' I intend to dispose of the following writ petitions through this consolidated order as same questions of law and facts are involved in all of them.
(1) Writ Petition No,13236 of 2001; (2) Writ Petition No,13237 of 2001; (3) Writ Petition No,13238 of 2001 and (4) Writ Petition No,13239 of 2001.
' All titled Anjuman-e-Khadman Rasool Masjid Hanifa Farooqia through its President Ilyas Hussain v.
Additional District Judge/Rent Controller, Lahore and others.
2. Brief facts of the case, as given in the writ petitions, are that petitioner herein, Anjuman-e- Khadman Rasool "Masjid Jamia Hanfia Farooqia"; Gulistan Colony, Mustafabad, Lahore, through its President filed an ejectment petition against the respondents regarding ejectment of quarters attached with the mosque at Gulistan Colony, Street No,17, Mustafabad, Lahore on the grounds:--
(i) that the respondents are rent defaulter as they failed to deposit the rent since February, 1997; and
(ii) that the building of the mosque is not sufficient for the needs and requirements of the people of the locality and the petitioner was to expand the building of the mosque in the interest of public- atlarge and the same is required for personal bona fide use and occupation.
3. The petition was resisted by the private respondents by filing written reply. It was, inter alia, contended that the petitioner was not competent person to file the ejectment petition; the rate of rent is fixed which was regularly paid by the respondent and now the same is being deposited in the Court on refusal of the petitioner to receive the same. It was denied that there was any need to expand the building of the mosque in the interest of public-at-large. It was further contended in the written statement that the ejectment petition is mala fide, baseless, false and frivolous.
4. From the divergent pleadings of the parties, the learned Rent Controller, Lahore framed the following issues:--
(1) Whether the respondents failed to tender increased rent, despite having been given notice in this regard? OPA
(2) Whether the demised premises are bonafidely required to extension of the mosque? OPA
(3) Whether the petitioner has no cause of action to file this petition? OPR
(4) Relief.
5. The learned Rent Controller decided Issues Nos.1 and 2 in favour of the petitioner while Issue No,3 was decided against the respondents and consequently passed the ejectment order, dated 28-6- 2000. It was observed by the learned Rent Controller, while deciding issue No,1 regarding default in payment or rent, as under:-- "Receipts produced by the respondents clearly show that the rent tendered by the respondents has not been deposited after its statutory increase and it is held in esteemed citation 1987 CLC 1658 that tenant would be ejected if he had not paid or tender rent after its statutory increase within 60 days."
' On the personal need, the learned Rent Controller was of the view that the premises are bonafidely required for extension of the mosque. The appeal filed by the respondents against the order, dated 28-6-2000 was accepted by the learned Additional District Judge, Lahore vide order, dated 26-5-2001. Hence this writ petition.
6. At the very outset, the learned counsel for the petitioner has argued that the issues of default and personal bona fide use were proved by the petitioner on the record by producing cogent evidence but the learned Additional District Judge has wrongly exercised the jurisdiction vested in her while accepting the appeal on the ground that the petitioner Anjuman is not a registered body and nothing in support of the same has been produced as documentary evidence. According to the learned counsel, the observation of the learned Additional District Judge that "the mosque and the said premises were built by the appellant on their own expenses on the ground owned by the Government" was irrelevant for the decision of the case since the relationship of landlord and tenant was admitted between the parties.
7. On the other side, the learned counsel for the respondents has argued that the appeal has been accepted by the learned Additional District Judge who had the jurisdiction to decide the appeal, therefore, the writ petition is not maintainable. He has further argued that no doubt the relationship of landlord and tenant is admitted between the parties but the onus of proving that the respondents have committed default in payment of rent was on the petitioner which he has failed to prove on record. Finally, the learned counsel for the respondents has made much stress on the point that the ground of personal bona fide use and occupation was not available to the mosque and there is no evidence on the record that the premises in occupation of the present respondents is required in good faith for extension of the mosque.
8. The record attached with the writ petition has been examined by me with the assistance of the learned counsel for the parties. The ejectment petition filed by the petitioner on 4-11-1999 does not show that any notice under section.5-A of the Ordinance for increase of rent to the extent of 25% qua each tenant was issued to the respondent/tenants. Though the notice, dated 25-3-1997 (Exh.A/1) was produced in evidence, yet the same does not find any mention about the increase in rent under section 5-A of the Ordinance. Even otherwise, notice Exh.A/1 regarding increase of 25% rent of each residential premises, in dispute, is not relevant for the purposes of deciding the ejectment petition. The amendment regarding increase of rent of non-residential building in the Rent Restriction Ordinance has been inserted by adding section 5-A by Act III of 1991 w,e,f, 16-3-1991.
' Admittedly, the present respondents are not occupying the commercial premises and the ejectment petition was regarding ejectment of the tenants who are occupying the quarters of the mosque. The rate of Rent of Rs,175, 250 and 312 have been admitted by the respondents which is being paid.
