' This regular second appeal is directed against the order of the learned Additional District Judge, Lahore dated 13-7-1977 whereby the ejectment order passed by the learned Rent Controller Lahore dated 12-4-1977, on the basis of bona fide personal requirement of respondent No, 1, was confirmed. The respondents claimed ejectment of appellant No, 1 on the basis of default, sub- letting and damaging the property in dispute. The appellants controverting the grounds of ejectment pleaded that relationship of landlord and tenant existed between appellant No, 1 and respondent No, 2 that respondent No, 1 had no concern with the property, that the ejectment petition had not been brought by a duly authorised person and that the ejectment petition had been brought mala fide. It was urged in the ejectment petition that the property in dispute had been taken on rent for residential purpose but a press had been installed therein without the consent of the landlord but however, ejectment was not claimed on this ground. Paragraph No, 1 in which this assertion was made was denied and stated to be incorrect meaning that the assertion that the property had been taken for residential purpose and that thereafter the press had been installed therein was not accepted, but no issue was framed on the point. It was not contended in the written statement that since the property was being used for commercial purpose, on the basis of personal need for residential purpose ejectment petition could not be brought nor any issue was framed on this point was raised in the first appeal and also in the present appeal. In the ejectment petition, it was urged that respondent No, 1 was residing with her relative in Baghbanpura. The attorney of respondent No, 1, in his statement admitted that respondent No, 1 was co-sharer in the property situated in Baghbanpura, in which she was residing. In the ejectment petition, it was not stated that respondent No, 1 had a share in the said property nor it was urged that the said property was not suitable or did not fulfil the requirement of respondent No,
1. In order to show that respondent No, 1 has no share in the property situated at Baghbanpura in which she is putting up, the copies of the assessm ent record of 1971-72 and 1975-76 and certified copy of registered gift deed from one Abdul Majeed in favour of mother of respondent No, 1 have been filed alongwith application under Order 41, Rule 27 praying that the same be admitted as additional evidence.
Before me the questions of the existence of relationship of landlord and tenant between appellant No, 1 and respondent 2 and non-existence of relationship of landlord and tenant between appellant No, I and respondent No, 1, requirement of the property bona fide for personal use and the plea that since the property is being used for commercial purpose, it cannot be got vacated for residential purpose have been argued.
2. So far as the first point is concerned, learned counsel for the appellant has argued that neither rent note was produced in evidence nor its execution was proved and that photostat copy is not admissible and thus the said document is not available to show that the tenancy came into being between appellant No, I, and respondent No,
1. Learned counsel for the respondents on the other hand has said that since C. P. C. And Evidence Act are not applicable to rent cases, it was not necessary to prove the execution of the rent note and that the Courts below have rightly relied upon unproved rent note copy of which is P.
1. For the determination of this point, it is not necessary to look into the rent note because respondent No, 2 appeared as attorney of respondent No, 1 and stated that the latter was the owner and that he had given the property on rent on her behalf. When respondent No, 2 does not claim to be the owner and also does not claim to have rented but the property on his own behalf, there appears to be no force in the contention of the learned counsel for the appellants that the tenancy came into being between respondent No, 2 and appellant No,
1. The statement of respondent No, 2 is against his own interest and thus cannot be disbelieved. Respondent No, 1 being a `Pardanashin' lady did not execute the rent note and recover the rent herself. I, therefore, overrule the objection raised by the learned counsel for the appellants in this respect, and uphold the finding of the Courts below on issue No, I.
3. However, on the points that the property was given on rent for residential purpose and that since the property is being used for commercial purpose, the same cannot be got vacated for residential purpose, suffice it to say that no such plea was taken in the written statement, therefore, rightly no issue was framed on this point. This being a question of fact, the plea A. Should have been raised in the written statement. Since such a point was not raised in the written statement and there was no issue, the respondent did not lead evidence. Such a point could not be raised abruptly in the memorandum of first and second appeals. Learned counsel for the appellants has cited PLD 1972 Lah. 142 and has argued that on facts proved and admitted decision can be given even if the plea is not raised and there is no issue. The authority is not helpful because no material has been brought on the point. If such a plea had been raised in the written statement and an issue framed, respondent No, I would have proved the execution of the rent note and produced the original document in evidence to show that the property had been rented out for residential purpose and also would have led evidence that thereafter, appellant No, 1 started using it for the commercial purpose by intalling a press. However, this is admitted that appellant No, 1 has installed a press in the property but this act is not legal since no permission as required under section 11 of the Rent Restriction Ordinance, was taken from the Rent Controller. Unless it is shown that the property was taken on rent for the-installation of a press and not for residential purpose, the plea that the property cannot be got vacated for residential purpose, is not available to the appellants.
