(a) I intend to dispose of the above two appeals by this common judgment as the subject-matter of both the appeals is a common judgment dated 23-12-1979 passed by the learned IInd Senior Civil Judge and Rent Controller at Hyderabad in Rent Applications Nos. 285/68 and 454/78.
The brief facts leading to the filing of the above two appeals are that the premises in question (which is on the second floor of House No. F-898, situated at Station Road, Hyderabad) alongwith the first floor of the said house (hereinafter referred to as the property) was transferred by the Settlement Department to one Mrs. Nazir Jehan Begum widow of Abdul Aziz. It seems that the property was gifted by MRs.Nazir Jehan Begum to her son-in-law Iqbal Lodhi son of Abdul Majid, by a gift deed dated 24-4-1967, reg1stered on 17-5-1967 with the Sub-Reg1strar at Hyderabad, as the document No. 647 pages 18 to 25 Book No. Add:. I, Vol. 260. It also seems that before the above property was gifted by Mrs. Nazir Jehan Begum, she had filed Rent Application No. 285/58 on 11-I1- 1968 (hereinafter referred to as first rent application) on the three grounds, namely, default, causing damage to the property and personal requirement against the appellant, who is in occupation of the second floor of the aforesaid house as a tenant. It seems that the present appellant's defence was struck o0' in the above rent case by an order under section 13(6) of the West Pak1stan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the repealed Ordinance). The appellant being aggrieved by the above order filed Rent Appeal No. 96/72, which was dismissed on 25-5-1972. The appellant being aggrieved by the above two orders filed Second Appeal No. 196/72, which was allowed by this Court by a judgment dated 31-5-1978 and it was ordered that the above rent application should be decided on merits.
(b) It may be pertinent to observe that before the disposal of the aforesaid second appeal, it seems that the respondents Nos. I and 2, namely, Messrs Abdul Haque and Haji Abdul Rehman's, purchased the property (i.e. First and second floor of the aforesaid house bearing No. F-898) through an agree--ment dated 26-6-1976, the sale-deed of which in their favour was executed and reg1stered on 9-9-75. In the above second appeal, they made an application under Order 1, rule 10, C. P. C. For being substituted, which was allowed and they were substituted in place of the then respondent Iqbal Hassan Khan alias Iqbal Lodhi. It further seems that after purchasing the above property the respondents Nos. 1 and 2 filed a fresh rent case, nam.1y, Rent .Application No. 454/78 (hereinafter referred to as the second rent application) on 13-8-1978 on the aforesaid three grounds raised in the first rent application by the previous owner of the property. It also seems that the appellant filed an application under Order VII, rule 11, C. P. C. For rejecting the above second application. The above application was allowed by an order dated 15-9-1978 and the second rent application was rejected. The respondents Nos. 1 and 2 being aggrieved by the above order filed Rent Appeal No. 352/78, which was disposed of in terms of the compromise contained in the statement dated 22-11-1978 filed by the parties, which reads as follows :- "It is respectfully stated that the parties above-named have agreed to the following terms:-
(1) That the appellants hereby withdraw from the grounds of default and damages raised by them in the R. A. No. 454 of 1978.
(2) That the matter may remanded back to the Hon'ble 2nd Ext. Jt. Civil Judge, Hyd. For trial and division on merits, on the ground of personal use, only. Then both the matters may be amalgamated.
The above prayer is made in the interest of justice."
(c) After the disposal of the above civil appeal No. 352-78, the above two rent applications were amalgamated and the Rent Controller framed the following issues :- "(1) Whether the opponent has committed default in the payment of rent as alleged in R. A. No. 285- 69 ?
(2) Whether the opponent has damaged the case premises and thereby inspired materially the value and utility of the case premises ?
(3) Whether the applicant No. 1 requires the case premises bona fidely and in good faith for his own use as alleged in R. A. No. 285 of 1968 ?
(4) Whether the applicant's No. 1 requires the case premises bona fidely and in good faith for their own use and for the use of their family as alleged R. A. No. 454/78?
(5) What should the order be ?"
2. (a) In support of the above appeals Mr. Abbas Zia, learned counsel for the appellant has made the following submissions :-
(i) That in view of the compromise filed in Civil Appeal No. 352/78, it was not open to the respondents Nos. 1 and 2 to press the ground of, default and that the learned Rent Controller acted illegally by going into the above question.
(ii) That in any case since Iqbal Lodhi as well as the respondents Nos. 1 and 2 had not served any notice under section 13-A of the repealed Ordinance upon the appellant before filing the two rent applications, the ground of default could not have been pressed into service by the respondents.
(i.e), That the personal requirement was not proved as from the facts of the case and the documents on the record, it was evident that the respondents Nos. 1 and 2's application on the ground of personal requirement was mala fide as in fact they wanted to get the rent enhanced from Rs.20 to Rs.500.
