This second appeal under section 15 (6) of the West Pakistan Urban Rent Restriction Ordinance, 1959, as amended up to date is directed against the order dated 21-2-1994 passed by the learned Additional District Judge, Lahore, whereby the appeal of the respondents was accepted and the order dated 21-3-1992 passed by the learned Rent Controller, Lahore, was reversed with the result that the ejectment application filed by the appellant against the respondents was dismissed.
2. The appellant who is a charitable trust incorporated as a private limited Company filed an ejectment application against the respondent on the ground that the premises in occupation of the respondent are required in good faith for the use and occupation of the appellants as they are not occupying any building or land suitable for their needs. It was submitted that the respondent is in occupation of the premises in dispute as a tenant under the appellants at the monthly rental of Rs.7,900 and that since premises were required for personal use and occupation of the appellants, therefore, a legal notice was served on the respondents on 3-5-1988 calling upon them to vacate the premises and to hand over the vacant possession thereof to the appellants.
3. The respondent resisted the above said ejectment application on multifarious grounds whereby it was maintained that the application is incompetent as the same has not been filed by an authorised person; that the respondent having exercised option for renewal of lease for a period of 5 years i.e. From 3-5-1988 to 2-5-1993 as provided under the lease agreement the ejectment application merits dismissal; that the petitioner has no locus standi to file the present application because as per the negotiation and dialogue between the appellant and the respondent, the only demand of the appellant was to increase the rent exorbitantly and that being so the alleged plea of personal need is neither in good faith nor honestly made; that originally the premises in dispute were rented out to the respondent at the monthly rent of Rs.5,000 and they were subsequently increased to Rs.7,900 per month and since the appellant has been demanding the increase in rent over and above the limit prescribed under the law, therefore, the petition is mala fide; that the premises in dispute were let out for commercial purpose, therefore, the same cannot be got vacated for residential purpose. The gist and substance of the preliminary objection noted above were reiterated in so far as reply as to the merits of the case was concerned with the only rider that the respondents relied on replies to the letters dated 18-4-1988 and 13-10-1988, which replies were given with specific reference to an alleged meeting held on 4-4-1988.
4. The controversy between the parties was reflected into following five issues:--- (1)Whether the ejectment petition cannot proceed in view of preliminary objection No.1 of the written reply? OPR (2)Whether the ejectment application is incompetent in view of preliminary objection No.2 of the written reply? OPR (3)Whether the petitioner has no locus standi to file the present ejectment petition? OPD (4)Whether the property in dispute is required by the petitioner for his personal bona fide need or in good faith? OPA.
(5)Relief.
5. The appellant being the petitioner in ejectment application examined four witnesses including E.
Tak, the attorney and secretary of the appellant while the documentary evidence produced by him consisted of Exh.A. 1, letter dated 13-4-1989 written by M/s. Zor Engineer (Pvt.) Ltd. To E.Tak, Exh.A.2, the proposed construction plan drawn by Zor Engineers thereby proposing additional alteration in the existing structure comprising the premises in dispute. Exh.A.3 is another letter written by Zor Engineers to E.Tak thereby acknowledging the receipt of Rs.857 owing the expenses of preliminary sketch plan. Incidentally this letter also includes the receipts evidencing the receipt to payment.
Exh.A.4 is the general power of attorney whereby E.Tak has been authorised to act on behalf of the appellant. Exh.A.5 copy of minutes of meeting dated 2-4-1988 whereby it was decided by the appellant to not to renew the lease in favour of the respondent and to ask the respondent to vacate the premises as also to take steps in furtherance thereof. Exh.A.5/A is the sketch plan of the premises in dispute. Exh.A/6 copy of the minutes of emergent meeting held on 6-6-1988 whereby it was resolved by the appellant to file an ejectment application against the respondent.
Memorandum and Articles of Association of the appellant has also been placed on the record though not exhibited.
