1. ' This appeal is directed against order dated 17th September, 1975 of learned Additional District Judge, Karachi, by which he dismissed appellant's Appeal No, 56/75 and upheld the order dated 20th December, 1974 passed by learned Rent Controller No,.,XXII Civil Judge Second Class, Karachi, inter alia on the following facts and grounds : ' The appellant as the owner of the property bearing No, R. B. 7/8/3III-A-132, old tenement No. 1/2, Jewar Singh Building, Gulrajmal Road, Arambagh, Karachi, which was transferred to the appellant vide P. T. D. Dated 24th December, 1971. The appellant sent notice dated 24th February 1972 to respondent under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, by which rent was demanded from the respondent at the rate of Rs, 31.50 per month from 6th July, 1971, but the respondent failed to comply with the said notice. The appellant further alleged that she is living, temporarily with her brother-in-law Habib Ibrahim, who has a large family of 10 members and the premises in occupation of his brother-in-law are not even sufficient far his own family and as such her brother-in-law has asked her to shift and as such she requires the premises in occupation of the respondent reasonably and in good faith for her personal and bona fide use.
2. On the, basis of these allegations, the appellant filed ejectment application dated 1st August, 1972, under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, on the ground of default and personal and bona fide use. The respondent above-named filed his written statement in which he admitted receipt of.Notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and further stated that he sent reply to the said notice on 7th March, 1972, in which he stated, that the rate of rent of the premises in his occupation was Rs, 18 per month and not Rs, 31.50 per month and he further alleged that he sent rent, from 24th December, 1971 to 24th Fabruary, 1972 by money order but the sante was not accepted by the appellant. The respondent in his said written statement denied, that he was a defaulter as well as the allegations of the appellant that she requires the premises in question reasonably and in good faith for personal use, He further asserted that he was protected from ejectment under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958.
3. ' That on the basis of the above pleadings of the parties, the learned Rent Controller settled the following issues :--
(1) Whether the opponent/respondent committed default in payment of rent to the applicant/appellant ?
(2) What is the rate of rent ?
(3) Whether the opponent/respondent is protected from ejectment under the provisions of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 on the ground of personal need?
(4) Whether the opponent/respondent is liable to be ejected ?
(5) To what relief the applicant/appellant is entitled ?
4. ' The appellant above-named examined one Ahmed Suleman, her attorney whereas the respondent examined himself.
5. ' The learned Rent Controller after taking into consideration the .Evidence of the parties and documents produced before him came to the conclusion that the respondent was not wilful defaulter for the reasons given by him in his order dated 20th December, 1974 and decided Issue No. 1 in the 'negative. On Issue No, 2, the learned Rent Controller gave finding that the rent of the premises in occupation of the respondent was Rs, 18 per month. On Issues Nos. 3 and 4, the learned Rent Controller, for the reasons:given in his said order, came to the conclusion that the appellant .Does not require the premises in occupation of the respondent in good faith for her personal and bona fide use but he gave no finding specifically on Issue No, 3 perhaps because be came to the conclusion on issue, No, 4, that the premises in occupation of the respondent were not required by the appellant in good faith for her personal and bona fide use. In view of these findings, the learned Rent Controller dismissed appellant's application by his order. Dated 20th December, 1974.
6. ' The appellant being aggrieved by the order dated 20th 'December, 1974 of the learned Rent Controller filed an Appeal Nos 56/75 in the Court of Ist Additional District Judge, Karachi, wbo also by his order dated 17th September, 1975 dismissed the said appeal and upheld the order dated 20th December, 1974 of the learned,Rent Controller and awarded special costs to the respondent, as he came to the conclusion, that ejectment application filed by the appellant was frivolous.
7. ' Being aggrieved by the above-mentioned two orders of the learned lower Courts, the appellant has filed this appeal on the following grounds :- ' The judgment is based on no documentary evidence about the payment of rent yet the learned Court has held the attempt of the respondent to be genuine.
8. ' That even there are no corroborative jestimonies for and on behalf of the respondent to prove the respondents "_genuine effort.
9. ' That even there is no evidence to support the appellants refusal of rent. The carbon copy of the Post Master's letter remains even unproved, yet it has been given full weight which is illegal and against the provisions of Evidence Act., ' That the learned Court has without any 'reasonable ground discarded the evidence of the appellants regarding personal .Necessity who has clearly stated that the appellant is living 'with her sister who has big family and is staying in a limited accommodation.
10. ' I have heard the learned counsel for both the parties and perused the evidence led before the learned Rent Controller and documents produced before him as well as I have gone through the orders dated 20th December, 1974 and 17th September, 1975 of the learned Rent Controller and 1st Additional District Judge, Karachi, respectively and have taken into consideration the reasoning given by both of them in support of their respective orders.
