' Aggrieved by the judgment dated 19-12-1979 of the Rent Controller, Larkana, who dismissed their application for ejectment of the respondent from the disputed shop, the appellants have preferred this appeal.
2. The dispute between the parties is over a shop bearing C. S. No, 385/B, Kambar. The shop in question originally belonged to Mukhi Beekh Chand, the appellants' father, who had rented out the same to the respondent, Muhammad Safar, for monthly rent of Rs,
55. After the death of Mukhi Beekh Chand, the appellants, who are his heirs succeeded to the ownership of the shop. Meanwhile the respondent made default in payment of rent from 1st January, 1975. He was, therefore, served with a notice under section 13-A of the West Pakistan Rent Restriction Ordinance, 1959 by the appellants who also approached him at personal level for clearing of the rent arrears. He was also pursuaded through respectable persons for the same purpose but all efforts in this. Connection made by the appellants proved fruitless. The appellants were, therefore, constrained to file ejectment application on 30-7-1977, seeking ejectment of the respondent from the disputed shop on three grounds ; namely, the default in payment of rent, personal requirement of the shop for one of the appellants and impairing of the value and utility of the shop.
3. The respondent vehemently resisted his ejectment from the disputed shop denying all the allegations that were made the basis for his ejectment. In his written reply he disputed the rate of rent, contending that the initial rate fixed between the parties was only. Rs, 5 which was subsequently raised to Rs, 6 from April, 1959 and thereafter it was further increased to Rs, 7 from January, 1962. The last mentioned rate held the ground until April, 1973 from which the rent was refixed at Rs, 25 which has prevailed upto filing of the ejectment application. According to the respondent he paid the rent upto May, 1977. The rent for the month of June, 1917, which was however, refused by the appellants was sent to them by money Order but that too was declined by the appellants. He has stated that after the money order was refused, the respondent has been depositing the rent in the Court of Rent Controller.
4. After considering the evidence led before him by both the parties. The learned Rent Controller dismissed the application. As stated above, the decision of the Rent Controller has been called in question in this appeal. Mr. Abdul Fateh Memon argued the appeal on behalf of the appellants while Mr. Sadiq Khan made his submissions for the respondent.
5. It is not disputed that the respondent has been occupying the shop in question as tenant, first of the appellant's father and after the latter's death in 1976, of the appellants. The question is if the respondent is liable to ejectment from the said shop. The first ground on which the ejectment has been sought is the alleged default attributed to the respondent for non-payment of rent. No doubt the burden to prove the default was on the appellants. According to their version, the respondent has failed to pay the rent from 1st January, 1975 own wards. It may be noted that the rate of rent is also controversial. The appellants' case is that although initial rate was Rs, 30 per month, it was subsequently enhanced to Rs, 55 with mutual consent of the parties. This is denied by the respondent, who has stated that initial rate was Rs, 5 per month which was enhanced to Rs, 6 from April, 1959 and further raised to Rs, 7 from January, 1962 and ultimately refixed at Rs,
25. In order to prove the rate of rent, the appellants have examined one of them, namely, Isardas in support of their case. It is admitted by this appellant in his cross examination that formal rent deed was executed when the shop was rented out to the respondent. No such deed has, however, been produced in evidence. He was unable to say if the rent deed was in possession of his father. If his evidence is believed in regard to existence of the deed, his oral evidence about its contents including the rate of rent would be inadmissible in absence of proof that the original deed is lost.
On the other hand, respondent has denied the execution of tenancy agreement. After giving my best thought to the parties' conflicting claims, I am inclined to feel that there was nothing in writing between them as regards the tenancy. This view finds support from the Isardas's own admission that subsequent increase in rate of rent was made by oral agreement. Had the initial rent been fixed by the written document it was but natural that parties would have insisted on incorporation of the enhanced rate in the rent deed. I am, therefore, of the view that the Rent Controller's conclusion that the rate of rent was Rs, 25 as was stated by the respondent is correct.
6. Reverting to the default alleged on the part of the respondent, the evidence of Issardas clearly shows that though default had commenced from 1st January, 1975, the appellants remained absolutely silent for about 2/1-2 years and chose to sound the respondent by serving him with a notice only on 27-6-1977. No plausible explanation has been given by the appellants for this delay.