(b) On other hand, Mr. G. H. Abbasi, learned counsel for the respondents had made the following submissions
(i) That under the compromise arrived at in Civil Appeal No. 352/78 the respondents Nos. 1 and 2 agreed to drop the ground of default and damage to the property specifically from the Rent Application No. 454/78 alone and not from the Rent Application No. 285/68, and, therefore, the respondents were entitled to press the ground of default.
(ii) That, the question of section 13-A notice has been concluded as far as Iqbal Lodhi is concerned by an order dated 14-9-1970 Exh. 40.
As regards the respondents Nos. 1 and 2, his contention was that in fact a notice under section 13-A was served by them upon the appellant, but even if it is to be held that no such notice was served, the respondents Nos. 1 and 2 were entitled under the law to rely upon the default which was the subject-matter of the Rent Application No. 285/68.
(i.e) That a mere demand of the enhancement of rent per se or simpliciter would not prove mala fide on the part of a landlord nor it would negative the bona fide of the landlord, if the personal requirement is otherwise proved.
(c) Reverting to the first contention of Mr. Abbas Zia that the respondents Nos. 1 and 2 after having agreed to drop the grounds of default and damage to the property in the Civil Appeal No. 352/78 were not entitled to press into service the above grounds before the Rent Controller, it may be observed that it seems that the appellant did not raise any objection before the Rent Controller to the effect that he was not justified in framing the issues on the above questions nor apparently he- raised any objection before the Rent Controller during the arguments. The learned Rent Controller decided the above questions as if they were properly raised before him. Be that as it may, from the contents of the aforesaid joint statement filed by the parties in the aforesaid Civil Appeal No. 354/78, quoted hereinabove in para. 1, it is evident that the respondents Nos. 1 and 2 agreed to drop the grounds of default and damage to the property from the Rent Application No. 454/78 alone and not from the other application i. e. Rent Application No. 285/68. In this view of the matter the respondents Nos. 1 and 2 were entitled to press into service the ground of default for the period, which was the subject-matter of the first rent application. However, they were not entitled to press into service the ground of default for the period commencing after the filing of the first rent application in view of the above compromise.
(d) With reference to the second contention of Mr. Abbas Zia that no notice under section 13-A of the repealed Ordinance was served either by the previous owner, Iqbal Lodhi or by the respondents Nos. 1 and 2 and, therefore, the ground of default could not have been pressed into service, it may be observed that Exh. 40 which is an order dated 14-9-1970 passed by the learned Rent Controller in the first rent application the question of service of notice under section 13-A was concluded as far as Iqbal Lodhi was concerned. In the above order it was held that a notice under section 13-A was in fact served by Iqbal Lodhi on the appellant after the property was gifted to him by his mother-in-law. As regards Mr. Abbas Zia's contention that no notice was served by the respondents Nos. 1 and 2 under section 13-A, it may be pertinent to observe that no such notice has been brought on the record as an exhibit before the Rent Controller. However, Mr. Abbasi has invited my attention at page 107 of the second rent application, which is an alleged copy of a notice dated 20-11-1976 allegedly served on the appellant by the respondent No. 1 for himself and on behalf of the respondent No. 2. Since this notice has not been brought on the record of the Rent Controller as an exhibit, I cannot look into the above document. However, in my view, this will not affect the finding of the learned Rent Controller on the question of default for the period prior to the date of the purchase by the respondents Nos. 1 and 2, for the reason that as the successors of lqbal Lodhi, they were entitled to prosecute the first rent application inter alia on the ground of A default.
In support of the above contention Mr. Abbasi has referred to the case of Messrs Adil Brothers Ltd., Karachi v. Messrs Amin Art Press and another (PLD 1976 Kar. 53), in which it was held by a single Judge of this Court that after the purchase of the property the purchaser by virtue of section 8 of the Transfer of Property Act, succeeded the rights which had already accrued to the previous owner of the property, including the ground of default, if already committed. In this view of the matter the ground of default could have been pressed into service by the respondents Nos. 1 and 2.
It is an admitted position that the appellant had not paid any rent to the previous landlord or to the respondents Nos. 1 and 2. The finding arrived at by the learned Rent Controller on the question of default seems to be in accord with the evidence on the record and also in consonance with law.
