' By means of an ejectment petition under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959, filed on 19th July, 1975, the respondent sought the eviction of the appellant from the portion in question of property bearing No, 24, Street No, 35, Dharampura, Lahore. She had based her claim on the grounds of default in the payment of rent, damage to the property and for personal need. The appellant resisted the petition and controverting the claim of the respondent, inter alia, pleaded that the monthly rent was Rs, 100 and not Rs, 250 as mentioned by the respondent in her petition. He further asserted that he had paid the rent all through regularly in advance and up-to-date without any default whatsoever. On ascertaining the material propositions on which the parties were at variance, the learned Rent Controller recorded the following issues :-
(1) Whether the present petition is mala fide and the same has been filed by the petitioner with the intention of increasing the rent ? 0. P. R.
(2) Whether the respondent has not paid or tendered rent due to the petitioner since 1st May. 1974 ; if so, whether the respondent has committed default ? 0. P. P.
(3) Whether the respondent damaged the property ? 0. P. P.
(4) Whether the property in dispute is required by the petitioner for her personal use in good faith ?
0. P. P.
(5) What is the actual rate of rent ? 0. P. P.
(6) Relief.
' After recording the evidence. The learned Rent Controller found the monthly rent of the demised premises as Rs, 250 and accordingly decided Issue No, 5 in favour of the respondent. He also decided Issues Nos. 2 and 4 in her favour but Issue No, 3 against her. In the light of his decision under Issues Nos. 2, 4 and 5, Issue No, I was found against the appellant. In view of his finding recorded under various issues, the learned Rent Controller vide his order dated 5th September. 1977 accepted the petition and passed the order of eviction against the appellant who unsuccessfully challenged the same in appeal before the learned Additional District Judge. The appeal was dismissed on the 28th of January, 1978.
2. The learned counsel for the appellant vehemently argued that both the Courts below, in recording their finding under Issue No, 5, have misread and misapqreciated the evidence comprising the copy of the objection petition dated/12th April, 1971 (Exh. R. 2) moved by the respondent before the Assessing Authority against the proposed assessment of the property and also the statement of Samina Gul (A. W. 6), Elaborating his point the learned counsel submitted that in the objection petition (Exh. R. 2) the respondent herself had stated that she was receiving the rent of the three rooms at the rate of Rs, 50 per mensem from the tenant, i,e, Shabir Hussain (A.
W. 1) who contrary to that deposed about paying Rs, 200 as monthly rent. He further submitted that according to the deposition of Samina Gui the monthly rent of the demised premises was Rs, 100.
He next urged that the finding recorded under Issue No, 4 is based on no evidence. The precise contention of the learned counsel for the appellant was that as per statement of the respondent's attorney (Muhammad Iqbal Qureshi A. W. 7), the premises in question were required for the use and occupation of the attorney's parents. According to the learned counsel this evidence could not be made the basis of recording finding under Issue No, 4.
3. The learned counsel for the respondent strenuously argued that the material propositions reflected through Issues Nos. 4 and 5 involve questions of fact under which concurrent finding has been recorded by the two Courts below and that being the case no interference in second appeal is permissible. He further controverted the contentions raised by the learned counsel for the appellant and supported the orders passed by the two Courts below.
4. I do not find any force in the contention of the learned counsel for the appellant that finding recorded under Issue No, 5 by the Courts below is a result of misreading of the objection petition Exh. R. 2 or the statement of Samina Gul (A. W. 6). The contention that this piece of evidence has been misappreciated by the Courts below has no force either. It is true that in Exh. R. 2 the respondent has stated that the rent of the three rooms was Rs, 50 but this document, which was written in 1971, A cannot be considered as relevant for determining the rent agreed upon between the parties at the inception of tenancy in March, 1973. No doubt Samina Gul (A. W. 6) has stated that the monthly rent of the demised premises was Rs, 100 but it should not be forgotten that she is a daughter of the appellant and it appears that under some compelling circumstances she was produced as a witness by the respondent. The perusal of the impugned orders shows that both the Courts below were conscious about the statement but still they, for cogent reasons, chose to rely upon the other evidence produced by the respondent and Exh. R I produced by the appellant. In the case of Harmes and another v. Hinkson (1) their Lordships of the Privy Council were pleased to observe that an Appellate Court ought to pay respect to the opinion which a Judge, who has watched and listened to the witnesses, has formed as to their credibility. Since the learned counsel for the appellant has not been able to persuade me to believe that the Courts below have misapprehended any part of the evidence or have drawn inferences from the facts found which cannot be reasonably justified, or in some other way to have left their decision under Issue No, 5 fairly open to attack, therefore, respectfully following the precedent case I accept the opinion formed by the learned Rent Controller as to the credibility of the witnesses who appeared before him. Moreover, the appellant did not cross-examine Shabir Hussain (A. W. 1) when he deposed that he was paying through cheques the rent of the demised premises at the rate of Rs, 200 per mensem to the respondent. Even Muhammad Iqbal Qureshi (A. W. 7) was not put any question in cross-examination when he deposed that on the request c of the appellant he started counter- signing the rent receipts. The failure to cross-examine on this part of the deposition is to be deemed as an acceptance and in this view of the matter it was obligatory on the part of the appellant to have produced and proved such a receipt which bore the counter-signatures of Muhammad Iqbal Qureshi (A. W. 7), the husband of the respondent. The plea raised by the appellant that the rent of the demised premises was agreed to be Rs, 100 is false and D vexatious.
At any rate, this being question of fact, on which there is concurrent finding, needs no interference by this Court in second appeal.
5. There is also no substance in the contention of the learned counsel for the appellant that Muhammad Iqbal Qureshi (A. W. 7), the respondent's attorney, stated in Court that the premises in question were required by the respondent for the use and occupation of the attorney's parents.
This witness is husband of the respondent and stated that his parents, who were old and weak, were living with him and experienced great difficulty in the upper story. Besides, this witness also stated tluit {{FOOT NOTE}}
(1) A 1 R 1946 P C 156 {{FOOT NOTE}} ' he had three grown up children. The reference to the parents and children by this witness was made to show the total number of Family members living in the upper storey and to satisfy the learned Rent Controller about the justification of the respondent's claim. At any rate providing accommodation to old parents-in-law along with her, it cannot be said that the respondent does not require the premises in question for her own use or that such a claim is beyond the scope of the provision contained in section 13 (3) (a) (1) of the Ordinance. With some advantage reference may be made to the case of Abdul Salam Akhtar v. Dr. Naja Parvez (1).
6. For the foregoing reasons, I do not find any force in this appeal and dismiss the same with costs.
The appellant is, however, allowed fifteen days' time to vacate the premises in question.
(I) 1976 SCM R 52