NATIONAL TRAVELS Versus ABDUL QAYYUM
The petitioner-tenant sought leave to appeal against the High Court's judgment dismissing its constitutional petition against an eviction order passed by the first appellate authority. The respondent-landlord had sought eviction on grounds of default in rent payment and bona fide personal need. The Rent Controller had condoned the single default in rent and rejected the personal need ground, but the appellate authority reversed both findings and ordered eviction. The Supreme Court examined the contentions regarding the exercise of discretion by the Rent Controller and the establishment of the landlord's personal need. The Court held that while the first appellate authority erred in not properly examining the Rent Controller's exercise of discretion regarding the default, the concurrent finding regarding the landlord's bona fide personal need was correctly recorded and remained intact. The Court laid down that periodic increases in rent do not negate the landlord's established personal need for the premises when the landlord is not otherwise gainfully employed. Consequently, leave to appeal was refused.
- Whether an appellate authority must examine the propriety and manner of discretion exercised by a Rent Controller when reviewing a finding of default in rent?
- Can periodic increases in rent be utilized by a tenant to challenge the bona fide personal need of a landlord otherwise established?
- Does the retirement of a landlord as a professor negate his bona fide personal need to start a business?
ORDER
SHAFIUR RAHMAN, J.- -The petitioner, a tenant seeks leave to appeal against the judgment of the High Court, dated 14-7-1987 dismissing the constitutional petition filed against an order of eviction passed by the first appellate authority.
2. The respondent-landlord sought the eviction of the petitioner on the ground of default and bona fide personal need of the premises. The Controller held that there was indeed a default in the payment of rent of one month, in view of the promptness earlier shown by the tenant in paying rent, this single default was liable to be condoned and he condoned it. The Rent Controller also doubted the bona fides of the landlord from the periodic increases of rent about his personal need and hence rejected his application.
3. On appeal, the appellate authority reversed the finding on both issues and ordered the eviction. The constitutional petition filed by the tenant failed.
Mr. M. M. Saeed Beg, Advocate, the learned counsel for the petitioner contended that the appellate authority had an erroneous impression with regard to default and the finding of the Rent Controller. The default was admittedly there and the Rent Controller was aware of it. The discretion, possessed by the Rent Controller was exercised by him on good ground in tenant's favour. The appellate authority took it as if the Rent Controller had not noticed the default as after noticing this default the appellate authority did not at all examine the propriety and the manner in which the discretion had been exercised by the Rent Controller. As regards the personal need, the learned counsel for the petitioner contended that the landlord was a Professor in Philosophy and had retired as such and this fact coupled with periodic increases in rent could justifiably give the impression of his bona fide in the matter being not established.
5. On the first ground taken up by the learned counsel for the petitioner, we quite agree with him that the first appellate authority proceeded as if the Rent Controller had not found the tenant to be in default in payment of rent of one month. The appellate authority did not at all examine why and how far the discretion exercised by the Controller in the peculiar circumstances of the case, was such as to be liable to interference in appeal. Had it been the only question, it would have been a good case for interference even in constitution jurisdiction for in deciding causes, correct awareness of the law an the powers possessed should be exhibited and the orders passed no in ignorance or in defiance of it. But the second ground of persona need and the finding of the first appellate authority on it remains intact, we find and consider it to be correctly recorded. The periodic increases in rent to which the tenant has submitted may be against law but the tenant cannot utilize it as a ground if otherwise inn need of the landlord is established. It is not the tenant's case that the landlord is gainfully employed in some other vocation. In the absence of it, his need would appear to be genuine and the suitability of the business which he want to start cannot be judged in these proceedings. Leave to appeal is, therefore , refused.
S.Q./N-39/S Leave refused.
Cited by 1 case
- BAKHT ZAMIN SHAH vs FAIZ MUHAMMAD KHAN 2003 CLC 1121