This is the second Appeal under section 15 of the Punjab Urban Rent Restriction Ordinance, 1959 against the order dated 17-12-1995 passed by Mr. Muhammad Aslam Zia, learned Additional District Judge, Lahore whereby the appeal against the eviction order passed by the learned Rent Controller on 9-10-1991 was dismissed.
2. The dispute relates to the Shop No.9 (Property No.SE-II-2-S-17/19) situate in new market Landa Bazar, Lahore which is owned by Muhammad Younas, respondent. An ejectment petition was filed by the respondent against the appellant on 23-5-1987 on the grounds of default in paying the rent, personal need and subletting of the premises. The order for the ejectment of the appellant was passed by the learned Rent Controller on the ground of personal need. The appeal of the appellant against this ejectment order was also dismissed on 14-6-1992 by the learned Additional District Judge, Lahore. Dissatisfied with these orders, the appellant filed Writ Petition No.9103 of 1992 in this Court which was accepted and the case was remanded in the following terms:--- "The appeal shall, therefore, be considered to be still pending and shall be disposed of afresh by the learned appellate Court in accordance with law and in the light of the observations made above. "
Accordingly on 17-12-1995, the learned Additional District Judge, Lahore dismissed the appeal giving him the period of three months to wind up his business and hand over the vacant possession of the shop to the landlord.
3. Learned counsel for the appellant has made the following submissions:-
(i) that respondent No. l was estopped from bringing the second ejectment petition against the appellant in view of the fact that previously his ejectment petition was dismissed by the learned Rent Controller;
(ii) that the observation made by this Court in the order dated 20-4-1994 passed in Writ Petition No.9103 of 1992 whereby the case was remanded to the learned Appellate Court, were not strictly followed;
(iii) that respondent No.1 has not stated in the ejectment petition that he wanted all the three shops for the purpose of a Hotel and in any case two shops which are already in his possession are sufficient for this purpose;
(iv) that the learned lower appellate Court had no jurisdiction to declare the present appellant defaulter as on the issue of default which was decided against respondent No.1 by the learned Rent Controller no appeal was filed by him, and
(v) that both the learned Courts below have misread and misinterpreted the pleadings and the evidence of the parties.
4. The landlord, respondent No. l is not represented by the counsel as he has not chosen to engage the one. He has, however, placed on record written arguments in support of the impugned order.
5. With regard to first contention of the learned counsel for the appellant that the observation made in the order dated 20-4-1994 passed in Writ Petition No.9103 of 1992, has not been strictly followed, the same has no merit. It is observed therein that:- "No doubt, fresh circumstances may arise giving rise to bona fide personal need and requirement of the property and the previous order may not operate as res judicata, but those circumstances have to be spelt out. Secondly the bona fide of the personal need has to be adjudged in the perspective of overall circumstances emerging on record."
6. The landlord respondent No. 1, could legitimately demand the eviction of the appellant on the ground of personal need of the premises and if that was established, the order of eviction could be passed in fresh proceedings, although in the previous round of litigations such a ground was either abandoned or not proved. Therefore, this objection raised on behalf of the appellant is not tenable.
In the second ejectment petition the ground for ejectment on the basis of personal need could be raised and decided on the basis of new circumstances and evidence.
7. So far as the contention of the learned counsel for the appellant that respondent No. l had not taken up the plea in the ejectment petition regarding establishment of a Hotel in all the three shops, reference to the following averment made in the petition would be useful:----- "That the petitioner informed to the respondent that he had purchased the property in dispute for the purpose of carrying on a business of his own as he had a rented cabin in shop No. 1, New Market, Landa Bazar, Lahore, and the Possession of the said cabin was handed over to the landlord and in this way the shop in dispute is required bona-fidely for the personal use of the petitioner, and the petitioner requested to the respondents to vacate the shop in dispute and the respondent promised to vacate and later on backedout from his promise."
