This second appeal calls in question the validity of the judgment dated 11.12.2004 of the learned Additional District Judge, Sialkot, whereby, the appeal filed by the appellant against his ejectment order dated 26.6.2004 was dismissed.
2. Relevant facts leading to the filing of this appeal are that Abdul Qadoos/Respondent No, 1, filed an application under Section 13 of the Urban Rent Restriction Ordinance, 1959 against the appellant seeking his eviction from the premises in dispute on the ground of damage to the property and its alleged conversion to commercial use from residential without the requisite consent and approval of the landlord. The appellant entered appearance and contested the ejectment petition, inter alia, by denying the relationship of the landlord and tenant claiming that Respondent No, 2 Rana Abdul Sami was in fact and in law the landlord of the appellant. Issues were struck, and evidence was led by the parties, whereafter, vide order dated 21.11.1995, the ejectment petition was accepted and the appeal arising therefrom was also dismissed by the first appellate Court by means of order dated 18.7.1996. Subsequently, the appellant filed SAO No, 172 of 1996, and this Court vide judgment dated 20.2.2002, by accepting the same, set aside both the orders of the Rent Controller and that of the first appellate authority and remanded the case to the Rent Controller with, the observation that the Ejectment Petition shall be deemed to be pending before the Rent Controller, where Respondent No, 2 Abdul Sami will not only be entitled to be impleaded as a petitioner, but also to take any other legal ground available under the law to seek tenant's eviction if it had arisen during the proceedings including default in the payment of rent. The learned Judge of this Court also observed that "In this situation, learned first appellate authority was right to observe that both Abdul Qadoos and his brother Rana Abdul Sami were landlords as far the tenant is concerned."
3. In post remand proceedings, Respondent No, 2 was impleaded as petitioner and additional grounds of personal need as also default in the payment of rent were pleaded. The amended written reply was filed and from divergent the pleadings of the parties, the following issues were framed:
1. Whether the petitioner is barred by law? OPR
2. Whether there exists relationship of landlord and tenant between the parties? OPA 2-A whether the respondent/tenant has converted the demise property into commercial one without the permission of the petitioner? OPA 2-B Whether the respondent is defaulter of rent since March 1996 till the institution of the petition?
OPA 2-C Whether the disputed house is required to the petitioner for his personal bona fide need? OPA
3. Relief.
4. The learned Rent Controller after analyzing the evidence adduced by the parties vide judgment dated 26.6.2004 accepted the ejectment petition holding that the petition was maintainable in law and the relationship of landlord and tenant existed between the parties, the eviction of the appellant/tenant was ordered on the ground of bona fide personal need of the respondent.
However, the plea of default in the payment of rent and conversion into commercial unit by the appellant without the consent and prior approval of the respondents were rejected.
5. Being aggrieved of his eviction ordered by the learned Rent Controller ibid, the appellant preferred an appeal under Section 15 of the Urban Rent Restriction Ordinance 1959, which was dismissed by the learned District Judge Sialkot by means of judgment dated 11.12.2004 with direction that the appellant shall handover the vacant possession of the disputed premises to the respondents within a period of thirty days:
6. I have carefully examined the respective contentions raised on behalf of both the learned counsel for the appellant as well as the respondents in the light of the relevant provisions of the Ordinance and perused the entire evidence and the record and various orders of the Courts below.
7. The learned counsel for the appellant strenuously argued that the eviction order affirmed in appeal is not sustainable in law on the ground that plea of bona fide personal need could not be allowed to be raised by the Rent Controller nor the amendment in the ejectment petition could have been allowed. Further asserts that the respondents failed to substantiate the plea of personal bona fide need, and that the evidence led in that context is contradictory. It is added that appellant's ejectment was ordered primarily on the basis of bona fide personal need of the Respondent No, 2 who may be the landlord, but it is. the Respondent No, 1 who is the owner of the property and the ejectment order could only be passed on the basis of the personal need of the owner and not any other person who may in law be the landlord. Reliance in this regard was placed on 1992 CLC 2307 Sh. Muhammad Khalid vs. Fakhar ud Din.
8. Conversely, the learned counsel for the respondents has seriously controverted the assertions raised on behalf of the appellant. The learned counsel also raised an objection about the maintainability of this appeal to contend that the premises in question were in fact residential in nature, and hence, no second appeal was maintainable. To supplement this preliminary objection, it was contended that essentially the property was residential and had been let out only for residential purposes and none else, but the appellant without the consent and approval of the respondents converted it as a commercial unit, which does not in any manner affect the residential character of the property, and consequently, no second appeal was competent within the ambit of Section 15 of the Urban Rent Restriction Ordinance, 1959.
9. First of all I would like to deal with the issue regarding maintainability of the appeal. Admittedly, there is a concurrent finding of fact by both the Courts below that the appellant has been unable to establish that the premises in dispute were let out for residential purposes and not for commercial use. I have scanned the entire evidence and hardly fund any misreading or non reading of evidence so as to persuade myself to interfere with the concurrent finding of fact.
Unquestionably, in the first round of litigation, SAO No, 172-1996 was filed by the appellant, wherein, the respondent (who is Respondent No, 1 in the present proceedings) did not object to the maintainability of the appeal. This Court adjudicated upon the matter by exercising its appellate jurisdiction under Section 15 of the said Ordinance. Subsequently, Respondent No, 1 unsuccessfully challenged the said order before the Apex Court, where too, this particular issue was not raised. In this view of the matter, the objection raised by the learned counsel for the respondents is palpably untenable, and I hold that the captioned appeal before Court is quite competent and has to be decided on its own merit.