' It is in the ejectment petition of the petitioner that the rent was enhanced in February, 1994 and the above-stated rates were fixed. P.W.1 Ilyas Hussain has admitted that the rent till February, 1997 has been paid and the same was increased from Rs,175 to Rs,250 per month and he has refused to accept the same. He has stated that he had issued notice Exh.A./1 through which he demanded the rate of rent Rs,500 per month and on his refusal to receive the rent from the respondents they started depositing the same. He has admitted that the rent had been paid by the respondents till date, i,e, 2-4-1999. There are receipts on the file Exhs.R/1 to R/23 at pages 97 to 110 of the writ petition, which show that the respondents started paying rent at the rate of Rs,250 per month through money order from January, 1997 and thereafter it has been admitted by the petitioner, P.W., that the rent is being deposited by the respondent in Court. There was no legal justification for the petitioner to ask for the enhancement of rent of Rs,500 per month instead of getting the agreed rent. In this view of the matter, I have no option but to hold that there was no default on the part of the respondents.
' This leads me to see the decision of the Issue No2, i,e, whether the premises can be got vacated for extension of the mosque. The provisions of sections 13(2)(vi) and 13(3)(a)(i) of the Punjab Rent Restriction Ordinance reads as follows:-- "13. Eviction of tenant.---
(1) .................................................................................................................................
(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that-- (i), (ii), (iii), (iv), (v) .......................................................................................................
(vi) the building or rented land is reasonably and in good faith required by the landlord for the reconstruction or erection of a building on the site and the landlord has obtained the necessary sanction for the said reconstruction or erection from the Towh Improvement Trust, Municipal Corporation, Municipal Committee or Town Committee for the area where such building or rented land is situated; 13(3)(a) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession--
(i) in the case of residential building, if--
(a) he requires it in good faith for his own occupation or for the occupation of any of, his children;"
' Neither the President, namely, Ilyas Hussain or the Secretary of the Anjuman of the mosque has asserted in the ejectment petition that after vacation of the quarters the same will be occupied by them nor this could have been asserted under section 13(3)(a) of the Rent Restriction Ordinance.
Therefore, the quarters could have not been vacated for personal bona fide use and occupation. If the mosque was to be extended, in my view, the only way of getting the vacation of the quarters from the respondents was to get the plan approved from the local Authorities and then ejectment petition could have been filed under section 13(2)(vi) of the Rent Restriction Ordinance after getting the plan approved from the concerned Authorities. The petitioner Ilyas Hussain in his statement has stated that the plan was approved by the local Authority, but neither this ground was asserted by the petitioner in the ejectment petition nor the site plan has been produced on the record.
' The property involved in the present case does not vest in a private individual nor the petitioner is its owner. This property belongs to the mosque and, therefore, the mosque is landlord in the instant case. In the provisions for initiating proceedings under section 13(3)(a), the emphasis is more on the words "own occupation" rather than on the word "requires". No doubt the "need" not always be present in the sense of constituting strictly individual and personal need, but it may be needed for landlord or for one's children and no other relation. In this background, I may make reference to a case reported as Muhammad Saeed v. Anjuman-e-Jamia Hanfia (Regd.) Al-Minar Mosque PLD 1982 Lah. 657 in which ejectment order was passed against the tenant on the ground of personal bona fide use and occupation because the disputed premises was needed by the mosque for setting up a library comprising of books on Islam. Admittedly, no such case has been set up in the pleadings by the petitioner. The existing residential quarters in occupation of the respondents may be required for the religious purposes of the mosque. Therefore, on the contrary, in this case, the petitioner has set up a case in its ejectment petition for extension of the mosque. Firstly, there is no provision in the Rent Restriction Ordinance for the extension of the building. The provision of law which could have been helpful to the petitioner was section 13(2)(vi) of the Rent Restriction Ordinance, whereby the building or rented land is reasonably and in good faith required by the landlord for the reconstruction or erection of a building on the site and the landlord has obtained the necessary sanction for the said reconstruction or erection from the Town Improvement Trust, Municipal Corporation, Municipal Committee or Town Committee for the area, for extension of the mosque. Admittedly the quarters are in occupation of the respondents and there will be structural change in the existing building. In case reported as Mst. Zulekha and 7 others v. Masjid-e-Merajun Nabi Trust and 5 others 1984 CLC 3057 the provisions of section 13(2)(vi) regarding bona fide requirement by landlord for construction of mosque was interpreted and it was held:-- "Trustees of property obtaining approval of plan from competent Authority for construction of mosque on disputed land---Requirement of land, held, reasonable and in good faith."
' It was also observed that case of Muhammad Saeed v. Anjuman Jamian Hanfia PLD 1982 Lah. 657 which interpreted the provisions of section 13(3)(a) which is relatable to requirement of landlord for his own occupation or for the occupation of any of his children, is not applicable.
Since the petitioner has failed to, prove the issue of default against the respondents and no other ground for ejectment was available to the petitioner, in this view of the matter, there was no option for the learned Additional District Judge but to accept the appeal and dismiss the petition filed by the petitioner. However, if the ejectment petition is filed on legal grounds available to the petitioner for ejectment of the respondents this order will not preclude the Committee to pursue the matter of ejectment, which will be decided on its own merits under the provisions of the Punjab Urban Rent Restriction Ordinance, 1959.
For what has been discussed above, this writ petition has no force and the same is dismissed. #EndJudgment