6. The respondent on the other hand, produced three witnesses including Mr.Najam-ul-Saqib, who appeared as attorney of the respondent. The documentary evidence produced by the respondent consisted of Exh.R.l to Exh.R.14. Exh.R.l is the copy of the lease agreement between the parties, Exh.R.2 is the letter dated 15-3-1988 whereby the Manager of the respondent was called upon to see the Chairman of Trust in connection with the renewal of lease agreement. Exh.R.3 is copy of the letter dated 2-2-1988 whereby the respondent exercised their option of renewal of lease. Exh.R.4 is copy of letter dated 7-4-1988 whereby the Manager of the respondent-Company was asked by the appellant to vacate the premises in dispute as the same were allegedly required by them for their personal need. Exh:R.5 is copy of the letter dated 18-4-1988 whereby the respondent reiterated their stand of renewal of lease and were asked to not to initiate any legal proceedings against the respondent. Exh.R.6 is copy of details of meeting allegedly held between the Manager of the respondent-Company as also the representatives of the appellant. Exh.R.7 is the original power of attorney in favour of Najam-ul-Saqib. Exh.R.8 is the original legal notice addressed by Sajjad Law Associates to the respondent-Company. Exh.R.9 is the reply. Of notice referred to above. Exh.R.10 is the postal receipt while Exh.R.l l is the acknowledgement due receipt issued and received back in regard to notice referred to above. Exh.R.12 is the copy of PT-1 for the year 1986-87 in regard to property of S.53-R-3 i.e. Hostel-cum-office of the appellant. Exh.R.13 is the copy of P.T-1 in regard to property NO.S.60-R-63, another property owned by the appellant and Exh.R.14 is yet another copy of P.T.1 in regard to property S.60-R-63 (residential portion owned by the appellant).
7. The total evidence led by the parties did give an impression that the appellant stressed that they need the premises in dispute for their own personal need and the same is required by them for the purpose of Conference and Study Centre: Pasters and Catechists in Service Training Programme Pasters Training and Refresher Course Programme: women workers Bible Training Hall and Retreat Assemblies (minutes of meeting of the Managing Committee dated 2-4-1988 may be referred in this behalf) while the respondent contested the abovesaid alleged plea on the ground that the basic dispute between the parties was that of increase in the monthly rent and that the other properties being available to the appellant, the alleged plea of personal need is neither bona fide nor made in good faith. Another limb of the controversy between the parties was to the effect that the appellant having failed to disclose that there were other properties available to them, they were guilty of concealment of material facts, therefore, they were not entitled to seek the ejectment of the respondent. The pleas as to locus standi of the appellant and the application for ejectment having not been filed by an authorised person, though raised in written statement, were not seriously contested either before the two forums below or even before this Court.
8. The learned Rent Controller having appraised the evidence on the record came to the conclusion that the ejectment application was competently filed and that since renewal of the lease could only be effected through mutual consent of the parties and that having not been done the respondents could not take advantage of the renewal clause as incorporated in the lease agreement. Correspondingly it was also held since the lease itself was not renewed therefore, question of ejectment application being premature does not arise. The plea as to the property being commercial and could not be got vacated for the residential purpose was also refused on the ground that the purpose being avowed and evinced by the appellant was not at all residential.
The hard core of dispute between the parties i.e. The alleged personal need of the appellant was answered against the respondent, with the result that the learned Rent Controller proceeded to pass an ejectment order against the appellant vide his order dated 21-3-1992.
9. The respondent's appeal however, succeeded as the learned Appellate Court having affirmed the findings of the learned Rent Controller on issues Nos.1 to 3 reversed the findings of the learned Rent Controller on issue No.4 mainly on the ground that the other properties being available to the appellant, they should have at least mentioned this fact in the ejectment application and as the appellants are guilty of suppression of material facts, therefore, this aspect reflects adversely on the bona fide of their claim and it was in consequence of this finding that the appeal was accepted and the ejectment order passed against the respondent was set aside vide order dated 21-2-1994 passed by the learned Additional District Judge, Lahore.
