IKRAMULLAH KHAN vs MUHAMMAD UMAR

' A workshop exists on the property in question. It was let out to the respondent by the present appellant on 29th July, 1958 for a rent of Rs, 40 per month which was raised to Rs 50 after a period of five or six years. On 25th April, 1973 a notice P-1 was given by the present appellant to the respondent to the effect that the appellant does not want to retain the respondent as a tenant. On 25th June, 1973 the appellant institute a suit for ejectment in a civil Court but the plaint was returned for submission before the present Court. On 3rd June, 1974 the appellant brought an ejectment petition before the Rent Controller. This was, however, dismissed on 15th January, 1976 by Mr. Abdul Haleem Sadiq, learned Rent Controller, Multan. In appeal the learned Additional District Judge set aside the order of the Rent Controller of 15th January, 1976 and remanded the case for fresh decision vide his order, dated 19th March, 1976. On remand the successor of Mr. Abdul Haleem Sadiq ordered eviction of the respondent, on 30th June, 1977. On 3rd January, 1978 the learned Additional District Judge allowed the appeal against this order and rejected the ejectment application. This has led to the present second appeal.

2. The learned counsel for the respondent has raised two preliminary objections. He has argued that in view of the amending Ordinance, 1980 the present appeal stands abated. He has also argued that the appeal in any case is barred by limitation as it was not accompanied by the certified copy of the impugned judgment and that the copy was furnished after the period of limitation had expired.

3. As regards the question of limitation the copy of the order of the Additional District Judge which went against the appellant was properly furnished alongwith the appeal within the time. The orders of the Rent Controller which were in favour of the appellant were, however, not A appended. This lapse in any case could be condoned and there is no reason why it should not be condoned. The learned counsel for the appellant relies on the case of Khair Muhammad Nizamani v. Abdul Quddus

(I) and Muhammad Daud v. Abbas All (2) in support of his contention that the omission to file the certified copy is not fatal to the appeal.

4. As regards the abatement of the present appeal the amending Ordinance of 1980 specifically provides for abatement of appeals which were instituted in the High Court after the commencement of the Ordinance of 1979. The present appeal was filed in 1978 and, therefore, it does not abate. The preliminary objections made by the learned counsel for the respondents are, therefore, overruled.

5. As regards the merits of the case the whole case turns on the determination of the question whether the premises were required bona fide for the personal use of the landlord, appellant. The Rent

(1) PLD 1965 (W. P.) Kar. 367 (2) PLD 1975' Lab. 699 ' Controller in the first round found it against the appellant but on remand this issue was decided in favour of the landlord. The appellate authority, however, has set aside the findings and has held that the appellant was not able to prove his bona fide need for personal use. For this purpose he was persuaded by the improvements made by the appellant in his case during the course of the trial and also by the contents of the notice P-1 which did not refer to the personal need of the landlord.

6. The learned counsel for the appellant has argued that notice P-I was given as a prelude to a suit and the Transfer of Property Act. He has argued that no notice was necessary under that provision of law, therefore, notice P-1 is irrelevant for the purpose of the present proceedings. Whether or not a notice was necessary in a suit under the Transfer of Property Act yet a notice has actually been given. Its contents can be read in order to see the landlord's intentions. This notice is to the effect that the landlord does not want to continue with the tenancy of the respondent. The omission to mention the personal need can lead to the B inference that the premises were not required for bona fide need by the landlord at that time but he was out to eject his tenant without any specific reason. The inference drawn by the learned Additional District Judge, therefore, is based on evidence and cannot be rejected.

7. In the application for ejectment the appellant set up a case that the premises are required for his own personal use. When he appeared in the witness-box he set up a new case to the effect that the premises were required for the use of his son. The son himself appeared as a witness. He has stated that his father has different health and that he proposes to start a business of his own for which he has received adequate training. The position adopted by the father and the son does not reconcile with each other. The father to start within his application for ejectment was quite sure that he wants to occupy the premises himself. The introduction of his son at a later stage is an improvement which can be interpreted only to show the attempt on the part of the landlord to beef up his case.

8. The appellant owns other properties also. Property Nos. 13, 14 and 16 belong to him but they are not available as they are already on 0 rent. But property No, 93 is lying vacant and no explanation has been given by the landlord that this property is not suitable for his purpose.

Considering the above circumstances the appellate authority was] justified in coming to a conclusion that the need for personal use of the landlord was not bona fide. There is no merit in the appeal. It is, there-I fore, dismissed with costs.