JUDGMENT v IJAZ-UL-AHSAN, J.-- This appeal is directed against order dated 5.7.2008 passed by the learned Additional Rent Controller, Walton Cantt., Lahore. Through the said order an _ ejectment application filed by the respondent was allowed and the appellant was directed to hand over vacant, possession of the rented premises to the respondent within thirty days from the date of passing of the order.
2. The respondent owns a shop constructed on commercial plot No. 139-H Phase-I, DHA, Lahore Gantt. The shop, in question is situated on the ground floor.. The respondent lives in an apartment built on top of the shop.
The appellant is in possession of the shop as a tenant for the past many years. On 21.1.2006 the respondent filed an ejectment petition seeking eviction of the appellant from the ^ shop (hereinafter referred to as the "rented premises"). The rented premises was admittedly given on lease to the appellant vide lease agreement dated 31.7-2002, initially for a period of eleven months at a monthly rent of Rs. 10,000/-. Subsequently, the tenancy period was orally extended from time to time against enhancement of rent. Presently the appellant/tenant is paying rent at the rate of Rs. 14,000/- per month.
3. The respondent, who is the landlord, was living and working in Saudi Arabia. When he returned after completion of his overseas assignment, he took up residence in the apartment on top of the rented premises. Subsequently, in July, 2005, he served a notice on the appellant to vacate the rented premises because he needed the same for his bona fide personal need to start his on business. The respondent did not vacate the rented premises and allegedly stopped payment of monthly rent in December-2005. The respondent kept approaching the appellant to handover vacant possession of the rented premises. However, the appellant did not accede to the request which forced the respondent to file an ejectment petition. The petition was contested by the appellant who filed his reply. He contended that the respondent had filed the petition with mala fide intent to blackmail and pressurize the appellant into enhancing the monthly rent. The plea Of bona fide personal need was also denied and it was asserted that the respondents spends most of his time outside the Country. He has been living abroad . With his children, and he has no intention to start his on business in the rented premises. The appellant also denied the allegation of default in payment of rent and took the position that he had already paid the entire amount of rent uptill March, 2006. Thereafter, upon refusal of the respondent to receive rent, he started depositing the rent in Court which was continuously Deing done.
4. The learned Additional Rent Controller vide his order dated 26.7.2006 passed a rent deposit order directing the appellant to deposit arrears of monthly rent since December-2005 to June-2006 at the rate of Rs. 14,000/- per month. He has also directed the appellant to deposit future rent at the same rate. From the divergent pleadings of the parties the learned Trial Court framed the following issues:-
(i) Whether the petitioner needs the shop in question in good faith for his personal use? OPP
(ii) Whether the respondent has committed default in the monthly payment of rent since December, 2005? OPP (i.e) Whether the petitioner has filed the eviction petition with mala fide intention and there exists no cause of action? OPR
(iv) Relief.
The respondent appeared as PW. And produced his written evidence as Exh. P.1, original rent agreement (Exh. P.2), site- plan of the rented premises (Exh.P.S), undertaking (Exh. P.4), notice for termination of tenancy dated 5.7.2005 (Exh. P.5), and letter of termination of services of respondent from Saudi Arabia (Exh. P.6). He afer produced two witnesses, namely Iftikhar Ali Sheikh son of Namat Ali Sheikh and Asif Ali Sheikh son of Iftikhar Ali Sheikh, who produced affidavits of their evidence (Exh. PW. 1/2) and (Exh. PW. 3/1). The respondent appeared as RW.1 and produced affidavit of his evidence as RW.1/1. Ahmad Khan (RW.2) and Muhammad Faheem Iqbal (RW.3) were also produced by the appellant who submitted their affidavits and evidence Exh. RW. 1/2 and RW.3/1, respectively. A photocopy of receipt issued by the respondent for sale of furniture of the appellant was also produced as Mark-A. After hearing the parties and examining the record, the learned Additional Rent Controller allowed the ejectment application vide order dated 5.7.2008;
4. The learned counsel for the appellant argues that Section 17(4)(b) of the Cantonments Rent Restriction Act, 1963, requires that eviction can be sought on the ground of bona fide personal need. He submits that neither in the pleadings nor in the evidence was the word "bona fide" used by the respondent. He, therefore, submits that there was no bona fide personal need and the findings of the learned subordinate .Court are not sustainable on this ground. He further points out that the appellant had vacated the upper portion of the building on the request of the respondent two months before filing of the ejectment application. The respondent had not mentioned any personal need relating to the ground floor shop and nothing has been brought on record to indicate the personal need of the respondent. He submits that there was neither any extension in the family of the respondent nor did any of his children return from abroad for whose use the premises in question could have been required. Relying on M/s. Delite House Ltd. v. Ch. Farryaz Akbar (1986 CLC 495), he argues that there is a distinction between desire and bona fide need.