10. The abovesaid order of the learned Appellant Court has been assailed in the present second appeal.
11. The learned counsel for the appellant opened the debate on the controverted question of law with reference to judgment of the Hon'ble Supreme Court reported as Qamar Din v. Hakim Muhammad Khan (1988 SCMR 819) and submitted that it is neither the requirement of any law nor any rule of evidence that the landlord shall disclose all the properties which he has rented out to other tenants. It was added that he has to show to the Court that he requires the premises of a particular tenant for his personal use and occupation and that the prerogative is that of the landlord to choose and select the premises that he requires for his own personal need. Reliance was also placed on Haji Mohibullah & Co. And others v. Kh. Bahauddin (1990 SCMR 1070), and Gohar Rashid v. Fazal Hasan Mazhar (PLD 1995 Lahore 469). Referring to the facts forming background of the ejectment application, it was submitted that the premises in dispute were required by the appellant for establishing and housing the conference and study centre Pasters and catechists in Service Training Programme: Pasters Training and Refresher Course Programme: Women Workers Bible Training and Retreat Assemblies. The above-referred ingredients of personal need are mentioned in Exh.A.5 and even otherwise reiterated by E.Tak, the Secretary and attorney of the appellant when he appeared as AW 3. It was submitted that the appellant is a religious and cheritable organisation which required the premises in dispute for the purpose referred to above and the said need was felt by the management of the Company in April, 198$, therefore, the proper steps were taken by way of two resolutions dated 2-4-1988 Exh.A. 5 and 6-6-1988 Exh.A. 6 and it was in pursuance of the resolution dated 2-4-1988 that legal notice was issued on 3-5-1988 where after the ejectment application was filed. The learned counsel for the appellant having referred to the evidence on the record summed up his arguments with the note that the avowed personal need of the appellant was sufficiently established on the record, therefore, the ejectment application was rightly granted by the learned Rent Controller but has been illegally dismissed by the learned lower Appellate Court.
12. The learned counsel for the respondent on the other hand maintained that initially the differences arose between the parties because the respondent refused to enhance the rent to the extent that it was demanded by the appellant. Referring to letter dated 15-3-1988 (Exh.R 2 on the record), the learned counsel for the respondent submitted that in answer to the letter containing option for renewal of lease, the appellant desired that a representative of the respondent should meet the management of the appellant in that regard. It was submitted that the alleged personal need was never mentioned in the said letter, therefore, the minutes of the meeting held on 4-4- 1988 would gain mangnitude to the effect that the appellant wanted to enhance the rent and that the alleged plea of personal need is an afterthought. Reliance was placed on Muhammad Hussain v. Ghulam Ali (PLD 1977 Kar.285) and it was submitted that since in the first letter the alleged plea of personal need was not mentioned, therefore, the subsequent resolutions of the appellant- Company thereby evincing intention to file an ejectment application on the ground of personal need would lose all credibility. It was also submitted that the memorandum of association having not been produced or proved on the record, it is not established that the purposes for which the ejectment was sought by the appellant-Company were really the object and purposes of the company. Reliance was placed on Dr. Miss I. Ali Muhammad v. Muhammad Shafique (PLD 1971 SC 494). It was then argued that the other properties being available to the appellant, the alleged plea of personal need could not be termed or treated as bona fide and in the same line it was submitted that at least the premises presently in possession of I.C.I. Were available to the appellant in the year 1987 but were not occupied though in the same vicinity, therefore, this fact alone is sufficient to establish that the alleged personal need of the appellant is neither bona fide nor in good faith. As far the resolutions dated 2-4-1988 and 6-6-1988 whereby the management of the appellant felt the need for the premises and also resolved to file an ejectment application, it was, submitted that the same were not referred in the ejectment application and at best they can be treated to be an afterthought hence, could not be relied for any good purpose. The learned counsel for the respondent also referred to the evidence on the record to argue that the attorney as also the other witnesses of the appellant having admitted in so many words that these conferences were going on for the last more than 20 years and if that be correct why the premises presently in occupation of the I.C.I. Were let out to them in the year 1987. Lastly it was argued that property bearing No.S,53-R.3 situate Mission Road, Lahore, comprising of 32 rooms, Church office and a Bungalow being available to the appellant, the alleged need of the appellant could not at all be termed as .Bona fide. Learned counsel for the respondent relied on Mst. Shamim Akhtar v. Minhajul Abidin Khan and others (1990 SGMR 777) and Saiamat Ali v. Gulzar Ahmad and others (1991' MLD 1614) to contend that the provisions of section 13(3) (ii) (c) could not be ignored so as to give a lever to the landlord to file an ejectment application even on false ground particularly when other properties are available to him.
