' After hearing Mr. Manohar Lai, Advocate for the appellant and Mr. Akhtar Mahmood, Advocate for the respondent on 22nd March 1980 by a short order dictated in Court, I dismissed the above appeal with costs and allowed the appellant two months' time to vacate the premises. My reasons for dismissal of the appeal are as under :
1. The appellant, who is tenant of first floor premises bearing Survey No, J. M. 5/196 situated at 15- Clayton Road, Karachi, on an agreed monthly rent of Rs, 800 came in possession thereof under a written agreement of tenancy executed between him and the respondent on 17th May, 1973. On 5th July 1976, the respondent filed an application for ejectment of the appellant from the demised premises before the Rent Controller, Karachi, on the ground that the appellant had defaulted in payment of rent from 15th February 1976 to 30th July 1976 and that the premises was bona fidley required by her for her personal use and occupation and for the use and occupation of her son. In the written statement initially filed by the appellant on 19th August 1976, he denied the relationship of landlord and tenant between the parties and set up a plea that in view of the judgment of the Supreme Court in. Appeal No, K-29 of 1968 and Appeal No, 30 of 1969 dated 10th February 1976 the respondent ceased to be the owner of the premises. The Rent Controller accordingly framed a preliminery issue on 1st September, 1976 to determine the relationship of landlord and tenant between the appellant and the respondent. After framing of the issue, on 21st January 1977, the appellant moved an application for amendment of his written statement which was allowed by the Controller on the same day and on 8th February, 1976, he filed amended written statement. In paragraph (3) of the amended written statement the appellant pleaded that the title of the respondent was under cloud in view of the decision of the Supreme Court in the aforesaid appeal.
It was further alleged that one S. M. Zakir who was contesting the transfer of premises in occupation of appellant in favour of respondent before the Settlement Authorities had informed the appellant on 14th March 1976 that the question of entitlement of respondent in respect of the property in possession of appellant under dispute in Appeals Nos. 29/6S and 30/69 before the Supreme Court was finally remanded to the Chief Settlement Commissioner for redeterinination and as such no:rent be paid to the respondent The appellant, it was alleged, after receipt to the above letter from S. M. Fakir rote to respondent to produce a letter from Chief Settlement ,Commissioner authorising her to collect the rent of the premises as according to appellant after the order of Supreme Court in the above appeals the property neither belonged to respondent nor to said S. M. Zakir. The allegation of default and bona fide requirement of premises by respondent were denied. It appears that after filing the amended written statement the appellant did not press the issue of nonexistence of the relationship of landlord and tenant between the parties and accordingly the Rent Controller framed two issues in the case. One relating to the default committed by the appellant for the period from 15th March, 1976 to 30th June, 1976 and the other pertaining to the bona fide requirement of the premises by the respondent. After recording evidence of the parties and hearing them the Rent Controller allowed the ejectment application of the respondent on 7th December 1977 both on the ground of default as well as personal requirement. On appeal the 1st Appellate Court confirmed the finding of the Rent Controller and dismissed the appeal filed by appellant on 30th September 1978.
2. When the present appeal was admitted to regular hearing by this Court, the respondent filed an application for review of the cadet of admission on the ground that the question of default and personal requirement being one of facts, and the two Courts below having found concurrently in favour of the respondent. The appeal under section 100, C. P, C. Was not maintainable before this Court. This application was later on dismissed as the counsel for the parties agreed that instead of deciding the aforesaid application the main appeal may be heard at an early date. In these circumstances the above appeal came up for final disposal before me.
