The ejectment application, filed by the respondents against the appellants, seeking their eviction from the demised land (fully described in the ejectment application), had been allowed by the learned Rent Controller vide order dated 26-2-1999; appeal filed by the appellants before the First Appellate Court failed on 30-5-2000, hence this second appeal.
2. Briefly stated the facts of the case are, that the respondents, who are the owners of the land measuring 8 Kanals (described in the ejectment application), had rented out the same to Qazilbash family, -who had raised a cinema house upon the aforesaid land named as "Tasveer Mehal Cinema". Subsequently, the Qazilbash family, transferred the cinema including its superstructure, fixtures and furniture to the appellant's predecessor vide-- registered document dated 16-7-1973. Correspondingly the respondents also, through registered lease deed, dated 16-7- 1973, transferred the leasehold rights of the land underneath the cinema premises to the appellants for a rent of Rs.3,600 per annum. The tenancy was initially for a period of 20 years, which was renewable and after the expiry of the aforementioned fixed period, the appellants were bound to increase the rent at the rate of Rs.600 per annum. On 7-11-1994, the respondents brought an ejectment application against the appellants qua the aforesaid land on the ground of default in the payment of the increased annual rent w.e.f. 1-7-1993 the failure of the appellants to pay/tender the statutory increase of 25 % as per section 5-A of the Punjab Urban Rent Restriction Ordinance, 1959; subletting; causing damage to the suit land personal requirement reconstruction and nuisance. The petition was contested by the appellants.
Out of pleadings of the parties, the following issues were framed:-- (1)Whether the respondents have not paid or tendered the due rent within stipulated period? If so, whether they have become defaulter? OPA (2)Whether the respondents have sublet the one portion of the disputed plot to the respondent No. 10 in violation of the conditions of the agreement dated 19-3-1994? If so, what are the effects? OPA (3)Whether the respondents Nos. 1 to 9, have sublet the one portion of the disputed plot to the respondent No. 11. If so, what are the effects? OPA (4)Whether the respondents Nos. 1 to 9, have sublet the one portion of the disputed plot to respondent No. 12? If so, what are the effects? OPA (5)Whether the respondents Nos. 1 to 9 have caused damages to the disputed plot? OPA (6)Whether the petitioners are in personal need of the disputed plot? OPA (7)Whether the petitioners are in need of the disputed plot for its construction? OPA (8)Whether the petitioners have no cause of action? OPR (9)Whether the petitioners are estopped by their words and conduct to file this petition? OPR (10)Whether Rent Controller has no jurisdiction to try the' present petition? OPR (11)Whether the eviction order cannot be passed in the present petition in view of the Preliminary Objections Nos.4 and 5, of written reply of the respondents Nos. 1 to 5? OPR (12)Whether the present petition is false and frivolous and the respondents Nos. 1 to 5, are entitled to special costs? OPR (13)Relief.
3. After recording of the evidence, all the grounds set out in the ejectment application, were accepted by the learned Rent Controller, who passed the eviction order against the appellants and their appeal has also failed.
4. Learned counsel for the appellants contends that the respondents (eviction petitioners) had only rented out the land underneath the cinema premises, whereas the structure alongwith fixtures, fittings and furniture, had been purchased by the appellants from the owner of the structure etc. Vide Exh.A-22, the lease between the parties is also qua the land simpliciter, however, as the eviction had been sought from the cinema building equipped with machinery, etc. Resultantly the Rent Controller had no jurisdiction to try the ejectment petition and pass the order. In this behalf, the learned counsel has relied upon the following judgments: -- Rahman Cotton Factory v. M/s. Nichimen Co. Ltd. PLD 1976 SC 781; Mst. Fatima, etc. v. Malik Abdul Wahid 1990 SCM R 1221; Ahmad Aziz. Zia v. Muhammad Siddique, etc. PLD 1982 Lah.37; Muhammad Khan, etc. v. Mst. Alamtab etc. PLD 1973 Quetta 28.
On the basis of above, it is stated that the findings of the learned forums below on Issue No.10, are erroneous and illegal.