13. The learned counsel for the parties did not care much to dilate on the evidence recorded in the case nor discussed the same. In details excepting some oblique reference to some portions thereof and the same shall be referred to if and when required during the discussion of the case.
14. The relationship between the parties, as it appears from the record, commenced with the lease agreement dated 30-3-1983 (photostat copy whereof is placed on the record as Exh.R 1). The recital part of the abovesaid lease agreement clearly recited that the lease would commence from the 4th day of May, 1983. Clause VII of the said agreement provided that the lessee shall-have the option to renew the lease for further term of not less than five years from the expiry of the said term on the same convenient and condition as are contained therein save the monthly rent which will be determined by mutual agreement keeping in view the conditions prevailing at the time. The combine readings of the two parts of the lease agreement would show that the respondent- Company could exercise the right of option by issuing a notice in writing three months before the expiry of the original term. This option was exercised by the respondent-Company on 2-2-1988 and in response thereto the appellant issued a letter dated 15-3-1988. The exact text of the letter may be reproduced as much has been argued on the basis thereof: -- "Reference your letter of 2nd ultimo on the above subject, please get in touch on telephone or otherwise with our Chairman of the Trust Association, Bishop A.J. Malik, at your early convenience."
It seems that the parties remained silent for some time where after on 7-4-1988, the appellant issued another letter thereby informing the respondent that the appellant-Company are not willing to renew the lease for further period of 5 years as they required the premises forming subject- matter of the lease for their own use and occupation. This letter was replied by the respondent--- Company vide their letter dated 18-4-1988 whereby the respondent-Company reiterated their demand of renewal of lease and at the same time denied the assertion of the appellant-Company that they need the premises for their personal need with the obvious rider that the said demand is mala fide as the appellant---Company in fact wanted exorbitant increase in rent. Apart from the abovesaid documentary evidence two other important documents produced and proved by the appellant need be mentioned here in resolution dated 2-4-1988 whereby the appellant-Company resolved in regard to the need for which the premises were required by them and 6-6-1988 whereby the appellant-Company resolved to file the ejectment application against the respondent.
15. The resolution dated 2-4-1988 (Exh.A 5 on the record) is the motivating force behind the ejectment application filed by the appellant inasmuch as it not only contains the purpose for which the premises in occupation of the respondents were required by the appellant but also carried the recitals to the effect that Rev. E.Tak be authorised to write to the respondent---Company so as to convey them the need of the appellant and that in view thereof no renewal of lease shall be allowed. The said Rev. E.Tak was further authorised to get plan prepared for modification alteration of the existing structure so as to meet the desired objective of the appellant. It was in pursuance of this resolution that Zor Engineers Private Limited were asked to prepare a proposed reconstruction/modification plan. The legal notice dated 3-5-1988 was also issued in pursuance of this resolution. The correspondence referred to above was addressed to each other by the parties during the period from 2-4-1988 to 18-4-1988. The required job was done by Zor Engineers who submitted the plan to the appellant vide their letter dated 13-4-1989.
16. The ejectment application filed in November, 1988 proceeded on the same ground as is . Evident from resolution dated 2-4-1988 as also from the statement of E.Tak who appeared as A.W.
