PLJ 2018
Urban Rent Restriction Ordinance, 1959--
----S. 13(6) & 15--Ground of bona fide personal need & default--Landlord filed application for eviction of tenant on ground of default and personal use--Trial Court after recording pro-contra evidence dismissed same--Upheld in Appeal--Concurrent findings of fact--Challenge to--Statement of witnesses produced by appellant duly cross-examined but have not been shattered to create any doubt or mala fide in grounds--Genuineness of ground of personal use of landlord could not be doubted and landlord has got absolute discretion to select any of his property for his own business or for business of children--In present case, question of personal use of suit premises is fully established on record but Courts below have not given due consideration to contentions of appellant and a bona fide requirements of premises by appellant was doubted without any convincing reasons and sufficient grounds--Findings of facts arrived at by Courts below can be disturbed if they are found to be perverse and not based on record--Petition Allowed. [P. 70] A & B
Urban Rent Restriction Ordinance, 1959--
----Ss. 13(6) & 15--Ground of bona fide personal need & default--Failure to deposit rent--Order sheets of trial Court reveals that there is no order directing tenant to deposit rent which is glaring illegality in view of provision contained in Section 13(6) of Ordinance 1959. [P. 70] C
Mr. Sultan Ali Shah, Advocate for Appellant.
Respondent in person.
Date of hearing: 23.10.2017
PLJ 2018 Peshawar
[Mingora Bench (Dar-ul-Qaza), Swat]
Present: Muhammad Nasir Mahfooz, J.
versus
MUHAMMAD RASOOL KHAN--Respondent
R.S.A. No. 4/M of 2016, decided on 23.10.2017.+
Judgment
Through the instant regular second appeal u/S. 15 of Urban Rent Restriction Ordinance, 1959 appellant/ landlord has called in question orders dated 21.05.2015 and 20.07.2016 of the learned Civil Judge-I/Rent Controller, Dir Lower and learned Additional District Judge, Dir Lower, respectively whereby his appeal was dismissed, the instant regular second appeal has been preferred by the appellant.
2. Brief facts of the case are that appellant filed an application for eviction of respondent from Shop No. 20, situated in Rasheed Market, Timergara Bazar on the ground of default of monthly rent, personal use to which respondent/tenant filed his written statement. Issues were framed and evidence pro and contra was recorded. After conclusion of trial, learned Rent Controller dismissed the application vide judgment dated 21.05.2015.
3. Feeling dissatisfied, appellant preferred an appeal before learned District Judge, Dir Lower, which was dismissed vide order dated 20.07.2016, hence, the present second appeal.
Learned counsel for the appellant was heard while respondent appeared in person and stated that he cannot afford to engage a counsel, so he was heard in person.
4. Perusal of record reveals that appellant/ landlord produced his witnesses in support of his grounds of ejectment on default and personal use of the shop for his son. He has stated that the respondent has failed to pay a single penny on account of rent right from the institution of present ejectment petition and the learned Rent Controller also failed to pass an order under Section 13(6) of the ibid Ordinance by directing the respondent tenant to deposit the rent during the trial. He submitted that his witnesses have sufficiently established the contentions as raised in the ejectment petition but learned Rent Controller as well as learned appellate Court failed to properly appreciate the evidence and on surmises and conjectures dismissed the ejectment petition. He has placed reliance on several judgments and stated that in support of his point that the statement of a landlord in isolation is sufficient to decide suitability of his use and occupation and he could not be left at the dictates of a tenant or any body else to interfere in his absolute choice and prerogative. Reliance was placed on PLD 2007 SC 45, 2013 CLC 562 and PLD 2009 SC 453.
5. On the other hand, respondent/tenant stated that he has deposited rent and the appellant owns many other shops in the area and he would vacate the suit shop if the landlord hands over any other shop on tenancy.
6. The statement of witnesses of appellant duly cross-examined but have not been shattered to create any doubt or mala fide in the grounds so raised. The judgments cited at the bar invariably establish that the genuineness of the ground of personal use of landlord could not be doubted and he has got absolute discretion to select any of his property for his own business or for the business of his children. In the present case question of personal use of the suit premises is fully established on record but the learned Courts below have not given due consideration to the contentions of the appellant and a bona fide requirement of premises by the appellant was doubted without any convincing reason and sufficient grounds.
7. This being 2nd appeal and the findings of facts arrived at by the learned Courts below can be disturbed if they are found to be perverse and not based on record. Reliance can be placed on 2013 CLC 562:-
“It is settled principle of law that even if the respondent owned certain other properties at other locations, she was not required to decide the suitability of her use and occupation at the dictates of appellant or anybody else, as it was her absolute choice and prerogative”.
Reliance is further placed on 2011 CLC 717 the relevant para is reproduced as under:
“12. The concept of good faith as provided under Section 13(3)(ii) of the Urban Rent Restriction Ordinance, 1959, merely requires that demand of the landlord must be based upon honesty and might be reasonable. It is not sufficient to doubt the bona fide personal need of the landlord that other premises let out by landlord before initiating the ejectment proceedings or during the pendency of the same. As it is the choice of landlord, as earlier stated, to select the shop for his occupation. Reliance placed upon a case titled S.M.Noor-ud-Din 9 others v. Saga Printers, reported as 1998 SCMR 2119, wherein, it observed that:
“The law is too well established on the point viz. that a landlord has a complete option to choose from one of the several tenements occupied by tenants to avail of the personal requirement and the discretion is not assailable, except in the rarest cases of bad faith”.
Order sheets of the learned trial Court reveals that there is no order directing the respondent/landlord to deposit rent which is a glaring
illegality in view of the provision contained in Section 13(6) of the ibid Ordinance particularly when in the present case the respondent/tenant has not even denied the relationship of landlord and tenant. The learned appellate Court failed to note this glaring illegality in the judgment of learned Rent Controller.
8. On behalf of respondent/tenant he himself appeared as D.W.1 and produced one Muhammad Sher Khan and Azizul Wahab as D.W.2 and D.W.3 respectively. From perusal of their statements it transpires that his contest of the ejectment petition of appellant is based on his intention of high handedness to prolong the agonies of appellant. His only stance is that appellant demanded Rs.200,000/- as advance but he was not willing to pay. He has exhibited money order receipts for July & August 2013 as Ex.D.W.1/1 and Ex.P.W.1/2. This leaves no doubt that rest of the rent is not paid as petition for ejectment is filed on 10.04.2014.
9. Viewing the evidence available on record it can be safely held that the appellant/landlord has established the grounds of default and personal use in a very satisfactory manner. His witnesses have deposed and in a reasonable manner established his case, therefore, the impugned order passed by learned Courts below deserves to be set aside. Hence, this second appeal is accepted and ejectment petition of the appellant is allowed with direction to the respondent to vacate the suit premises within a period of two months.
No order as to costs.
(Z.I.S.) Petition allowed
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