While the landlord may express his desire to get the premises vacated, law does not recognize desire of the landlord as a valid ground to seek eviction of the tenant from a rented premises. In order to succeed, the landlord must establish bona fide personal need by producing credible evidence. Adverting to the plea of personal need, the learned counsel submits that the respondent has taken a vague plea that he is a marketing professional and wishes to use the rented premises to set up his on office, In this regard he submits that the word "marketing professional" is open to many interpretations. A general description has intentionally been used to keep it open end to meet the requirement of the respondent at the. Relevant time during recording of evidence. He Submits that the only reason for seeking eviction of the appellant from the rented premises is that the respondent wishes to enhance the rent manifold as is evident from his admission in the cross- examination that similar properties in the locality are being rented out for Rs: 50,000/- per month.
5. As far as the question of default is concerned, the learned counsel submits that in the first place the appellant has not committed default. He had paid advance rent till March-2006. He further submite that in any event, on expiry of the lease agreement, the tenancy had been converted into a statutory tenancy and a period of sixty days was available to the appellant in-order to pay outstanding rent. He adds that the petition was filed on 21.2.2006 while the cause of action, if any, was to mature after March-2006 on expiry of the aforesaid period of sixty days. Hence there was no default. He finally argues that admittedly the respondent had not been issuing receipts against payment of rent, In situations like this, the burden of proof is on the landlord to establish that the tenant has committed default. He submits that the landlord had failed to discharge that onus, In consequence an order of ejectment could not have been passed.
6. The learned counsel for the respondent has supported the impugned order.
7. I have heard the learned counsel for the parties and have also gone through the oral and documentary evidence produced by the parties.
8. The relationship of landlord and tenant is ,admitted between the parties. Ejectment was sought on the ground' of bona fide personal need as well as default. As far as personal need of the landlord is concerned, the landlord is not required to giv e detailed and elaborate description of the personal use that the property will be put to. If he, states that he needs the premises for his personal use as he has no other property which could be suitable for the work he plans to undertake, he is not required to prove anything further, It. Was held in Jehangir Rustam Kakalia v, M/s. Hashwani Sales and Services (Pvt.) Ltd. (2002 SCM R 241) that the landlord being owner of demised premises cannot be deprived of his rights and interest to use his property in a manner more suitable to his requirement. No reasonable restriction can be placed on exercise of such right by the landlord which would offend his fundamental rights guaranteed under Article 3 of the Constitution, In another case Haji Mohibullah & Co. And others v. Khawaja Bahauddin (1990 SCM R 1070) the apex Court held that for a landlord seeking an ejectment of a tenant on ground of his personal bona fide need it is not a legal requirement to disclose in his ejectment-petition the nature of business for which he requires the premises in dispute, In yet another case Khawaja Imran Ahmed v. Noor Ahmed and another (1992 SCM R 1152) the Honourable Supreme Court of Pakistan held that where the landlord has retired from service and wanted to employ himself by carrying on business in his on shop, to deprive him of the use of his on shop would be against all canons of justice unless he is expressly prevented by law from doing so. I am, therefore, not in agreement with the argument raised Joy the learned counsel for the appellant that details of personal need were required' to be given by the respondent in his ejectment petition or his evidence before the Court. I find that the respondent had stated in his ejectment application that he needed the rented premises for personal use and in his cross-examination he stated that he was a marketing professional and wanted to open, marketing consultancy office in the demise premises. The letter of release issued by AB Group Saudi Arabia substantiates the stand taken by the respondent. The said letter shows that the respondent was working as a Marketing Manager with the said Company in Saudi Arabia. After his retirement it is nothing but natural that the respondent may have thought of setting up a marketing office to keep himself occupied and generate funds for his livelihood. I therefore hold that the findings of the learned subordinate Court insofar as they concern bona fide- personal need of the respondent are Valid and based upon the record. The bona fide personal need of the respondent was also supported by witnesses produced by the respondent who categorically verified his stance, It is interesting to note that the said witnesses namely Iftikhar Ali Sheikh and Asif Ali Sheikh were not cross-examined on the point of personal need which has justifiably led the subordinate Court to reach the conclusion that the statement of the witnesses to the extent of personal use and .Occupation of the rented premises by the landlord has gone unrebutted. A perusal of the evidence also indicates that nothing was brought on record that may have suggested mala fide on the part of the respondent in filing the ejectment application against the appellant. Where bona fide need of the landlord was otherwise established on record, plea of intention to increase rent could not adversely affect the case of the landlord for his personal use. Even otherwise, under the law it is prerogative of the landlord to get vacated premises of his on choice without any objection on the part of the tenant. The fact that the appellant had earlier vacated the upper portion of the building on the request of the appellant or that another shop under the occupation of another tenant could have been got vacated, do not in any manner help the case of the appellant. The findings of the Trial Court on the issue of bona fide personal need are valid, supported by cogent reasons and substantiated by oral as well as documentary evidence.
