The appellant is the statutory tenant of the respondent in respect of a small one room house situated in Nasirabad Town, District Larkana.
2. On an application dated 3-7-74 under section 13 of the Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance), filed by the respondent, the learned Rent Controller, Warah by his order dated 13-5-76 directed the appellant to put the respondent in possession of the premises in question on two grounds, firstly that he had committed default in the payment of rent and secondly that the premises were required in good faith for personal occupation by the respondent. The appeal filed by the appellant was also dismissed by the learned IInd Additional District Judge, Larkana, who maintained the order of the Rent Controller by the impugned judgment dated 21-5-78. The appellant now seeks to challenge the said judgment in this second appeal.
3. On the first ground the case of the respondent is that the appellant had failed to pay the rent for the month of March, April and May, 1974 and tendered the same in the month of June, 1974. The appellant, on the other hand, contends that he had all along been paying rent at the agreed rate of Rs. 4 per month regularly, but the respondent demanded enhanced rent and refused to accept the same at the aforesaid rate. Consequently, the appellant remitted the. Rent for three months by Money Order dated 14-5-74 which was also refused. Thereafter the appellant remitted the rent by Money Order in the next month to the learned Rent Controller which was also refused. For the subsequent period also be remitted the rent by Money Order to the respondent in the two succeeding months which were likewise.
4. Now since this is a case of statutory tenancy under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, there is no question of a written agreement of tenancy. It is, therefore, urged on behalf of the appellant that as admittedly rent was tendered by money order on 14-5-74 the appellant has not committed default within the meaning of subsection (2)(i) of section 13 of the Ordinance. As already mentioned the respondent alleged non- payment of rent with effect from the month of March, 1974. The agreement of the learned counsel for the appellant is that the rent for the month of March, 1974 was payable on the 1st of April, 1974.
Under the aforementioned provisions of Law a tenant can be evicted if he fails to pay or tender rent within 60 days "from the period for which rent is payable". Consequently, it is urged that the appellant would be guilty of non-payment of rent entailing his eviction, only if he failed to tender rent by 30th May 1974. However, since he tendered rent long before on 14-5-74 he was clearly not in default within the meaning of section 13 (2) (i) of the Ordinance. Similarly, for the subsequent two months also, he made timely tender and was not guilty of .Default. 1 find substance in the submission of the counsel. But the learned counsel for the respondent argued that in absence of a contract to the contrary, the rent is payable by a tenant in advance of the tenancy month and, therefore, the rent for the month of March was payable on 1-3-74. On these premises it was contended that the tender made on 14-5-74 was beyond the stipulated period of 60 days. No authority was submitted in support of the proposition propounded by the learned counsel. In Shin Gul v. Abdul Majid (PLD 1968 Quetta 45) Abdul Kadir Shaikh, J. (as he then was) while interpreting section 13 (2) (i) observed : "60 days have to lapse from the period for which the rent is payable by the tenant before the landlord can seek eviction under section 13 (2) (i) of the Ordinance. In the case of a monthly tenancy the period for which the rent is payable is the whole month, not each day of the month. A tenancy maybe monthly, fortnightly, weekly or a daily one, the basis in each case is the period fort which the rent is payable. The words "the period for which the rent is payable" are extremely significant because the Legislature did not use the words "the day the rent is payable".
5. I am in respectful agreement with the view taken in the aforesaid case and, therefore, in my opinion, the appellant was not in default of the payment of rent for the period in question. The learned Additional District Judge did not advert to this position of law and erroneously held that the rent for the month of March had to be tendered or paid before 1st May 1974. The first ground for the eviction of the appellant is, therefore, untenable. Learned counsel for the respondent made a grievance that this point was not urged anywhere in the Courts below and no plea was raised in the written statement to that effect. The rule of pleadings even if it is strictly applied to the proceedings before the Rent Controller which is not the case, only required the appellant to plead the necessary facts leaving the legal inferences to be raised in the argument. The appellant clearly denied the allegation that he was in default and pleaded that he tendered rent in the manner stated above. There is, therefore, no impediment on raising of the contention now advanced in this appeal that no default has been established in law on proved facts.
