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Second Appeal from Order No. 33 of 1978, decided. on 18th April, 1983.

‑‑‑S. 13(6)‑‑Striking off defence‑‑Default in payment of rent‑‑Tentative Rent Order‑‑Tenant ordered by Rent Controller to deposit rent before fifteenth of each month, failed to do so due to Eid holidays falling on last due date‑‑Tenant also failed to deposit rent immediately after Eid holidays‑‑No ambiguity existing in order of Rent Controller passed under 5.13(6) of Ordinance but tenant acted negligently in complying with his mandatory order‑‑Rent Controller avoiding question of striking off defence of tenant on this ground‑‑Order of first appellate Court considering effect of non‑compliance and striking off defence of tenant upheld in circumstances.

‑‑‑Ss. 13(6) & 15‑‑Second appeal‑‑Default in payment of rent Whether tenant was in default, a pure question of fact finding on which to be based on believing and disbelieving of witnesses and weight to be attached to each party's evidence‑‑First appellate authority after elaborate discussion coming to conclusion about rate of rent and that tenant was in default‑‑Finding of first appellate authority neither suffering from any defect nor infirmity‑‑Interference declined in second appeal.

‑‑Ss. 13 & 15‑‑Bona fide personal requirement‑‑Appellate Court below, relying on statement of landlord which was supported by his brother and believing their version, felt satisfied that landlord had succeeded in proving that shop in dispute was reasonably and in good faith required for his personal use‑‑Court below while reaching this conclusion acting within its province of authority; attending to all material evidence, meeting with reasons of Rent Controller and applying law on facts found by it‑‑Interference declined with judgment of appellate Court below ejecting tenant.

Malik Muhammad Iqbal for Appellant

Sh. Zia Ullah for Respondent.

Dates of hearing: 15 and 16th December, 1982.

This second appeal against order has been filed by a tenant of a business premises whose eviction has been ordered by a learned Additional District Judge as appellate authority under the Rent Restriction Ordinance, 1959 after holding that there was non‑compliance with the order of the Rent Controller in terms of section 13(6) of the Ordinance; default in the payment of rent; and that the shop was required by the landlord in good faith for his personal use.

2. The brief facts are that the respondent purchased the shop in dispute on 13‑9‑1973. The appellant is in occupation of the disputed property as a tenant under the respondent. It was claimed by the respondent‑landlord in his eviction application that the tenancy was an oral tenancy at a monthly rental of Rs.80 p.m. The eviction application was filed on the ground that the appellant was a defaulter in the payment of rent for the period 13‑9‑1973 to 14‑10‑1974, Moreover, the respondent required the shop for his personal use bona fide and in good faith as he wanted to start a medical store therein; and further that the appellant had damaged the property.

3. The appellant controverted these allegations through a written statement and claimed that the rent of the premises was Rs.40 p.m.

4. The learned Rent Controller framed four issues as follows:‑

(1) What is the rate of rent between the parties O.P. Parties.

(2) Whether the respondent has paid or tendered the rent in accordance with law O.P.R.

(3) Whether the petitioner requires the shop for his personal use in good faith O . P. A .

(4) Whether the respondent has damaged the property in dispute and thereby its value and utility is impaired O. P. A .

The fifth issue related to relief.

5. Rent Controller on 3‑5‑1975 passed an order in terms of section 13(6) directing the tenant‑appellant to deposit the arrears of rent from October, 1973 to April 1975 at the rate of Rs . 40 p. m. before the next date of hearing i.e. 31‑5‑1975 and the future rent at the same rate before 15th of every succeeding month. There was complaint that there was a default in compliance with the order of the Rent Controller on four occasions inasmuch as rent for the months of July, August and September, 1975 was deposited on 15th of August, September and October and not before 15th of each of these months. Moreover, rent for the month of November 1975 was deposited by the appellant on 20‑12‑1975. The Rent Controller however did not strike off the defence.

6. On merits the Rent Controller, vide his order, dated 17‑11‑1976, as regards issue No.l, held that the rate of rent between the parties was Rs.40 p.m. As regards issue No.2 it was held that the appellant had paid rent from 13‑9‑1973 to 14‑10‑1974 at the rate of Rs.40 p.m. The issue was accordingly decided in favour of the tenant‑appellant. On issue No.3 it was held that the landlord had failed to prove his personal heed and so it was decided against him. Issue No.4 was also decided against the landlord. The eviction application was accordingly dismissed.

7. Dissatisfied the landlord thereupon filed an appeal which was accepted by a learned Additional District Judge as appellate authority vide order, dated 2‑1‑1978.

