SHABAZ KHAN Versus MUHAMMAD FAZAL KIANI

This first appeal by a tenant, against the order dated 7-6-1987 passed by the Rent Controller, Rawalpindi has been maintained under section 24 of the Cantonments Rent Restriction Act XI cf 1963, to challenge the respondent-landlord's claim that he requires the relevant house bearing Flat No.l, Kausar Colony, Dhoke Chiragh Din, Rawalpindi Cantonment for his bona fide personal use.

2. Plea of the respondent-landlord, for a direction under section 17(4)(a)(i) of the Act being issued to the tenant for his being put in possession thereof, was controverted by the tenant by disputing his bona fides or. the premises that another Flat adjoining the one in dispute is lying vacant but is not being occupied by the landlord who is seeking Rs.500 as its rent against the rental of Rs.250 for this adjacent flat in dispute and that he does not really need to occupy this flat for which also he wants to have a substantial increase in the rent as has been manifested by him already in his several letters. A total of 4 issues, inclusive of the relief, were set down for trial whereof issue No.3 related to the question of bona fide personal need of the landlord who adduced oral evidence in support of his case and apart from the statement of one Muhammad Yaqoob got recorded as P.W.2, he himself entered the witness-box as P.W.1 to in substance claim that he had retired from service in the year 1978 and is presently living in a rented house at Lahore but wants to settle permanently in Rawalpindi where his relatives and other members of Baradri also live and although the adjoining flat having a similar accommodation of 3 rooms and a verandah is lying vacant since the last one year (of his making the statement on 27-3-1984), yet, he has not occupied it because it is, insufficient for the needs of his family and he will occupy both the flats at one time after removing the intervening wall so that both the flats are used as one house. In the cross-examination, he admitted that he had rented out this flat in the year 1967 at a rent of Rs.80 p.m. but he had not pressurized the tenant and still the rate of rent came to be increased to Rs.120 p.m. which has been increasing off and on to now be Rs.200 p. m. and while admitting that he has been demanding increase in the rate of rent from Rs.250 p.m. to Rs.500 a month, he acknowledged that letters Exhs. R.1 to R.6 had been written by him and that he had also got a police report recorded against the tenant on i7-4-1983 whereby he wanted to get the house in dispute vacated from the tenant. He also admitted that one of his relatives Abdul Khaliq has been dealing with the tenant and he has also been appointed by him as his Attorney and is even present outside the Court today but he was not put in the witness-box and there is no explanation available in this behalf. P.W.2 Muhammad Yaqoob, a retired Army Officer, too deposed in a general way about the property, family and service of the landlord and he did 'not even casually assert that the landlord may be requiring the flat in dispute for his personal use but admitted towards the end of the cross-examination that the foregone particulars have been provided to him by the landlord and his own brother Abdul Khaliq and he himself does not have any personal knowledge.

3. In rebuttal, the tenant got his own statement recorded as R.W.1 to deny that the landlord may be requiring the flat in dispute for his personal occupation and his object simply is to have more rent, as he has been persistently demanding in his letters EXhS.R.l to R.6, so that in this view he had now set up the plea of personal use as a mere cloak for achieving the same object which could not be achieved by him through his other pressure tactics.

4. Learned Rent Controller accepted the uncorroborated statement of the landlord to be an adequate proof of his need for personal occupation and repelling the assertion about his greed for increase in rent as having been negatived by the fact that in the adjoining flat lying vacant since a year he was foregoing a substantial amount which could be obtained by him on account of its rent and, using this circumstance as a proof of his requirement for personal use, ordered the tenant to hand over the possession to the landlord within 60 days of the passing of his order dated 7-6-1987. Hence this appeal.

5. Onus of the respondent-landlord under issue No.3 was two fold to prove not merely that he requires the premises in dispute for his personal occupation but also that his demand is based on good faith so that it is not actuated by malice. Learned Rent Controller has not only accepted a mere word of mouth of the landlord, and that too without any support, as providing the necessary proof and has clean left out of consideration the contents of his admitted letters EXhS.R.1 to R.6 written to the tenant. His approach to the case has not only been wrong but also superficial inasmuch as he does not seem to have comprehended the difference between a 'desire' and a "requirement" which is synonymous with the word 'need' which conveys the meaning of a 'must have' in the sense of something being indispensable. When viewed from this angle, the landlord was under a legal duty to have proved in the first instance as to why was it absolutely necessary for him to be in Rawalpindi after living a retired life of 5 years in Lahore, at the time of filing the application in 1983. There is no explanation available on the record in this behalf beyond a bald self-serving statement of the landlord which has not been supported by any documentary evidence which should have been in his own possession or could be easily procured by him. Then, a reading in between the lines of his letters written to the tenant in a span of 3 years as Exhs. R.1 to R.6 discloses that the only demand persistently put forth by him in the period of 5 years] following his retirement from service in the year 1978 is the frequent increase of rent and the letters Exhs.R.5 and R.1 respectively written on 9-5-1980 and 18-8-1980 do not contain even a faint suggestion about the alleged personal need which has been urged for the first time in the letter dated 10-4-1983 (Exh.R.2) against the statement made in the previous letter dated 20-1-1983 (Exh.R.4) with regard to his desire to raise further construction in this house and the alleged personal need is thereafter made a plea also in the letter dated 5-5-1983 (Exh.R.6) and then in Exh.R.3 on 4-8-1983 which is followed by the ejectment petition being filed on this ground almost a month afterwards on 1-9-1983. Thus, this so-called demand for personal use has surfaced only in the 4 months preceding the filing of this petition alongwith a persistent demand for increase of rent and before that he had expressed the desire to raise further construction on 20-1-1983 when he had already been living at Lahore for 5 years since his retirement. All this seriously detracts from the bona fides of the alleged need which too has not been proved in this case in its literal sense conveyed by its ordinary dictionary-meaning and is quite different and distinct from a mere desire or wish.

6. In reply, learned counsel for the respondent has laid much emphasis, like the Rent Controller, on the non-occupation by the landlord of the adjoining flat owned by him and its not having even been rented out by him to anyone. This fact, even if correct in its own way, is not capable of leading to an irresistible conclusion that the landlord may therein have been only waiting for possession of the flat in dispute and it can well be that he may not have either found a suitable tenant for the other flat or his demand of rent for the same may not be acceptable to anyone and it cannot be denied that its rental value could provide an index for that of the one in dispute. Non-occupation of a vacant house by a landlord would not be .any factor incompatible with his greed for higher rent or to else throw out the tenant in occupation by hook or by crook. Rather the bona fides of the respondent-landlord would have been made out much more forcefully in his occupying by himself the available vacant flat and then claiming that he has to make his family to join himself and the existing accommodation with him is insufficient. For reasons of his own expediency, the landlord has not adopted such a course and it would be too conjectural to impute one intention to him in preference to the other and more particularly in disregard of his conduct manifested as above and since the construction placed by the tenant on the conduct of the landlord towards the adjoining flat is in keeping with the already manifested conduct, therefore, it deserves to be accepted and more particularly so, on account of the landlord's failure to prove his plea in accordance with the connotation of the expressions appearing in section 17(ibid).

7. In the above view of the matter, the respondent landlord has failed to establish the ingredients of section 17(4)(a)(i) of the Cantonments Rent Restriction Act XI of 1963 and hence his application should have failed. This appeal is accordingly accepted and the' impugned order dated 7-6-1987 passed by the Rent Controller, Rawalpindi Cantonment is set aside with costs.

A.A./S-194/L ?????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.