6. The remaining question to consider is whether the order of eject--ment is justified on the ground of personal requirement. The case of the respondent is that the premises in question are situated across the street opposite to his house and is required by him for the purposes of an 'Chak' (sitting place for visitors). It was urged by the learned counsel for the appellant that the premises in question are admittedly being used for residential purpose and cannot be obtained for purpose of `Chak' as that is non-residential purpose. There is no substance in this submission. Section 2 (g) of the Ordinance defines "residential building" to mean any building which is not a non-residential building. Section 2 (d) of the Ordinance defines "non-residential building" to mean a building being used solely for the purposes of business or trade. It would, therefore, appear that use of a building for purposes of business or trade only is regarded as non-residential use and all other uses would seem to be regarded as residential use. There is, therefore, no question of converting the building from residen--tial to non-residential purpose in the circumstances of this case.
7. It was then contended on behalf of the appellant that in arriving at a finding in favour of the respondent the Courts below have not taken into consideration the relevant circumstances on record showing his mala fide intentions in demanding the possession of the premises for personal use. It was pointed out that the respondent admitted in his deposition that he had sold a house at Nasirabad to one Kundan about two years prior to the date when his statement was recorded on 18-IC)-75. In this connection, in answer to a question in cross-examination, he stated as under :- "I was not in the need of `otak' at the time of the sale of the house to Kundan, which was situated at a distance of a furlong from my house."
The Courts below have proceeded to dispose of this question on the view that a landlord has the prerogative to choose anyone of premises owned by him for his personal occupation and it will not be open to the Controller to hold that another premises owned by him is more suitable for his needs. Another consideration that prevailed with the Courts below was that the premises in question being located opposite to the house occupied by the respondent is obviously convenient for being used as an `Chak'. The question is whether the demand of the respondent is motivated by good faith to satisfy personal need on the ground has been urged to get rid of an undesirable tenant or to obtain possession for other ulterior purpose. The case of the respondent is that he is a Zamindar and also owns a Rice Husking Mill. He is visited by Haris, Kamdars and people having business dealings with him, for accommo--dating whom he has no place in his house. However, if his need was so urgent it is not known why he did not use the house he sold about a year prior to the institution of proceedings for this purpose. No explanation has been given by him in this regard except that the said house was a furlong away from his house, which means that he needed a separate sitting place for his visitors but the house sold by him was not convenient. If that was so there is no explanation why he did not start proceedings for ejectment on this ground at that time?
The need for a sitting place, in the circumstances of this case, could not have arisen abrupt y and there is a total lack of circumstances which suddenly necessitated the requirement of the respondent for this purpose at this juncture. Surely a year before the ejectment application was filed people must be visiting the respondent and yet even temporarily he did not seem to have used the other house available with him for this purpose. This aspect of the case and the surrounding circumstances have been completely ignored by the Courts below. It cannot be ignored that the respondent is seeking to obtain possession of a one-room Katcha built house to be used as an `Chak' which in the circumstances appears highly doubtful.
8. It was contended on behalf of the respondent that the finding of the two Courts below on the question of bona fide requirement of the respondent is a pure question of fact and, therefore, the concurrent finding cannot be upset in second appeal. As already pointed out, the Courts below adopted wholly improper approach to the question by holding that the landlord has an unquestionable prerogative to obtain possession for personal use and ignored material circumstances from consideration which had considerable bearing on the issue. The concurrent finding of fact is, therefore, not sacrosanct. If an authority is needed that in such circumstances such finding is open to question in second appeal, reference may be made to Khushi Muhammad v. Rashid Wain (1968SCMR1158).
9. In the result, this appeal is allowed and the order passed by the Rent Collector directing ejectment of the appellant as well as the judgment of the Appellate Authority affirming the same, are set aside. The parties are, however, left to bear own costs.