JUDGMENT , This is a second appeal under section 15 of the Punjab Urban Rent Restriction Ordinance 1959 (hereinafter to be referred as Ordinance of 1959) filed by the tenant. The brief facts as ascertained from the arguments of the learned counsel for the parties and record are that the appellant is in possession of Shop No.4, Awami Bazar, Lohari Gate, Lohari Mandi, Lahore. The respondents moved an application under section 13 of the Ordinance of 1959 wherein the ejectment of the appellant was sought on the ground of default w.e.f. 5-11-1987 and bona fide personal use. The appellant contested the ejectment petition. The learned Rent Controller accordingly framed following issues:- - (1)Whether the respondent has wilful defaulter in payment of rent? OPA (2)What is the rate of rent of the disputed shop? OP Parties. .
(3)Whether the petitioners required the disputed shop in good faith for use of petitioner No.2? OPA.
(4)Relief.
The respondents examined Abdul Majeed as A.W.1, Tariq Mehmood as A.W.2, Tauqir Ahmad Khokhar, respondent No.2 as A.W.3 while respondent No. l appeared as A.W.4. The appellant examined Manzoor Ahmad as R.W.1, Riaz Ahmad as R.W.2 and himself appeared as R.W.3. The parties also produced documents. The learned Rent Controller after hearing the arguments decided Issue No. l against the respondents while Issue No. 3 was decided in their favour and the rate of rent was determined at Rs.250 per month as pleaded by the appellant while recording findings on Issue No.2. The ejectment petition was allowed in view of findings on Issue No.3 vide order dated 6-10-1994, which was challenged by the appellant through an appeal before the appellate Authority, who reversed the findings recorded by the Rent Controller on Issues Nos. l and 3 and as a result thereof dismissed the appeal. The appellant therefore filed the present appeal.
2. The learned counsel for the appellant argued that the ejectment proceedings were mala fide.
The sole object was to appropriate Rs.1.00 lac paid as advance rent. It was argued that the rent from November 1987 to February 1988 was sent through the money order on 5-12-1990 and as the respondents refused to receive the same, therefore, it was deposited in the State Bank with the permission of the Rent Controller before the filing of the ejectnlent petition. It was argued that the default actionable under the Ordinance, 1959 was not proved and the appellate authority failed to decide this issue in accordance with the evidence on record specially that of R.W.3 and RMA, It was argued that the findings recorded by the Rent Controller on Issue No.1 were wrongly and illegally reversed by the appellate authority.
3. On the other hand, the learned counsel for the respondents argued that there is nothing on record as to the tender of payment of rent since November, 1987. The learned counsel in this behalf referred to the statements of R.W.1, R.W.2 and R.W.3. It was argued that the default has matured and the burden of proof as to payment in time was on the appellant but he has failed to prove the same, therefore, the learned appellate authority rightly reversed the findings of the Rent Controller on Issue No. l and held the appellant to be a defaulter. The learned counsel submitted that as per statement of the appellant as R.W.3 the rent for this period was tendered in lump sum through money orders receipts but the same have not been produced in evidence. In this behalf it was added that according to Exh.R.4 the Rent through the money orders were remitted on 24-2-1988 and 30-3-1988. The appellant was proved to be a defaulter, therefore, the Rent Controller has no discretion in the matter left. It was argued that once default is proved the ejectment is to follow.
The learned counsel in this behalf has referred to the judgments reported as Muhammad Ahmad v.
Mrs. Qamar Anwar Sheikh (1980 CLC 664), Fazalur Rehman v. Mst. Taj A. SAnad and 5 others (1984 CLC 2551), Ghulam Abbas through legal heirs v. Sultan Ahmed (1987 MLD 704), Nasir Malik v.