The appellate authority held that the order of the Rent Controller, dated 3‑5‑1975 clearly showed that the appellant had to deposit the future monthly rent before the 15th of each succeeding month. The plea of the appellant was that the order was complied with because deposit was made on 15th of each month except the rent for the month of November which was deposited on 20‑12‑1975. In so far as the deposit of rent on the 15th of each month was concerned, it was held that the direction was for deposit of rent before 15th and, therefore, there being no ambiguity the default was proved. In so far as the plea of deposit of rent for the month of November on 20th December was concerned, the plea that it was delayed because of Eid‑ul‑fi'tr holidays was held not to have been substantiated by any material on the record or by reference to any calendar. The version given by the appellant, therefore was disbelieved and it was held that the record also did not show that any permission was sought from the Rent Controller nor he could extend the period contravening in the mandatory provision of law. It was ultimately held that the appellant was guilty of disobedience of the order of the rent Controller. According to appellate authority therefore, the defence of the appellant was liable to be struck off but the Rent Controller had failed to pass any order in this respect. The appellate authority, therefore, held that it could order the striking off the defence of the tenant while also recording decision on merits of the case.

8. Taking up the appeal on merits, on issue No.l the appellate authority preferred to believe the oral evidence led by the respondent landlord that the rate of rent was Rs.80 P.M. and this constituted the liability of the tenant. The finding of the trial Court was accordingly reversed on issue No.l.

As regards the default in payment of rent is concerned, the version given by the tenant that he used to tender rent and get receipts from the respondent on a note book maintained by the appellant which destroyed by the respondent‑landlord in the presence of Muhammad Siddiq and Abdul Sattar whereupon a report was lodged with the police station, was found not to have been established. It was noted that these two witnesses Muhammad Siddiq and Abdul Sattar were not produced and the lodging of the police report was not proved during the proceedings. The further plea of the tenant that he had sent rent through money orders was found not to have been established. He failed to produce a Khata allegedly maintained by him in respect of payment of rent. The onus of issue being on the tenant, there was a fault found in the approach of the Rent Controller inasmuch as he concentrated‑ mainly on the evidence of the landlord while deciding the issue. The evidence of the tenant was found to be highly unsatisfactory. The finding of the Rent Controller on issue No. 2 was, therefore, also reversed.

In so far as issue No.3 regarding the personal need of the landlord, was concerned the evidence of the respondent supported by that of his witness Muhammad Malik A.W.4 was believed by the appellate authority. The observation of the learned Rent Controller that the respondent had two other shops was rejected on the ground that this fact was not put to the respondent‑landlord to any other witness on this account. It was held, from the evidence adduced by the parties, that the landlord had succeeded in proving that he required the shop in dispute reasonably and in good faith for his personal use and the respondent was, therefore, liable to be ejected from the shop in dispute.

9. At the hearing of this second appeal, the findings of the learned first appellate authority were seriously assailed on the ground that the default for the month of November, 1975 by depositing the future monthly rent on 20‑12‑1975 appeared to be erroneous. The calendar has been consulted, on a perusal of which it transpires that the Eid‑ul‑fitr holidays fell on 14th and 15th December, 1975 which were Sunday and Monday respectively. Therefore, the plea of the appellant as put up before the two Courts below fails on the factual plane. The appellant was thus negligent in not paying the rent before 15th of December in respect of the month of November. There can, therefore, be no fault found with the order of the appellate authority in that behalf. No justification has been shown as to why the rent was not deposited on 16th, 17th, 18th or 19th December assuming that 14th and 15th were holidays. In such like situation, the appellant could at best deposit the rent on 16th December when the holidays had come to an end. This plea could not on reasonable plane be stretched upto 20th December. Similarly, the deposit of rent for the other three months was made not before the 15th of each month but on the 15th of the said three months. There is no ambiguity in the order of the rent Controller passed in terms of section 13(6) of Ordinance. Therefore, the conclusion is irresistible that the appellant acted negligently in complying with the mandatory order. The Rent Controller, therefore, was not justified in avoiding this question and the learned first appellate authority was right in considering the effect of non‑compliance and in ordering striking off the defence of the appellant.

10. Now taking up the decision of the questions on merits, in so far as the finding of default is concerned, the matter is a pure question of fact based on believing and disbelieving of witnesses and the weight to be attached to each party's evidence. The appellate authority after elaborate discussion has come to the conclusion that the rate of rent was Rs.80 p.m. and that the appellant was in default. Nothing has been pointed out to me to show that this finding of the first appellate authority suffered from any such defect or infirmity so as to justify interference in second appeal.

11. Next taking up the finding of the appellate authority in so far as the bona fide personal need of the landlord is concerned, it has chosen to rely on the statement of the landlord which was supported by his brother and believing their version the appellate authority felt satisfied that the respondent had succeeded in proving that the shop in dispute was reasonably and in good faith required for his personal use. This ground also would not warrant may interference because it was within the province of the appellate authority to come to this conclusion and to my mind this finding does not suffer from any infirmity. Moreover, the appellate authority has attended to all the material circumstances of the case, discussed the evidence, met the reasons of the Rent Controller and applied the law on the facts found by it.

12. I therefore find no scope for interference with the judgment of the appellate authority in exercise of my powers under section 100 C.P.C. read with section 15 of the Rent Restriction Ordinance, 1959. The appeal therefore fails and is hereby dismissed with costs.

Appellant is allowed two months time to vacate the premises.

M.Y.H./K‑3/L Appeal dismissed.

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