submissions thus, are repelled.
9. There are only two grounds taken in the ejectment application, which are:--
(i) about the default in the payment of rent, that too at the rate of Rs.4000 per month and with effect from February, 2000, and both the Courts have held against the respondent.
(ii) the personal bona fide requirement.
10. I shall first deal with the question of default and the cross-objections; the enhancement of the rent and direction to the appellant to pay the arrears. As per the contents of the petition, the rent since the month of March, 2000 remains unpaid, but it is positively proved on the record by the appellant that the rent for the said months till September, 2000 was deposited by him in the respondent's bank account through Cheque No.14380796 amounting to Rs.24,000. And for the months of October, 2000 onward, for eight months to the tune of Rs.32,000, through Cheque No. 29577653. The argument of the learned counsel 'for the respondent/cross-objector, that as the appellant has deposited some further rent in the month of January, 2001, thus, it means the rent for the previous months was not paid. Suffice it to say that according to the case of the respondent himself set out in the petition, the appellant had paid the rent till February, 2000 and therefore, under the law, he cannot go against his admission in the pleadings. Thus, only for the reason that some further rent was deposited on 10-1-2001 by the appellant, cannot be construed or inferred that the rent for the admitted period remains unpaid. Therefore, the view of the forums below on issue No.1 is upheld and the cross-objections are rejected.
Considering the other aspect about the increase of the rent by the learned appellate Court, it may be held that the property in dispute admittedly is a residential property, may be used by the appellant for non-residential purpose, but has not been converted into non-residential as required under Section 11 of the Punjab Urban Rent Restriction Ordinance, 1959. This was not even the case of the respondent that it is a non-residential property and, therefore, the increase in the rent to the tune of 25% for every three years, should be granted as envisaged under the provisions of Section 5-A of the Ordinance ibid. I am really amazed and surprised that as to how and while exercising which jurisdiction, the learned appellate Court has enhanced the rate of rent and awarded the arrears of the rent to the respondent,' when neither before the appellate forum, it was the case for the determination of fair rent under section 4 of the Urban Rent Restriction Ordinance, nor about the increase of the rent on the basis of the conversion of the property. Therefore, the impugned order in this behalf cannot sustain and is hereby set aside.
11. As far as the issue No.2 about the personal requirement is concerned, suffice it to say that the landlord, in order to seek the ejectment of a tenant, on the basis of the personal need, has to establish his bona fide, which obviously is the honesty of purpose. For this, the landlord, at least has to state in his testimony on oath before the Rent Controller, the bassic facts from which, the special forum and its superior hierarchy, under the special law, should be able to ascertain and assess in an objective manner that the demand of the landlord is with good intentions and to cater for his genuine "need" which obviously is a contradiction of the landlord's "wish". Be that as it may, one check upon the bona fide need and against the arbitrary and whimsical "wish" or demand of the landlord, has been provided by subsection 3(a) (b) of Section 13 of the Rent Restriction Ordinance, which requires, that if the landlord is in occupation of any premises, he must prove those to be unsuitable to fulfil his need. Therefore, it is expedient that the landlord when propounded his claim of personal requirement, he must take the Rent Controller in confidence and if has some premises in his occupation, disclose the same in the petition, that those are inadequate to meet his requirement, should state the fact and prove this plea through evidence. However, if he deliberately fails to disclose the factum of being in occupation of some premises, but this is so proved in defence by the tenant or during the cross-examination, the landlord is compelled to admit the fact and still is unable to substantiate that such premises in his occupation are unsuitable for his need, the Courts are bound to draw a conclusion against the landlord about the honesty of purpose, and in such a situation, the ejectment petition is liable to be rejected. This is exactly what was done by the learned Rent Controller. But the appellate Court has erroneously equated the bona fide requirement of the landlord with the "wish" of an owner and in violation of the true spirit of the tenancy law, has granted the order of ejectment, which is untenable under the law, and is hereby set aside.
' In the light of above, the S.A.O. No.125 of 2004 is hereby accepted and the ejectment order passed by the Court below is set aside, and the cross-objections filed by the respondent are dismissed.