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Second Appeal against Original Order No. 509 of 1976, decided on 24th March, 1977.

‑‑Ss. 13 & 4 read with Displaced Persons (Compensation and Rehabi litation) Act (XXVIII of 1958), S. 30‑Eviction proceedings‑Claim of enhanced rent‑‑Enhanced rest according to latest assessment, held, can be claimed under S. 30 of Act‑Enhanced rent claimed with service of notice under S. 30, before expiry of 6 years, claimant, held, would be entitled to receive rent at that rate till tenancy comes to end or Rent Controller fixed fair rent under S. 4 of Ordinance.

Nazim Din v. Mst. Nawab Bibi P L D 1970 Lah. 923 ref.

‑‑ S. 13‑‑Eviction proceeding‑Personal requirement‑House in occupation of landlord consisting of two rooms and landlord being all alone keeping his married daughter with him as of necessity to cook his food and look after him‑Daughter, her husband and her four children living in same house‑For' family of 8, house in occu pation of landlord, held, not sufficient unit to live in‑Held, since daughter and her children living with landlord for his own benefit, premises in dispute, held, required by him for his bona fide personal use‑Eviction of tenant ordered.

‑‑ S. I 1 read with West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 14‑Plea of res judicata‑Eviction proceedings S. 11, C. P. C. not applicable when there is special provision about res judicata in S. 14 of Ordinance.

Munir A. Sheikh for Appellant.

Haji Abdul Hamid for Respondent.

Date of hearing : 24th March, 1977.

The ejectment order was passed by the learned Rent Controller, against the appellant on the ground of personal need. The ejectment was claimed on the ground of default also but the learned Rent Controller found that since notice was given in March, 1973 and the application was made in April, 1973 the appellant was not a defaulter. One more point is also in volved and that is that notice under section 30 of the Displaced Persons (Compensation & Rehabilitation) Act, 1958 was sent to the appellant by the respondent on 1st April, 1966, which was received on 11th April, 1966, thus period of 6 years under section 30 started from 11th April, 1966 and came to an end on 11th April, 1972. The respondent served a notice upon the appellant on 14th March, 1973 claiming enhanced rent accord ing to the latest assessment, made on 1st July, 1971. The Courts below held that since at the time the latest assessment was made the period of b years had not expired, the respondent was entitled to claim the rent according to the latest assessment.

2. Learned counsel for the appellant has argued that it is immaterial that the latest assessment was made in 1971 when the period of 6 years had not yet expired and that since at the time the notice was served upon the appellant under section 30 to recover enhanced rent the period of 6 years had expired, section 30 had become inapplicable and thus no notice could be served. I find force in this argument. Learned counsel for the respon dent has not been able to cite any authority in support of the contention that since the latest assessment was made before the expiry of 6 years, the respondent was entitled to claim enhanced rent. The enhanced rent according to the latest assessment could be claimed under section 3 if the said section was applicable if the respondent had claimed rent accord ing to the latest assessment of 1971 serving a notice under section 30 before the expiry of 6 years, of course, he would have been entitled to receive rent at that rate till the time the tenancy came to end or, the Rent Controller had fixed fair rent under section 4 of the Rent Restriction Ordinance. On the date on which notice claiming enhanced rent according to the latest assessment was served, section 30 was no longer applicable as the period of 6 years had elapsed, therefore, the said provision of law was not available. The respondent could have made an application for the fixation of fair rent under section 4 of the Rent Restriction Ordinance if it could benefit him but could not take benefit of section 30 after it had become inapplicable. Need‑1 less to say that only section 30 of the Displaced Persons (Compensation & Rehabilitation) Act provides that rent according to the latest assessment can be claimed and there is no other provision in that behalf and since the said section had become inapplicable there was no legal provision warranting the demand of the respondent. In Nazim Din v. Mst. Nawab Bibi (P L D 1970 Lah. 923) it was observed that the question of charging rent at the rate of enhanced rent could arise after due service of the notice to the transferee under section 30 and that the transferee is entitled to charge rent at enhanced rate from the date of the said notice. The Rent Controller had fixed the rate of rent according to the enhanced rate and thus the order was set aside. I, therefore, reverse the finding of the Courts below on the point.

3. However, the finding of the Courts below on the point that the respondent is entitled to ask for ejectment of the appellant on the ground of personal need is not assailable. Learned counsel has argued that in the application it was not disclosed that the house in dispute was required by the respondent for his married daughter and that it was urged that he required it for his family. According to the learned counsel married daughter cannot be the family member of the respondent. He also says that since in the petition it was not urged that the house was required for the daughter of the respondent the appellant could not meet the case. I do not find any force in this argument. If the appellant had admitted that the respondent needed the house for .his personal use, it could be said that since in the petition it was urged that the house was required for the respondent himself, the appellant admitted the fact and that if he had urged that the requirement was for the married daughter, the appellant instead of admitting it would have contested it. The respondent produced evidence first, therefore, the appellant had opportunity to rebut it. There is ample evidence on the record that the' daughter of the respondent is living with him, alongwith her husband a childern. The respondent cannot expel her and son‑in‑law. Admitted the respondent is otherwise all alone and if his daughter will not live wit him, there would be no one to cook his food and to look after him. It, therefore, appears that as of necessity the respondent is accommodating his daughter and since his daughter is living there, the son‑in‑law and grand children of the respondent have also to live there. The house occupied by the respondent consists of two rooms only and his daughter has 5 children. Obviously a house of 2 rooms is not sufficient for 8 persons, out of . whom admittedly three are adult and the others may be minor, This is true that married daughter cannot be the family member and depended and this) appears to .be the reason that in the petition it was urged that the louse was required for the respondent himself. Since the respondent is accommodating his married daughter for his own benefit; the house is required by him and not by his daughter.

4. The learned counsel has raised the question of res judicata also. 1n a previous application the ground of personal need was relied but it was not decided by the learned Rent Controller. Section 14 applies where the point has been decided and not otherwise. Learned counsel says that section 11, C. P. C. is available to the. appellant, Explanation V of which supports his case. Explanation V says

"Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section be deemed to have been refused."

Firstly, section I1 is not applicable when there is special provision) about res judicata in section 14 of the Rent Restriction Ordinance and secondly, no adjudication on the point was made in the previous application) as the same was decided on a technical ground. The circumstances of the case are such that Explanation V does not apply. The prayer was for ejectment on the ground of personal need. The case was not decided on merits and ejectment was not granted. Since the plea was not discussed and adjudicated upon and the case was dismissed on a technical grouted, the respondent was not debarred from bringing another application removing the defects for which the previous application had been filed.

5. As a result of the observations made above, I partly accept the appeal holding that the respondent is not entitled to claim rent according to the latest assessment of 1971. The ejectment order on the basis of the personal need is, however, confirmed and to this extent the appeal fails.

M. Y. M. Appeal allowed partly.

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