This single judgment shall dispose of two First Appeals from Orders Nos. 165 and 166 of 1998, as common questions of facts and law are involved in both the cases, having been filed under section 24 of the Cantonments Rent Restriction Act No. XI of 1963, against similar orders, dated 28-2-1998 passed by the Additional Controller of Rents, Peshawar, whereby eviction of the appellants, namely, Vector Joseph and Nathoo Lal Dhobi, from Quarters Nos. 143 and 141 respectively, situated in Choti Lalkurti, Peshawar Cantonment, have been ordered.
2. The aforesaid two quarters were purchased by Muhammad Amin, respondent herein, from the original owner Mst. Jabeen Bano, through a registered sale-deed, dated 11-6-1995, and the appellants who were previously occupying the same as tenants, by operation of law, became tenants of the respondent since the date of its purchase.
3. Thereafter, the landlord/respondent, by two separate Applications Nos.103 and 104 of 1996 filed on 23-5-1996 and 20-5-1996 respectively before the Controller of Rents, Peshawar Cantt. Prayed for ejectment of the appellants from the suit premises on two-fold grounds. Firstly that the quarters in question were required for his personal use and, secondly, that they had failed to pay its monthly rent of Rs.1,000 to him since the date of its purchase, i.e. June, 1995. The cases were, however, entrusted to the Additional Controller of Rents for adjudication, 'where the appellants appeared and filed their written statements to the applications on 29-9-1996. The pleadings of the parties gave rise to the following issues in each case:------
(1) Whether the petitioner has got a cause of action?
(2) Whether petition is based on mala fide grounds?
(3) Whether respondent is a rent-defaulter?
(4) Whether the petitioner has come to the Court with clean hands?
(5) Whether petitioner needs the suit property for his personal use?
(6) Relief.
4. The parties in support of their averments recorded their statements as P.W.1 and R.W.1 and closed their respective evidence. Relying on their evidence, the cases were argued by the learned counsel for the parties and the learned Additional Controller of Rents after considering the arguments on either side, accepted the said applications and ordered eviction of the appellants from the quarters in question and to hand over its vacant possession to the respondent, per his order, dated 28-2-1998. Feeling aggrieved therefrom, the appellants have challenged the same through the instant appeals.
5. From the pleadings of the appellants, it is clear that they had not disputed the relationship of landlord and tenants. They have, however, denied their default qua the payment of rent and have taken the stance that they have been depositing the monthly rents in the name of the old landlord, namely, Asghar, and as such, they claimed that they do not fall within the ambit of 'defaulters'.
6. The respondent has sought the eviction of the appellants on two-fold grounds, i.e. Personal need and default in payment of rent since June, 1995. The learned Additional Controller of Rents, amongst others, formulated the issues on both grounds and both the issues were decided in favour of the respondent (landlord). I, however, in view of the facts and circumstances of the cases and from the following reasons have no disposition to accept the plea of personal need advanced by the respondent.
7. The respondent has in para. 5 of his applications stated that without specifying the nature and purpose of the element of personal need. In this generalised kind of personal need, the respondent has tried to reserve a comprehensive and were scope so as to fit in any kind of need at the stage of recording his evidence and the same strategy was demonstrated by him at the stage of recording his evidence where he stated that he shall construct a house for his son on the disputed land. Such a fact was never disclosed in his application, nor for the purpose of the proposed construction he prepared or got approved any site plan from the authority concerned nor any such permission was obtained from the authority which is a sine qua non for establishing the genuineness of the need. A mere ' desire' cannot be considered a 'need' because need implies want of something without which one cannot well do and element of compulsion is embodied therein. Thus in the instant cases, in my view, the aspect of personal need has not been proven by the respondent.
8. The sole question, now, for consideration is whether or not the appellants are guilty of committing wilful default in payment of rents to respondent. This is an admitted position that the appellants have not paid or tendered rent to the respondent and for such non-payment of rent, the appellants have taken the plea that they have been depositing the rent in the National Bank, Cantonment Board Branch, Peshawar Cantt. And, as such, they were not defaulters.
9. Perusal of the written statement filed by the appellants shows that they have not mentioned the name of the person in whose name the rent was said to be deposited in the National Bank Cantonment Branch, Peshawar. It was, however, subsequently during their statements as R.W.1 (in both the cases), wherein they stated to have deposited the rent in the name of Asghar, who, according to them, was the previous landlord. It is significant to mention that the appellant in para. l of their written statements stated that a few receipts are attached therewith. They also stated in paragraph No.6 as follows:--
10. Mr. M. Tariq Javed, learned counsel for the appellants, has vehemently argued that the impugned orders of the learned Additional Controller of Rents are not maintainable being contrary to law and facts. He submitted that the order of eviction is destitute of adequate reasons and is based on misreading and non---reading of evidence and no judicial mind has been applied to the facts of the cases. He referred to PLD 1982 Lah. Page 704 and 1988 MLD Kar. Page 479, but these are not applicable to the instant cases. He relied on 1997 CLC Quetta 403 which relates to personal need and in view of my findings ibid, it need not be discussed.
Another case cited by the learned counsel for the appellants is MLD 1993 Peshawar page 2083 which also lacks' relevancy to the instant cases, as in that case the proposition is that if the Court cannot definitely resolve the point as to whether the default for a particular period was wilful or otherwise, and as to-- whether tenant can be declared as defaulter or not, then the doubt is to be resolved in favour of the tenant. Therefore, this judgment too is of no help to the appellants. The learned counsel lastly, with great amount of reliance, produced the case of Muhammad Siddique v.
