Find a Lawyer

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑

‑‑ S. 15‑Second appeal‑Findings on questions of fact arrived at by first appellate Court‑Held, generally binding in second appeal but not as sacrosanct as a concurrent finding of fact Grounds on which findings of fact by first appellate Court can be interfered with in second appeal indicated‑Civil Procedure Code (V of 1908), S. 100.

It is true that the findings on questions of fact arrived at by the 1st Appellate Court are generally binding in the Ilnd Appeal, but they are not as sacrosanct as a concurrent finding of fact. Where the 1st Appel late Court reaches a finding at variance with the trial Court on a question of fact, the two‑ findings naturally will come up for a comparative examination on their respective merits in the find Appeal and if on a comparison of the two finding it is found that the 1st Appellate Court has reversed the finding of the Trial Court without taking due note of the reasoning of the 1st Court and without disclosing a logical basis for arriving at the contrary conclusion; or the Ist Appellate Court has arrived at the finding in disregard of a material piece of evidence on record, or the Ist Appellate Court has taken a view on the evidence which is arbit rary or capricious, then such a finding of fact given by the 1st Appellate Court can always be interfered with in the IInd Appeal.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑

‑‑ S. 13(2)(')‑Ejectment on ground of default in payment of rent‑Fact that rent was tendered or deposited by tenant after commission of default, before service of notice of ejectment case Held, cannot erase effect or consequence of default already com mitted by tenant.

(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑

‑‑‑ S. 15 (4)‑Second Appeal‑Question not agitated before two Courts below‑Held, cannot be gone into for first time in second appeal.

(d) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑

‑‑‑ S 15 (4)‑Second Appeal‑Concurrent findings of fact by Courts below‑Held, cannot be disturbed in second appeal unless shown to be fanciful or based on misreading of evidence.

(e) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑

‑‑-Ss. 13 (2) (i), (iii) & 15‑Ejectment‑Controller possesses dis cretion to make or not to make order of ejectment‑Exercise of discretion by Controller in ordering ejectment of tenant on sound reasons and in accord with principles laid down by superior Courts‑Held, cannot be interfered with by appellate Court.

Ghulam Sarwar Abbasi for Appellant.

Mohan Lai for Respondent.

Date of hearing : 22nd March, 1981.

This order will dispose of IInd Appeal No: 20 of 1979 and 21 of 1979 filed. by Haji Allahando against the order of District Judge, Larkana dated 13th February, 1979 whereby the District Judge acting as the 1st Appellate Authority under the provision of West Pakistan Urban Rent Restriction Ordinance, 1959, accepted the two rent appeals filed by respondent Muhammad Asghar and set aside ejectment orders passed by the Rent Controller, Larkana, in respect of House No. CS/2597/2598 and three shops bearing No. 2597/6, 2598/2 and 2598/3 ail situated in Ward 'B' Bakarani Road, Larkana.

The appellant had filed two separate rent applications against the respondent bearing No. 10/1976 and 11/1976 before the, Rent Controller. Larkana seeking ejectment of respondent from the above‑mentioned house and three shops respectively, which were let out to the respondent under two separate written tenancy agreements. The grounds of default in payment of rent for the period from November, 1975 to January, 1976 and making of unauthorised construction in the premises without consent of the appellant and thereby impairing the value of the property, were alleged in both the cases, but in Rent Application Tip. (1976 which related to the ejectment of respondent from the house, an addi tional ground .of personal and bona fide requirement was also urged. Both the ejectment applications proceeded separately before the Rent Controller and by two separate orders the Rent Controller allowed both the applications on the grounds of default and making of unauthorised alterations and addition's in the premises which were found to have affected the value and utility of the premises adversely. The ground of personal and bona fide need of appellant in respect of house was not accepted by the Controller. The ejectment orders passed in the above two cases were challenged by the respondent before the 1st Appellate Authority (District Judge, Larkana. The appellant supported the order of the Rent Controller before the 1st Appellate Authority not only on the grounds on which the applications were allowed by the Controller but also urged the ground of personal and bona fide requirement which was decided against him. The 1st Appellate Authority accepted both the appeals filed by the respondent by a Single order and rejected the applications for ejectment filed by the appellant before the Rent Con troller, Larkana, by the impugned judgment:

I have heard the learned counsel for the appellant and the respon dent. As the findings of the two Courts below on the issues of default and making of unauthorised construction in the premises are at variance, I have gone through the entire evidence recorded in the two cases with the assistance of the learned counsel appearing on either side and after hearing them I am of the view that the appeals must succeed.