11. I find from the memo. Of appeal filed before 1st Additional District Judge, Karachi, as well as memo.
12. Of appeal filed beforet4his Court that the: finding of both the learned lower Courts on quantum of rent arrived at by the said two lower Courts, has not been challenged by the appellant A and as such it is clear that demand of rent at the rate of Rs, 31.50 in notice under section 30 of the Displaced Persons Act by the appellant was completely unwarranted, on the basis of the appellant's deposition and of the witness produced on behalf of the appellant as well as on the basis of the deposition of respondent and the documents that were brought on record before the learned Rent Controller. The learned counsel for the appellant has conceded before me in view of above facts that the rent of the disputed premises payable by the respondent was Rs, 18 per/ month only.
13. ' The only contention which has been raised by the learned counsel for the appellant before me is that mere production of the money order which was alleged to have been sent by, the respondent, and in the absence of examination of witness from the post office in order to prove Exh. 18, both the learned lower Courts were not justified in holding that the respondent made genuine efforts to pay and/or tender the rent by money' order in spite of Exhs 0/6 and 0/7, being the coupon and receipt of money order of Rs, 36 sent by the respondent as alleged in his deposition for a period from 24th December, 1971 t9 23rd February, 1972. The learned counsel for the appellant further urged that mere demand of higher rent by itself would not affect wilful default, on the part of the respondent, if it is established that he did not tender the rent in time, which was due and payable. In this connection, the learned counsel for the- ,appellant relied on case reported in PLD 1976 Kar. 756, PLD 1968 Kar. 182, ;1973 SC MR 309, PLD .1973 Note 160 at p. 241 and 1979 CLC 118. The learned counsel for the appellant further stated that the application for ejectment was filed-on 1st August, 1972 and as such the default period was from 24th December, 1971 to 31st July, 1972. However, the respondent's alleged money-order even for arguments sake. If it is proved to have been sent and refused by the appellant, was for a period from 24th December, 1971 to 24th February, 1972 only, and as such there was a clear default in payment of rent at least from 25th February, 1972 to 24th April, 1972 for which no explanation at all has been given by the respondent and, both the learned lower Courts have failed to consider this default period in their respective orders and as such, the concurrent findings of both the learned lower Courts, in respect of ground of default, are liable to be set aside by. This Court and in support of this contention, the learned counsel for the appellant, relied on case reported in 1973 SCMR 606. The learned counsel for the respondent on the other hand submitted that sine default in respect of initial period 24th December, 1971 to 24th February, 1972 was not proved according to the findings of both the lower Courts, in view of money order dated 7th March, 1972 Exh. 0/6 produced by the respondent, the appellant ought to have filed fresh application for default from 25th February, 1972. In this connection, the learned counsel for the respondent relied on 1979 SCMR 534 (?). This authority does not support this contention of respondent at all. The learned counsel for the respondent further submitted that the concurrent findings of both the learned lower Courts, on this issue of default, should not be interfered with, in the second appeal and for this purpose the learned counsel for the respondent relied on 1980 SCMR 675 and 760 and 1979 CLC 114. The learned counsel for the respondent further submitted that the discretion exercised by both the learned lower Courts was rightly exercised and in this connection he relied on PLD 1964 Kar.
14. 686.
15. ' I have carefully considered the submissions made by the learned counsel for the respondent and find no force in his contention, that a fresh ejectment application on ground of default for a period from 25th February, 1972 onwards ought to have been filed. The case reported in 1979 SCM R 534 (?) is completely on different facts and issues and in my opinion has no application to the present case. The cases reported in 1980 SCMR 675 and 760 lay down the principles that concurrent finding of fact would not be interfered in second appeal unless it is shown that the judgments of the lower Courts are contrary to law or some usage having force of law or have flailed to determine some material issue of law or procedure adopted. In the present case both the learned lower Courts have failed to consider default from 25th February, 1972, subsequent to the alleged money order sent by the respondent which question was very much before them and as such in my opinion concurrent findings of both the learned lower Courts could be interfered with, on the basis of law laid down by the hon'ble Supreme Court in 1980 SCMR 760, as both c the learned lower Courts have completely ignored the question of default which was before them also for a period from 25th February, 1972 onwards. As far as findings of both the learned lower Courts that on account of demand for excessive rent by appellant, there was no default committed by respondent, the learned counsel for the appellant has relied on PLD 1973 Note 160 at p. 241, 1973 SCMR 309, PLD 1976 Kar. 756 and PLD 1968 Kar.