Normally no landlord would tolerate his tenant a continuing in possession of the rented premises without paying rent for such a long period. On the other hand, the respondent's case is that he had paid rent regularly unto May, 1977 and it was only the rent for the month of June over which the dispute arose between the parties. According to him he had offered to pay the rent for even this month but the appellants refused to accept it. He has stated that he made further effort to send the rent for the month of June by money order but that too was declined by the appellants.
However, no question was put to Issardas as to non-acceptance of money order by the appellant.
Even money order form alleged to have returned undelivered has not been produced by respondent in 'support of his plea. It is, therefore, doubtful if the rent for this month was sent by money Order. However, there is no denying of the fact that the respondent has been depositing the rent in the Court right from the month of June .1977. Thus depositing of rent in Court almost synchronises with the service of notice by the appellants on the respondent. This shows that the dispute with regard to payment of rent first arose in respect of June 1977 and that C following the appellants' refusal to accept the rent for that month, the respondent has been depositing the rent in the Court. Thus the appellants have failed to prove the default on the part of the respondent.
7. The next point for consideration is if the premises was needed by appellants for their own bona fide use. Elaborating the question of personal requirement, Issardas who is one of the appellants has expressed his needs in the following words : " I am Advocate by profession and I need the shop in question for my office. At present I am using the Otak of my house as office and I am being disturbed due to guests. The Otak which I use as Office was our "Mehmankhana". My children are also being given tuition at evening time in this Otak."
8. To support the appellant's case on the ground of personal requirement reliance has been placed on the recent Supreme Court authority reported as Muhammad Naseem v. Azmat Khan (1). It was held "Under section 13 (3) (1) (a) of the Rent Restriction Ordinance, it is only when a landlord is found to be in possession of building suitable for his needs in the same urban area in which the demised property is situated that the eviction of the tenant can be refused and secondly : even if the respondent was residing in the house of his mother he could still be entitled to obtain the ejectment of the petitioner because, as held by this Court in Abdul Aziz and another v. Muhammad Ibrahim (2), section 13 (a)'(1) cannot be extended to cover a building occupied by the landlord but not owned by him. Since the petitioner was not owner of the house in which he was presently residing being an occupant in his mother's house this circumstance was not fatal to his case.
9. Judging the appellant's case in the light of above authority it would appear that the 'Otak' that the appellant Isar Das is using as his office joint property of all the three brothers. In fact the 'Otak' is their gues house. Even children of the appellants get tuition in the same premises a evening time. It is thus clear that appellant, Isar Dass has been facing cons disturbance and interference by holding office in the 'Otak'. Consequently the said 'Otak' cannot be held suitable for the office purposes.
10. It is, however, admitted by Isar Das that he started practice in 1971 whereas the ejectment application was filed in 1977. The learned counsel for the respondent has therefore, argued that the 'Otak' that Isar Das has been using as his office for nearly 6 years cannot become unsuitable over night for the said purpose. I am not impressed by this argument. Since he had no alternate accommodation and he somehow managed to put up with all sort of inconveniences for all these years that 'reason by itself cannot be construed to have placed a perpetual bar on him from seeking better accommodation.
11. In reply to questions put to him in cross-examination, Isar Das made certain admissions indicating that apart from the disputed shop, he and his brothers owned other shops, two of which are being used as garage and store room. Assailing these admissions the learned counsel contended that the appellants cannot be held. To be requiring the disputed shop for genuine personal needs. However, the authority laid down in Abdul Aziz and another v. Muhammad Ibrahim has furnished a complete answer to his {{FOOT NOTE}}
(1) 1982 SCM R 1132 (2) PLD 1977 SC 442 {{FOOT NOTE}} ' arguments. While interpreting the personal requirement in respect of nonce residential building, it was held. "Accordingly the requirement in this sub-clause does not extend to cover the rented premises."
12. In the above case following observations borrowed from this case of Abdus Salam Akhtar v. Dr. Najam Parvaz 1976 SCMR 52 were noted with approval "The requirement that the landlord should not be in occupation of another residential building suitable for his need at the time does not, in our view, extend to cover rented premises, for, otherwise the result would be that no landlord would be able to get his own premises vacated for his own occupation unless he can show that he is actually on the streets and has no place to live at all. It would be more reasonable to hold that the other residential accommodation, which the landlord is occupying at the time must be shown to be his own and not merely rented premises."
