1. ' The appellant has challenged the order passed by the Controller and the First Appellate Court granting ejectment application. The respondent filed an application against the appellant on the ground that he has defaulted in payment of rent and without the consent and permission of the respondent he has made alteration in the premises and is using it for commercial purposes. It was also alleged that the, appellant has sublet the premises and finally that the respondent requires the disputed premises for her bona fide personal The Controller held that the appellant had defaulted in payment of rent and that the premises has been converted from residential to commercial purposes and that the premises is required by the respondent for personal use. The other grounds were rejected. The appellant filed appeal before the learned Additional District Judge, who upheld the order of the learned Controller.
2. ' While determining the default, the dispute between parties arose on quantum of rent also. It was alleged by the respondent that the house was rented out at Rs, 1,500 per month, but later on in September, 1976 it was increased to Rs, 2,000 p.m. And the appellant delivered the cheque for the said amount, and thereafter he started sending cheques for Rs, 1,500. The point for consideration before both the Courts below was "whether from September, 1976 the rent had been increased from Rs, 1,500 to Rs, 2,000". This has been denied by the appellant. The parties have produced oral as well as documentary evidence. The respondent examined her husband and attorney as well as Mumtaz to prove that the rent had been increased to Rs, 2,000 p.m. The learned Additional District Judge rightly refused to rely upon the evidence of Mumtaz, as it was hearsay. The respondent had produced a carbon copy of receipt to show that Rs, 2,000 was accepted as rent from appellant and a receipt was also issued to him. Introduction of this receipt has not been accepted by the First Appellate Court and rightly so, because 40 previous counterfoil or copies of receipts were produced and it became suspicious how this solitary receipt was executed, during a period of more than three years. However, this is not the only evidence on the basis of which the Courts below have determined this issue. The material evidence is a cheque for Rs, 2,000 which was issued by the appellant in the month of September, 1976. 1u December, 1976 the appellant sent a cheque for Rs, 2,500 and immediately the respondent sent a letter which reads as follows :- "Dear Sir, ' We have received a Cheque No, 700210 of Rs, 2,500 on 28-12-1976, drawn on Habib Bank Limited, Nursary Branch, Karachi. Since three months' rent is due we would like to know how a cheque of only this amount has been sent to us. An early reply will be appreciated."
3. ' Admittedly the appellant did not reply to this letter and finally the ejectment application was filed by the respondent. The appellant has admitted that a cheque of Rs, 2,000 was sent in September, 1976, therefore, it was his duty to have established the purpose for which an excess amount of Rs, 500 was remitted and included in a cheque purportedly sent towards the rent for the month of September, 1976. The appellant has stated that this could be treated as an excess rent paid to the appellant. This does not explain why excess amount was paid. In the evidence it was stated that this amount was advanced to the respondent who bad asked for a loan from him and was liable to be adjusted in future rent. If this statement is correct then immediately when the respondent had written a letter on 28-12-1976 reproduced above he should have replied explaining the correct position. No explanation was offered and there remained complete silence. Again in the written statement no such plea seems to have been raised that Rs, 500 was advanced as a loan to the respondent. In these circumstances the explanation offered by the appellant is an afterthought. It seems that the appellant had agreed to pay rent @ Rs, 2,000 p. m. And thereafter, changed his mind and sent a cheque for Rs, 2,500 in December, 1976. In these premises the findings of the learned Controller, and the First Appellate Court does not require any interference. In this regard it may also be mentioned that this dispute is A purely a question of fact and the findings are based on reasonable ground and evidence on record and, therefore, it cannot be disturbed in Second Appeal.
4. ' The question now arises whether the appellant has defaulted in payment of rent. Mr. Khalilur Rehman, the learned counsel for the appellant has strenuously argued that even if the finding that the rent was increased to Rs, 2,000 is correct than there is no default. To substantiate his contention Mr. Khalilur Rehman submitted that as there was no written agreement between, the parties for payment of rent the appellant could have paid rent within 60 days from the date it became due. It is pointed out that the appellant paid rent on 16-10-1976 for the month of September, 1976. Again Rs, 2,500 were paid which could be partly for the month of October, and partly for the month of November. Thereafter, rent for the month of December, 1976 were paid within 60 days. This argument clearly attracts the provision of section 13 (2), sub-clause (1) of Urban Rent Restriction Ordinance. In this regard it would be necessary to advert to certain facts. It seems that the parties had settled the terms of tenancy and it was agreed that the lease shall be executed by P.
1. A. With whom the appellant was employed at the material time. Draft lease was prepared containing all the terms and conditions and was forwarded to the appellant for obtaining the signature on behalf of P. I. A. It, however, transpired that P. I. A. Did not agree to sign the lease as the entitlement of the appellant was less than the rent agreed between the parties. The appellant, therefore, asked the respondent to send the lease deed to him, duly amended so that he may himself execute the lease deed. It, therefore, appears that the appellant had agreed to the terms and conditions of lease and was prepared to sign the same. These terms will, therefore, constitute terms of agreement between the parties. The draft lease has been filed which provides that the monthly rent shall be paid in advance by the 10th day of each calendar month for which it is due.
