' Briefly stated the facts are that respondents are landlord of shop part of Property No,B-IV/88, Kurri Road, Rawalpindi whereas respondent No,1 is also owner of the same. The said property was rented out to the appellant at monthly rent of Rs,1,200 w,e,f, 11-1-1989. The respondents previously filed an application for ejectment of the appellant on the ground of personal need of respondent No,2 and his brother Tanveer Hussain Shah. The said petition was accepted by the Rent Controller vide order, dated 29-11-1995. On appeal filed by the appellant the said order was set aside by the Appellate Court and even an appeal filed in this Court was dismissed on 12-11-1996. Now the respondents have again filed the instant ejectment petition on the grounds of default, personal need as well as reconstruction of the suit property. The application was resisted by the appellant who raised a few preliminary objections and also controverted the contention of the respondents on merits.
2. From the pleadings of the parties the trial Court framed the following issues:--
(1) Whether the respondent has committed default in making the payment of rent? If so its effect?
OPA
(2) Whether the rented premises are required to the petitioner for the personal need of petitioner No,1? OPA
(3) Whether the petition is not maintainable in view of the preliminary objection No,1 of written reply? OPR
(4) Relief.
3. In support of their respective stand one of the respondents Mst. Zubeda Shaheen appeared as A.W.1 whereas on the other hand, the appellant recorded his own statement as R. W.1. After going through the evidence produced by the parties the trial Court dismissed the ejectment petition vide order, dated 30-7-1999. The landlord/respondents felt aggrieved of the same and filed an appeal which was accepted by the learned Additional. District Judge, Rawalpindi vide order, dated 22-1- 2000. The appellant has felt aggrieved of the same and filed the instant second appeal against order.
4. Arguments have been heard and record perused.
5. Contention of the learned counsel for the appellant is that having remained unsuccessful in the first round of litigation upto the level of High Court till 12-11-1996, the instant petition has been filed just after two months, which shows that respondents are bent upon to dislodge him, that this haste on their part tells upon their bona fides, that it has been admitted by A.W.1 that during the pendency of previous proceedings a shop was got vacated and the same was rented out at enhanced rent, that this admission also proves that disputed shop is not required in good faith by the respondents. He, further contended that although protection under section 13(4) of Rent Restriction Ordinance, has been provided to safeguard the rights of a tenant, yet the landlord has to prove his bona fide need independent of said safeguard on the basis of cogent evidence which is lacking in this case, that Mst. Zubeda Shaheen is already carrying on business on one of the shops so her stand that she is not in possession of any shop and she requires the shop in question for her personal need stands falsified by her own admission. Regarding increase in the rent as contemplated by section 5-A of Punjab Urban Rent Restriction Ordinance, he contended that no such notice was ever served upon the appellant, as such its non-compliance does not entail any penal consequence. He further contended that in the previous application, respondent No,1 had stated that no rent note had been executed between the parties whereas in the instant ejectment petition she has referred to a rent note, dated 11-1-1989 and this contradictory stand also disentitled her from seeking the ejectment of the appellant. He thus, submitted that all these 'facts clearly show that she is not in need of the suit property and has filed the ejectment petition with mala fide intention.
6. Conversely, the impugned order has been supported by the learned counsel for the respondents.
He submitted that ejectment has been sought on the grounds of personal need, default as well as reconstruction, that personal need stands proved from the statement of A.W.1. That default on the part of appellant is also proved from record as the appellant has not been increasing rent at the rate of 25% as stipulated by section 5-A of the Rent Restriction Ordinance, 1959, that as per own stand of appellant a rent note was executed on 9-3-1989 fixing rent at Rs,1,200 per month, as such he was bound to increase rent by 25% on the expiry of 3 years i,e, 9-3-1992 and similarly on 9-3- 1995 and 9-3-1998, that as no such increase was even made so he has become a defaulter on this short ground and is liable to ejectment, that admittedly first ejectment petition failed on 12-11-1996 and the instant petition was filed on 8-1-1997. That there is no bar in the institution of instant petition, and placed reliance upon Dost Muhammad and another v. Muhammad Shabbir Hussain and another 1981 SCM R 528.
7. Ejectment has been sought on three grounds i,e, personal need, default and reconstruction. So far as ground of personal need is concerned, we have to refer to the statement of Mst. Zubeda Shaheen who has examined herself as A.W.1. It is evident from her statement that she has categorically admitted that during the pendency of previous ejectment proceedings a shop was got vacated and was rented out by her at enhanced rate of rent. This admission is sufficient to prove that she does not require the disputed shop for her personal use, otherwise she would have not rented out the shop got vacated during the pendency of previous ejectment proceedings, at an enhanced rate of rent. Thus, the ground of personal need is not proved by the respondents. The second ground of ejectment pertains to default in the payment of rent. As per stand of respondents, the property was rented out to the appellant on 11-1-1989 whereas the said date has been given by the appellant as 9-3-1989. It is also the stand of respondents that rate of rent at the relevant time was Rs,800 per month whereas the rate has been given as Rs,1,200 per month by the appellant, as is evident from rent note, dated 9-3-1989. Even if the rent note produced by the appellant is taken into consideration the rate of rent on 9-3-1989 was Rs,1,200 per month.
According to section 5-A(2) of the Punjab Urban Rent Restriction Ordinance first increase of 25% shall accrue on the 1st day of July, 1989 in the case of a tenancy existing for 3 years or more preceding that date and (ii) on the completion of 3 years of tenancy, in the case of a tenancy which has not been existing for 3 years on the first day of July.
1989. In the instant case the tenancy was existing on 9-3-1989, as such provisions of section 5-A(2)
(i) shall apply and appellant was bound to increase rent at the rate of 25% on the completion of three years i,e, on 9-3-1992. Thus, the appellant was bound to increase rent by 25% on 9-3-1992 and pay the same at the rate of Rs,1,500 and then again by 25% on 9-3-1995 and pay the rent at the rate of Rs,1.875' per month. There is nothing on the record to show that appellant had ever increased any rent as required by section 5-A of Punjab Urban Rent Restriction Ordinance. It is specifically laid down in subsection (4) of section 5-A of the Ordinance that the arrears becoming due as a result of increase of rent under this section shall, unless paid earlier, be deemed to be rent due under clause (i) of subsection (2) of section 13 of the Ordinance, on the expiry of 60 days from the date of coming into force of the Punjab Urban Rent Restriction (Amendment) Ordinance, 1990.
As in the instant case rent has not been increased as per section 5-A of the Ordinance, so it will be presumed that rent due has not been paid and appellant is responsible for committing default in payment of rent. It is, thus, clear that appellant has not complied with the mandatory provisions of section 5-A of the Punjab Urban Rent Restriction Ordinance and findings of the Courts below are not sustainable and are hereby reversed.
8. So far as the ground of reconstruction is concerned, that has not been pressed by the learned counsel for the respondents.
9. The upshot of above discussion is that respondents have succeeded in proving default on the part of appellant and as such are entitled to seek the ejectment of the appellant. Consequently, appeal fails and is hereby dismissed. However, the appellant is granted a period of one month for vacating the disputed premises.