MUSLIM COMMERCIAL BANK LTD. Versus ADDITIONAL DISTRICT JUDGE, FAISALABAD

The respondents Nos. 3 to 8 filed an ejectment application against the petitioners on the ground of personal need before the learned Rent Controller, Faisalabad. The following issues were framed:

(1) Whether the petitioners require the premises in dispute in good faith for their personal use and occupation? O.P.P.

(2) Whether the petitioners have not served the statutory notice under section 13 (a) of the Ordinance; if so, with what effect? O.P.R.

(3) Relief.

2. After recording the evidence of the parties, the learned Rent Controller decided both the issues in favour of the respondents and directed the eviction of the petitioners vide order, dated 18-4-1984. The petitioners filed an appeal. The decision on the issue of personal need was questioned. The learned Appellate Authority, the Additional District Judge, Faisalabad, went over the evidence and also observed that it was admitted by the petitioners' own witness as R.W-1 that "the respondents had not agreed to increase the rent and their refusal was on account of the fact that they required the disputed property in good faith for their personal use". He upheld the finding of the learned Rent Controller on the bona fide need of the respondents and dismissed the petitioners' appeal allowing them three months' time to vacate the premises in dispute. This is vide order, dated 9-10-1984. This is challenged by the petitioners through this Constitutional petition.

3. Learned counsel for the petitioners has vehemently contended that the premises in dispute were taken on rent by the petitioners initially from Abdul Ghani and Muhammad Ishaque. No statutory notice under section 13 (A) of the West Pakistan Urban Rent Restriction Ordinance, 1959, was given to the petitioners by the respondents who claim to have acquired the property. He referred to Muhammad Nawaz and 2 others v. Sh.Abdul Latif and another 1971 SCMR 198. He secondly contested the finding on the question of the bona fide need and urged that one of the respondents i.e. respondent No.3 had said to the petitioners that he was not desirous of evicting the petitioners.

4. Learned counsel appearing for the respondents Nos. 3 to 8 has submitted that the requirement of notice under section 13 (A) of the aforementioned Ordinance is in relation to an ejectment application filed on the ground of default. If the notice is not given, there shall be no default under the said provision. Section 13 (A) of the Ordinance has no relevance when the ejectment is sought on the ground other than that of default in payment of rent, for example, for the personal need. He referred to two decisions of the learned Supreme Court of Pakistan on the point, namely, Sabu Mal v. Kika Ram alias Heman Das 1973 SCMR 185 and Messrs Everyday Pictures Limited v. Chamman Begum 1983 SCMR 282.

5. As regards the contentions of the learned counsel for the petitioners questioning the bona fide need of the respondents, the learned counsel submitted that there is a concurrent finding of fact based on the admission of the witness of the petitioners themselves and the finding is not interference in exercise of Constitutional jurisdiction. Besides that, it is on the record in evidence that one of the respondents is earning his livelihood by selling Kulchas in a public street. In reply, the learned counsel for the petitioners submitted that the judgment relied upon by the learned counsel for the respondents 1973 SCMR 185 has been distinguished in Mrs. Mariam Fernandes v. State Life Insurance Corporation of Pakistan, Karachi, P L D 1981 Kar. 591.

6. I have heard the learned counsel for the parties on occasions and at length. Section 13 (A) of the West Pakistan Urban Rent Restriction Ordinance, 1959, is to the following effect:-

13(A) "Where the ownership of a building in the possession of a tenant or rented land has been transferred by way of sale, gift, inheritance or in any other manner, whatsoever, from one person to another, the new owner shall send an intimation of such transfer in writing by registered post, to the tenant of such building or rented land, and the tenant shall not be deemed to have defaulted in the payment of rent for the purposes of clause (i) of subsection (2) of section 13, if the rent due is paid within thirty days from the date when the intimation should in the normal course have reached him."

A plain reading of the section would show that if the requisite notice is not given, the tenant shall not be deemed to be a defaulter in the payment of the rent. Obviously, on this ground the person who has acquired title and has not given the notice, shall not be entitled to eject the tenant. As regards other grounds, he will be like any other landlord entitled to invoke the relevant provision's of law, like section 13 of the aforesaid Ordinance. The judgments of the learned Supreme Court of Pakistan quoted by the learned counsel for the respondents are directly applicable to the question in hand i.e. the effect of non-issuance of a notice. In other words, if the respondents had sought ejectment of the petitioners on the ground of default, they would have been non-suited for not giving the notice. Since they had gone to the Court not on the ground of default in payment of the rent by the petitioners but for their personal bona fide need, their petition had to proceed. It may also be noticed that the petitioners had not even argued the point about notice under section 13 (A) of the Ordinance before the Appellate Authority, i.e. the Additional District Judge.

7. As regards the finding of the two Courts below that the respondents needed the premises for bona fide personal use based as it is on the evidence on record coupled with the admission of the petitioners' own witness R.W-1 that the respondents had refused enhancement of rent on account of the fact that they required the premises in good faith for their personal use, it is obvious that no interference is possible in exercise of the Constitutional jurisdiction. The contention of the learned counsel for the petitioners that one of the respondents i.e. respondent No.3 had told the petitioners that he was not keen to evict them is neither here nor there. Neither he was produced nor any document executed by him. In any case, he was not the only person who had obtained the order of ejectment against the petitioners.

8. In view of what has been stated above, there is no force in this Constitutional petition and the same is dismissed but in the circum stances the parties are left to bear their own costs.

9. Learned counsel for the petitioners requested for time being given for handing over vacant possession. Both the learned counsel for the petitioners and the respondents agree that the petitioners shall hand over vacant possession of the premises to the respondents within three months from today. Be it so.

A.A. Petition dismissed.