' ASAD MUNIR, J.---Through this second appeal filed under section 15(6) of the Punjab Urban Rent Restriction Ordinance, 1959 ("the Ordinance"), the appellant impugns his ejectment from Shop No C/295/5, situated in Moti Bazaar, Rawalpindi, ordered by the Rent Controller, Rawalpindi, by his judgment dated 24-11-2008 which was subsequently upheld by the Additional District Judge, Rawalpindi, vide his judgment dated 9-4-2009.
2. Facts necessary for the disposal of this appeal are that on 26-5-1991 the previous owner of the disputed shop rented it out to appellant's father by means of a rent agreement of the same date.
After the death of his father, the appellant succeeded as the tenant of the shop. It is on 12-5-2005 that the respondents purchased the shop in dispute where after on 8-11-2005 they gave a notice of change of ownership to the appellant under section 13-A of the Ordinance. Thereafter, on 14-12- 2005 they filed an ejectment petition under section 13 of the Ordinance against the appellant on the grounds that he had wilfully defaulted in the payment of monthly rent of Rs,1500 from May, 2005 to December, 2005 and that the tenanted premises were bona fide needed by the respondents for the use of their real younger brother, who was jobless for the last 5/6 years, so that he could carry on the garments business in the vacated shop.
3. An additional ground was raised on the basis of the evidence produced by the respondents that the appellant was also liable to be ejected for having failed to pay the enhanced rent due to the statutory increase in terms of section 5-A of the Ordinance. The learned Rent Controller by his order dated 24-11-2008 accepted the ejectment petition on both the grounds but rejected the additional ground of default in payment of enhanced rent for having not been pleaded in the ejectment petition. However, the learned Additional District Judge, while upholding the order of the Rent Controller, also held that the appellant had committed default in the payment of the enhanced rent even though the as he had not been demanded by the respondents nor such a ground had been pleaded by them in their ejectment petition.
4. The learned counsel for the appellant has assailed the finding of Additional District Judge that the appellant committed wilful default in the payment of enhanced rent under section 5-A of the Ordinance and has also taken exception to the findings of the courts below on the issues of personal need and default in the payment of rent for the period May 2005 to December 2005.
5. A reference may be made to Section 5-A of the Ordinance which provides that in the case of a non-residential building, there shall be an automatic increase of 25% in the rent after every three years. According to the learned counsel for the appellant, the ground of wilful default in the payment of enhanced rent is not available to the landlord unless the landlord has formally called upon the tenant to pay the said rent. In support of his argument, learned counsel has referred to Syed Illyas Ali Abbasi v. Mst. Allah Rakhi 2001 SCMR 31, Dildar Hussain v. Shahzada Alamgir 2007 CLC 1495 and Javed lqbal v. S. M. Khurrarn Wasti 2000 CLC 126 which lay down that there is no wilful default by the tenant in the payment of the enhanced rent under section 5-A of the Ordinance, unless lie has failed to do so upon demand having been made by the landlord. In the present case, according to the learned counsel, no demand was admittedly made for the enhanced rent and consequently, the Additional District Judge, has erred in finding that the appellant had committed wilful default in payment of rent. I agree with the learned counsel for the appellant that the above authorities, particularly, Syed Illyas Ali Abbasi v. Mst. Allah Rakhi 2001 SCMR 31 is directly applicable to the instant case and the learned Additional District Judge erred in law when he found that the appellant had committed wilful default in the payment of the enhanced rent due under section 5- A of the Ordinance even though no demand for the enhanced rent had been made by the respondents. I must also say that, upon closer scrutiny, the ease law to the contrary cited by the learned counsel for the respondents including Muhammad Wan v. Muhammad Zahid Hussain.
Anjum 2000 SCMR 207 and Pakistan Bait-ul-Mal v. Umar Mahmood Kasuri and another 2009 AC 436 does not appear to be applicable to the facts of the present ease.
6. As to the personal need of the respondents, it has been contended by the appellant's counsel that the courts below have misinterpreted the law, as a landlord can under section 13(3)(a)(ii)(a) of the Ordinance seek the ejectment of the tenant on the ground of his own personal need or that of his children, but cannot do so if the tenanted premises are needed for use by his brother. In this regard, learned counsel for the appellant referred to Muhammad Zahir Khan v. Ch. Shah Muhammad PLD 1980 Lah. 125 and Minhaj ul Abidin Khan and 5 others v. Mst. Suamim Akhtar 1988 CLC 2433 but the same are not relevant as they do not pertain to the issue of a landlord requiring his non-residential building for the use of his brother. On the Other hand, learned counsel for the respondent has placed reliance on Muhammad Afzal v. Muhammad Tufail 2000 MLD 1858, Mahmood-ul-Hassan v. Muhammad Jameel 1980 CLC 829 which lay down that a landlord can seek the eviction of the tenant on the ground of personal need even though the tenanted premises are not required by the landlord himself but for use by his brother who is dependent on the landlord.
