1. ' Appellants above-named, being aggrieved by judgment, dated 25th October, 1981 of the learned Rent Controller and 1st Senior Civil Judge, Nawabshah, in Rent Application No, 3 of 1977, by which respondents' application for ejectment of appellants was granted, have preferred the above appeal, on the following facts and grounds. .' Deceased landlord Muhammad Sharif filed Rent Application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, which was applicable during the days of filing of said Rent Application. Deceased Muhammad Sharif contended, that the premises bearing No, 1899-1900, situated in Ward 'A' Mohallah Manuabad, Nawabshah was transferred to him and he became owner thereof. Appellants were the tenants in the said premises, and, therefore, be sent notice, dated 10th December, 1976, to the appellants, calling upon them to make payment of the monthly rent to him, alongwith arrears, at the rate of Rs,'40 per month, as per latest assessment made by the Excise and Taxation Department, Nawabshah. The rent was demanded at the said rate with effect from 1st January, 1972 upto December, 1976.
2. ' After receipt of the said notice, appellant sent a sum of Rs, 360 to the deceased-landlord, being the rent of the premises in dispute for the period from 1st January, 1972 upto December, 1975 and also paid the rent for the months of January to May, 1977, at the rate of Rs, 5 per month. It was contended by the deceased-landlord, that total rent-amount due against the appellants was Rs, 2,400 and, thus, appellants defaulted in making payment of the rent due against them and thereby made themselves liable to be evicted from the disputed permises.
3. ' It was further contended in the application, that the disputed premises was required by the deceased-landlord for the personal use of his children. Therefore, said Rent Application for eviction of the appellants, with direction to hand over the disputed premises to the deceased-landlord.
4. ' The original landlord died in February, 1978 during the proceedings of the case and, therefore, the above-named respondents, being his legal heirs, brought themselves to be the respondents in said case, with the same prayer.
5. ' In their written-statement, the appellants had denied the default in making payment of the rent and have asserted, that Landlords are not entitled to the rent of more than Rs, 5 per month, and that they had absolutely no notice of the latest assessment of the premises in question made by the Excise and Taxation Department. The appellants further asserted, that the disputed premises is not required by the respondents for their personal use.
6. On the basis of the pleadings, following issues were framed on 3rd September, 1979 :-
(1) Whether the appellants are defaulters?
(2) Whether the premises in suit are required by the landlords for their personal bona fide use?
(3) What should the order be; ' Respondent Nazir Ahmed examined himself and produced the necessary documents, and then his advocate closed the side of evidence for the respondent. Appellant No, 1 Abdul Rehman examined himself, and then his Advocate closed the side of evidence for appellants.
7. ' Learned Rent Controller answered Issues Nos. 1 and 2 in the affirmative and allowed respondent's ejectment application and consequently appellants have filed the above appeal on the grounds mentioned in the memo. Of appeal.
8. ' Learned Advocate for the appellants in support of the above appeal submitted as under :-
(a) Increase of rent vide notice, dated 10th December, 1976 was not legal as Displaced Persons (Rehabilitation and Compensation) Act, 1958 was repealed on 30th September, 1974, by Ordinance XV of 1974. In support of this the learned counsel relied upon case reported in PLD 1981 SC 340.
(b) That appellants had paid rent upto May, 1977 as admitted in ejectment application and thereafter by money orders upto December, 1978, which are on record and as such no default at all.
(c) That requirement of married sister (now one of the respondents) no ground for ejectment for personal and bona fide use. In support of this learned counsel relied upon case reported in 1981 CLC 1267.
9. ' In view of above submissions, the learned counsel stated, that impugned order cannot legally be sustained.
10. ' The learned advocate for respondents on the other hand submitted as under
(a) That even if rent is calculated at Rs, 5 P. M. Then the appellants have committed default, as first money order was sent on 3rd January, 1977 for a period from 1st January, 1972 to 31st December, 1976.
(b) That married daughter of deceased owner became one of the applicants in ejectment application, on death of her father, long before impugned judgment and as such, ejectment application was maintainable and case cited by the learned counsel for the appellants has no applicability at all.
11. ' In view of above submissions, the learned counsel submitted, that impugned judgment is legal and valid.
12. ' I have carefully gone through the R & P of the learned trial Court and impugned judgment and cases cited by learned counsels and have taken into consideration, the above submissions made by learned Advocates before me.
13. It is admitted position that Displaced Persons (Rehabilitation and Com-, sensation) Act, 1958 was repealed on 30th September, 1974, by Ordinance XVI of 1974 and as such on 10th December, 1976, when notice in question was sent to respondents, the said act was not on statute book and consequently, A provisions of section 30 proviso (a) of the repealed Act, in my opinion for enhancement of rent, on the basis of latest assessment of the repealed Act, were not available to respondents and/or original deceased applicant. The contention of the learned advocate for respondent that first notice was sent to deceased tenant on 3rd July, 1971 as mentioned in notice, dated 10th December, 1976, and as such demand of rent on the basis of latest assessment was maintainable, in my opinion has no force at all, as service of earlier notice was not at all proved by respondents nor even copy thereof was brought on record. However the learned Advocate for respondents showed me copy of the said notice, but I find no such demand of rent on the basis of alleged latest assessm ent, in the said notice. In view of this conclusion of mine, appellants were liable to pay rent at the rate of Rs, 5 P. M. Only. Since demand for payment of rent was for the first made on 10th December, 1976, and as within 30 days of said demand, appellants send M.
0. On 3rd January, 1977 and remitted rents upto 31st December, 1976 appellants committed no default at all upto 31st December, 1976. Thereafter respondents in their own application have admitted receipt of rents upto May, 1977 and appellants have produced money orders receipts for payment of rent at Rs, 5 P. M. From June, 1977 upto December, 1978 in my opinion appellants were not defaulter in payment of rents, on the day when ejectment application in question was filed and as such grant of ejectment application on this ground cannot legally be sustained.
14. As far as second ground for ejectment is concerned, I find that original deceased landlord, in his ejectment application had mentioned, that premises were required for bona fide use of his children, which included hi married daughter as well. Since on the death of original deceased land lord, all his children become applicants, the requirement of his marri daughter, who is now one of the respondents, is covered by the provisions of section 13 of West Pakistan Urban Rent Restriction Ordinance, 1939 I in my opinion and as such said application was maintainable. Case cited I by learned Advocate for appellants in this connection is based on different facts and as such not applicable to the facts of present case at all. Since appellants have challenged only maintainability of said application, on ground of personal and bona fide use and not on merits thereof and since said daughter of the deceased is now herself one of the respondents (landlord) and as impugned order was passed after she became one of the applicants in ejectment proceedings, I see no reason to disagree with the finding of learned Rent Controller on this ground on merits.
15. ' Therefore I find no merits in the above appeal, which is dismissed and grant of ejectment application of respondents, only on ground of personal and bona fide use is maintained. In view of the facts and law involved in present appeal, I pass no orders as to cost.
16. ' However, I grant four months time to appellants from 1st February, 1984 to vacate the premises in their occupation and hand over its vacant possession to respondents, provided appellants continue to deposit the rent of the premises in their occupation, at the rate of Rs, 5 P. M. For the said period, regularly and punctually.