Additional District Judge, Lahore and another (1983 CLC 748), Muhammad Ismail v. Waqf Muhammad Meher Elahi (1987 CLC 496), Fayyaz Ahtnad Khan v. Dr. Aqeel Ahmed (1987 CLC 364), Haji Fida Hussain v. Muhammad Ibrahim Khan (1972 SCMR 262) and Syed Shafiuddin v. Abdul Hakim Khan (PLD 1978 Karachi 149). It was argued that it is the duty of the tenant to pay the rent and onus was on him to prove tender or payment. In this behalf he has referred to the judgments reported as Ashiq Hussain v. Additional District Judge and 2 others (1993 CLC 799), Messrs Eveready Pictures Ltd. v. Chaman Begum (PLD 1982 Karachi 770), Mst. Saeeda Bano v. Messrs Saima Silk Factory (1994 CLC 1894), Messrs Maqbool Company Limited v. Abdul Ghaffar and others (1985 CLC 2635), Allah Wasayo v. Saleh and 2 others (1975 SCMR 184), Waqf Muhammad Mehar Ellahi v. Abdul Razzak Ltd. (1983 CLC 3285), Mahmood Ahmed v. Muhammad Nawaz Ahmed, Advocate (1984 CLC 1067), Yousaf Shah through his brother (represented by 9 Legal Heirs v. Haji Ghulam Jan Khan (1975 SCMR 464), Muhammad Alimullah v. Ziaul Islam (PLD 1973 Karachi 56), Abrar Hussain and 2 others v. A.F. Furtado (1986 MLD 1587), Allah Din v. Habib (PLIJ 1982 SC 465), Mursaleen v. Ghulam Sarwar through Legal Heirs and another (1991 SCMR 2042), Muhammad Ishaque v. Akhtar H. Ghori (1983 CLC 3290) and Aleem-ud-Din v. Muhammad Yaseen (PLD 1990 Lahore 42). It was argued that the respondents could support the ultimate order of the appellate authority without filing cross- objections to the findings of issue No.3, In this behalf the learned counsel has referred to the judgments reported as Sh. Muhatnmad Ashraf v. Sh. Muhammad Almas (PLD 1980 Lahore 52), Nasiruddin Khan v. Abdul Majid (1987 CLC 2029) and Dr. Ubaidur Raza Khan v. Mrs. Saghera Bani and another (1994 CLC 1302). It was argued that the respondents clearly pleaded inpara. No.2 of the ejectment petition that the shop is required for personal use and occupation of petitioner No.2 while the defence plea of the appellant wasthat the respondents were owners of a number of shops at the same place and even shops vacated by the previous tenants were let out by them, therefore, the personal need is not bona fide. The purpose is to appropriate a sum of Rs.1.00lacs paid as advance rent. It was argued that the A.Ws. Were not cross-examined on this point meaning thereby that this defence was given up. It was added thatthe shops lying vacant are on the back side of the market, which are commercially not attractive and for that reason the same were lying vacant. It was argued that the personal use was proved by the statements of A.W.1 and A.W.4. On the other hand, the statements of R.Ws. Are self-contradictory beside this fact that the appellant failed to establish any mala fide. It was added that R.W.2 has admitted that he was not aware what business his younger brother was doing while R.W.3 stated that he remitted the rent in 1986 and wasinformed that the premises was required for personal use and occupation. It was argued that the shop in dispute being corner shop, therefore, more suitable fortheir business. It was argued that the appellate authority decided Issue No.3 as to personal use against the respondents in the vacuum. It was not a case of the appellant itself and he has failed to cross-examine the A.Ws. As to personal use, therefore, the evidence of the respondents available on record was sufficient to prove this issue. It was argued that it was a sole discretion of the landlord to select the premises for his own personal use and in that behalf his own statement on oath would be sufficient to grant the ejectment petition but the learned appellate authority failed to decide this issue in accordance with law and evidence on record. The learned counsel in support of the arguments relied on the judgments reported as Shafiq Ahmad v. Khurshid Ahmad (1992 CLC 1235),Sardar Khan v. Riaz Ahmad and others (1986 SCMR 1981), Sabu Mal v. Kika Ram alias Ehman Das (1973 SCMR 185), Gohar Rashid v. Fazal Hasan Mazhar (PLD 1995 Lahore 469) and Mrs. Rehana Abrar v. Inamuddin Malik (1989 CLC 616). The learned counsel for the respondents argued that the rate of rent for the shop was Rs.800 per month and not Rs.250 per month as alleged by the appellant and upheld by the two Courts. In this behalf, the learned counsel referred to the statement of R.W.1, according to which, appellant was paying Rs.500 rent for the site before the market was constructed while according to R.W.3 he was paying at the rate of Rs.150 per month. It was added that copy of P. T.1 for year 1985-86 Exh.D.3 was a forged and fabricated document because the market was constructed after 1986 as is clear from the statements of A.W.1 and A.W.2. It was submitted that the two Courts below have not decided Issue No.2 in accordance with the evidence available on record. In this behalf, reliance was placed on the case of Gul Dan Khan v. Rahim Shah (PLD 1978 Kar. 19).
4. The learned counsel for.The appellant while summing up the arguments submitted that issue No. l as to the default was not proved. It was added that the first ejectment petition filed on the sole ground of subletting was dismissed for non-prosecution on 30-3-1991 and till then the respondents were denying the tenancy of the appellant. On the other hand, the appellant has alleged tender of rent even in the earlier suit and the same was deposited by him on 5-11-1990 while the second ejectment petition was filed on 14-7-1991. In this ejectment petition the respondents accepted the appellant as tenant otherwise they were all along treated him as sub-tenant, therefore, they cannot take benefit of any alleged non-payment before 30-3-1991. It was maintained that as the respondents did not treat the appellant as a tenant,' therefore, he cannot be treated as defaulter.
