Find a Lawyer

Civil Petition for Special Leave to Appeal No. 656 of 1979, decided on 9th December 1979.

(On appeal from the judgment and order of the Lahore High Coin dated 24th July 1979 in S. A. O. 236 of 1977).

--- S. 13(2) (t)-Default in payment of rent-Rent Controller and first Appellate Court disbelieving plea of petitioner regarding advancement of loan to respondent landlord and landlord having agreed to adjust such loan against rent-No error of law appearing to have been com mitted in arriving at such a finding of fact-Petitioner admittedly in arrears of rent for 15 months-Petitioner's claim as to landlord having been increasing rent, even if believed, such fact, held, would not alter fact of petitioner having committed wilful default in payment of rent for 15 months and as such liable to ejectment.

---- S. 13(3)(W-Requirement for use of sons-Merely because of sons of landlord being not unemployed inference held, could not be drawn that landlord could not set up one of hi, sons in business.

Sh. Hamid Mukhtar, Advocate and Sh. Abdul Karim, Advocate-on-Record for Petitioners.

Ch. Inayatullah, Advocate and Tanvir Ahmed, Advocate-on-Record for Respondent.

Date of hearing : 9th December 1979.

The petitioner is the tenant of a shop owned by the respondent and on 4-9-1974, the respondent filed an eviction application against the petitioner in the Court of the Rent Controller, Sheikhupura, on the ground that the petitioner had wilfully failed to pay rent for fifteen months and had caused damage to the demised premises and' on the further ground that he required the shop for setting up his son in business. The petitioner contested his eviction, but the Rent Controller held that he had committed default in the payment of rent, as claimed by the respondent, and he also accepted the respondent's plea that he required the shop for setting up his son to business therefore, by his order dated 8.10-1975, the Rent Controller directed the petitioner to hand over the vacant possession of the shop to the respondent.

The petitioner filed an appeal in the District Court, Shaikhupura, which came up for hearing on 1-3-1977, before an Additional District Judge. The learned Additional District Judge agreed with the finding of the Rent Controller that the petitioner had committed default in the payment of rent. But relying on the statement of one of the respondent's witnesses that the petitioner used to pay rent every four or five months, the Additional District 'edge held that the default on the petitioner's part was a technical default, and he therefore condoned it in the exercise of his discretion under section 13 I 'the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter filled the said Ordinance). He was also of the view that the respondent did not require the shop for setting up his son in business, because they were Cultivating agricultural lands leased by them from the Auqaf Department. He therefore allowed the petitioner's appeal and set aside the Rent Controller's order of eviction.

The respondent challenged the order of the Additional District Judge in second appeal in the Lahore High Court and as that appeal has been flowed, the petitioner has filed this petition for leave

.

Mr. Mukhtar's contention was that the High Court had misread the written statement of the petitioner, and this misreading of the written statement ad vitiated the entire appreciation of evidence by the learned Judge. 1n support of this submission learned counsel referred us to an observation by learned Judge, whilst discussing the question of the petitioner's default that the petitioner had not Pleaded in his written statement that the petitioner had been demanding increased rent from him and successfully increased the rent from time to time. The submission that the written statement has been misread appears to have some force, but as we pointed out both the lower Courts were 'of the view that the petitioner had committed default in the payment of rent for fifteen months and whilst the Rent Controller held that this default rendered the petitioner liable to eviction, the Additional District Judge thought that it was a fit case for the exercise of discretion under section 13 of the said Ordinance, therefore, as the learned Judge has restored the Rent Controller's order, the real question before us is whether the mis reading of the written statement of the petitioner has in any way led the learned Judge of the High Court into an error on the question of the petitioner's default.

According to the judgment of both the lower Courts, the respondent bad proved the petitioner's default in the payment of rent by fifteen months, and Mr. Mukhtar was not able to show any error whatever in this concurrent finding. But, his plea was that the petitioner had advanced a loan to the respondent, and had thereafter entered into an agreement with the respondent to adjust his loan against the rent. The Rent Controller has disbelieved the evidence produced by the petitioner in support of his plea and so has the first Appellate Court. Learned counsel criticized the learned Judge for not having discussed this, issue, but as both the lower Courts had agreed that the petitioner's explanation of his default was not fit to be believed, the learned Judge has refrained from going into question of fact on which there was a concurrent finding by both the lower Courts which was amply supported by evidence. Therefore, learned counsel's criticism is misconceived. Further there is no error of law in the concurrent finding of the lower Courts that the petitioner's explanation about the loan to the respondent was not fit to be believed. Therefore, even if we believe the petitioner's claim that the respondent had been increasing the rent, it will not alter the fact that he had committed wilful default in the payment of rent for fifteen months.

We observed earlier that there was some evidence that the petitioner had been paying rent at intervals of four or five months, But, we have not been referred to any evidence that this practice was with the consent or the respon dent, and further there is no comparison between a delay of four or five months in the payment of rent and a delay of more than a year. Therefore, in overruling the view of the first Appellate Court that the petitioner's default was only a technical default, the High Court merely followed the law repeated ly declared by this Court and in this view of the matter, the petition is only fit to be dismissed.

However, as learned counsel argued at length on the finding that the respondent had failed to prove the bona fides of his requirement for the demised premises. We may point out that the respondent had admitted that his sons were cultivating land, and because of this admission, the first appel late Court held that the respondent's requirement was not bona fide. Learned counsel invited us to follow this view, but merely because the sons of the respondent were not unemployed it does not mean that the respondent could not set up one of his sons in business, therefore, the view taken by the Rent Controller with which the High Court agreed is the correct view and we see no error of law in the concurrent finding that the respondent had proved the; bona fides of his claim.

The petition is without merit and is dismissed. But, we give the petitioner three month's time to hand over vacant possession of the demised premises to the respondent.

Petition dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.