1. ' These are two appeals by the same appellant against the same Respondent. In second Appeal 19 of 1979 the orders of Rent Coutroller and VII Senior Civil Judge, Karachi, dated 18-12-1975 and the Judgment of A. D. J. Karachi, dated 20-12-1978 are challenged. In F. R. A. 90/82 the order of VII Senior Civil Judge and Rent Controller, Karachi, dated 12-12-1981 is challenged.
2. ' The relevant facts are that in 1973 the appellant had filed a case of ejectment against the respondent stating that the respondent was his tenant in respect of Shops Nos. 1 and 2 of building on Plot No, 51-D, P. E. C. H. S., Karachi which had been rented out at Rs, 250 per month as rent in 1957 but from 1-1-1968 the rent had been increased to Rs, 275 per month. However, the respondent had failed to pay the rent from 1-4-1971 to 30-4-1973 at the rate of Rs, 275 per month and had merely tendered rent at Rs, 250 per month. It was further alleged that the premises were required by the appellant for his personal bona fide use. The same was resisted by the respondent. Issue of default in payment of rent and whether there was one shop and not two shops in the premises and whether suit premises was required in good faith by the applicant for himself and whether proposed increase in taxes was barred by section 9 of Rent Ordinance were framed. The appellant examined himself and proved that he had given two shops to the respondent on rent in 1957 at Rs, 25 per month and thereafter because of increase in taxes the rent was increased to Rs, 275 per month from 1-3-1971 the appellant had stated that respondent had verbally agreed to pay Rs, 275 per month, but he reduced the rent from Rs, 275 to 250 and deposited the same in the Bank account of the appellant. The Rent Controller held that in view of section 9 of West Pakistan Urban Rent Restriction Ordinance, 1959 the landlord/ appellant could not increase the rent from Rs, 25 to Rs, 275 per month without the approval of the Controller, The same was the view of A, D, J. In appeal, ' The contention of Mr. Shamdas was that section 9 of the Rent Ordinance does not positively restrict the increase in rent by mutual consent but it allows the landlord to increase the rent of the building subject to the approval of the Controller. He submits that provisions of section 9 have been misconstrued by the Rent Controller.
3. Section 9 nowhere bars increase in rent by consent of parties on account of taxes. He relied upon PLD 1976 Kar. 233 where it was observed that in case rent has been increased by mutual consent on account of taxes then the same is not hit by section 9 of the Ordinance. He also relied upon PLD 1972 Quetta 40 where it was held that increase in rent will be illegal only a fair rent under section 4 of the Ordinance had been fixed by the Controller. In PLD 1976 Lah. 828 it was also held that there was no prohibition to increase the rent unless the fair rent had been fixed. Mr. Fazal Bhoy on the other hand submitted that there was no proof of the increase in taxes on the record and that the respondent had always challenged the contention of the appellant in respect of the increase in and that for a limited period increased rent had been paid on the basis of demand of the appellant and on his undertaking that he will produce the proof in respect of increase in rent but the same had not been done. And, therefore, on account of failure of proof of increase in taxes the respondent had reverted back to the payment of Rs, 250. Mr. Fazal Bhoy submitted that it was the concurrent finding of the two Courts below that the rent had been increased on the assurance of the appellant that he will produce the proof of increased taxes and since the same had not been proved, therefore, payment of increase rent was not continued.
4. Mr. Fazal Bhoy also submitted that this Court was bound by the concurrent finding of the two Courts below on this issue. The content of Mr. Fazal Bhoy appears to be correct in this respect and it is clearly a finding of fact of the two Courts below that the respondent had agreed to pay increased rent on account of taxes subject to the proof of the payment of increased taxes by the appellant and since the same has not been proved by the appellant, therefore, the respondent was justified in reducing the rent. I am, therefore, of the view that although interpretation of section 9 by the two Courts below was not justified and the rent could be increased by the parties by their mutual consent but since in this case the concurrent finding are that increase in rent was on the basis of and subject to the proof of increased in taxes and the same had not been proved, therefore, the respondent was justified in refusing to pay rent at the increased rate. It is, therefore, apparent that the view of the two Courts below that the appellant had not committed default in the payment of agreed rent was justified in the circumstances of the case and the same is not open to scrutiny by this Court, the same being a question, of fact.