5. On the question of default, it is contended that according to the case of the respondents, the appellants had failed to pay the rent due for the year 1993-94, as also the enhanced rent under section 5-A, however, as per the Court of appeal, the appellants have not been found defaulters in the payment of the agreed rent between the parties, but a defaulter for the non-compliance of section 5-A. It is submitted that as per section 5-A, the statutory increase is only restricted to the non-residential building and not the rented land. On the ground of personal requirement, it is stated that only one of the applicants had appeared as witness and he too in very vague and general terms stated that the property is needed by the respondents/applicants for their personal need, but after construction of the property in the shape of houses and the shops; the bona fide of their personal requirement have not been proved at all, as no particular in this behalf, has been brought on the record; it is even not mentioned in the ejectment petition or deposed by the sole witness appearing for the respondents, if the properties, already in their occupation are not suitable to their need for the above purpose or they were occupying some rented premises. On the issue of construction, it is submitted that admittedly the land underneath the cinema, comprises of Khata No.31, but the approved construction plans Exh.A-11 to Exh.A-20, tendered in evidence pertains to Khata No.39 and the property described in the plans is in the vicinity of "Tasveer Mehal Cinema" therefore, such property being different from the one in question, resultantly, the site plans have no relevance for the purpose of eviction on the ground of construction. On the issue of subletting and nuisance, it is argued that both these grounds were not duly proved on the record.
In the course of its cinema business, the appellants had given on contract the running of the cinema business, which does not tantamount to subletting it is also argued that though it is not proved on record, yet any cutting of trees from the rented land does not fall within the purview of causing damage to the demised land; from the facts set out in the petition and established on the record, no case for nuisance has been made out.
6. I have heard learned counsel for the parties. As regards the findings of the two forums below on Issue No. 10, it may be held that the appellants were rented out only the land underneath the cinema premises and not the superstructure, equipped with any machinery, fixtures, fittings and furniture, etc. Resultantly, the learned Rent Controller had the jurisdiction under the law to entertain, try and decide such petition. The judgments relied upon by the appellants, in the facts and circumstances have no application to the case in hand.
7. On the question of default, both the forums below have failed to apply their proper mind to the evidence on the record and have not only misread the evidence but have also misapplied the law.
The issue of default has two limbs; firstly, respondents (ejectment applicants) claim that the agreed enhanced rent for the year 1993-1994 has not been paid to them, suffice it to say, that in this behalf, the appellants have brought on record, the evidence showing that they applied to the Rent Controller for the deposit of the amount of Rs.4200, which included the enhanced rent of Rs.600 as agreed between the parties and under the permission of the Rent Controller the deposit was made in August, 1994. There is no rebuttal of this evidence by the respondents; the view of learned Rent Controller that such rent is for the year 1994-95, as there is some cutting in the deposit receipt, it may be held that the rent for 1994-1995, was not yet due and this amount if erroneously described for 1994-95 can very well be appropriated towards the defaulted period as alleged by respondents. On this account, when admittedly the rent had been deposited with the Rent Controller, the appellants cannot be held to be wilful defaulters for the payment of agreed enhanced rent. As far as statutory increase under section 5-A of the Punjab Rent Restriction Ordinance, is concerned, newly added section only confines to the non-residential building. The term building, non-residential, residential building and the rented land has been specially defined in the statute. It is settled law that whenever the word expression defined in a statute appears in the main provision, it has to be given the same meaning as in the definition clause. In I section 5-A, the rented land or the residential building are conspicuously missing, meaning thereby that the statutory increase of rent according to this provision, is only confined to non-residential building.
Admittedly, the respondents had only rented the land underneath the cinema premises and the superstructure alongwith its fitting, fixtures, etc. Was owned by the appellants; according to the case of the respondents the eviction on the appellant has been sought from the rented land, described in the petition, therefore, the view of learned forums below that their appellants have failed to make the statutory increase of rent and is a defaulter, is the result of misapplication of provision of section 5-A, thus cannot be sustained; the findings therefore, on the issue of default are set aside.
8. On the question of nuisance, according to section 13 (2)(iv) an eviction order can be passed if "the tenant has been guilty of such acts and conduct as are nuisance to the occupants of buildings to the neighbourhood". According to the respondents' own case, the nuisance attributed to the appellant is about boozing in the cinema premises and also showing blue prints; this conduct or act by no means fit in the definition of nuisance given in the taw. None of the occupants of the neighbouring building have been examined to prove that the aforesaid act in any manner caused any nuisance to them. Therefore, the findings of the forums below cannot be sustained.