182. All these authorities lay down that liability to pay or tender rent regularly, lies with the tenant irrespective of higher demand by the landlord and the tenant is not absolved from his liability to pay contractual rent simply because of landlord's demand of higher rent. In this connection the authority reported in PLD 1968 Kar. 182 and PLD 1960 Kar. 757 fully supports the contentions of the learned counsel for the appellant on this point.
16. ' Therefore, in my opinion since the respondent has given no cogent explanation at all in respect of non-payment or tender of rent from 25th February, 1972 onwards, he is a wilt ul defaulter in payments of rents due from 25th February, 1972 to 24th April 1972 at the rate of Rs, 18 per month, which was the rent of the premises according to the respondent, and as such I set aside the findings of both learned lower Courts in respect of Issue No. 1.
17. ' In view of above findings of mine, the contention of the learned Advocate for the appellant 'regarding absence of proof of refusal of money order in question by the appellant needs no consideration for disposal of this appeal.
18. ' On question of personal and bona fide use, the learned Rent Controller observed, that it is said that appellant was living with her sister since last two years in Tolaram Building which admittedly belongs to her father. The Ration Card produced was in the name of her husband but the said Ration Card does not show that the appellant is residing with her sister and futhermore, the learned Rent Controller observed that there is no reliable oral and documentary evidence to prove that appellant was living with her sister. He further observed that Mst. Khatija, the sister of' the appellant, has not come forward in witness-box, to substantiate the appellant's statement and as such the.
19. Learned Rent Controller stated that he did not consider the evidence produced, proves that the appellant requires the premises in occupation of the respondent for her personal and bona fide use. The learned Additional District Judge while dealing with this issue observed that since the ejectment application was filed, within the period of 6 years from the date of .P. T. D. The respondent was protected from ejectment and as such the application made by the appellant was wholly misconceived, uncalled for and untenable and as such the question of good faith and bona fide need was immaterial for consideration. The learned counsel for the appellant, urged before me. That the protection of 6 years given under section 13 (b)(3)(i) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was not available to the respondent as he was defaulter in payment of rent and for this purpose the learned counsel for the appellant relied on 1977 SCMR 147. The learned counsel for the appellant further submitted that in the alternative that since 6 years period of protection expired on 23rd December. 1977 and as such the ejectment of respondent on ground of personal and bona fide use can be allowed by this Court, if this Court comes to the conclusion that appellant requires the premises in question for her personal and bona fide use in good faith. In support of this contention, the learned counsel for the appellant relied on 1979 SCMR 534(?). On the merits, the learned counsel for the appellant submitted that the deposition of the witnesses produced on behalf of the appellant was sufficient and their evidence should have been accepted as sufficient. On the other hand, the learned counsel for the respondent submitted that case reported in 1979 SCMR (?) 534 was not applicable to the present case as the order of the learned Rent Controller as well as the Additional District Judge, Karachi, were passed before the expiry of 6 years period and as such the said orders are legal and should not be disturbed in second appeal.
20. ' I have considered the submissions of both the learned counsel for the parties, on this issue and have taken into consideration various authorities cited by them before me. In my opinion, it was necessary for the appellant as well as her sister, Mst. Khatija to come in the witness-box in support of appellant's contention, that she was residing with her said sister and that the present accommodation was not sufficient and as such her sister has asked her to shift. This was not done nor any cogent reasons for their failure to come forward and give evidence have been advanced before me and as such in my opinion, the learned Rent Controller was justified in holding, that he was not convinced by the evidence of the witness produced on behalf of the appellant in respect of this ground and further since the ejectment application in question on the ground of personal and bona fide use was filed within the protected period of 6 years and disposed of by both the learned lower Courts prior to the expiry of the said ,period, and it was rightly dismissed on this ground as held by the learned Additional District Judge. I see no reason, therefore, to interfere with the findings of both the learned lower Courts on this issue, in view of the observations made in this connection in case reported in 1979 SCMR 534 (?). Rest of the grounds mentioned in appeal have not been pressed before me and hence require no consideration.
21. ' In view of my finding that the respondent was wilful defaulter in payment of rent from 25th February, 1972 to 24th April, 1972, for which he has given no explanation at all, I set aside the orders of both the learned lower Courts in respect of Issue No,. 1 and hold that respondent is a wilful defaulter within the meaning of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, and direct the respondent to vacate the premises in his occupation and hand-over its possession to the appellant and maintain the findings of both the learned lower Courts in respect of issue on personal and bona fide use and allow the above appeal to the extent mentioned above, with no orders as to costs.