5. ' The personal need for the shops premises by the appellant was negatived by the two Courts below on the ground that he had failed to prove his bona fide need. The Rent Controller held that the appellant had failed to prove that he had any Bank balance for carrying out any business of Carpets or Handicrafts which required investment of Rs, 50,000, and therefore, his demand was not bona fide need. The Rent Controller had also held that the demand of the appellant for eviction of the respondent was the result of the failure of the respondent by pay increased rent. The learned A.
6. D. J. Was also of the view that the appellant bad failed to substantiate that he in fact was in a position to start any business because the appellant had no funds to start any business.
7. ' Mr. Shamdas contended that both the lower Courts have proceeded on irrelevant considerations.
8. He argued that the appellant had fully established that he had retired from Government service in 1973 and that he had made all arrangements for the business and he had not been cross- examined on that aspect of the case. He further submitted that P. W. 2 Moinuddin had clearly stated that appellant could raise a loan of Rs, 75,000. It was also urged that both the Courts below have failed to consider that the appellant was the owner of substantial property situated at Nursery P. E. C. H. S., Karachi which is one of the best commercial areas in the City, and therefore, owner of a property in such a locality could always raise substantial amount.
9. ' In spite of the fact that there is concurrence of findings in respect of lack of bona fide need of the appellant, I am of the view that two Courts below have proceeded on irrelevant considerations and have failed to take into consideration the status of the appellant and the substantial property that he had. The appellant had retired from Government service as Assistant Director, Investment Promotion and Supplies and he had stated that he wanted to start his business as he was resident of the upper storey and the same was suitable for his business purposes. He had also stated that he had two more shops in this building which had been on rent with other tenants. These were towards a street whereas the shops in question were on the main road, and that the respondent had made one shop out of the two shops by demolishing the wall in-between. He had clearly stated that he did not want to rent out the premises on higher rent. I have seen the cross- examination of the appellant he was not cross-examined at all either in respect of his ability to run a business or in respect of his financial status and therefore, the finding that the appellant had no funds was not fully justified. In fact the relevant consideration should have been the ability to raise funds and not the actual cash at the moment available with the persons who wants to start a business. The appellant is the owner of the property, and therefore, it could not be difficult for him to raise enough finances for the purpose. Section 13(3) of the Rent Ordinance allows the landlord to seek possession of non-residential premises if he requires it bona fide and is not in possession of similar premises. The appellant being a retired Government servant and having been connected with the supplies department and leading a retired life had fully proved that he had a bona fide need of the premises. And there was nothing on record to challenge that position. Consequently it was the right of the appellant to be given the shops in question and I am, therefore, of the view that the good faith and need of the appellant had been established on record and the two Courts below have proceeded on irrelevant considerations by denying the bona fides of the appellant. The two Courts below have merely relied upon one sentence of D. W. 2 Ghulam Moinuddin that the appellant was not financially sound to invest Rs, 30,000 but the two Courts below have failed to consider the next sentence of the same witness where it had been stated that the appellant could take loan of Rs, 75,000 from the Government.
10. ' I am, therefore, of the view that the orders of the two Courts below in respect of the bona fide need of the appellant were completely unjustified and they deserved to be set aside. However, I had enquired from the appellant whether his need could be satisfied if only one shop out of the two shops in possession of the respondent was given to him and the appellant showed his willingness for the same and clearly stated in the presence of his counsel that he was prepared to waive his claim in respect of one of the shops. It would, therefore, be in accord with justice and law to order that the respondent should hand over to the appellant one of the two shops near the staircase and the wall in-between the two shops should be constructed by the appellant at his own cost. The respondent is, however, allowed four months time to vacate the said shop subject to payment of the rent of the two shops to the appellant and after the respondent has hand over one shop to the appellant, the respondent will pay only half of the present rent.
11. ' The F. R. A. 90/82 is also allowed in the same terms as second appeal 19/79, and one shop is allowed to be given to the appellant. This appeal had arisen out of the application under section 14 of Sind Rented Premises Ordinance, 1979 which had given a retired Government Servant the right to claim summary possession of the two shops in question. The Rent Controller had refused to grant the said application on the ground that the personal need of the appellant was to be investigated by the High Court in Second Appeal No, 19/79. These are the reasons for the short order made by me in these two appeals on 30-12-1983.