1. ' The appellant In this case is the tenant of the respondent in the premises comprising first floor of a house bearing Block No 122.L/2 PECHS, Karachi, at a rent of Rs, 325 par month. This house consists of two floors, the ground floor was occupied by another tenant Mr. Ebsan at the monthly rent of Rs,
375. The respondent filed an ejectment application under section 13 of the Urban Rent Restriction Ordinance, 1959 (hereinafter referred as the Ordinance) against the appellant on 84-75 on two grounds, namely, that the premises rented out to the appellant were required by the respondent for his bona fide personal use and that the appellant was guilty of making alterations and changes in the building impairing its utility. On .The evidence recorded by him the learned Controller reached the finding in favour of the responded on the ground of personal requirement and against him as regards the second ground urged in support of the application. Accordingly by order dated 19-5-76 he directed the appellant to hand over possession of the premises to the respondent.
2. ' The appellant challenged this decision but the learned 7th Additional District Judge, Karachi affirmed the finding given by the Rent Controller and dismissed the appeal. The appellant has, therefore, come up in second appeal under section 15 (4) of the Ordinance.
3. ' It would be pertinent to state that the admitted facts are that prior to the institution of the proceedings for eviction of the appellant from the first floor premises, the respondent had applied for the ejectment of W. Elwin the tenant on the ground floor on the ground, Inter alla, of personal requirement. The respondent succeeded in obtaining the order of ejectment against Mr. Ehsan in respect of the ground floor on 5-10-73. However, the Government of Sind requisitioned these premises (ground floor tenement) by order dated 17-11.73 under section 3, West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act VII of 1956 for the use of one of its officers. In the application and in his evidence before the Controller the respondent stated that he agitated against the order of requisition and filed an appeal but to no avail. Subsequently, the said premises were allotted to Dr. Maar, Ahmed of the Ministry of Health, Government of Sind and a rent of Rs, 400 has been determined which is being paid by the. Government to the respondent. Thus the respondent was not able to obtain the use of the ground floor premises and applied for possession of the first floor in the occupation of the appellant.
4. ' As regards the genuineness and bona fides of his need the applicant urged that he is a retired Government servant having a wife and 7 children all of whom are grown up and that the family was living with one of the married sons of the respondent in a flat at Nishtar Road, Karachi. It was further stated that the respondent's son himself had a wife and 3 children and it was not possible for so many persons to live in the insufficient accommodation available in the respondent's son's flat.
5. Upon a proper appreciation of the relevant circumstances appearing in the evidence on record the two Courts below have given a concurrent finding that the respondent has established the ground of his personal requirement. Ordinarily, therefore, it is not open to the appellant to question in A second appeal the concurrent findings arrived at by the two Courts below. However, the learned counsel for the appellant contended that the cue of the respondent has not been examined in the light of the second proviso to section 13 (3) (a) which is in the following terms "Provided further that where the landlord had obtained possession of residential building under the provisions of sub-paragraph (I) or sub-paragraph (It) he shall not be entitled to apply again under the said sub-paragraphs for the possession of any other building of the same class or rented land unless such residential building or land is no longer suitable for his needs at the time."
6. ' Sub-paragraphs (I) and (11) of section 3 (a) of the Ordinance relate to the ejectment of the tenant on the ground of personal requirement of the landlord in case of residential and non-residential buildings. The submission of the learned counsel was that premises on the ground floor was illegally requisitioned and if the respondent had properly agitated against the order of requisition he would have been able to obtain the possession thereof. For his failure to do so he must be deemed to be in possession of the same and disqualified under the aforesaid second proviso to subsection (3) for obtaining the possession of the first floor in the occupation of the appellant. The learned counsel further elaborated his submission by referring to section 3 of Act VII of 1956 mentioned above. The material provisions of section 3 may be reproduced as under t "(1) If in the opinion of the Provincial Government it is necessary or expedient to requisition any building for the use of any of its offices. Or offices, the Provincial Government may by order in writing requisition any building and may make such further orders as appeared to it to be necessary, or expedient in connection with the requisition.
7. ' Provided that no owner in occupation of a house shall be required to vacate it.
