This Second Appeal from Order calls in question order dated 20-7-1978 passed by the learned Additional District Judge, Lahore.
2. The dispute in this case relates to an Ihata situated in Chiragh Street No. 3, outside Delhi Gate, Lahore. It is in occupation of the appellants as tenants under the respondent. The tenancy is admitted and the rate of rent of Rs. 35 per month is also not disputed.
3. The respondent initially filed before the Rent Controller, Lahore, an ejectment petition on 20-11- 1.962 against Haji Muhammad Shafi, the pre--decessor-in-interest of the present appellants. The grounds taken for eject--ment were the default in payment of rent and the intention to construct a new building after demolishing the existing structure for which plan for sanction had been submitted to the Municipal Corporation, Lahore. The default alleged was two-fold firstly that the tenant had been paying the rent from January, 1952, till- the end of October, 1962, on account through money orders and the total amount sent by him was Rs. 3,957-3-6 only as against the payable sum of Rs. 4,375 and has thus committed default and secondly that the deduction of money order fee was against the contract of tenancy which also constituted default. The learned Rent Controller framed two preliminary issues as follows :-
(1) Whether the rent note is admissible -in evidence because of its non---registration ? O. P.
(2) What is the effect of the petitioner's Mukhtar receiving the rent after deduction of money order fee since 1952 ? O. P.
The pies did not lead evidence on these issues and after hearing, the arguments, the learned Rent Controller by his order dated 17-3-1964 held, as regards the first issue, that rent note was admissible in evidence. On the second issue, the finding was not that the tenant cannot be held guilty of default for having deducted the money order fee as the landlord was bound by the act of his attorney. Alter deciding these issues, the learned Rent Controller framed one more issue on merits to the following effect :- Whether the respondent has committed default beyond the amount of money order fee? O. P.
4. The respondent took an appeal to the learned District Judge, Lahore against the aforesaid order dated 17-3-1964 passed by the Rent Control--ler. This appeal was dismissed by order dated 27-2- 1965 passed by the learned District Judge, Lahore.
5. When the case thereafter proceeded before. The Rent Controller again, the respondent filed an application for amendment of the ejectment petition which was allowed on payment of costs by order dated 13-12-1965 passed by the learned Rent Controller and the respondent was directed to file the ..Mended ejectment petition on 4-1-1966 which he, accordingly, filed. The main amendment was about the second ground for ejectment viz. Reconstruc--tion of the premises in dispute after having obtained sanction from the Municipal Corporation, Lahore, through its letter dated 2-10- 1965. A second issue on the basis of this amendment was framed as follows :- Whether the petitioner intends to demolish the disputed building and also intends to reconstruct the same in good faith. Has he obtained the necessary sanction from the Corporation ? O. P.
The parties went to trial on the issues of default and reconstruction of the disputed premises. The learned Rent Controller by his order dated 19-1-1973 found both the issues in favour of the respondent and accepting his application for ejectment passed the order of eviction of the predecessor-in---interest of the appellants and directed him to vacate the premises in dispute by 19-2-1973. On Issue No. 1, the learned Rent Controller, after taking into consideration the documentary evidence which consisted of money order coupons Exh. R/2 to Exh. R/58, came to the conclusion that the rent for the months-of January, February, March and April 1961 and of September, 1962 is not accountable. He, therefore, held the tenant as defaulter for five months. As regards Issue No. 2, it was held that the landlord has obtained necessary sanction. Of the plan for reconstruction from the Municipal Corporation and this establishes his bona fides since in case of his not constructing the house after getting it vacated he can be penalized under the provisions of the Ordinance.
6. Feeling dissatisfied, the predecessor-in-interest of the appellants pre--ferred an appeal against the order of the learned Rent Controller before the learned Additional District Judge, Lahore, who by his impugned judgment dated 20-7-1978 concurred with the findings of the Rent Controller on both the issues and dismissed the appeal with costs. 1t may be pertinently observed that during the penddncy of the appeal before the learned Additional District Judge the original tenant viz. Haji Muhammad Shafi died on 17-9-1975 and the present appellants, who are his sons, were brought on record as his legal representatives.
7. The appellants feeling aggrieved of the order dated 20-7-1978 of the learned Additional District Judge have now come up in this second appeal.
8. The learned counsel for the appellants raided the following two con--tentions :-
(1) That the learned Courts below misread the record while arriving of the conclusion that the appellant's had committed default in payment of rent. Elaborating his contention the learned counsel submitted that Exh. R/50 to Exh. R/58 would show that the rent for the period of alleged default from November, 1961 to September,, 1962 had been duly paid and received by the respondent. It was asserted that the default alleged was two-fold viz. For the period November, 1961 to September, 1962 and on account of deduction of the money order fee from the rent. The second.