4. A.W. 4 did manifestly prove that the premises in dispute are required for the personal need of the appellant---Company for the purposes first aforementioned. The said witness was not shaken in cross-examination and was even otherwise corroborated by other independent witnesses. As far the plea of the learned counsel for the respondent that since it was not mentioned in the first letter dated 15-3-1988 issued by the appellant-Company that the premises in dispute were required by them for their personal need, the subsequent assertion in regard thereto as contained in letter dated 7-4-1988 is an afterthought, hence could not be relied and that basically the appellant- Company wanted exorbitant increase in rent as detailed in the minutes of the meeting dated 4-4- 1988 submitted by their late Manager after having had meeting with the management of the appellant,, it would be noticed that this argument of the learned counsel for the respondent is not tenable in view of the resolution dated 2-4-1988 and the other documentary evidence available on the record. The appellant-Company having resolved on 2-4-1988 that the premises in dispute were required by them for their own use and occupation could not possibly sit with the Manager of the respondent-Company . To demand enhancement in rent. The plea that the original letter dated 15-3-1988 did not contain a recital that the premises in dispute were required by the appellant-Company is also devoid of any merits inasmuch as it nowhere mentions that the appellant-Company desires enhancement of rent or that a meeting be held in that regard. All that the letter recites is to the effect that the Chairman of the Trust Association ire. Bishop A.J: Malik be contacted either personally or on telephone. The letter dated 7-4-1988 refers to a meeting on 28th ultimo and this assertion of the appellant has not been denied by the respondent-Company in their letter dated 18-4-1988 nor any reference to the alleged meeting of 4-4-1988 is made therein.
Obviously the details minutes of the alleged meeting dated 4-4-1988 does not fit in the whole scenario as mentioned above. To say the least, it seems to be concocted document, therefore, the reliance of learned counsel on the case Muhammad Hussain v. Ghulam Ali (PLD 1977 Kar. 285) is absolutely misplaced particularly in the face of the facts and circumstances of the present case.
17. Coming to the plea that the memorandum of the appellant-Company having not been produced and. Proved, it is really not known as to whether the purposes for which the property is being sought by the appellant are really the purposes of the appellant-Company, suffice it to say that the memorandum of the appellant-Company has been placed on the record as it finds mention in the list appended with the ejectment application. A bare perusal of clause 3(b) of the said memorandum would show that the purposes for which the property is being required by the appellant are amply covered under the said clause. The memorandum of association placed on the record have not been shown to -be spurious or concocted by any evidence in rebuttal.
Needless to add that the resolution dated 2-4-1988 having been produced and proved on the record as Exh.A-5 is enough to establish that the purposes for which the property is required by the appellant are the purposes of the trust association (appellant---Company) which evidence is not rebutted by the respondent. Even otherwise these facts were not pleaded in the written statement, therefore, the appellant---Company were not required to prove the same at the trial. It is thus clear that the ratio of the case titled Miss I. Ali Muhammad v. Muhammad Shafique PLD 1971 SC 949 could not be applied in the facts and circumstances of this case.
18. As far the ground on which the appellant-Company was non-suited by the learned Additional District Judge, (which was strenuously pressed and supported by the learned counsel for the respondent) that the other properties being available to the appellant, they were obliged under the law to mention the same and since the abovesaid material fact had been concealed from the Court; therefore, the alleged plea of personal need could not be termed to be bona fide or made in good faith. I am afraid the argument is devoid of any force and even contrary to the rule of law laid down by the Hon'ble Supreme Court in the judgments reported as Qartiar Din v. Hakim Muhammad Khan (1988 SCMR 819), Haji Mohibullah & Co. And others v. Kh. Bahauddin (1990 SCMR 1070). The question fell for determination in many cases and has been considered even in a recent judgment of this Court reported in Gohar Rashid v. Fazal Hasan Mazhar (PLD 1995 Lah. 469). It has now been settled that it is not obligatory for the landlord to plead in the ejectment application that he owns other properties in the same urban area and that they are not suitable for his need. It is no doubt correct that it is the command of the law that a landlord seeking ejectment of a tenant from the premises in his occupation on the ground of personal need should not be occupying any other non-residential property in the same urban area suitable for his needs but the question is as to whether the same is required to be pleaded by the landlord. The answer is obviously in