5. As the parties had agreed to the terms of the draft lease it would be futile to say that there was no agreement between the parties and no time for payment of rent was fixed. In fact the agreement of tenancy existed between the parties, but it was not reduced to writing. The draft lease though not signed, reflects the terms and conditions between the parties, which provides for a date for payment of rent, and, therefore, the provision of section 13(2), sub-clause (i) relied upon by the learned counsel for the appellant for availing the grace period of 60 days from the date for which the rent is payable cannot be accepted. The appellant was to pay rent in advance on the 10th day of every month. Time having been fixed the rent should have been paid within 15 days after the expiry of time so fixed. Therefore, in view of the admitted tender made from time to time there was a clear default on the part of the appellant.
6. ' Mr. Khalilur Rehman, the learned counsel contended that assuming that the rent had been increased it was not binding on the appellant. In this regard he has referred to section 9 of the Urban Rent Restriction Ordinance, 1959. The contention is not tenable as section 9 contemplates increase of rent with the pemission of the Controller only, where a fresh tax, cess or rate is levied or increased in respect of the building by the local authority.
7. ' The learned counsel for the appellant then contended that finding of the learned Courts below that the appellant has converted the premises for commercial use is erroneous. It is an admitted position that from the very inception of tenancy, the appellant's wife was carrying the business of beauty parlour. The attorney of the respondent has admitted that he used to visit the house twice or thrice in a year. It means that he was aware of the existence of the beauty parlour and with this knowledge he had seen accepting the rent from the appellant. In these circumstances the contravention if any by the appellant will stand waived.
8. ' Mr. Khalilur Rehman, the learned counsel for the appellant has very strongly assailed the finding that the premises is required by the respondent in good faith. Mr. Khalilur Rehman contended that in the application the respondent has mentioned that her relation with her mother-in-law in whose house she is residing has become strained but neither the mother-in-law nor the respondent has been personally examined. According to him they are material witnesses and without their examination the respondent has failed to establish her case. In the application the respondent has alleged that she and her family are temporarily staying with her mother-in-law who has given her a notice for vacating the said house and the respondent needs the bungalow for herself and for her family members. It seems that there is sufficient indication in the application that the mother- in-law has asked the respondent to vacate the house. Mr. Khalilur Rehman has stated that no notice was produced to substantiate this allegation. The non-production of notice does not negate the claim of the respondent because if any displeasure is incurred amongst the members of family living together, unless there are exceptional circumstances normally written notices are not issued calling upon to vacate the premises. No doubt the respondent and her mother-in-law have not been examined, but respondent's husband has come in the witness-box as attorney of his wife and has stated that his mother has strained relation with his wife i,e, the respondent. In fact instead of daughter-in-law the son has come in the witness-box and stated that the relationship of his mother and his wife are strained. Unless some mala fide and collusion is alleged against the son it may be a sufficient evidence in the circumstances of the case, to establish such strained relations.
9. However, this is not the only ground for vacating the present accommodation. The claim is based on personal requirement of the respondent and her family members. The respondent's family consists of her husband, two sons and a daughter. Presently they are residing in the house of her mother-in-law, which oonsists of three bed rooms. The respondent's plea is that not only that her mother-in-law had asked her to vacate, the existing accommodation is not sufficient for her family. The argument of the learned counsel for the appellant that as the respondent has a house, which is sufficient to meet her requirement, and therefore, she has failed to prove her personal requirement is not correct. The established position is that the house in which she is residing is not the house of the respondent or her husband although it is not a rented house. Mr. G. M. Qureshi, the learned counsel for the respondent has relied on Muhammad Bashir v. Vensmal and 4 others. In this case, the landlord was residing with his son. He applied for ejectment of the tenament on the ground of his personal requirement and the following observation was made : "It is however clear from the evidence that the house does not belong to the appellant and, therefore, he is putting up there with the courtesy of his son. Occupation of such accommodation even though suitable for the needs of the appellant will not be relevant for the purposes of section 13 (3) (b) of the West Pakistan Urban Rent Restriction Ordinance, 1959. It was so held in Ghulam Nabi v. Rao Muhammad Usman All Khan 1980 SC MR 751."
10. The same situation exists in the present case except the relationship which I different. The respondent is residing with her mother-in-law and even if this E accommodation is sufficient, in view of the above authority this cannot be relevant ground for consideration that she does not require the disputed premises for her own use and occupation.
11. ' The finding on question whether the premises is required for bona fide use and occupation is a finding of fact. As it has not been established that there is a misreading of evidence or that the finding is not based on evidence on record, it is not possible to interfere in Second Appeal. For these reasons by a short order dated 24-1-1983 the appeal was dismissed and the appellant was allowed four months' time to vacate the premises. PLD 19t30 Kar. 409