(e) Reverting to the third contention of Mr. Abbas Zia that the ground of personal requirement was not proved but on the other hand mala fide was proved from the fact that the respondents Nos. 1 and 2 attempted to get the rent enhanced from Rs.20 to Rs.500 per month, it may be pertinent to observe that Mr. Abbas Zia has invited my attention to a photostat copy of an application under section 4 of the repealed Ordinance, filed by the respondents Nos. 1 and 2 in or about May, 1976, wherein the prayer was that the fair rent of the premises in question in view of the high cost of building material locality, accommodation at the rate of Rs.500 may be fixed from May 1975 onwards. However, this application was withdrawn by the Respondents Nos. 1 and 2 after some time before the disposal of the two rent applications in question. It has been vehemently urged by Mr. Abbas Zia that if this application is to be read with the statements of the appellant and his witness, the fact that the respondents Nos. 1 and 2 wanted to increase the rent stands proved, which adversely reflects on their bona fide of their alleged personal requirement.
On the other hand, Mr. Abbasi, learned counsel for respondents Nos. 1 and 2 has contended that a mere demand of enhancement of rent will not negative the bona fide personal requirement if it is otherwise proved. In support of his above contention Mr. Abbasi has relied upon the case of Badruddin Hassan Farooqi v. Mangi Industrial Home(PLD 19'76 Kar. 620) wherein inter alia it was urged that the landlord's personal requirement was not bona fide as he had demanded enhancement of rent through a letter dated 23-9-1963 Exh.
8. The above contention was repelled and it was held that "a demand of higher rent by itself does not cause any doubt about the personal require--ment if the factum of bona, fide requirement is independently proved". The above case supports the case of Mr. Abbasi. It may also be pertinent to observe that the respondents Nos. 1 and 2 filed an application under section 4 of the repealed Ordinance, which was a remedy available to them under the law and in my view merely the fact that they had invoked section 4 while their application for personal requirement was pending Would not adversely reflect on their bona fide and would not demolish the ground of personal requirement.
(f) Reverting to the ground of personal requirement on merits, it may be observed that the case of the respondents Nos. 1 and 2 was that they had purchased the property for their personal use and that the respondent No. 2 Abdur Rehman's occupied the first floor, whereas the respondent No. 1, Abdul Haq would occupy the second floor i. e. The premises in dispute. However, the appellant in the cross examination of respondents Nos. 1 and 2 suggested to them that in fact Abdul Haq was putting up on the first floor and not Haji Abdul Rehman's and, therefore, there was no case of personal requirement of Abdul Haq. The above suggestion was denied by both the above witnesses. But it has been contended by Mr. Abbas Zia that the appellant's witness Maqbool Shah's statement on the above fact should have been accepted by the learned Rent Controller for the reason that he being the neighbour was in a better position to say who was in fact residing at the first floor of the building in question. In my view, the learned Rent Controller has rightly observed that the testimony of the above witness does not inspire any confidence inter alia for the reason that the above witness had appeared as a witness in the Court of the learned Rent Controller on 3- 4-1979 and deposed that he recollected that on 10-9-1978 he and appellant were, standing in the street in front of their houses and were talking with each other, when Abdul Haque had told the appellant that he would compromise the matter, if the appellant would increase the rent to Rs.500 P. M, In my view it is highly improbable that a witness could remember the specific date after the expiry of nearly 7-8 months. Furthermore, this witness has admitted that he knew the appellant since his childhood and that he was on visiting terms with him and that he has been working as a reader in a Mag1strate Court. The evidence of the respondents on the question of personal requirement in my view, was not shaken in the cross-examination. It has come on the record that Abdul Rehman's is putting up on the first floor and has 9 children, in addition to that according to the above witness two of his married brothers were also putting up with him. The testimony of Abdul Haque to the effect that he has been living in a rented house, which has a small room with a small courtyard has also not been shaken. Abdul Haque Memon has also produced the television licence dated 5-8-1978, electricity bill of August, 1976, August, 1977, April, 1979, and August, 1979. Exs.
91, 92, 93, 95 and 96. Exh. 91 is the television licence, which indicates that Abdul Haque was putting up in house No. 54-F-20 Doaba Line, Hyderabad, whereas the elec--tricity bills are in the name of Mirza Sajid Ali who according to the above witness is his landlord in respect of the tenement which is in his possession. 1t has not been proved that the respondent No. 1 is in possession of any other house owned by him. Keeping in view that Abdul Haque is a senior practising Advocate at Hyderabad, it cannot be denied that the above-rented premises is insufficient to his personal requirement and also incompatible to his status. In my view the finding arrived at by the learned Rent Controller on the question of personal requirement is in accord with the evidence on the record and, therefore, no exception can be taken to it.
3. In view of the above discussion I do not find any merit in the above appeals and the same are dismissed .With no order as to costs. However, I grant 4 months time from today to the appellant to hand over vacant possession of the premises in question on the condition that the appellant shall continue to deposit rent with the Rent Controller in terms of the tentative rent order during the above four months period. In case of default, the respondent shall be entitled to file an execution application immediately on commission of such default.