Muhammad Ilyas, reported in 1979 CLC (Karachi) 730.
11. The learned counsel for respondent has, on the other side, supported the order of Additional Controller of Rents by submitting that the said order is the outcome of true and correct appreciation of evidence and no exception can be taken thereto on facts or in law. He cited the following cases in his defence:----
(1) Syed Riaz Ali v. Shabbir Ahmad Khan 1971 SCMR 598.
(2) Sabz Ali Khan v. Bismillah Khan etc. 1997 SCMR 1781.
(3) Sh. Muhammad Riaz v. Mst. Nasim Akhtar and 4 others 1981 SCMR 979(1).
(4) Prof. (Recd.) Masoodul Hassan v. Muhammad Iqbal PLD 1998 Lahore 177.
12. I have given my anxious thought to the arguments of the learned counsel for the parties, have examined the entire record and gone through the relevant judgments, particularly the case of Muhammad Siddique, reported in CLC 1979 (Karachi) 730. The detailed study of this ruling shows that there are marked distinguishing features of this case. Firstly, that the notice sent by the landlord on 30-3-1973 (Exh.P.W.7) calling upon the tenants to pay the arrears i.e. From 1-9-1972 was replied by the tenant through his Advocate in which, inter alia, it was explicitly stated that the tenant was depositing rent through Miscellaneous Application No.79 of 1972 in the Court of Civil Judge, Karachi. Secondly, the tenant through the same reply requested the landlord to satisfy him with regard to the title, so that he may start paying rent to him. This was an outright demand by the tenant and in such a 'situation the landlord would become duty bound to satisfy the tenant about the factum of transfer of tenement in his name. Thereafter, the landlord served another notice purporting to be under section 3G of the Displaced Persons Rehabilitation Act stating therein that he was not interested in renting out the shop to any other person and he wanted the vacant possession of the shop. This notice was also replied by the tenant in which he stated that he was ready and willing to pay the rent and requested the respondent to collect the rent before 10th of each month. With regard to the amount of rent deposited in the name of the old landlord through Application No.79 of 1972, the Rent Controller permitted the tenant to withdraw the amount so deposited and to deposit the same in the name of the new landlord. Thirdly, it was an admitted position that after receiving the notice from the landlord, the tenant expressed his willingness to pay the rent to the landlord after satisfying himself about the bona fide transaction of parties. It is also an admitted position that after receipt of above reply, the landlord neither sent a copy of the sale---deed, nor took any step to satisfy the tenants about the transfer of tenement.
13. However, in the instant case, the position is totally different. Firstly, that the tenant has failed to prove that he was depositing rent in the name of the previous landlord. For this purpose, I have searched the entire record out not even a single receipt or any document is available, which should have a tendency to prove that the tenants have in fact deposited the rent in the name of the old landlord. From the statements of the appellants, it was obviously clear that they have not produced nor exhibited any receipt with regard to the deposit of rent. Although they have mentioned as stated above in their applications that they were possessive of the rent receipts which shall be produced at the time of recording their evidence, but no such receipt or any other proof worth the name could be produced by them to establish their claim of depositing the rent in the name of old landlord. They have not even mentioned the application numbers vide which they requested the Controller of Rents to allow them for depositing the rent in the name of the old landlord. No such application was either referred to in their statements or in their written statements, nor any copy of it was produced by them. This clearly leads me to the irresistible conclusion that the appellants have failed to prove the factum of deposit of rent in the name of their previous landlord.
14. Secondly, on receipt of the notice which is an admitted fact, the tenants have not expressed any desire nor asked the respondent to satisfy them with regard to the bona fide transfer of the tenement in his favour. If the appellants were entertaining any doubt about the transfer of the suit premises in the name of the respondent and that to avoid the payment of rent to any imposter they were duty bound to have made an express demand from the respondent to produce before them the transfer deed, but they never showed any such desire.
15. It is also a matter of record that in fact the owner of the house was Mst. Jabecn Bano, were of Muhammad Asghar, from whom the property was purchased by the respondent. Therefore, it is also wrong to say that he was a tenant of Muhammad Asghar and the amount of rent was being deposited in his name;
16. The analysis of the statements of the appellants also show that they have not attributed any mala fide to the respondent. They also admitted that on receipt of the notices from the respondent, they came to know about the change of ownership. They have also admitted in their statements that despite receipt of the notices in question from the respondent/landlord, they continued to deposit the rent in the name of Asghar Khan and till the recording of their statements before the Controller of Rents, they were continuing the deposit of rent in the name of the said Asghar Khan.
17. I have also noted the order-sheet, dated 16-.9-1996 of the Rent Controller wherein it is stated that respondents/appellants were already depositing the rent in his Court on their own applications, but the said order-- sheet also does not refer to any application or to any record with regard to the deposit of rent. In short, the appellants have miserably failed to show through reliable evidence that they have been depositing rent in the name of their previous landlord and, as such, they failed to discharge their burden of proof, because on mere oral assertion, I have no inclination to accept that they were depositing rent.
18. Had the appellants succeeded in proving the factum of deposit of rent through cogent evidence and had they made any demand from the respondent to produce his title deed for their satisfaction about the transfer of the properties and if the respondent, in view of the demand by the tenants, had failed to produce the title deed, then, of course, the case of Muhammad Siddique would had its full application to the instant case. But the position in the instant case is totally different and I am clear in my mind that the case of Muhammad Siddique is distinguishable from the instant cases and, as such, the appellants cannot take any benefit of the said case.
19. Consequent to the above discussion, I find no substance in either of the two appeals, which are hereby dismissed.