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Second Appeal against Order No. 279 of 1978, decided on 28^th April, 1980

--S. 13‑Money order‑Money order for rent presented to landlord but refused‑Held, tenant to examine postman or lead some evidence in this respect.

‑‑S. 13 (2) (i)‑Ejectment proceedings‑Mode of inquiry‑Left to Rent Controller but basic principles of justice and equity govern ing proceedings cannot be lost sight of, by Rent Controller while conducting such enquiries.

‑‑‑Ss. 13 (2) (i).‑Default in payment of rent‑Tenant not possessing receipt held, presumed to have not paid rent and committed default.

‑‑‑S 13 (2) (i) and 15 (4)‑Second appeal‑Bona fide personal need‑‑Concurrent findings of facts by Courts below, held, cannot be challenged in second appeal‑Failure of landlord to examine son for whom premises required does not militate against his bona fide personal need.

‑‑S. 13 (2) (i)‑Bona fide personal need of landlord and his son establi shed‑Fact of one foot of 'Thara' being earmarked for respondent in rent deed, held; would not debar him from seeking ejectment.

‑‑S. 13 (2) (i)--Ejectment proceedings‑Ownership of business premises adjacent to shop in dispute, held, such ground not recognised by Statute for ejectment‑In view of weight of other evidence proving bona fide need ejectment order upheld.

Sh. Muzaffar Ahmad Zafar for Appellant.,

Mian Iqbal Hussain for Respondent.

Date of hearing : 28th April, 1980. .

The respondent filed a petition against the appellant on 30th April, 1976 for his ejectment from the shop in dispute on the grounds of default in the payment of rent for the period from October, 1972 till institution of the ejectment petition damaging the property, subletting and bona fide personal need for his sons. The appellant resisted the petition and dented all the grounds taken up by the respondent.

2. In order to establish the payment of rent the appellant produced in evidence the receipts Exh. R. 1 to R. 20, evidencing the payment of rent to the Court. As held by the learned Rent Controller the receipts covered the payment of rent from the month of March, 1974 till June 1977. He maintained that the appellant did not produce any receipt showing the payment of rent for the period from October, 1972 to February, 1974. He thus treated the appellant as defaulter. On the issues regarding subletting and damaging the property the learned Rent Controller gave findings in favour of the appellant. However, on the question of bona fide personal need he discarded the appellant's evidence and came to the conclusion that the respondent has four sons and at least one of his sons was not shown to be fixed up anywhere. He also found that the respondent who was working as broker, previously occupied the shop himself, did business in partnership in it, but had to abandon it on account of loss. He held that neither the respondent nor any of his sons possessed any shop. He accepted the respondent's plea that he wanted to restart business and concluded that he bona fide needed the shop for himself and for his sons. In view of his these findings the learned Rent Controller by his order dated 18th June, 1977 evicted the appellant.

3. In appeal, the learned Additional District Judge on consideration of the evidence produced by the parties, upheld the findings of the learned Rent Controller on all the issues, and thus by his order dated 29th April,' 1978 dismissed the appellant's first appeal: He has now come up in second appeal.

4. Before proceeding with the merits of the case, it' may .be observed that the record of the second appeal as well as the record received from the two Courts below was lost and was re‑constructed.

5. The learned counsel for the appellant attacked the findings of the learned two Courts below regarding default. In this connection he referred to photostat copies of money order coupons dated 6th August, 1973, 7th September, 1973, 10th October, 1973, 10th November, 1973 and 9th January, 1974 to contend that the rent for the months of August to November, 1973 and for January, 1974 was remitted to the respondent at the rate of Rs. 300 per month, through these money orders, which he declined to accept and consequently, the appellant deposited it in the treasury. From the submissions of the learned counsel, it transpired, that these documents were not relied upon by the appellant and after he had produced his oral evidence, his learned counsel wanted to tender in evidence these money order coupons alongwith some other receipts, but the learned Rent Controller did nor permit these documents to be brought on the record on the ground that these were not proved. It may be observed that all these documents have been referred to by the learned Additional District Judge in the impugned order as Exh. R. 1 to R. 20, and even after consideration of these documents he found that the appellant was a defaulter. In addition to these money order coupons the learned counsel also referred to a receipt dated 28th April, 1973 for Rs. 750 said to have been executed by the respondent acknowledging the payment of rent from June, 1973 onward. This receipt was neither exhibited nor is found in the reconstructed record. In respect of this receipt, as well as the money order coupons, the contention put forth by the learned counsel was that the Rent Controller being not a Court, the proceedings before him could not be bedeviled by the technicalities of the Evidence Act and the C.P.C., and that, therefore, he was wrong in not allowing the appellant to tender these documents in evidence.