Type of default, it is submitted, has been held conclusively to be no default whilst the first stands explained by the aforesaid money order coupons Exh. R/50 to Exh. Rj58 which have not been properly read by the learned Courts below ; and
(2) That the finding on the issue of reconstruction was also based on misreading of the record as there was no bona fides for reconstructionestablished by the respondent.
9. The learned counsel for the respondent, in reply, submitted that the argument of the learned counsel for the appellants on issue of default is misconceived and is based on an erroneous assumption that the default alleged was for the particular period November, 1961 to September, 1962. He referring to para. 3 (alf) of the ejectment petition submitted that the default alleged was for non-payment of rent for some months during the period May 1952 to the end of October, 1962 as the rent which was sent by money orders admittedly accounted for 114 months as against 124 months. He submitted that the learned Courts below after consideration of the documentary as well as oral evidence came to the conclusion that the default during the period of three years prior to the date of institution of the eject--ment petition can only betaken into consideration and came to a specific finding that the rent for the months of January, February, March and April, 1961 and September, 1962 has not been paid. It was also contended in this regard that the finding on the question of default is a finding of -fact and having been arrived at by the two Courts below concurrently cannot be gone into in a second appeal.
10. As regards the second contention, the learned counsel for the res--pondent contended that the production of a sanctioned plan from the competent authority coupled with the statement of the landlord to recons--truct the premises establishes the bona fides for reconstruction since the land--lord can be imprisoned if he does not reconstruct the premises after seeking eviction on this ground. This again, he submitted, is a finding of fact and not open to question in a second appeal.
11. Taking the second issue first, it may be observed that the two Courts below have found this issue concurrently against the appellants. It is by now well settled that the provisions contained in subsection (5) of section 13 of the West Pakistan Urban Rent Restriction Ordinance; 1959 which provide for punishment for a term of six months or fine or both in case a landlord after obtaining eviction of a tenant on the ground of reconstruction of the premises in pursuance of the provisions of section 13 (2) (vi) of the ordinance does not have the building demolished within a period of four months from I the date of taking possession or does not reconstruct the new building within a further period of two years after the expiry of the period of four month from the date of taking possession, afford a sufficient safeguard against the mala fides of a landlord and, therefore, the production of a sanctioned plan by the competent authority coupled with the statement of the landlord about his requirement of the premises for reconstruction should be taken as proof of bona fide requirement of the premises. Reference, if any required in support of the above proposition may be made to Messrs Amir Din Allah Ditta v. Seth Adamji Abdullah and others 1969SCMR,131In the above view of the matter, it cannot be said that the findings of the two Courts below on this issue which are also concurrent are based on misreading of the record, especially when the learned Rent Controller has taken into consideration the provisions of section 13(5) of the Ordinance while deciding this issue. 1, there--fore, do not find any justification in interfering with the concurrent finding of two Courts below on issue No. 2.
12. As regards issue No. 1, suffice it to say that the question of default is also one of fact. The learned lower Courts have come to a concurrence finding on this issue as well. Learned counsel for the appellants has no been able to point out any misreading of record which basically consists of the money order coupons only and when asked to show after reading of the money order coupons conjunctively with the oral evidence as to how the finding of default in payment of rent as arrived at by both the Courts below for the months of January, February, March and April, 1961 and September 1962 is incorrect, could not point out any portion of the oral or documentary evidence to negate the finding. 'His only plank was that by reference to Exh. R/50 to Exh. R/58, no default for the period from November, 1961 to September 1962 is established. This premises for pointing out the mis--reading of the money order coupons is obviously based on an erroneous assumption that the default alleged was for the period from November, 1961 to September, 1962. Reading of para. 3 (u1I) of the ejectment petition is sufficient to dispel the contention of the learned counsel as regards the period of default asserted in the ejectment petition.
13. In view of the forgoing discussion, there is no merit in this appeal which is, accordingly, dismissed. There will, however, be no order as to costs.
14. The learned counsel for the appellants at this stage requested for some time to be given to the appellants to vacate the premises in dispute. I think this request is genuine as the appellants would need some time to find out an alternative accommodation and, therefore, allow two months period to vacate the premises in dispute, subject to payment of the rent by them directly to the respondent or depositing the same with the Rent Controller. The appellants shall deliver vacant possession of the disputed premises to the respondent within two months from today, failing which the respondent may obtain possession through process of the Court.
S. A. H.Appeal dismissed.