3. 1 have heard Mr. Manohar Lal, the learned counsel for the appellant and Mr. Akhtar Mahmood, the learned counsel for the respondent. Mr. Manohar Lal has contended before me that the question' of bona fide requirement on which both the Courts below have given concurrent findings was open to challenge in this Court, as the findings of the two Courts are not supported by the evidence. The learned counsel. Further contended that on the evidence as it stands, it was at the most a case that the party was not living very comfortably. According to the learned counsel, the respondent and her husband being the father and mother of Dr. Farooq, with whom they were living in a bungalow at Bahadurabad belonging to latter and the said Dr. Farooq being still unmarried, the evidence of Dr. Farooq before the Court that he wanted to live separately in the said bungalow should be construed as a mere desire on his part, which cannot be equated with the "requirement" as contemplated under section 13 of West Pakistan Urban Rent Restriction Ordinance, 1959. His further contention is that the real object of the respondent was to dispose of the property after having got it vacated from the appellant and as such the application lacked bona fide on the part of the respondent. The learned counsel contended that in these circumstances no sanctity can be attached to the concurrent finding of fact on this issue by the two Courts below and same is open to review by this Court in Second Appeal. The argument of the learned counsel has not impressed me at all. The two Courts below have based their findings on the issue of personal requirement of the premises by respondent on cogent reasons which are fully supported by the evidence on record. In my view the findings of the two Courts below cannot be described as contrary to the evidence on record. The learned counsel for appellant was unable to point out any misreading of evidence by the two Courts below, nor was he able to demonstrate that the appraisal of the evidence by the two Courts below was fallacious and perverse. All that the learned counsel argued was that in the circumstances the evidence of Dr. Farooq (son of respondent) that he wanted to live independently and separately from his parents should not have been believed as admittedly he was not discourteous to his parents nor had he asked them to vacate the premises. This argument was fully considered by the Courts below and the reasons given by them for believing the evidence of Dr. Farooq is quite convincing and logical and I see no reason to differ from it. In my view the scope for interference by this Court in second appeal is limited to the instances where the Courts below in considering the evidence on record have misread the evidence or the appraisal of evidence by the Courts below was fallacious and perverse or the Courts below have committed an error in following a procedure prescribed by law which has produced an error or defect in the ultimate decision of the case on merits Mere fact that another view of the evidence on record is possible, could hardly be a ground for interference in second appeal with the concurrent findings of fact. If any authority is needed for the view I have taken, reference may be made to the case of Madu Gopal and others v. Maran Bepari and another (I) Dr. A. K. Khan v. Muhammad Ishaq (2) and Nadir Shah v. Lal Shah (3). I am accordingly of the view that no interference is called for by me in this appeal to upset the concurrent findings of fact arrived at by the two Courts below on the question of bona fide requirement of the respondent. The contention of the learned counsel that the application of the respondent lacked bona fides and the main object of the respondent was to sell the property after ejecting the appellant, has equally no merit. The appellant, in the written statement initially filed before the Rent Controller, did not raise this plea. It was also not raised in the amended written statement filed by him before the Rent Controller. The foundation of this argument is the statement of appellant before the Rent Controller. In the examination-in-chief the appellant stated for the first time that the respondent alongwith S.M. Zakir wants to sell the house.
According to the statement of appellant this was decided in a "Iftar" Party allegedly held by respondent's husband Dr. Munawar Ali, where it was decided and the decision was conveyed to appellant by respondent's husband, who asked him to vacate the premises. It was further stated that Mr. Akhtar Mahmood, Advocate and Mr. S.M. Zakir had come to appellant alongwith one Abbasi and told the appellant that bungalow will be sold to Zakir if he gives a good offer. One Majid, brother also came to appellant in connection with the sale of property. Ahmad Rajab Ali Hemani was brought by Dr. Munawar Ali (respondent's) husband for showing the property for sale. This statement of appellant cannot be relied upon firstly for the reason that such a plea was never raised by him in the written statement. Secondly, this statement was made by the appellant for the first time after the evidence was closed by the respondent and this case was never put to Dr. Munawar Ali (husband of respondent), who was examined in {{FOOT NOTE}}
(1) PLD 1969 SC 617 (2) 1972 SCMR. 437
(3) PLD 1954 Lab. 447 {{FOOT NOTE}} the case as attorney of the respondent. Thirdly this evidence was, seriously challenged in the cross-examination by the respondent but no effort was made to summon Mr. Akhtar Mahmmood Khan, Advocate, or the alleged purchasers namely Abbasi, Majid brother and Ahmad Rajab Ali Hemani, to prove the allegation. Even S. M. Zakir, who was produced as a witness on behalf of appellant, did not refer to the alleged -Iftar Party" or his having come to appellant alongwith Akhtar Mahmood Khan and Abbasi in connection with the sale of the property. In my view no reliance can be placed on this evidence for the aforesaid reasons and it cannot be said that the application of respondent on the grounds of personal requirement lacked bona fides or was mala fide.