9. As far as the causing of damage to the rented land is concerned, the claim of the respondents is that the appellants have cut certain trees from the land. However, no particular in this behalf has been given in the petition or even in the evidence, as to how many trees were cut and what was the value thereof, whether the cutting of such trees was unnecessary in view of the stipulation in the lease deed between the parties whereby the appellants were entitled to raise further construction; moreover the condition precedent for evicting a tenant on the ground of damages to the property, is if an act of the tenant materially impairs the value and utility of the building or rented land. It has not been proved by the respondents, if on account of cutting of the trees, the value or utility of land has been materially impaired, resultantly, this ground has also not been established by the respondents, therefore, the findings on the relevant issuer are set aside.
10. As far as the issue of subletting is concerned, suffice it to say that according to the lease deed Exh.A-3, the appellants have only given the contract of running the cinema business to a third party and this by no means tantamount to subletting of the rented land, because the cinema and its business is admittedly owned by the appellants. Likewise, if some shops have been constructed by the appellants and ancillary to the cinema business, such as canteen, tuck shop, stall etc. Have been given on contract to the third party, this action again is not subletting of the subject-matter of tenancy; furthermore, if for the purposes of car parking, the cinema owner (appellants) have authorized someone to collect the parking fee, this is no manner, envisages the demise of the parking area amounting to subletting on the basis of which, a tenant can be evicted. As regards the workshop, R.W.-2 in his statement has clarified the position that such workshop has been established by the appellants for repair, etc. Of their own equipment, etc. And there is no further cross --examination on this point. These aspects of the matters have not been taken into consideration by the forums below, especially when the superstructure upon the rented land, is admittedly owned by the appellants and it is the constructed portions, which were given by the appellants to its licensees/contractor, thus these acts do not fall within the domain of subletting, therefore, the findings on the issue of subletting, are also against the evidence on the record and are hereby set aside.
11. On the issue of construction, the respondents in their ejectment application have specifically mentioned the Khata number of the rented land as 31. This also is the position in the lease deed between the parties. But the approved plan which has been brought on the record by respondents, are pertaining to the Khata No.39 and no evidence has been brought on the record to establish that these plans pertain to the rented land, the subject-matter of the tenancy. Besides in the plans the land for which these plans have been got approved, is shown to be near the "Tanveer Mahal Cinema", which means that such land is different from the one under the tenancy of the appellants.
This conspicuous fact has been glaringly overlooked by the two forums below, and by non-reading of these documents, it has been concluded that those pertain to the land in question, resultantly, I find that respondents have failed to establish, if they have got approved the plans for the construction of the rented land, therefore, as there is no approved plan for the construction, which is condition precedent for seeking ejectment on this ground of construction, the case of respondent fails and the findings on the relevant issue are set aside.
12. Now attending to the question of personal requirement, only one of the ejectment petitioner appeared before the Court; he too in very vague and general terms stated that some of the ejectment petitioners required the land for the purpose of their residence and business after the construction. No specific particulars and details have been given as to who out of the ejectment petitioners wanted to raise the construction in the nature of residential premises and that such petitioners were not already in possession of suitable premises for their abode or are living in some rented premises. None of the ejectment petitioners who required the land for their residence have been examined to prove their bona fide. Same is the position with regard to the portion of the area which is claimed by the respondents for the purpose of non-residential building. Although, as per the law, the statement of the landlord on the ground of personal requirement must be given considerable weight, but at the same time, a landlord is not absolved of his legal duty to appear before the Court and put forth the genuineness of his demand. In the instant case, the co-landlords for whose requirement, the property has been claimed, has failed to appear before the Court, and the statement of one of the landlords in the circumstances of the case, to my mind is insufficient to prove the bona fide of their demand. It may be reiterated that the bona fide can only be spelt out from the material/evidence brought on the record, as the persons for whose personal requirements, the premises were allegedly required has not been examined and the particulars of their specific need has not been proved, resultantly, general and vague statements of other witnesses that the landlords require the rented land for their personal requirement is not in line and spirit of the law on the subject of personal need. The Courts below again on this issue have not considered the case on the basis of evidence and the law developed so far, therefore, such finding of fact being erroneous and against the record, and the law laid down by the superior Courts, cannot be sustained.
It may be pertinent to mention here that this case has peculiar feature, as the construction over the rented land in the shape of cinema, etc. Is owned by the appellants and for evicting and deprived such owner of his valuable superstructure and the business, the vague and general statement cannot be given the sanctity of proving the personal requirement.