The tenancy in both the cases started under written agreements which provide for payment of monthly rent in advance. It is not in dispute that on 3rd February, 1976 when the two applications for eject ment were filed against the respondent before the Rent Controller, rent for the months of November, 1975 and January, 197o was not paid. It is also not in dispute that after filing of the applications 4 and before service of the summons in the two Rent Applications the respondent started depositing rent in Court and the first deposit of rent was made on 19th February, 1976, which was for the months of November and December, 1975 and January and February, '976. Similarly making of alterations and additions in the premises is also not in dispute. The respondent admitted in his evidence before the Controller that he had connected three shops with the house by opening new doors between the shops and the house by closing the main door of house. The Rent Controller after recording the evidence in both the cases reached the conclusion that the rents for the months of December, 1975 and‑January and February, 1976 were not offered or tendered in accordance with the express agreement of the tenancy and disbelieved the defence taken by the respondent that he had gone to tender the rent to the appellant but the appellant refused to accept the rent. He accordingly held that the default in respect of these months was deliberate and wilful. On issue of making of unauthorised construction and alterations in the premises the Controller reached the conclusion that these alterations were made without the consent of appellant and have adversely affected the value and utility of the, premises. However, on the issue of per sonal requirement the Controller found against the appellant. On the basis of his Buildings on the issues of default and unauthorised construc tion, the Controller ordered ejectment of respondent both from the house as well as three shops. On appeal the learned District Judge, Larkana disagreed with the findings of the Rent Controller on the issue of default on the grounds; (i) that the notices in the Rent Applications No.. 10/1976 and No. 11/1976 were served on the respondent on 12th of May, 1976 and 6th of July, 1976 respectively while respondent deposited the arrears of rent before service of notices on him, in Court on 19th February, 1976, and the appellant was unable to rebut this fact; (ii) the respondent though occupied the premises as a tenant in 1974 there was no allegation that he committed default on any earlier occasion; (iii) the respondent being a businessman could not afford to commit default in payment of rent; and (iv) that the appellant had taken security de posits' at the time of commencement of tenancy amounting to Rs. 1,000 in respect of house and Rs. 600 in respect of shops, which he held at the time of filing of ejectment application. On these considerations the 1st Appellate Court reached the conclusion that it was not a fit case in which respondent's ejectment should have been ordered by Controller on the ground of default and consequently reversed the findings of Controller on this issue.

On the issue of unauthorised construction and additions in the pre mises the 1st Appellate Authority was of the view that although the respondent did effect changes in the premises but this fact alone is not sufficient to establish that the value and utility of the premises has been adversely affected and the appellant did not discharge the burden of this issue as required under the law. On these considerations the finding of Controller on this issue was also reversed. However, on the issue of personal and bona fide requirement of appellant the 1st Appellate Court was in agreement with the Controller and consequently he accept ed both the appeals, set aside the two orders of Rent Controller and dis missed the Rent Applications of the appellant for ejectment of respon dent from the house and three shops respectively by‑ the impugned judgment.

The learned counsel for the respondent has urged before me that reversal of findings of Rent Controller by 1st Appellate Court being on questions of facts is binding in find Appeal and not open to interference by this Court. It is true that the findings on questions of fact arrived at by the 1st Appellate Court are generally binding in the find Appeal, but they are not as sacrosanct as a concurrent finding of fact. Where the 1st Appellate Court reaches a finding at variance with the trial Court on a question of fact, the two findings naturally will come up for a com parative examination on their respective merits, in the find Appeal' and if on a comparison of the two findings it is found that the 1st Appellate Court has reversed the finding of the Trial Court without taking due hotel of the reasoning of the Ist Court and without disclosing a logical basis for arriving at the contrary conclusion; or the 1st Appellate Court has arrived at the finding in disregard of a material piece of evidence on record, or the 1st Appellate Court has taken a view on the evidence which is arbitrary or capricious, then such a finding of fact given by the 1st Appellate Court can always be interfered with in the lInd Appeal.

