1. This appeal is directed against the judgment dated 26-2-1996 cf Additional District Judge, Lahore, whereby the respondents' appeal was accepted and the order dated 13-9-1995 of the Rent Controller, Lahore, ordering the respondents ejectment, was set aside and the appellants eviction petition was rejected.
2. 2.The facts, in brief, are that the appellant/landlord is owner of Building No.232, Ravi Park, Ravi Road, Lahore, and a portion of commercial side, comprising of three (3) shops and a veranda, was let out to the respondents, through respondent No.2, Incharge National Savings Centre, Ravi Road, Lahore vide rent agreement dated 1-7-1990, at the rate of Rs,2,200 per month, for a period of three years. On 5-5-1994, the appellant instituted the ejectment petition against the respondents in the Court of Rent Controller, Lahore, on the ground of default and also on the ground of bona fide personal need, with a narration that he needed the premises for the benefit of his son Muhammad Saqib Jamil who wanted to run his own business of medical store and general store in the premises in dispute. The respondents, vide reply dated 4-9-1994, contested the petition and in para.5 of the reply the respondents also took a stand that "The National Savings Organisation is an important department attached with Ministry of Finance Government of Pakistan and therefore, the premises occupied by National Savings Centre cannot be vacated until and unless some suitable alternate accommodation is traced out in the same locality." Out of the pleadings of the parties, the Rent Controller on 18-10-1994 framed the following issues: (1)Whether the demised premises is required by the petitioner for the bona fide personal need of his son Muhammad Saqib Jameel? OPA.
3. (2)Whether the respondents have become liable for ejectment for wilful default in the payment of rent? OPA.
4. (3)Whether the present petition is incompetent and is liable to be dismissed? OPR.
5. (4)Whether the petitioner has no cause of action? OPP.
6. (5)Order.
3. The appellant in support of his petition produced Khalid Mehmood, A.W.1, a resident of the locality, Muhammad Saqib Jameel, A.W. 2 the son of the appellant, for whose benefit the appellant requires the premises in dispute, and the appellant himself appeared as A.W.
3. The site plan, Exh.A.l was also tendered in evidence. On the other hand, from the respondents side Mr. Tariq Pervez, Officer Incharge, National Savings Centre, Ravi Road, Lahore, and Khalid Mehmood, U.D.C., of the same National Savings Centre, appeared as R.W. 1 R.W. 2 respectively. The copies of the appellant's previous ejectment petition dated 24-7-1994 and the order dated 14-5-1994, of the Rent Controller of its dismissal as having been withdrawn, were tendered in evidence by the respondents as Exh.R- 1 and Exh. R-2, respectively.
7. 4.The Rent Controller, Lahore, after having recorded the evidence, vide his order dated 13-9-1995, decided Issue No.1 of bona fide personal need, in favour of the appellant/ejectment petition, Issue No.2 of wilful default against the appellant, Issue No.3 of non-maintainability of the ejectment petition and Issue No.4 relating to cause of action against the respondents and for his findings on these issues accepted the ejectment petition and directed the respondents to hand over the vacant possession of the disputed premises before 16th November, 1995. The order was assailed by the respondents in appeal and the learned first appellate Court, as mentioned above, vide its judgment dated 26-2-1996, accepted the respondents appeal, rejected the ejectment petition holding that a corner shop in the same premises, which had been got vacated by the appellant, was suitable for the appellant's son for running his business and, therefore, the appellant had failed to establish his bona fide personal need.
8. 5.I have heard the learned counsel for the parties and have also gone through the record.
9. 6.It is contended by the learned counsel for the appellant that the appellant in his statement has specifically mentioned that his son is unemployed and the premises in dispute and the corner shop, which was got vacated by him from someone else, were required for running a medical store and a general store by his son Muhammad Saqib Jamil, A.W.2, and the above said corner shop is not enough which measures 7' x 9', his son also appeared in support of the ejectment petition and that the choice of selecting suitable premises lies with landlord and not with the tenant and, therefore, the first appellate Court has illegally held that the corner shop alone is suitable for the son of the appellant. Learned counsel has also taken me through certain documents (Annexures 1 to 6) which are copies of correspondence between the appellant and the respondents and have been attached with this appeal, to show that there was an understanding between the appellant and the respondents that respondents will vacate the premises in dispute and the appellant will rent them out two other shops in the same premises' with a veranda and the appellant will also construct an inter-floor; the appellant has done the needful after spending a huge amount in accordance with the desire of the respondents but they are not willing to take the other premises of the appellant on market rent. The genuineness of the above said documents has not been challenged by the respondents. It is contended by the learned counsel for the appellant that this correspondence has been attached with this appeal to show that the premises in dispute is bona fidely required by the appellant for running a business of medical store and general store by his son and the appellant is ready to accommodate the respondents in the other shops situated in the same building if the respondents are willing to take them at reasonable market rate of rent.
10. 7.Learned counsel for the appellant has also placed his reliance on Sajjad Ahmed v. Muhammad Younas (1994 MLD 1244), Muhammad Nawaz v. Sh. Muhammad Gulzar etc. (1994 MLD 569), Farzand Ali v. Mst. Aziz Bibi (1993 CLC 1309) and M/s F.K. Irani & Company v. Begum Feroze (1996 SCMR 1178), to contend that the matter of choice in selecting premises suitable for his needs lies with the landlord and neither the Rent Controller nor tenant can insist that some other shop be got vacated for personal need and merely the fact that the landlord has got vacated another premises for personal use would not disentitle the landlord to have the eviction of tenant from the disputed premises on the ground of personal use.
