' This second appeal is directed against an order for the ejectment of the appellant. Sabir Hussain from a house, situated in the town of Faisalabad which is owned by the respondent. Lt.-Col. (Retd.)
Muhammad Sharif.
2. There is a concurrent finding of the Rent Controller, who ordered the ejectment of the appellant, and of the Additional District Judge, who heard the first appeal, of the appellant against the said order, that the respondent required the premises in dispute, for the occupation of his children who are studying in the different educational institutions of Faisalabad. While assailing this finding learned counsel for the appellant contended that after the order of ejectment was made by the learned Rent Controller, another house of the respondent, which adjoined the house in dispute, fell vacant and as the respondent's children could live in the house which has become vacant, the respondent's requirement for the house in dispute was not bona fide. Learned counsel for the appellant also pointed out that when the case was at the stage of first appeal, he made an application to the learned Additional District Judge to appoint a Local Commissioner for the purpose of finding out if the other house of the respondent had fallen vacant but the learned Additional District Judge dismissed the appeal without passing any order on the said application.
3. In reply to the above argument, it was submitted by the learned counsel for the respondent that no such application as aforesaid was made by the appellant before the appellate authority. As for the appellant's assertion that another house of the respondent had fallen vacant, learned counsel for the respondent pointed out that the premises which had fallen vacant were the servant's quarter attached to the house in dispute but they were not suitable for the occupation of the children of the respondent.
4. On the record received from the appellate authority there is an application for appointment of the Local Commissioner but it does not bear any order of the learned Additional District Judge. In view of the conflicting position taken by the learned counsel for the parties in regard to the actual submission of the above application, I obtained the report of the learned Additional District Judge in which he stated that he did not remember if the application in question was made to him.
Explaining what had happened during the course of arguments on the appeal before him the learned Additional District Judge said :- "During the arguments the learned counsel for the appellant asserted that the landlord had got vacated a house adjoining the Kothi in dispute. The learned counsel for the respondent stated that .The landlord had obtained possession of a servant quarter, which was not suitable for the residence of his College going daughters and son. There was no dispute about the vacation of the servant quarter. Therefore, during the arguments learned counsel for the appellant did not request for the appointment of any commission. In para. No, 7 of my judgment, I observed that the servant quarter lying vacant was attached to the Kothi, therefore, it could not be a suitable accommodation for the daughters and son of the landlord being below their status. It appears to me that in view of the above facts, no specific order was made on the application, if the same had been presented to me."
5. Para. 7 of the judgment of the learned Additional District Judge to which a reference has been made by him in his report is to the following effect :- "Learned counsel for the appellant argues that a quarter of the Kothi is lying vacant. Therefore, College going children of the landlord can put up there. The servant quarter attached to the disputed Kothi can never be suitable accommodation for the daughters and son of the landlord being below their status. The landlord is not occupying any residential house suitable for his needs in Faisalabad City."'
6. The appellant took contradictory positions in regard to the purpose for which the application in question was made by him in the grounds of appeal, it was stated that he made the application for permission to produce additional evidence but a perusal of the application reveals that in the application there is a prayer for the appointment of a local Commissioner or for taking any other suitable action. As already stated, the application does not bear any order by the Court. In view of this, the learned counsel for the respondent expressed an apprehension that it may have been smuggled into the appellate record after the disposal of the first appeal. I am, therefore, not convinced that the application in question was filed before the appellate authority.
7. Even if the above application had been made, it was taken due care of by the learned Additional District Judge by observing that, according to the respondent, the accommodation which had become available to him was a servant quarter of the house in dispute which was not suitable for occupation by his children. The respondent did not append any document with the aforesaid application nor with the memorandum of appeal filed in this Court to show that the accommodation referred to by him was a separate house and not the servant quarter of the house in dispute. Thus there is no prima facie evidence to the effect that another house of the respondent is lying vacant and the same is suitable for occupation by the children of the respondent. There is also nothing to show that the accommodation which has allegedly become available to the respondent fell vacant after the parties had concluded evidence before the learned Rent Controller and, therefore, the appellant could not produce any evidence before him in regard to the availability of the said accommodation. I, therefore, see no good reason to hold inquiry into the facts alleged in the application in question or remand the case to the learned Additional District Judge or the learned Rent Controller for the purpose.
8. While addressing his argument on the merits of the case, it was urged by the learned counsel for the appellant that the house in dispute was a non-residential building and, therefore, the appellant could not have it vacated for being used as a residence. This plea was not taken by the appellant in his reply to the ejectment application and, therefore, no issue was framed in this behalf. It was only in reply to the respondent's allegation that the appellant had caused damage to the house by doing dairy business therein although it was rented out for residential purpose that the respondent had averred that he got the house for doing the said business. He did not contend that the house was a residential building and, therefore, the appellant could not seek its vacation to meet the residential requirements of his children. He did not claim any additional issue in the matter. A perusal of the orders of the two tribunals below would reveal that he did not raise the said plea before them even at the time of arguments. I, therefore, do not permit him to advance it at the stage of second appeal, especially when it does not involve a pure question of law.
9. It was also urged by the learned counsel for the appellant that the respondent did not, in fact, need the disputed house and simply wanted to bring pressure on the appellant for securing a handsome increase in the rate of rent. This plea is supported by the statements of the appellant (R.
W. 6) and Muhammad Afzal Cheema (R, W. 5) which stand rebutted by the deposition of the respondent (P. W. 3). The learned Rent Controller took notice of the said plea but repelled the same by giving the following reasons :- "According to him, the petitioner demanded an increase of Rs, 200. In support of this contention, he quoted an example that some of the quarters having monthly rent of Rs, 60 were got vacated by the petitioner and were re-let at Rs, 80 p. m. Each. He has neither stated as to in whose presence the demand to increase the rent was made by the petitioner nor a person produced by him to depose that the rate of rent of any quarter was increased. In this respect, R. W. 5, who is also one of the tenants under the petitioner, deposed that an increase in the rent was demanded by the petitioner in his presence. This witness has not deposed as to what increased amount was demanded. The presence of this witness to such an event was not disclosed by the respondent.
The respondent has failed to depose as well as assert the mala fide intention as to the institution of the present petition and has fell upon his own legs on the contention regarding an increase in the rate of rent by the petitioner."
The plea relating to the enhancement of rent was not raised before the appellate authority. It, therefore, does not lie in the mouth of the appellant to urge the same in second appeal. Even if he is allowed to do so, I will not like to accept it for the reasons given by the learned Rent Controller.
10. The upshot of the foregoing discussion is that the impugned order is not open to any legitimate exception. The appeal is, therefore, dismissed with costs. The appellant is, however, allowed a period of two months to vacate the premises in dispute.