8. In his statement, respondent No. l clearly stated that he wanted to establish hotel in all three shops after converting them into one unit. The following portion of this statement is relevant:----
9. In this regard the learned Rent Controller has held that:-- "The petitioner in his evidence has stated that he wants to get the disputed shop so that he may make one unit of all the three shops and start business of hoteling; if the petitioner has got the possession of other two shops it would not mean that requirement of the petitioner has been fulfilled as the petitioner now requires the disputed shop for making the same a part of other two shops to make it one unit for starting hotel business which intention cannot be doubted."
On this issue the learned appellate Court also upheld the findings of the learned Rent Controller in the following terms:- "The evidence led in rebuttal is that the disputed place is not suitable for the hotel business. If all probabilities are taken together, the place of business nature of business and the area of disputed place, all justified the bona fide need of the respondent. Therefore, the findings of the learned Rent Controller on Issue No. 3 are upheld."
10. Thus reading the petition with the statement of respondent No. 1, there is no doubt that he took up the plea specifically that the premises are required for establishing the Hotel. The learned appellate Court has, Therefore, rightly relied on the following passage of the judgment of the Hon'ble Supreme Court "Malik Muhammad Ramzan v. M/s General Iron Stores and another (1995 SCM R 1125):--- "We now advert to the question of suppression of facts by the appellant, which influenced the decision of the learned Single Judge, in holding that the appellant's move for eviction of the respondent on the basis of his personal need was not bona fide. As already observed, the learned Single Judge is of the view that the factum of appellant's ownership of other business premises and running of Chakkis by him should have been disclosed in the ejectment petition. Upon the facts of the case, it is not possible to agree with him. In the ejectment petition, it has clearly been averred that the property is required by him for his personal need, to run his own business. He was not required to anticipate the respondent's objections and include the answer thereof in the ejectmen't petition or to .Spell out all the factors in support of his personal need and make their disclosure therein."
11. It was submitted by the learned counsel for the appellant that respondent No.1 owns three shops bearing Nos.8, 9 and 10 which are adjacent to each other. The admitted position is that Shops Nos.8 and 10 which are in possession of respondent No.1 are intervened by shop No.9 which is in possession of the appellant. As observed above, respondent No. l clearly stated in his evidence that he wanted to establish Hotel in all the three shops after converting them into one unit for which purpose he would only have to dismantle the intervening two walls. Both the learned Courts came to the conclusion that the requirement of respondent No.1 for his own business is bona fide.
Reference may be made to the following findings of the appellate Court:---- "No doubt, admittedly the respondent had got vacated two other shops but he has proved through convincing evidence that he wanted to run business of hoteling in all the three shops and shop in dispute is situated in between two other shops bearing Nos.8 and 10 got vacated by the respondent. Unless he gets possession of the disputed shop the respondent cannot run his business there. It has not been proved on record that respondent had sublet any of the other two shops and got vacated by him. In these circumstances the bona fide need of the respondent for the shop in dispute stands fully proved on record."
12. On the payment of statutory increase of rent in terms of section 5-A of the Punjab Urban Rent Restriction Ordinance, 1959, the learned appellate Court has observed as follows:----- "The respondent purchased this property on 22-2-1984 and the appellant was occupying the disputed shop at the rate of Rs.200 p.m. The first automatic enhancement fell due on 1-7-1989 at the rate of 25 of the rent. The appellant was required to deposit the rent at the rate of Rs.250 p.m.