6. As the original record had been lost and was reconstructed only so far as it was possible, for proper dispensation of justice I heard the learned counsel for the parties quite at some length and examined all possible pleas which could be raised on the strength of the documents not allowed to be placed on the file of the learned Rent Controller feel that in order to prove that the money orders were presented to the respondent for payment but he refused to accept, the appellant should have examined the postman or led some other evidence in this respect. The appellant's attorney Aziz Ahmad appeared as R. W. 3 that he did not say anything either about the remittance of rent to the appellant by money orders or the payment of Rs. 750 through receipt dated 28th April, 1973. The respondent also appeared in the witness box. He was neither cross‑examined in respect of this receipt nor regarding the refusal of money orders by him. In this connection, the only stray suggestion put to him was that the appellant paid rent regularly and also sent money order to which the respondent denied. It is correct that under the provisions of Rent Restriction Ordinance the mode of enquiry has been left to the Rent Controller but while conducting such enquiries he cannot lose sight of the basic principles of justice and equity, govern ing the proceedings before the tribunals burdened with the duty of adjudication of the rights of the two contesting parties. I am of the view that under the circumstances of the case the money order coupons and receipts could not be permitted to be tendered in evidence. It may be added that before the learned Additional District Judge, as borne out from the impugned order, the appellant did not rely on the money order coupons. As regards the receipt dated 28th April, 1973 he examined the appellant's contention but did not accept it on cogent grounds, with which have no reason to differ.

7. Before me as well as before the learned Rent Controller, as is obvious from his order dated 22nd April, 1976 passed under section 13 (6) of the Ordinance, the respondent dubbed the receipt as a forged document. Even if the receipt is treated as genuine, read in evidence and so also the money order coupons, I do not think that these documents can improve the appellant's case in any manner. Admittedly the monthly rent was Rs. 300. According to the appellant's own showing receipt for Rs. 750 covered rent for 2J months only and at the most the rent for the period from June, 1973 to the middle of August, could be deemed to have been paid to the respondent. The money order coupons related to period from August to November, 1973 and January, 1974. It is stated that the rent for the subsequent period was deposited in the Court through treasury challans, which were produced in evidence, but now do not form part of the present record. Even if all these submissions are accepted, the appellant's default is not wiped off. He has not pro duced any receipt to establish the payment of rent for the period from October, 1972 to May, 1973. ‑ The default for this period, in any case, is there. When faced with this situation the appellant's learned counsel contended that as receipt dated 28th April, 1973 related to the months of June, July, and half of August, 1973, it should be presumed that the rent for the period prior to June, 1973 stood already cleared. This argument does not deserve .any serious consideration. The appellant did produce some receipts other than the documents referred to above, but these were found by the learned Additional District Judge to be relating to the period prior to October, 1972 and were thus not relevant. It is thus legitimate to hold that had the appellant paid the rent for the period from October, 1972 to May 1973 he must have been in possession of the receipts, and as be did not produce any such receipt in evidence, the presumption is that the rent was not paid. Thus looked from any angle, the appellant committed default in payment of rent.

8. As regards the bona fide personal need, both the learned Courts below have returned findings against the appellant. This being a finding of fact cannot be interfered with in second appeal. The learned counsel for the appellant, however, argued that in order to prove his bona fide the respondent should have examined his son for whom he required the shop I am unable to agree with him. The respondent offered himself for cross‑examination but he could not be shaken. In the circumstances of the case, his failure to examine his son did not militate against his bona fide. The learned counsel then made reference to the rent deed and urged that the respondent retained one foot space. from the demised property, for his personal use and was therefore, not entitled to get the shop in dispute vacated. This submission is also) without merit. It is evident from the rent deed that only one foot of the thara' was earmarked for the respondent. He is not debarred from seeking the eviction of the appellant, as he has succeeded in establish ing that the shop is required by him bona fide for personal use as well as for his sons.

9. The learned Additional District Judge in the impugned order has held that the appellant owned a shop adjacent to the shop in dispute The argument advanced on behalf of the appellant, in this respect was that a tenant's ownership of the business, premises, was not a ground recognized by the Statute, for his ejectment and that the learned Additional District Judge was influenced by an irrelevant consideration, which vitiated his decision. I do not think that the learned Additional District Judge was influenced much by this factor, to the exclusion of the weight of other evidence which established that the shop was required by the respondent bona fide for self‑use and for use of his sons. In any case, keeping in view the burden of evidence, and the main line of reasoning followed by the learned Additional District Judge, I do not feel that even it the correct position was present to his mind, his finding would have been materially different.

10. For all these reasons I uphold the impugned order and dismiss this appeal, leaving the parties to bear their own costs. The appellant shall hand over the possession of the shop to the respondent within two months.

M.Y.H. Appeal dismissed.

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