4. So far as the issue of personal need is concerned, the learned counsel for the appellants has.
Argued that in cases where the landlord is already in occupation of another property belonging to him, it is necessary for him to urge that the said property is not sufficient for his requirement. He goes on to say that by the admission of the attorney of respondent No, 1, the case has become difficult for her. Outwardly there may appear to be some force in the argument that since the landlady is already occupying another house, in which she has a share, she had to give reasons why she could not continue to occupy that but actually there is no much force for the reason which will be presently given. Learned counsel for the respondents on the other hand has argued that in reality the landlady has no share in the said property and the attorney wrongly said so. To prove this fact copy of the assessm ent record and copy of the registered gift deed have been sought to be produced at his stage as additional evidence. Firstly, the right stage- to produce evidence to show that in reality the landlady had no share in the property in which she was residing was when the ejectment petition was pending. The landlady, should have been on her guard to produce other evidence after her attorney made this admission in cross-examination. Secondly, the documents now sought to be produced in evidence are not sufficient to prove the point. The particulars of the property which respondent No, 1 landlady is already occupying are not known therefore, it cannot be said that the copies of the assessment record and gift deed pertaim to the same house. So, even if, these documents are allowed to be produced in evidence, they will not prove that she has no share in the house occupied by her. Learned counsel for the respondents has also argued that it is not the duty of the landlord to urge in the ejectment petition that he is occupying any other house and that it is the duty of the tenant. In this respect, he relies upon 1974 SCMR 322 and 1972 SCMR 415. These authorities, however, are not applicable to the point inasmuch as the objection was raised for the first time before the Supreme Court whereas, in the present case before the learned Rent Controller admission was made by the attorney of respondent No, 1, that she had a share in the house in which, she was at the moment residing. The fact that respondent No, 1 is living with her relatives in a house in which she has a share is not available to the appellants to defeat the respondents and to get the order of ejectment set aside. In the ejectment petition it is not mentioned that respondent No, 1 is occupying the entire house, situated at Baghbanpura. It is said that she is putting up in that house with her relatives. So even if it be said that respondent No, 1 has a share in that house since she is not occupying the whole house and is living-with the other co- sharers, it cannot be said that she does not require the house in dispute. Again there is nothing about her actual share in the house. Admittedly respondent No, 1 with her husband had been residing out of Lahore before her husband was transferred here as P. M. G., therefore, she put up residence with her relatives in the house situated in Baghbanpura, that house was being occupied entirely by other co-sharers. So, she is occupying the house inconveniently and also putting the other co-sharers to inconvenience. Again this is not known what is the capacity of that house. It has not been shown that the said house has any independent portion and that the said independent portion is being occupied by respondent No,
1. It therefore, cannot be said that it was necessary for her to urge that although she was putting up in other house but the same was insufficient for her requirement. Of course, if the appellants had shown that the entire house situated in Baghbanpura was being occupied by respondent No, I, it could be said that the respondent should have mentioned in the petition that she had a share in that house but the same did not fulfil her requirement. At the time the ejectment petition was brought, the husband of respondent No, 1 was at the verge of retirement because at that time the age of retirement was 58 years. Thereafter, the age limit was increased to 60 years, therefore, he remained in service but now again, he is at the verge of retirement. This being so there is no likelihood that he would be posted out of Lahore and thus the house in dispute will not be required by her. This stands amply proved and rather is an admitted fact that the residence meant for the P. M. G. Is not in the occupation of respondent No,
1. There is no material on the record to show that the said residence was offered to him but be refused to occupy it. It, therefore, cannot be said that his not residing in the house meant for the P. M. G. Was simply to get the appellants ejected. No doubt the rent of the house in dispute was Rs, 800 and, thereafter, in the beginning it was offered at Rs, 1,000 and was received at the said rate. But the simple reason that rent at enhanced rate was accepted is not sufficient to say that the rent was enhanced at the instance of the landlady. If rent at the rent of Rs, 1,000 is not excessive the landlady would not be at fault to receive the rent at such an offer, It has not been shown that rent of the house like the one in dispute cannot be Rs, 1,000. Obviously, the rate of things are increasing day by day. Now of accepting rent at the rate of Rs, 1,000 after some years of the starting of the tenancy would not show that the house is not bona fide required for personal need when otherwise by evidence and the circumstances it so stands proved. The difference is only of Rs, 200 per mensem and not large. Only after few months of accepting rent at the rate of Rs, 1,000 ejectment petition was made. This circumstance further shows that it was not the landlady who asked for the enhancement of the rent or that she agreed that if the rent had been increased, she would. Not eject the tenant.
5. As a result of the observations made above, I do not find any force in the appeal and dismiss it.
However, the parties are left to bear their own costs. The appellants are given 30 days time to vacate the property in dispute.