The respondent filed a petition against the appellant to secure his eviction from the house in dispute on the grounds of default in payment of rent for the period from 1st of October, 1969 to 30th September, 1970, and re--construction.
2. The appellant resisted the petition, denied the default and pleaded that the rent was regularly paid; it was remitted even through money order but was refused. He also claimed that substantial improvements were made by him in the demised property. It was contended that the respondent merely wanted to increase the rent and the ejectment petition was only a lever to attain that object. It appears that after filing the written statement the appellant moved an application for its amendment to incorporate therein certain new grounds of defence but that application was turned down by the Rent Controller by his order dated 17-7-1971.
3. In support of the ejectment petition, besides his own-testimony the respondent produced in evidence the building plan sanctioned by the Lahore Municipal Corporation and examined Muhammad Younis A. W.2, who stated that in his presence the rent a-as demanded by the respondent from the appellant but the latter did not make the payment. While appearing as his own witness the respondent corroborated the submissions made in the petition, and deposed that the rent was not paid from 1st of October, 1969 onward. He further claimed that the house was in a dilapidated condition; it was to be reconstructed and that a building plan was already got sanctioned by him. The sanctioned plan was also tendered in evidence. On the other hand, in the course of his evidence, the appellant seemingly deviated from stand taken by him in the written statement and came forth with the plea that he was a milk seller, the respondent's mother used to purchase milk from him and get the cost thereof adjusted against the rent. In this respect, in addition to his own testimony, he examined Muhammad Yasin, R. W. 2 Allah Din, R. W. 3 and Muhammad Sharif R. W.
4. On the appellant's move, respondent's mother, namely Mst. Zenab Bibi, was also examined through Commission. She, however, categorically denied having purchased milk from the appellant.
4. The learned Rent Controller held that the appellant produced sufficient evidence to substantiate his case and whereas the respondent could not prove his contentions. He maintained that the rent was regularly paid and that the appellant was not a defaulter. As regards reconstruction, he was of the view that the demised premises formed part of the property which was occupied by a number of other tenants; the respondent could not raise any construction without their ejectment; that instead of procuring possession from them, he compromised even with the one tenant against whom he had instituted ejectment petition and dropped the proceedings. The learned Rent Controller thus answered the issue regarding reconstruction against the respondent and by his order dated 8-3-1975, dismissed the petition.
5. In appeal the learned Additional District Judge reversed the findings on the question of default, but maintained the learned Rent Controller's verdict on the issue regarding reconstruction of the property. The landlord's appeal was thus accepted on 21-9-1976.
Hence this second appeal by the tenant.
6. The learned counsel for the appellant assailed the findings of the learned Additional District Judge on the first issue and argued that the evidence on the record fully established that the rent was got adjusted by the respondent's mother against the price of the milk purchased by her from the appellant. He argued that the oral evidence led by the parties, was properly weighed by the learned Rent Controller who accepted the appellant's contention and discarded the respondent's evidence. On the strength of W. C. Macdonald v. Fred Latimer and others (AIR 1929 P C 15), it was argued that in case there is no sufficient balance of improbability to set aside the finding of the trial court as to the veracity of oral evidence then the appellate court should be reluctant to interfere with the trial court's finding of fact. He also referred to Muhammad Siddique v. Abdul Hameed (PLD 1976 Kar. 696), to contend that the explanation added to subsection (2) of section 13 of the Rent Restriction Ordinance is not exhaustive and does not exclude other modes of tendering the rent.
7. In reply to these submissions the learned counsel for the respondent adopted the reasoning which influenced the decision of the learned Additional District Judge on the question of default.
However, he assailed the findings of the learned two courts below on the issue of reconstruction. He argued that the evidence was misread by them and the provisions of section 13(2) (vi) of the Ordinance were misconstrued. He relied on Haji Allah Ditta v. Mst. Shahzadi Bilqees (1980 SCMR 41).
8. I have gone through the entire evidence with the assistance of the learned counsel for the parties, and on the issue of default I am inclined to agree with the learned Additional District Judge.
There are number of reasons for differing with the view taken bar the learned Rent Controller. It is to be noticed that in the written statement the appellant did not raise the plea that the rent was adjusted against the price of the milk purchased from him by the respondent's mother. This defence was set up by him during evidence. As observed above he also examined the respondent's mother as his witness but she did not at all support him. Furthermore it is in the evidence of the appellant that the account of the sale of milk to the respondent's mother, was kept by one Muhammad Ashraf. As per statement of the respondent's mother Mst. Zainab Bibi, this Muhammad Ashraf is one of the tenants in the respondent's building; the house in dispute is part of that building. The appellant did not examine Muhammad Ashraf as a witness. His other witness Muhammad Yasin, R. W. 9, did not say a word in his examination-in-chief, regarding the purchase of milk by the respondent's mother. It was, however, only is cross-examination that he stated that she used to purchase milk - from the appellant. Allah Din, R. W. 3, deposed that he was not aware that as to whether or not the price of the milk was paid by her to the appellant at the time of purchase and that he had no knowledge of the payment of rent. The testimony of Muhammad Sharif a R. W. 4, no doubt supports the appellant. It is noteworthy, as pointed out by the learned Additional District Judge that while accepting the appellant's version, the learned Rent Controller did not at all refer to the statement of Mst. Zainab Bibi, who was examined by the appellant. The finding of fact given by him was thus vitiated by non reading of a material piece of evidence, Even otherwise, he did not examine the case in its true perspective. The respondent having entered the witness-box and denied the receipt of rent the burden of proof was shifted to the appellant. It was thus for him to have established that he was not a defaulter. The defence taken by him that the rent was adjusted against the cost of the milk, appears to be an afterthought. The observations made in W. C. Macdonald's case, have no applicability to the case in hand. There is no gainsaying that there may be other meant of payment of rent than the modes specified in the subsection (2) of section 13 of the Ordinance. In this case, is not regarding recognition of the mode of payment the correctness of the payment itself has been doubted. The ruling reported as Muhammad Siddiq v.
Abdul Hameed, is thus, of no avail to the appellant.
After examination on the record I find that the findings of the learned Additional District Judge in holding the appellant as a defaulter are well grounded and uphold the same.
9. As regards the reconstruction of the property in dispute both the learned courts below gave a concurrent finding against the respondent on this issue. This is a finding of fact. The learned counsel for the respondent failed to persuade me that this finding suffered from any misreading of evidence. I have perused the sanctioned building plan produced by the respondent. It relates to the entice building and unless and until all the occupants of the building hand over the possession to the respondent cannot embark upon any construction. Admittedly, the other tenants have not passed on the possession of the premises in their occupation, to the e respondent. Even if the appellant is ejected it will not be possible for the respondent to proceed with the construction.
Under these circumstances, it cannot be said that the building is required by the respondent reasonably and in good faith for reconstruction, The view taken by the two courts below in this respect, is unexceptionable.
I have perused the precedent cited by the respondent's learned counsel. It is not on the point in issue and renders no assistance to the respondent.
10. For all these reasons I do not find any merit in this Appeal which is hereby dismissed leaving the parties to bear their own costs. The appellant shall hand over the vacant possession of the property in dispute to the respon--dent on or before 1-8-1980.