11. 8.In the last it has been submitted by the learned counsel for the appellant that agreement of tenancy was executed on 1-7-1990, at the rate of monthly rent of Rs,2,200 and after the expiry of three years, the respondents are paying rent at the enhanced rate of Rs,2,750 per month from 1-7- 1993 and they were bound to pay the rent at the increased rate of Rs,3,437.50 w,e,f, 1-7-1996 as under section 5(a) of the Urban Rent Restriction Ordinance, 1959, the tenant is bound to increase the rent by 25% after every three years, and the non-payment of rent at the increased rate which under the law is automatically increased has made the respondents defaulters and on this ground also the respondents are liable to be ejected. Reliance in this regard is placed on Haji Muhammad Ibrahim v. Haji Abdus Salam Bhatti (PLD 1996 Lah. 308), wherein while considering the effect of section 5(A) of the Urban Rent Restriction Ordinance, 1959, it has been held by a learned Single Judge of this Court that section 5(A) provides automatic increase in rent and it becomes obligation of the tenant to pay rent at the revised rate and the word 'automatic' clearly negates the contention that service of notice by landlord is necessary.
12. 9.On the other hand, learned counsel for the respondents while opposing this appeal has submitted that Issue No.2 of default was decided against the appellant by the Rent Controller and the same was never agitated again by the appellant; that in the appellant's ejectment petition dated 24-7-1993 (Exh.R-1) the appellant did not take the ground of bona fide personal need or default; that the present ejectment petition was instituted on 5-5-1994 during the pendency of the previous ejectment petition whcih was not maintainable; that the previous ejectment petition was dismissed as withdrawn on 14-5-1994 (Exh.R-2) and at the time of its withdrawal the lawyer did not say that another ejectment petition had been filed or that it is being withdrawn because it has certain defects in its; that during the pendency of the present ejectment petition the appellant got vacated one corner shop and the same is sufficient for the purposes of running a medical and general store by the son of the appellant; that the appellant is not resident of Lahore; and in the last, it is submitted that the authorities relied upon by the learned Rented Controller viz. Haroon Kassam and another v. Azam Suleman Madha (PLD 1990 SC 394) and Muhammad Aiwaz Khan v.
13. Abdul Rehman (1990 CLC 1265), are distinguishable as the former relates to a residential house and the latter is not relevant as the landlord was running a business in a rented shop.
14. 10.In reply to the objection raised by the learned counsel for the respondents in regard to the previous ejectment petition instituted by the appellant, learned counsel for the appellant has further submitted that the appellant has given a note in the present ejectment petition that previous ejectment petition is pending and in para.3 of the present ejectment petition it has been explained that the previous ejectment petition was defective and the necessary information, thus, was disclosed, therefore, the present ejectment .petition is maintainable.
15. 11.The facts, as discussed above, show that the trial Court correctly held that the present ejectment petition was maintainable and for this reason also learned first appellate Court did not discuss this issue. The judgment of the first appellate Court also shows that the learned counsel for the respondents did not argue the issue of non-maintainability before the first appellate Court.
16. 12.The perusal of the record and the evidence produced by the parties has led me to the conclusion that the first appellate Court has totally misinterpreted the relevant law and has arbitrarily concluded that the appellant does not require the premises in dispute because he has failed to prove his bona fide and that the corner shop which has been got vacated is sufficient for running the required business. There is nothing on record to doubt the bona fides of the appellant.
17. Merely the ownership of other shops in the same premises, would not disentitle a landlord for getting specific shops vacated for running his business or for the benefit of his son for running a business. The appellant's son is admittedly unemployed and it has been brought on record through evidence that the appellant requires the premises in dispute for the benefit of his son for running a medical and general store. The law in this regard is quite established that the choice in these matters lies with the landlord and not with the tenant or the Rent Controller. In Sajjad Ahmed v.
18. Muhammad Younas (supra) it was held that matter of choice in selecting premises suitable for his needs lies with the landlord. In Muhammad Nawaz v. Sh. Muhammad Gulzar (supra) it was held by this Court that the landlord has the prerogative to select any of the shops for personal need and neither the Rent Controller nor the tenant can insist that some other shop be got vacated for personal need and in Farzand Ali v. Mst. Aziz Bibi (supra) it was held that merely the fact that landlord got vacated other premises for personal use would not disentitle her to have eviction of tenant from the disputed premises on the ground of personal us& In M/s. F.K. Irani & Company v.
19. Begum Feroze (supra) the landlord's husband had sixty two (62) shops in Defence Society and 21 shops in Gulshan-i-Iqbal and the Hon'ble Supreme Court held that this would not disentitle the landlord to apply for ejectment on the ground of personal requirement of her son as it is for a landlord to select which of building he wishes to use personally or to provide the same to his children. In another judgment delivered by the Hon'ble Supreme Court titled Taj Muhammad Abbasi through legal heirs v. M/s Feroze Sons Rawalpindi (Pvt.) Ltd. Rawalpindi (1996 SCMR 97) the objection that landlord was occupying a portion of the premises for his business and, therefore, he did not require any more premises was repelled and it was held that tenant cannot determine the sufficiency or otherwise of the requirement of the landlord in such a building and it is for the landlord to urge and for the Court to determine as to the propriety of the requirement of the landlord.
13. In view of the above discussion, the appeal is accepted, the impugned judgment of the first appellate Court is set aside and the order of eviction passed by the Rent Controller is restored and the respondents are directed hand over the vacant possession of the disputed premises to the appellant within two months. The parties are, however, left to bear their own costs as the judgments of the Courts below were at variance.