13. On the other hand the learned counsel for the respondent has relied upon Ghulam Farooq v.
Fazal Ghani (1). This is a Single Bench authority of Peshawar High Court. The view taken in this case was that proviso to section 13 (3) bars the subsequent institution of the application after the landlord has got any shop vacated in the same urban area because the intention is that the landlord after getting one shop vacated for his personal use should not be allowed to disturb the possession of any other tenant on the same ground.
14. It is true that before the appellants moved ejectment application in the instant case they had got three shops vacated, one by Nanumal and two by Ghulam Muhammad Shaikh. But there is no indication on what grounds these shops were got vacated. It is clear from the evidence of Isardas that the shops vacated by Ghulam Muhammad have been put to the appellants personal use, as one of them is being used as garage and the other has been made a store room. Thus even if these two shops were got vacated on the ground of personal requirement, they have been actually put to such use. So far the shop vacated by Nanumal is cocerned, it has been admittedly relent to Jaganmal. But as pointed out above it is not known on what ground the vacation of this shop was secured. In absence of such evidence the aforementioned authority would not be applicable.
15. At this stage it would be pertinent to make reference to Nooruddin and another v. Asghar All and other (2) wherein it was held : "Learned counsel attempted to argue before us that good faith was wanting in the present case as another flat in the premises had fallen vacant earlier but the landlords let out that flat to a tenant and did not utilize it for themselves. The question, however, as to which portion of the building would suit the landlord better, must be left to their discretion and there is nothing unreasonable in the landlords insisting that a particular portion of the building should be made available to them. We do not consider that the circumstance pointed out by the learned counsel affect the good faith of the landlord's demand.
16. The next case relied upon by the learned counsel for the respondent is also Single Bench Authority of Lahore High Court reported as Abdul Majeed v. Anwar All (3) In this case the landlord owned a house {{FOOT NOTE}}
(1) 1980 CLC 1082 (2) 1968 SCMR 1087
(2) 1983 CLC 2511 {{FOOT NOTE}} ' and a shop in his occupation but he did not mention in his application that it was not suitable for his needs. It was held that deliberate and inexcuseable omission in the pleading tells upon the bona fides of the landlord in needing the shop in dispute. In the instant case admittedtly no shop was in immediate occupation of the landlord at the time of institution of ejectment proceedings.
The two shops which were being used as garage and store room were obviously not vacant and hence not availabe for immediate possession of the appellant. Accordingly it was not necessary for the appellants to have made mention of these shops in the ejectment application. Assuming that they were still under legal obligation to mention these shops in their pleadings, the omission to do so was clearly not deliberate. The appellants seem to have genuine impression that since the said shops were available for their occupation they were not required to make any reference to them in the ejectment application. As for the 'Otak' which was in actual possession of the appellants he had made it clear in his deposition that it was not suitable for office purpose. Thus the aforesaid authority would not be attracted to the instant case.
16. The learned counsel for the respondent attempted to argue that ejectment application was just a ruse to hide the real intention of the appellants to secure enhancement of the rent. In reply to this argument, the learned counsel for the appellants relied on Badaruddin Hassan Farooqui v. Manghi Industrial Home (1) wherein it was held "But in any case a, demand of higher rent by itself does not cast any doubt about the personal bona fide requirement if the factum of bona fide requirement is independent! Proved."
17. Finally reliance has also been placed on Muhammad Iqbal v. Masood Ahmed and others (2) wherein it was held : "In case there are more than one person, holding the property jointly the requirement would be more than amply fulfilled if the property is needed by any one of them or for the use of the male children of any of them for in either case the object and the purpose is to enable the landlord, or all of them, or any of them to enjoy the use and occupation of his or their own property.
18. After considering the evidence on record and the arguments addressed at Bar and also applying the dicta laid down in the precedent cases discussed in the foregoing paragraphs. 1 have come to the conclusion that the appellants have amply established their case on the ground of personal requirement.
19. The third ground, on which the ejectment application was based that the acts committed by the respondent have impaired the utility and value of the premises has not been pressed.
20. For the above reasons the appeal is accepted and the respondent is directed to vacate the shop in dispute within three months of this Order and put the appellants in vacant possession thereof.
Appeal accepted {{FOOT NOTE}}
(1) PLD 1976 Kay. 620 (2) 1975 SCM R 517 {{FOOT NOTE}}