7. According to the evidence produced by the respondents, they needed the disputed shop in good faith for their dependant younger brother so that he could run his garments business therein. It was also stated by the respondents that the younger brother was jobless and lived with them in the same house in the joint family system. In rebuttal, the appellant tried to show that the respondents' brother was not jobless but was gainfully employed by producing income tax returns but the said returns were rightly rejected on the ground that the same could not be produced and read in evidence under section 216 of the Income Tax Ordinance, 2001. Appellant also produced some affidavits to show that the respondents' brother was running a shop in the same premises but the same were not found to be convincing by the courts below as the shop was found to be rented and that too not in the name of respondents' brother but in the name of respondent No,2. In the circumstances, the appellant failed to produce evidence to rebut the stand of the respondents that their younger brother is dependant on them as he is jobless and has no source of income.
Muhammad Afzal v. Muhammad Tufail (2000 MLD 1858), supports the view that the personal need of a landlord to have his non-residential property vacated by the tenant includes the need of or use by his relatives including his brother provided they are dependant on him. Obviously, such a need has to be regarded as the personal need of the landlord who stands to benefit in material terms as he is likely to be relieved of the financial burden of his dependant relative because such a relative can become independent of him upon having a place of business. In view thereof, the courts below have come to the right conclusion that the respondents were entitled to seek ejectment of the appellant, even though they did not require the shop for themselves but needed it in good faith for the use of their brother, who was dependent on them and wanted to set up his own business in the shop.
8. The issue about the default in the payment of rent for 8 months from May, 2005 to December, 2005 is more factual than legal as the parties have been at odds not only about the amount of monthly rent but also if it was paid. According to the appellant, the monthly rent of the shop was Rs,550 which for the period May, 2005 to October, 2005 was paid to one Muhammad Asif on behalf of the previous landlord as the appellant admittedly did not until 8-11-2005 receive any notice from the respondents under section 13-A of the Ordinance for change of ownership and that after receipt of the said notice, the appellant tendered the rent at the same rate for the months of November and December 2005 but upon respondents' refusal to receive it, the rent was deposited in the court. On the other hand, it is argued on behalf of the respondents that the rent due was Rs, 1500 per month and it was payable to the respondents by the appellant from May, 2005 when they became owners of the shop.
9. The learned courts below after thoroughly examining the oral as well as documentary evidence have given concurrent findings that the amount of rent due and payable by the appellant to the respondents was Rs,1500 per month and no payment of the said rent was made to the respondents from the month of May 2005 to the month of December, 2005. It may be observed even though rent agreement dated 26-05-1991 was not produced either by the appellant or by the respondents, the learned Rent Controller came to the conclusion that the rent agreed between the appellant and the previous landlord was Rs,1500 per month on the basis of PT1 Form for the year 1993-94 wherein rent of Rs,1500 per month was stated and PT1 Form of the year 1997-98 which mentioned au even higher rent of Rs,2000 per month. In the absence of the availability of the rent deed, the learned Rent Controller was justified to rely on the said old official record of the Excise and Taxation Department to which a presumption of truth is attached. The receipts produced by the appellant, to show that he had been paying Rs,550 per month as the agreed rent, were rightly rejected by the learned Rent Controller as the same were not proved in the absence of Muhammad Asif who purportedly issued them on behalf of the previous landlord coupled with the fact there was no evidence that the said Asif had any authority to receive the rent. As such, the finding of the learned Courts below that the agreed rent in respect of the disputed shop was Rs,1500 per month cannot be questioned.
10. This leaves me to deal with question if the learned courts below rightly concluded that the appellant committed default as he did not pay the rent of Rs,1500 per month to the respondents for the period May, 2005 to December, 2005. Learned counsel for the appellant has argued that until 8-11-2005 the appellant received no notice as to change of ownership of the shop in question where for he was not liable to pay any rent to the respondent for the period May, 2005 to October, 2005. As stated earlier, no evidence was produced by the appellant to prove that he had paid the rent to the previous landlord as the receipts therefor have not been proved by the person who purportedly issued them. As such, no payment of rent having been made to the previous landlord, the appellant, after admittedly having received notice dated 8-11-2005 from the respondents, was bound to pay them the rent at the rate of Rs,1500 per month from May, 2005 to October, 2005 as at least on 8-11-2005, if not earlier, he had knowledge that the respondents had become his new landlords with effect from 12-5-2005. A reference to section 13-A of the Ordinance reveals that within 30 days of the receipt of notice of change of ownership, the tenant is bound to pay rent due to the new landlord. In my view, the phrase "rent due" does not refer just to future rent but also includes previous months' rent as may be due and payable to the new landlord. As regards rent for the months of November and December, 2005, the appellant also committed default as, instead of depositing the payable monthly rent of Rs, 1500, he paid it at the rate of Rs, 550 per month only. I, therefore, affirm the finding that the appellant committed wilful default in the payment of the rent due to the respondents.
11. In the light of the discussion set out above, it stands established that the appellant has wilfully defaulted in the payment of rent due to the respondents who in good faith need the disputed shop for use of their dependent and jobless brother. With the exception of the finding as to statutory increase of rent in the judgment and decree dated 9-4-2009, I see no irregularity, illegality or infirmity in the impugned judgments and decrees which are lawful and have been passed in accordance with the evidence on record. Accordingly, this second appeal is dismissed but without any order as to costs. As a result, the appellant is liable to be ejected from the disputed shop but, in the interest of justice, the appellant is allowed to occupy the disputed shop till 30th May, 2010, by which date the appellant shall hand over the vacant possession of the shop to the respondents and shall also pay the rent due upto 30th May, 2010, within a fortnight from today.