10.At this juncture, the learned counsel for the appellant has drawn this Court's attention to the following observation made in Sh. Khalid's case supra: "Personal need is to be the need of the owner of the property and of none else".
He further argues that admittedly the Respondent No, 1 is the owner of the property, whereas Respondent No, 2 is his brother while the ejectment was ordered purely on the basis of personal need of Respondent No, 2.
11.The aforesaid contention raised by the learned counsel for the appellant cannot be accepted, inasmuch as, the case laws referred to by the learned counsel relates to Sindh Rented Premises Ordinance (XVII of 1979). In the aforesaid Ordinance, change in law was affected and there were significant deviation from the law as embodied in Rent Restriction Ordinance 1959. In the Sindh Rented Premises Ordinance, words "landlord and personal need" have been defined as follows:
(f) "Landlord" means the owner of the premises and includes a person who is for the time being authorized or entitled to receive rent in respect of such premises;
(g) "Personal use" means the use of premises by the owner thereof or his wife (or husband), son or daughter.
12.Whereas the Urban Rent Restriction Ordinance, 1959 defines the landlord in the following manner: "Landlord" means any person for the time being entitled to receive rent in respect of any building or rented land whether on his own account or on behalf or for the benefit of any other person or as a trustee, guardian, receiver, executor or administrator for any other person and includes a tenant who sublets any building or rented land in the manner hereinafter authorized and every person from time to time deriving title under a landlord".
13.Personal bona fide need has not been defined in the Rent Restriction Ordinance, 1959 but forms part in Section 13 thereof. The judgment in Sh. Khalid's case supra, after clearly noticing this change in law, more particularly, in the definition of the term landlord, made the observations referred to above. In the aforesaid judgment, it has been observed at page 2313 as under: "In the instant statute not merely the word "landlord" is defined but the phrase "personal use" is also defined. As per definition, the pristine meaning of the word "landlord" is the "owner of the premises" but the definition goes on to embrace and "include" persons authorized or entitled to receive rent. However, when it comes to "personal use", the Legislature becomes emphatic and exclusively certifies "the use of the premises by the owner thereof or his wife (or husband), son or daughter" (Section 2(g). Thus, wherever the statute confers a right on a landlord to seek eviction on the ground of "personal use" the word "landlord" is used in its elementary or basic sense of the owner of property alone as distinguished from "landlord in the extended version of those "authorized" or "entitled' to receive rents."
14. It is thus clear and obvious that judgment in Sh. Khalid's case is restricted in its application to cases under the sindh Rented Premises Ordinance, 1979 and cannot be attracted to the present case involving the applicability of Rent Restriction Ordinance, 1959.
15.It has been the consistent view of the August Supreme Court of Pakistan and this Court in innumerable cases that landlord for purposes of Ordinance, 1959 would mean and include any person entitled to receive the rent who may not necessarily be the owner of the property. Thus, the contention of the learned counsel for the appellant is repelled.
16.That in order to prove the bona fide personal need, the respondents filed affidavit in evidence of Respondent No, 2 and that of the attorney of Respondent No,
1. Respondent No, 2 successfully withstood the rigors of cross examination and his stance that the premises in dispute in fact required for the personal bona fide need of both the respondents was not shaken. The attorney of Respondent No, 2 in his affidavit in evidence deposed that the premises in dispute required for bona fide personal use of the respondent. The learned counsel for the appellant has attempted to raise the issue that the said affidavit in evidence pertains only to the personal need of Respondent No,
1. In this regard, it may be noted that this Court while adjudicating upon SAO 172/1996 clearly observed that both the respondents were the landlords. In addition thereto, it may be stated that the said attorney was not at all cross examined as to the bonafide personal need either of the two respondents and in fact not even a suggestion was not put in this context to the said witness.
Contrarily, in the affidavit in evidence filed by the appellant before the Rent Controller, no assertion at all was made that respondent (s) or either of them did not require the property for their bona fide personal use.
17. Both the Rent Controller and the first appellate Court determined the bona fide personal need of the respondents and their concurrent and persistent findings are not open to any exception being free from any misreading or overlooking of material evidence, I am fortified in my view by the law laid down by the Apex Court in the cases reported as PLD 1982 Supreme Court 218 (Fazal Azim and another vs. Tariq Mehmood and another) and PLD 2001 Supreme Court 158 (Haji Abdullah and 10 others Versus Yahya Bakhtiar).
18.Reverting to the issue raised by the respondents regarding default in the payment of rent as well as conversion of the premises from residential to commercial, needless to add that, there is equally concurrent finding of fact that no default was committed nor the assertion for property's conversion could be established, therefore, both these issues hardly require any interference by this Court. In nutshell, the Courts below have competently and justifiably dilated upon the crucial issue emerging in this case and the entire evidence appears to have been thoroughly scanned.
Judgments impugned hardly reveal any ambiguity or illegality misreading or overlooking of any material evidence so as to warrant interference by this Court.
For the facts, circumstances and reasons enumerated herein above, I do not find any merit in this appeal and dismiss the same accordingly leaving the parties to bear their own costs. The appellant is directed to hand over the vacant possession of the premises to respondents on or before 14th of May 2005.