the negative for the reasons that the landlord is simply required to state that a certain property is required by him for his personal use and occupation and that he does not occupy any other property of similar character in the- same urban area, The various ingredients of personal need as also to show that the same is bona fide is a matter of evidence which may well be proved at the trial. It is basic law of pleadings that evidence is not required to be mentioned therein, therefore, the landlord is not obliged under the law to mention the details of all other properties that he owns and occupies in the same urban area. All that is required is that the landlord should plead that he needs the property in occupation of a certain tenant for his own need and that he does not occupy any other property in the same urban area suitable for his need. In the instant case such an averment had been made by the appellant-Company in para. 5 of the ejectment application. The word occupy as used in section 13(3) (ii) (b) would show that being the owner of other property in the same urban area is not of much consequence. In order to rebut the plea of personal need, a tenant is also required to show that the landlord is already in occupation of another building in the same urban area suitable for his need. In the instant case the one property as mentioned by the respondent-Company is a hostel with an office and a bungalow attached to it. Obviously the said property is meant for different use and exclusive purpose and it is not established on the record that the same has even been used by the appellant for the purposes for which the present ejectment application has been filed, rather the evidence on the record is to the contrary. It has come in the evidence of A.W. 2 and A.W.3 that these meetings were previously arranged and held in Cathedral School, Hall Road, Lahore. It has also been stated by the said witnesses that the School had to be closed for the purpose of holding the meetings referred to above. This evidence manifestly speaks of pressing personal need of the appellant-Company. Again the said property being used exclusively as hostel could not be said to be available to the appellant particularly for the reason that it is meant for a different use. The other argument that the property, presently in occupation of I.C.I. Was available to the appellant in the year 1987 and that too in the same vicinity, therefore, it ought to have been occupied and utilized by the appellant for their alleged avowed purpose. It would be noticed that the personal need, as argued by the learned counsel for the appellant, was felt in the year 1988 with the result that the resolution dated 2-4-1988 was passed.
The property having been let out to I.C.I. In the year 1987 could not possibly be said to be available to the appellant in the year 1988. It is not denied that it is the prerogative of the landlord to make a choice as to the property which he would like to utilize for his/its own specific purpose and the respondent/tenant or for that matter even the Rent Controller has no right to suggest 'otherwise.
The other argument that since the abovesaid meetings and seminars are stated to have been held over the last 20 years. Therefore the property in occupation of I.C.I. Ought to have been occupied is also not supported by the record inasmuch as the need of the appellant-Company is established to have been seriously felt in April, 1988 when the resolution dated 2-4-1988 was passed. It need be repeated here that it was this pressing need which was given effect by the appellant-Company and as observed earlier the same was felt in the year 1988, therefore, it could not be successfully argued that the appellant ought to have occupied the premises presently in occupation of the I.C.I.
As far the argument that the provision of section 13(3)(ii)(b) of the West Pakistan Urban Rent Restriction Ordinance, 1959 ought to have been given effect in letter and spirit and should not be rendered illusory, it would be noticed that the respondent-Company having failed to establish on the record that the appellant-Company were occupying any other property in the same urban area suitable for its need at the time of institution of the ejectment application, the reliance of the learned counsel -on the said provision is most inapt, with the result that the rule of law as pronounced in the judgment reported as Mst. Shamim Akhtar v. Minhajul Abidin Khan and others (1990 SCMR 777) and Salamat Ali v. Gulzar Ahmad and others (1991 MLD 1614) is not attracted in the facts and circumstances of the case.
19. In the circumstances the judgment of the learned Additional District Judge is not only against the facts on the record but also contrary to the law laid down by the superior Courts, therefore, the same is not sustainable.
In view of the foregoing discussion it is obvious that the judgment of the learned Additional District Judge is not sustainable in view of the facts available on the record as also the law applicable thereto, therefore, the same is hereby set aside. The appeal is allowed with no order as to costs and the respondents are ordered to be evicted from the premises in dispute. They are, however, allowed four months time to vacate the premises in their occupation.