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Second Appeal No. 148 of 1973, decided on 14th January 1976.

Ss. 13 & 15-Tentative rent order-Cannot by itself be made basis of finding about factum of default-Landlord not proving default Concurrent finding of fact on point by two Courts below.-Held, such point not available to landlord at stage of second appeal. [Appeal (civil)].

S. 13-Ejectment sought on ground of personal bona fide require ment-Demand of higher rent-Does not by itself cast any doubts about personal requirement if factum independently proved.

Almas Begum v. Pirbux P L D 1964 Pesh. 278 not applicable.

--- S. 13(3)(a)(i), (b)-Conditions precedent for an order under S. 13(3)(6)-Landlord not required to specifically urge in rent applica tion all ingredients constituting his personal bona fide requirement Absence of such averments in pleadings-Held, does not reflect adversely on landlord's bona fide personal requirement, if same other wise proved.

Wajihuddin Ahmad for Appellant.

Nemo for Respondent.

Date of hearing : 23rd December 1975.''

House No. 3 in Row No. 7, Block 11-A, Nazimabad, Karachi, was rented out by the appellant's predecessor-in-interest Badruddin Hassan Farooqui, to the respondent Mangi Industrial Home, in the year 1961, at a monthly rent of Rs. 350. Badruddin died during the pendency of the present appeal and his legal representatives have been duly brought on record. A regular tent deed was executed between the parties on 14th December 1961. TO landlord brought rent application on 10^th October 1966 under section 13 of the West Pakistan Urban Rent Restric tion Ordinance (hereinafter referred to as Ordinance) on the twin grounds .of default in payment of rent and personal bona fide need. It was contended that the respondent had paid no rent since June 1966 and that an arrear of Rs. 1225 had accumulated which was due from the tenants. It was further contended that the landlord had four grown up children including three sons, who were adult, employed and of marriageable age that he was living in a portion of a house rented by one Khalil Ahmed, and that he had one crippled and insane brother who was also living with him. He therefore wanted to move into his own house.

In the written statement the default was denied and the ground of personal requirement was also denied. It was contended that the landlord wanted to raise the rent and, therefore, a false plea of personal need had been raised. Following issues were framed by the trial Court:

"(1) Whether the opponent has committed default in payment of monthly rent, if so what is the effect

(2) Whether the applicant requires the disputed house for his bona fide requirement, if so what is the effect

(3). What relief the applicant is entitled "

"The learned Rent Controller came to the conclusion that the default had -not been proved but he found that the landlord needed the premises for his personal bona fide requirements. The application was, therefore, granted. In appeal the learned first appellate authority reversed the findings of the learned Rent Controller on the question of personal requirement. Result was that the application stood dismissed, hence the present appeal.

The respondent has not appeared nor has his counsel done so. There being no reason for the absence I decided to proceed ex parte in the matter.

On the question of default the learned counsel contends that it could not be pressed because there was some confusion if the default had been committed. According to him the rent application was originally drafted .in the month of July 1966, but was actually filed on 10th October 1966. Although in July the ground of default was wrongly taken out by October ,the tenant had defaulted in the payment of rent. But the difficulty for the learned counsel is that although an issue was framed on this point but the landlord or his witness chose not to speak a word about default. No evidence, documentary or otherwise, has been brought on record to substantiate this allegation of the landlord. The learned counsel, however wanted me to draw an inference from the tentative rent order, which required the tenant to pay rent with effect from July 1966, that the tenant was in default. A tentative rent order by itself cannot be made the basis of a finding about the factum of default, which should be ,proved independently as a separate fact. A tentative rent order by its very nature is tentative and, therefore, cannot be made the basis of a final finding on the question of default. As the landlord has not proved default and there being concurrent finding of fact on this point by the two Courts below this point is not available to the appellant at this stage of second appeal.

On the question of personal bona fide requirement Badruddin and his son Imad have appeared as witnesses and have stated on oath that the family includes three grown up children who are all employed and of marriageable age. The marriage was being postponed only because there was not enough accommodation available with the family. It. was also stated. on oath that one younger brother of the original landlord who is insane and crippled because of amputation of one leg, is also living with the family. This crippled younger brother of the landlord required an independent room for himself. It was also stated on oath that the family was living, in two rooms in a house rented by a relation known as Khalil Ahmed. These facts are not controverted by the respondent-tenant. The first appellate authority has unfortunately not taken into consideration these averments nor has it examined the effect of Exh. 6, a judgment of this Court, where by Khalil Ahmed Siddiqui was ordered to be evicted from the house in which the landlord and his family were residing jointly with him.. Badruddin Farooqui, in his statement before the Court, had stated that he- was actually evicted from that house. This is a matter of record and evidently stands unrebutted.

In the year 1963, Industrial Urban Co-operative Bank took over the Manghi Industrial Home. The landlord had at that stage demanded an increase in the rent to Rs. 400 per month. Exh. 8 is the original letter written on 23rd September 1963. The learned first appellate authority concluded from this letter that landlord always wanted the enhancement: of rent and only in order to achieve that end a plea of personal bona fide requirement has been raised. But the learned first appellate authority has overlooked the fact that this letter was not addressed, as has been observed by the learned Additional District Judge, to the respondent and secondly it was written more than three years prior to the filing of the ejectment application. In actual fact the , landlord, when confronted with this letter in cross-examination, had completely forgotten about it and could recol lect it only when he recognised his own signatures on it. But in any case a demand of higher rent by itself does not cast any doubts about the personal bona fide requirements if the factum of bona fide requirements is independently proved. The ruling in the case of Almas Begum v. Pirbux (P L D 1964 Pesh. 278) does not apply to the facts of this case because there the landlord had already accepted the enhanced rent.

Another contention finding favour with the learned Additional District Judge was that no specific averment was made in the memo of rent application according to section 13 (3) clause (b). The learned first appellate Court has observed that the condition precedent for an order under this section is that the landlord making application should not have another house in that urban area'. These observations of the learned Addi tional District Judge seem to be based on the provisions of section 13 (3) (a), (t) (b) which is to the following effect

"he is not occupying another residential building, suitable for his, needs at the time in the same Urban area in which such building is situated;"

This provision does not require that the landlord should not have' house in the same urban area. On the other hand the condition is that the landlord should not be occupying another residential building in the same Urban area, where the disputed building is situated, and second condition is that of the suitability of such building. But in any case it is not necessary for the landlord, when he takes the plea of personal bona fide requirement, that he should specifically urge, in the rent application, all the ingredients which constitute his personal bona fide requirement. Those, ingredients are a matter of proof. If the landlord has proved the personal bona fide requirement either of himself or of his children the onus is discharged: Any absence, in the pleadings, of such averment, does not reflect adversely on the bona fide, if otherwise proved, of the landlord's personal requirement. The first appellate authority therefore, fell in error when it observed that the landlord had to plead as a specific fact, in the rent application that he did not have any other house in the same urban, area.

In view of the fact that the landlord needed the house in dispute for the personal bona fide requirements of himself and his family which included four of his grown-up children, the landlord is entitled to an order in his favour. The appeal, therefore stands accepted with costs. The respondent shall place the landlord in possession of the house within three months.

Such order was announced by me on 23-12-1975, for which reasons have been recorded today.

S. Q. Appeal accepted.

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