In this behalf, reliance is placed on the judgments reported .As Abdul Bashir v. Muhammad Rafiq Khan Serwani (PLD 1974 Karachi 451), Syed Jalilur Rehman etc. v. Messrs Johar Trading Co. (1982 CLC 219) and Piyaro v. Din Muhammad (1983 CLC 958). It was argued that even para. Relating to cause of action would go a long way to show that there was no default. The learned counsel on Issue No.3 reiterated his argument and added that ground was not pleaded in the first ejectment petition. It was added that mere statement of landlord is only sufficient when it is in line with the averments in the ejectment petition and remained unshaken in the cross-examination. It was added that the Court while deciding this issue has to see overall circumstances and evidence led by the parties. In this behalf, reference was made to the case of Sanobar Khan v. Muhammad Younis (1994 CLC 2235). It was submitted that mere statement is not sufficient. In this behalf reliance was placed on the judgment reported as Syed Haq Nawaz v. Mst.. Sakina and 9 others (PLD 1994 Quetta 84). It was argued that safe and proper course is to critically examine evidence of the parties on the point of bona fide and mala fide of personal need and then decide the issue. It was added that in the present case the bona fide was not proved for the reason that the respondents let out the shops in the same market after the same were vacated by previous tenant. It was submitted that the personal need although of prior to 1986 but still not pleaded in the first ejectment petition. In this behalf reference was made to the case of Muhammad Hafeez and others v. Fazal Ahmad (1995 CLC 1634) and Muhammad Ashraf v. Muhammad Sharif (1992 ALD 535).
5. I have given my anxious consideration to the arguments of the learned counsel for the parties, gone through the record and precedents. The Rent Controller decided issue of personal need in favour of the respondents but the findings were reversed by the appellate authority, who has justified its findings in para. 12 which reads as under:-- .It is further considerable that according to A.W.1, need of the respondent No.2 arose four or five years ago. This statement was made in July, 1992. By way of calculation, the alleged need of the respondent No.2 started approximately from July 1987. Exh.R.l is copy of previous Eviction Petition which was moved in July 1990, but no need of the respondent No.2 was stressed therein. Apart from above, A.W.4 has admitted that one shop on the front side of the market was vacated by some other tenant in he year 1988, but the same was further rented out. If the respondent was genuinely with a bona fide requirement since 1987, he could occupy the shop vacated in the year 1988, he could stress his need in the earlier eviction petition, but he did not, for the reasons best known to, him. Conclusion may be drawn that the respondent No .2 lacks bona fide requirement. Findings of the learned Rent Controller on this point are set aside/reversed
6. . The issue of personal need, when mala fide is alleged, is mainly to be decided by putting the evidence of the parties in juxtaposition and determining whether the requirement is mala fide or bona fide as per evidence available on record. The respondents had not pleaded this ground in the first ejectment petition. This coupled with the fact that at least one shop. Having almost the same location as that of the shop in dispute, was vacated by the previous tenant and was let out to Zahid Javed. The respondents did not justify the letting out of this shop. This disproved their plea that the shop was bona fide required by them for personal need.
7. Issue -No. l of default was decided by the Rent Controller against the respondents-landlords but this finding also was reversed and the result was that the appellant was held to be a defaulter. The Rent Controller has decided this issue against the landlords. He, after discussing the evidence available on record, concluded that in this situation he was constrained to hold that the appellant was not wilful defaulter in the payment of rent. The appellate authority while reversing the findings failed to appreciate the basic facts:--- FirstIv, that the rent was claimed by the respondents at the rate of Rs.800 per month and they failed to prove this rate; Secondly, that the landlords did not accept the appellant as a tenant till 14-7-1991 when they filed the second ejectment petition, out of which the present appeal has arisen. Meaning thereby they were not treating the appellant as tenant, therefore, they did not accept payment of rent from the appellant; and Thirdly, that the appellant stated to have remitted the rent through money orders which were refused and ultimately he deposited the rent on 5-11-1990 much before the filing of the present ejectment petition, wherein the respondents accepted the appellant as their tenant.
These .Were the strong reasons which were sufficient to exercise the discretion in favour of the tenant. It is interesting to note here that although the appellant was alleged to be a defaulter from 5-11-1987 while in the ejectment petition filed on 8 24-7-1990 he was treated as a sub-tenant. If looked from this angle then the respondents-landlords were responsible for non-payment of the rent. Therefore, they could not take benefit of any non-payment. It is also interesting to note here that according to the respondents the market was built after 1986.
8.Now coming to the rate of rent. It is the only issue where the appellate authority accepted the findings of the Rent Controller. So, it is a case of concurrent findings of fact. The argument was that P.T.1 for the year 1985-86 Exh.D.3 could not be made basis for the decision of this issue is clearly misconceived. The oral evidence led by the parties was not sufficient to come to a definite conclusion, therefore, the two Courts while reading oral evidence with Exh.D.3 concluded that the rate of rent was Rs.250 per month. The proposition can be looked from another angle. The respondents were fully aware of this ' assessment because they had paid property tax according to it but they never challenged it rather accepted the same. They have failed to challenge it in proper forum, therefore, there is nothing wrong with the findings of the two Courts below on this issue.
9. The upshot of the above discussion is that the findings of appellate authority on issue No. l are set aside by accepting this appeal. There is no order as to costs.