4. Turning to the question of default the learned counsel for the appellant argued that the default committed by the appellant resulted due to confusion, which arose in the mind of the appellant by a letter which was addressed to him by one S. M. Zakir on 19th March 1976. According to the learned counsel, the appellant was also misled by the order of Supreme Court passed in Civil Appeals Nos.
29/1968 and 30/1968 by which the case was remanded to the Chief Settlement Commissioner for determination of the revision application of S. M. Zakir on merits. It is contended that the appellant's failure to tender the rent to the respondent was the result of the fear on his part that he might have to pay rent to the Settlement Authorities again if he pays it to the respondent. Alternatively, it was argued that in any case the default on the part of the appellant to pay the rent for the aforesaid for months was not deliberate and in the circumstances of the case the Controller ought to have exercised his discretion in favour of the appellant. The argument of the learned counsel has no force, as admittedly the property was let out to the appellant by the respondent under written agreement of tenancy dated 17th May, 1973. The appellant had no concern whatsoever with the dispute that was going on between the respondent and a third party. In so far the appellant was concerned, he was estopped under section 116 of the Evidence Act to question the title of his landlord who had put him in possession of the premises. I am also not impressed by the argument of the learned counsel that the order of the Supreme Court passed in Civil Appeals Nos. 29/1968 and 30/1969 had misled the appellant not to pay rent to the respondent. In my view the effect of the order dated 10th Feburary 1976 passed by the Supreme Court in Civil Appeals Nos. K-29/1968 K- 30/1969 was that the revision application before the Chief Settlement Commissioner filed by S. M.
Zakir was to be reheard and decided according to law. It could not be said that respondent was deprived of the property to the above order of Supreme Court. It is an admitted position that after remand of the case to Chief Settlement Commissioner by Supreme Court the said S. M. Zakir and respondent compromised the dispute and the property in possession of the appellant continued to remain transferred to the respondent. In my view whatever may have been the ultimate result of the dispute between the respondent and the said S. M. Zakir, it could hardly give cause to appellant to withhold payment of rent to the respondent on this ground. The learned counsel for the respondent invited my attention to the case of Muhammad Hussain v. Amtul Batul (1) in which in similar circumstances it was argued before the Supreme Court that the Rent Controller should have exercised the discretion in favour of tenant in resolving the issue of default as {{FOOT NOTE}}
(1) 1979 SCMR 286 {{FOOT NOTE}} dispute between the parties was pending before the Settlement Authorities in respect of the premises. Their Lordships of the Supreme Court, while repelling the contention of the petitioner/tenant in that case, observed that mere fact that the dispute was going on between the parties in the Settlement Department was no ground to condone the default of the tenant. The above observations of the Supreme Court, in my opinion, fully apply to the facts of the present case and the Courts below rightly took the view that the default committed by the appellant was deliberate and no exception can be taken to the order of ejectment passed against the appellant on this ground.
5. The learned counsel for the appellant, while making submissions on the issue of default, raised a further argument that by virtue of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, the appellant shall be deemed to be a statutory tenant and thus protected under the law. The argument is absolutely misconceived. The appellant did not raise this objection in the first written statement filed before the Controller, nor was this plea taken in the amended written statement filed before the Rent Controller. This ground was also not raised in the memo. Of appeal before the District Judge, Karachi. However, it appears that an argument was made on behalf of appellant at the time of hermitic of 1st Appeal before the 1st Appellate Authority that appellant was entitled to protection under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, which was rightly repelled by the lower Appellate Court. In my view statutory tenancy under section 30 of the Displaced Persons (Compensation and Rehabilitation)
Act, 1958, is created in favour of such persons who were in possession of the houses or shops on 20th December, 1958 and which were transferred to claimant, non-claimant or locals under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. No other category of persons could acquire statutory tenancy rights under section 30 of D.P. (Compensation Ana Rehabilitation) Act, 1958 in respect of such properties C much less a person who was inducted into such a property by the tranferee under an agreement of tenancy. The relationship between the transferee and the tenant in such circumstances, in my view, will be governed under the normal tenancy laws. Accordingly I am of the view that the appellant was not a statutory tenant of the premises and relationshi between him and the respondent was governed under the provision of West Pakistan Urban Rent Restriction Ordinance, 1959. No other point was raised.
6. In view of the above discussion, I dismiss this appeal with costs but allow two months time to appellant to vacate the premises and hand over its vacant possession to the respondent.