9. Coming to the issue of default, the burden of proof was on the landlord to establishing-payment of rent, It has been held that where a landlord appears in Court and states on oath that rent has not been paid for a certain period, the burden lying upon him is sufficiently. Discharged and shifts on the tenant to prove affirmatively that he paid or tendered such rent. The Judgment of the Honourable Supreme Court ot Pakistan in Allah Din v. Habib (PLD 1982 S.C.465) affirmatively lays down the said rule. The aforesaid judgment was followed in Muhammad Luqman Ahmad v. Munir Ahmad and others (1997 CLC 651) by this Court. In- Luqman Ahmad's case (supra) it was held that although initial onus to prove default lies on the landlord but the same being a negative fact the moment the landlord makes a statement on oath denying having received any rent, the onus would shift on the tenant who must affirmatively establish that he has paid/tendered rent. Where evidence led by the parties was equally balanced, the tenant must fail. The record indicates that the respondent appeared in the witness-box and stated on oath that because of issuance of notice the respondent had wilfully stopped payment of rent whereupon ejectment application was filed. On the other hand, the appellant who appeared as RW.1 and submitted his affidavit as RW.1/1 stated irrelevant facts and adverted to contradictory statements relating to payment of rent.
Similarly, the evidence of the two witnesses namely RW.2 and RW.3 do not inspire confidence in view of the material contradictions in the facts narrated by them. RW.2 admitted in cross- examination that the appellant -never made any payment of rent in his presence nor did he have any knowledge about the rate of rent. Similarly RW-3 specifically stated in his cross-examination that the respondent paid the rent for December-2005 and January-2006 in his presence. However, he did not know when the rent was paid or the amount that was paid, It is also noticed that the appellant tried to lead evidence beyond his pleadings which was rightly ignored by the learned Additional Rent Controller.
10. The learned counsel for the appellant has also laid much stress on conversion of the tenancy into a statutory tenancy on expiry of the original lease agreement. The contention of the learned counsel does not have much force. Admittedly the relationship between the parties commenced on the basis of written rent agreement dated t.7.2002. It was for a period of eleven months.
Admittedly the tenancy continued with mutual consent after expiry of the period mentioned in the rent agreement, It has been held that where a tenant entered into a rented premises under a written agreement, after the lapse of the period mentioned in the rent agreement, the terms and conditions settled between the parties through written agreement would continue to govern the terms and conditions of the tenancy. It has further been held that where there is a written agreement between the' parties with certain terms and conditions relating to payment of rent and the tenant did not pay rent according to the terms and conditions, he would be in default and would be liable to ejectment. Reliance in this regard is placed on Khalid Javed v. Muhammad Imran (2004 M LD 577). Likewise in Mst. Maqsooda Begum v. Hamid Mahmood Butt (1999 CLC 391) this Court held that the terms of expired agreement if it was not repugnant to law continued govern the relationship between the parties. Consequence of non-payment of rent would be subject to the law in force. The aforesaid judgment was based upon the dictum laid down in Muhammad Baqir Qureshi v. Mst. Razia Begum (1981 SCMR18).And (PLD 1988 S.C.190).
11. A perusal of the rent agreement indicates that the appellant was required to pay advance rent for three months within five days after expiry of advance rent for the previous period, It is evident that the plea of statutory tenancy has been raised in order to cover the default committed by the appellant for the period commencing from December-2005 to March-2006. I therefore find that the conclusions drawn by the learned subordinate Court relating to default are also well-founded.
The appellant failed to produce any confidence inspiring or credible evidence to substantiate his claim that he had not committed default or that he paid the rent in accordance with the terms and conditions of the rent agreement executed between the parties, It is also noticed that the oral evidence produced by the appellant was contradictory and did not inspire confidence. The appellant failed to dislodge the case set up by the respondent before-the learned Trial Court. On the other hand, the petitioner's case as well as the evidence produced by him was confidence inspiring and the testimony produced by him could not be shaken during cross- examination. The learned subordinate Court acted within the parameters of its jurisdiction, correctly interpreted the law and found abundant support for his conclusion from the evidence available on record. The findings of the learned Trial Court on all three issues are unexceptionable and warrant no interference.
12. For the aforesaid reasons, I find the appeal to be without merit, It is accordingly dismissed, In view of the fact that the eviction proceedings have lingered on for about four years, the appellant is directed to vacate the premises and handover vacant possession to the respondent forthwith.
No order as to costs.