In the case before me the admitted position is that on 3rd February, 1976, when the applications for ejectment against the respondent were filed before the Rent Controller, the rent for the months of November, December, 1975 and January, 1976, was due. It is common ground, between the parties that the rent both in respect of three shops and the house was payable' in advance on the beginning of the month. The explanation offered by the respondent before the Controller was that in the month of October, 1975, he had. gone to pay rent to the appellant for the month of November, 1975, but the appellant refused to accept the same on the ground that he was proceeding on Haj and promised to accept the same on his return. The respondent further asserted that when the appellant returned from Hai, the rent was offered to him but he refused to accept the same and demanded enhanced rent of Rs. 300. The evidence on record shows that the appellant returned from Hai on 5th or 6th of December, 1975. The rent for the months of November and December, 1975 and January, and February, 1976, according to the report of Nazir was deposited in Court by the respondent on 19th February, 1976. The Rent Controller did not .accept the explanation of respondent for the reasons that in written statement he had simply stated that he was not a defaulter in payment of rent and that on the refusal of appellant to accept the rent he started depositing the rent in Court, but in the cross‑examination of appellant he suggested that the appellant did not accept the rent because he was proceeding on Haj. The Rent Controller also noticed that in the cross‑examination of appel lant the respondent had suggested that rent was offered to him twice, once immediately on the appellant's return from Haj and thereafter in January, 1976, but the appellant refused to accept the rent on both occasions and there was no suggestion to the appellant that he demanded enhanced rent of Rs. 300 from re3pondent; while the respondent in his own evidence before the Court stated that he offered rent to appellant on his return from Haj but he refused to accept the same until the rent was increased to Rs. 300 p. m. and therefore, he started depositing the rent in Court. As the rent was payable in advance and the Controller found that it was to be paid within 15 days of the beginning of each month, the respondent was found in default in respect of the months of November and December, 1975 and January, 1976. The 1st Appellate Court while disagreeing with the Controller did not take note of the reasons given by the Controller for holding the respondent a defaulter and not accepting the explanation offered by him and reversed the find ings of the Controller on the grounds that the appellant was unable to rebut the assertion of the respondent that the rent for the disputed period was deposited in Court before service of notices in the ejectment cases. This view of the 1st Appellate Court is based on a misconceived notion of law. The tender of rent contemplated under section 13(2) (i) of the West Pakistan Urban Rent Restriction Ordinance, 1959 should he within 15 days of the date specified in the agreement and in case there is no such agreement, within 60 days of the rent becoming due. The fact that the rent was tendered or deposited by the tenant after default was com mitted, before the service of notice of the ejectment case against him e is of little significance, as such a deposit of rent on the part of tenant cannot erase the effect or consequences of default already committed by him. Reference in this connection may be made to the case of Haji Fida Hussain v. Muhammad Shakir Khan (1972SCMR262).. The other reason, given by the 1st Appellate Court was that the respondent was tenant in the premises since 1974 and no instance was cited that he ever committed default in payment of rent and that the respondent being a businessman running a bakery in the premises could not afford to commit default. Firstly, the tenancy in this case was of a very recent origin having started in 1974 and the default was alleged fur November and December, 19.75, and January, 1976 and therefore, the consideration that respondent was an old tenant and had all along paid rent regularly did not arise in this case. Secondly no such case was set up by the respondent before the Controller and these reasons being hardly relevant in these circumstances to relieve the respondent of the consequences of default, this approach of the 1st Appellate Court was purely conjectural. The last circumstance which influenced the Appellate Court for not maintaining the order of Controller on the ground of default was that the respondent had given deposits of Rs. 1,000 and Rs. 600 in respect of the house and the shops respectively at the commencement of tenancy. The Ist Appellate Court has not considered the nature of "deposit," and the provisions of tenancy agreements dealing with these deposits. Mere fact the landlord had taken a "deposit" at the commencement of tenancy is not by itself sufficient to conclude that such deposit' is adjustable during the conti nuance of tenancy towards arrears of rent. The respondent did not raise any plea in his written statements that these deposits made by him were adjustable during the continuance of tenancy. The suggestion given to appellant in cross‑examination was denied by him and thereafter when the respondent when in the witness box, he did not assert that these deposits were liable to be adjusted during the continuance of the tenancy towards arrears of rent. This plea was apparently not pressed before the Controller as it did not find place in the order of Rent Con troller and in the two memos of appeal filed before the Ist Appellate Court no ground was taken that the Controller failed to address itself to the question of adjustment of 'deposits' towards arrears of rent. In these circumstances the mere observation of the 1st Appellate Court that the appellant had taken these amounts as deposits' at the beginning of tenancy without further discussion as to its nature in terms of the agree ment could not be considered as a circumstance calling for interference with the order of Rent Controller. The learned counsel for the respon dent contended that the terms of agreement provided for adjustment of these deposits' towards arrears of rent: English translation of the tenancy agreement was placed on record by the learned counsel during the course of argument. In the circumstances of the case firstly I am not inclined to go into .this question for the first tine in IInd Appeal as this aspect of the case was not agitated before the two Courts below and was, therefore, 'not fully considered and secondly I have seen the provisions with regard to deposits' in the two agreements of tenancy which do show that in their nature these deposits' were refundable to respondent on termination of tenancy upon handing over possession of premises to appellant and if at that time any .dues or charges were to be found due and payable the same were subject to adjustment from these 'deposits.‑ I am, therefore, of the view that reversal of the finding of Controller on the issue of default by. the 1^st Appellate Court‑ was not at all justified.