8. ' It was contended by the learned counsel that in view of the proviso mentioned above the premises could not be requisitioned as they were in occupation of the owner.
9. ' The learned counsel for the respondent, however, submitted that it is wrong to submit that the respondent had not taken steps to challenge the order of requisition. In this connection I was referred to the evidence of the respondent before the Controller in which he had clearly stated that the ground floor was requisitioned by the Sind Government in the year 1973 and that he had tried to get the premises derequisitioned and filed appeal with the Commissioner which was rejected. The two Courts below having accepted the evidence of the respondent there is no reason to disbelieve that the respondent had agitated against the order of requisition. The learned counsel for the respondent placed before me the certified copy of the representation made by the respondent to the Commissioner, Karachi, seeking the withdrawal of the requisition order. It was submitted that this document was not available at the time of the recording of evidence, but even if this document is not taken into consideration for evidence of the respondent has gone unchallenged and I find no reason to reject this evidence that the respondent had made an effort to avoid the requisitioning of the ground floor. Mr. Maths Siddiqui, the learned counsel for the appellant then submitted that in his cross-examination the resdondent had admitted that the ground floor tenant had vacatei the premises before the same were requisitioned. The counsel, therefore, contended that the respondent must be deemed to be in possession for the purposes of the proviso to subsection (3) of section 13 of the Ordinance. But, if the statement relied upon by the learned counsel is read in its proper context it would be clear that the premises were taken by compulsory acquisition and there was no complicity or collusion between the respondent and the Government of Sind for letting out the premises by clandestine agreement. Following is the extract from the cross-examination of the respondent "The house in suit was requisitioned at the time when Mr. Ahem my previous tenant had vacated the suit premises. I took Rs, 375 P. M. As rent from Mr. Ahsan. At present Dr. Nisar is paying me rent at Rs, 400 plus other charges through Government of Sind.
10. ' It is a fact that I got the ground floor of the suit premises vacated after filing an ejectment case against the tenant. It is a fact that in that case the ground for personal need was also one of the grounds. It is not a fact that after getting the house vacated from the previous tenant, I rented out the same at enhanced rate to the present tenant. Actually the house was sealed and allotted to the Government 0 cers. I had made efforts to get it de-requisitioned and at present I cannot produce the same."
11. ' A reference to the certified copy of the memo of appeal clearly mentions the circumstances under which the requisition order was passed. It is mentioned there that after the order of ejectment was passed allowing one month's time to the tenant for putting the respondent in possession of the premises, the possession was not given to the respondent. It was, therefore, that on 12-11-73 an execution application was filed against the tenant on which notice was issued for 17- 11-73 but the tenant remained absent in spite of service. Accordingly on 17-11-73 a writ of possession was ordered to be executed by breaking open the lock. On the same day at 4 p.m. The requisition order was passed. There is no indication from the record and no evidence was produced by the appellant to show that the respondent was in fact put in actual possession before the premises were requisitioned. Be that as it may, that the order of requisition was passed under section 3 of Act VII of 1956 by the competent authority raises a presumption of regularity which leads to the inference that the respondent was not in occupation of the premises at the relevant time. There is nothing on record to displace this initial presumption and the onus lay upon the appellant to bring out the circumstances to prove the contrary.
12. ' But the fact remains that consequent to the order of eviction in the first proceedings the respondent did not obtain or get the use of the premises on the ground floor. The second proviso on which reliance has been placed opens with the words "provided further that where the landlord had obtained possession of a residential building" which clearly meant that the disqualification contained in the proviso would only be attracted in case the landlord obtains actual physical possession on the ground of personal requirement. In the present case it is quite apparent that before the respondent could tak over possession the authorities intervened and by means of an order of requisition deprived him of the use of the premises. In my view. Therefore, the proviso relied upon by the appellant is not attracted in the facts of th present case.
13. ' The learned counsel for the appellant did not attempt to challenge the finding of fact that otherwise the respondent had established the case for personal requirement, and therefore, no other argument was made in support of the appeal.
14. ' In the result there is no merit in this appeal which is accordingly dismissed with costs. The appellant is given four months time to hand over possession of the premises to the respondent.