MAQBOOL-UR-REHMAN Versus MUHAMMAD AFZAL KHAN

Maqbool‑ur‑Rehman, through this second appeal against order, challenged and disputed the legality of the judgment, dated 5‑5‑1996, passed by the learned Additional District Judge, Bahawalpur, whereby he dismissed the appeal filed by Maqbool‑ur‑Rehman (appellant) and accepted the appeal filed by Sardar Muhammad Afzal Khan (respondent) against the order, dated 18‑5‑1995 of the learned Rent Controller, Bahawalpur, whereby the ejectment petition was accepted on the ground of personal need with a condition of providing alternate shop in the same premises.

2. The brief facts giving rise to this appeal are that Sardar Muhammad Afzal Khan (petitioner‑respondent) filed a petition against Maqbool‑ur‑Rehman (appellant‑respondent) for the ejectment of the shop mentioned in the petition on the grounds that it was required to be used as stairs and of default in the payment of rent. The respondent contested the petition and maintained that independent and separate stairs were available for reaching the upper storey and that he had paid the rent regularly and on the refusal of the petitioner to receive the rent sent through money order, the same was deposited in Court. The learned Rent Controller framed the following issues:‑‑‑

(1) Whether the petitioner needs the property for personal use in good faith? OPA.

(2) Whether the respondent is wilful defaulter in the payment of the rent? OPR.

(3) Relief.

3. The Issue No. l was decided in favour of the petitioner with the condition of providing the alternate shop to the respondent. The Issue No.2 was decided in favour of the respondent.

4. The landlord filed an appeal and disputed imposition of the condition as well as the findings on Issue No.2, whereas the tenant also filed an appeal disputing the findings on Issue No. 1. Both the appeals were decided vide order, dated 5‑5‑1996. The appeal of the tenant Maqbool‑ur‑Rehman was dismissed, while that of landlord Sardar Muhammad Afzal Khan was accepted. Hence, this second appeal against order by Muhammad Maqbool‑ur‑Rehman.

5. The learned counsel for the appellant submitted that there was no evidence on record to show that the petitioner (landlord) needed the shop in question for personal use in good faith. He submitted that the shop in question was under the stairs and was not a hindrance for the persons using the stair for going to the upper storey which was rented out by the petitioner to the Allied Bank Ltd. He also submitted that the appellant had been paying the rent regularly and the learned First Appellate Court failed to appreciate the evidence available on record.

6. The learned counsel for the respondent‑petitioner, on the other hand, submitted that the shop in dispute was required by the petitioner for his personal use in good faith. He also submitted that the appellant‑respondent had not paid the rent for the month of March, 1994 and onwards and, therefore, he was proved to be a defaulter.

7. A thorough perusal of the record shows that both the Courts below did not properly appreciate the case of the parties as made out from their respective pleadings. Neither the issues were correctly framed nor the evidence was properly considered. In fact it is a clear case of misreading and non‑reading of evidence.

8. The learned Rent Controller framed Issue No. l regarding personal need of the petitioner, but a perusal of the ejectment petition shows that the petitioner nowhere claimed that the shop in dispute was required for personal need. In para. No.2 he simply alleged that the disputed shop was required to be used as stairs as the upper storey had been given on rent after construction to the Circle Office, Allied Bank Ltd. It was also alleged that the respondent had promised to vacate the shop in June, 1994, but he did not honour his commitment. Now, it is not a requirement of personal use as contained in section 13(3)(a)(ii) of the Punjab Urban Rent Restriction Ordinance, 1979. The said provision is reproduced as follows:‑‑‑

"(3)(a) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession‑‑‑

(i) ................................

(a) ...............................

(b) ...............................

(c)...............................

(ii) in the case of a non‑residential building or a scheduled or rented land, if‑‑‑

(a) he requires it in good faith for his own use or for the use or any of his male children;

(b) he or his said child is not occupying in the same urban area in which such building is situated for a purpose of his business any other such building or rented land, as the case may be, suitable for his need at the time; and

(c) he has not vacated such a building or rented land without sufficient cause after the commencement of this Ordinance in the said urban area:

9. A plain reading of the above provisions of law shows that a landlord can apply to the Rent Controller for the ejectment of the tenant if he requires in good faith a non‑residential building for his own use or for the use of any of his male children who is not occupying any other such building suitable for his needs, in the same urban area and who has not vacated such building without sufficient cause after the commencement of the Ordinance. It is clear that all the three conditions contained in (ii)(a)(b) and (c) must exist before the landlord becomes entitled to the ejectment of the tenant. The law does not allow the ejectment of the tenant on the ground of personal need for the convenience of some other tenant. A tenant cannot be ejected to provide facilities to another tenant under the cover of personal need. This ground of ejectment is restricted to the personal need of the landlord or any of his male children. In the case in hand the petitioner wants to dislodge the tenant for the sake of another tenant, the Bank, who is probably a best pay master. Hence, both the Courts below did not address to this aspect of the matter according to the relevant law on the point.

10. As far as the question of default in the payment of rent is concerned, it is sufficient to state that the learned Additional District Judge ignored very material evidence already available on file. There is a copy of the register (Exh.R.l) which contains an entry of payment of rent for the month of March, 1994 on 6‑3‑1994. On the same page there is an impression of the money order receipt regarding having sent Rs.1,000 through money order on 10‑5‑1994. A coupon of the money order is Exh.R.2. It appears that the petitioner did not accept the money order and it was returned to the remitter. The respondent as R. W.1 deposed that after refusal of the petitioner to accept the rent, it was being deposited in the Court. There is challan Exh.R.3 to the effect that the rent for April, 1994 to July, 1994 was deposited in Court on 31‑7‑1994. The learned Additional District Judge misread the evidence in this regard.

11. In this case the correct issues were not framed and the evidence was also not properly appreciated. In the interest of justice, it would be appropriate that the case be remanded to the learned Rent Controller for framing the issues arising out of the pleadings and then to re-decide the matter after giving opportunity to the parties to lead their respective evidence. Hence, the appeal is accepted, the impugned orders set aside and the case is remanded for decision in the light of the above observations. The parties are left to bear their own costs.

A.A./M‑597/L ??????????????????????????????????????????????????????????????????????? ??????????? Case remanded