On the issue of making of unauthorised constructions and alterations in the premises, the admitted position on record was that at the tune of commencement of the tenancy the house and the three shops were separate units and, were let out to the respondent under separate tenancy agree ments. t was admitted by the respondent in his evidence before the Court that after commencement of the tenancy, he had closed the main door of the house by bricks and had opened doors in between the house and the shops to interconnect them. It was also admitted by the respon dent that the house as it stood then could not be used by any other person separately as it had its entrance and communication from the shops. The Rent Controller found these alterations as unauthorised and having been made without permission of the appellant. The Controller also held that these alterations and additions had impaired the value and utility of the building as the house cannot now be used separately by any other person which was admitted by respondent.. He also found that existence of bakery in the house where biscuits are baked by respondent for selling in the shops had also affected adversely the value and utility of the premises. The 1st Appellate Court without considering the. reasoning of the Controller disposed of this issue and reversed the findings of the Rent Controller without revealing any logical basis for such reversal of the findings in the following terms :‑

"A mere alteration in the premises in my opinion would not itself affect its utility and burden lies on the landlord to slow that this has happened so. There is word against word and in my opinion the respondent has not been able to discharge the burden that lies on him."

The above finding of the 1st Appellate Court is devoid of any basis. It was an admitted position in the case that the respondent had closed the main door of the house and had opened new doors in the premises to connect the shops with the house. It was also admitted by the respondent in his evidence before the Rent Controller that the house as it stood could not be used by any other person. The respondent had pleaded that by these alterations and additions. the value and utility of the premises was enhanced. In these circumstances I fail to see that further proof was to be produced by the appellant to show that the admitted alterations had impaired the value and utility of the premises. The Rent Controller fully took note of the alterations made by the respondent and their effect on the value and utility of the premises and came to a definite conclusion that the alterations made by the respondent impaired the utility and the value of the house. The learned counsel for the respondent lastly urged before me that the appellant had only alleged in his rent applications that the value of premises is decreased on account of the alterations and additions and no allegations were made with regard to impairment of the utility of the premises. There is no substance in the argument. The respondent nowhere before the Courts below raised this objection and the evidence led in the case both by the appellant and respondent before the Controller was on the effect of additions and alterations on the utility and value of the premises. In fact the respondent contended before the Rent Controller that as a result of these alterations in the premises the utility and value of the. premises has on the contrary been enhanced. In these circumstances the contention of the learned counsel that the appellant had not pleaded any adverse effect on the utility of the premises by the alterations and additions has no substance. The result is that the finding of the lst Appellate Court is also reversed on this issue acid that of the Rent Controller is restored.

The learned counsel for the appellant has also assailed the findings of the two Courts below on the issue of bona fide and personal require ment of the appellant in respect of the premises. This point was confined to Rent Application No. 10/1976. Both the Courts below have concur rently found that the appellant failed to establish his bona fide requirement in respect of the house. The findings on the bona fide and personal requirement of appellant purely a question of a fact and the two Courts have concurrently found that the appellant has failed to discharge o the burden. This finding of fact cannot be disturbed in find Appeal unless it is shown to be fanciful or based on a misreading of evidence. The learned counsel for the appellant was unable to point out any misreading of the evidence by the Courts below. The concurrent findings of the' Courts below of this issue is accordingly maintained.

There is yet another reason which has persuaded me to restore the order of the Rent Controller in this case. Under sections 13 (2) (i) and 13'(2) (iii) of the West Pakistan Urban Rent Restrictions. Ordinance, R 1959, the Rent Controller had a discretion either to make or not to make an order of ejectment against the respondent on proof of the circum stances mentioned in the aforesaid sections. This discretion, however, was to be exercised by‑ the Rent Controller judiciously keeping in view the principles laid down by Superior Courts for exercise of discretion in such cases. The exercise of this discretion by the Rent Controller could be interfered with by the 1st Appellate Court only if it was found to have been exercised in capricious or arbitrary manner or against the principles laid down by Superior Courts foe exercise of such discretion. There is nothing in the order of the 1st Appellate Court to show that he reached any such conclusion with regard to the exercise of discretion by the Rent Controller. I find that the Rent Controller, in this case, exercised his discretion in ordering ejectment of the respondent on sound reasoning which were in accord with the principles laid down by the Superior Courts for exercise of discretion in such circumstances.

As a result of the above discussion the appeal is allowed with costs and the order of the District Judge Larkana is reversed and that of Rent Controller is restored. The respondent is, however, allowed four months time to vacate the premises.

S. Q Appeal allowed.

Find a Lawyer Near You

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