From 1-7-1989. The second enhancement became due on 1-7-1992, he was required to pay 25% enhancement rent at the rate of Rs.312.50 p.m. The third increase fell due on 1-7-1995 and appellant was required to deposit rent at the rate of Rs.390.70 being 25 increase rent of Rs.312.50. The appellant has produced receipt in Court today according to which he has deposited the rent at the rate of Rs.200 p.m. From 1-7-1995 on further secrutiny it is found that he has deposited the rent for the period 1-7-1992 to 30-6-1995 at the same rate whereas he was required to pay the rent at the rate of Rs.312.50 p.m. The rent for the period of 1-7-1989 to 30-6-1992 is also short which was required to be deposited at the rate of Rs.250 and the appellant has deposited at the rate of Rs.200 excluding the period of pendency of his writ petition in the Hon'ble High Court for which period he has deposited Rs.800 for use and occupation as ordered by His Lordship. In view of the above the appellant has himself rendered defaulter and his defence is liable to be struck off."
13. On 30-9-1992 in Writ Petition No.9103 of 1992, this Court made the following directions:---- "The impugned ejectment order shall not be executed meanwhile provided the petitioner deposits with respondent No.3 Rs.800 per mensum towards use and occupation of the shop in question. The respondent landlord if so desires can withdraw the amount of rent, so deposited. "
This was followed by another order dated 7-6-1994 to the following effect:- "During the pendency of the proceedings before this Court, a sum of Rs.800 p.m. Was considered to be the amount payable on account of use and occupation of the shop in question. No refund can be claimed on the basis of the rent which was ordered as payable during the pendency of the proceedings before the Rent Controller under Rent Restriction Ordinance."
14. Learned counsel for the appellant also argued that the appellant has been paying rent at the rate of Rs.200 p.m., therefore, the additional amount can be adjusted towards the statutory enhancement, if at all that was payable by the appellant. This submission of the learned counsel for the appellant is negated by the order of this Court dated 7-6-1994 passed in Writ Petition No.9103 of 1992 which is quoted above.
15. In my view the appellant/tenant was also bound to pay the statutoryincrease of rent in accordance with section 5-A of the Punjab Rent Restriction Ordinance which is fully explained by the learned appellate Court in paragraph 17 of the impugned order quoted above. Section 5-A of the said Ordinance states that:---- "The rent of a non-residential building shall stand automatically increased at the end of every three years of its tenancy by twenty five percent. Of the rent already being paid by the tenant."
It further states in subsection (4) that:----- "The arrears becoming due as a result of the increase of rent under this section shall, unless paid earlier, be deemed to be rent due under clause (1) of subsection (2) of section 13, on the expiry of sixty days from the date of coming into force of the Punjab Urban Rent Restriction (Amendment)
Ordinance, 1990."Under Clause (i) of subsection (2) of section 13 of the said Ordinance, the tenant can be ejected if he has not paid or tendered rent due, within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord, or in the absence of any such agreement within sixty days from the period for which the rent is payable. It is admitted that the amount of statutory increase was never paid by the present appellant. It was argued before me by the learned counsel for the appellant that even if the statutory increase was not paid by the appellant, he would not be considered to have committed default as he had paid more than the amount of the statutory increase. He, however, explained that the tentative rent was decided by the learned Rent Controller at the rate of Rs.200 p.m. But he has paid the rent at the rate of Rs.800 p.m. From October, 1992 to April, 1994 in pursuance of the order of this Court dated 30-9-1992 passed in Writ Petition No.9103 of 1992. As observed above, this Court made it clear in its order dated 7-6-1994 passed in Writ Petition No.9103 of 1992 that no refund can be claimed on the basis of the rent which was ordered as payable during the pendency of the proceedings before the Rent Controller under Rent Restriction Ordinance and this Court considered a sum of Rs.800 p.m. Payable on account of use and occupation of the shop in question. According to the order the fair rent determined by the High Court was Rs.800 p.m., although the appellant paid only Rs.200 p.m. Thus, he has clearly made default in terms of section 5-A read with section 13(2)(i) of the Rent Restriction Ordinance.
16. In the light of the above discussion, I see no force in the arguments of the learned counsel for the appellant and justification to interfere in the concurrent findings recorded by the learned lower Courts on both the issues, namely, the bona fide personal need and the default in paying the amount of statutory increase. This appeal, therefore, is dismissed with costs.