P L D 1988 Karachi 452 (PLP)

This appeal is directed against the impugned order dated 16‑‑1‑i983 of the learned IXth Senior Civil Judge/Rent Controller, Karachi, whereby application for ejectment has been dismissed. Briefly stated the relevant facts giving rise to this appeal are that Mst. Idris Begum, appellant before me, and Fahimul Hassan, respondent before me, are landlady and tenant, respectively [hereinafter to be referred as such). Tenement in question is Flat No.l on plot No.4, Qadri Manzil; Allama Usmania Colony, Karachi. Present landlady purchased this Flat from previous owner namely Dr. Zahid Hussain under a registered sale‑deed dated 18th June 1976. At the time of purchase tenant was already in occupation of Flat in question. Flat consists of two rooms, kitchen and other facilities. Landlady served notice under section 13‑A of Sind Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the said Ordinance). Landlady filed application for ejectment under section 13 of the said Ordinance on the ground of default for five months from May to September 1976 in the payment of rent at the rate of Rs.200 p.m. and also that premises were required for personal need of landlady and her family members. Tenant contested the proceedings and filed written statement in which stand was taken that at the time of purchase of the Flat by present landlady, tenant was paying rent to the previous landlord at the rate of Rs.100 p.m. which was reduced from Rs.200 as per agreement executed between them on 1‑4‑1974. It was further stated that previously rent was Rs.2Q0 p.m. vide agreement dated 6‑10‑1973 but subsequently it was reduced for consideration. It was further submitted in the written statement that tenant attempted to pay rent to the landlady at the rate of Rs.100 p.m. but that was not accepted so he started depositing the same in the Court of Rent Controller in Rent Case No.3940/1976. Requirement of premises for personal need was also denied. Keeping in view the pleadings of the parties two issues were framed one with regard to the default and the other with regard to personal need. In evidence landlady examined her husband Inayatur Rehman and tenant examined his brother and attorney Saeedul Hasan. After assessing the evidence brought on the record and hearing the counsel for parties, .the learned Rent Controller came to the .conclusion that rent payable was at the rate of Rs.100 p.m. as such there was no default and further that the landlady has failed to produce satisfactory evidence to establish her need to be bona fide and in the result application for ejectment has been dismissed. It would not be out of place to mention here that before the trial Court first on behalf of the landlady, her attorney Jalilur Rehman filed affidavit of evidence but subsequently his affidavit was withdrawn by the counsel and in his place Inayatur Rehman husband of the landlady filed his affidavit of evidence and was cross‑examined. According to this witness, his wife purchased from Dr. Zahid Hussain building on Plot No.4 in Usmania Society vide registered sale‑deed dated '18th June 1976. At that time in the Flat on the ground floor there was tenant about whom the previous landlord stated that he is there on monthly rent of Rs.200 p.m. and previous landlord also gave copy of rent deed executed between them on 6th October 1973 (Ex.P/2 and three old rent receipts Exhs.P/3, P/4 and P‑5) showing rent paid by the tenant at the rate of 200 p. m. Subsequently landlady served notice a/s. 13‑A vide Ex.P‑7 and A.D. Ex.P‑

8. No reply was made and tenant started depositing rent in the Court at the rate of Rs.100 p.m. from 1‑9‑1976. It was alleged that tenant failed to pay rent from June to August 1976: This witness further stated that son and attorney of Dr. Zahid Hussain gave him photo copy of letter dated 3‑8‑1.976 Ex.5‑A addressed by the tenant to him which showed that there was dispute with regard to the payment of Rs.5,

000. I shall come to this letter a little later. In this context Saeedul Hasan has stated in his affidavit of evidence that tenant was inducted into possession by Zahid Hussain under an agreement dated 6‑10‑1973 at the rate of Rs.200 p.m. but subsequently previous landlord offered to reduce the rent to Rs.100 if the tenant paid to him a sum of Rs.5,000 as that landlord was in dire need of funds. This offer was accepted and the tenant paid Rs.5,000 in cash and previous landlord executed fresh lease agreement dated 1‑4‑1974 whereby rent was reduced from Rs.200 to Rs.100 p. m. Photo copy of the lease agreement has been produced. Four rent receipts Annexures E‑1 to E‑4 have been produced showing rent paid at the rate of Rs.100 p. m. and accepted by the previous landlord. Last rent paid was for May 1976 to previous landlord who issued receipt dated 5‑5‑1976 Annexure E‑

4. This witness has admitted that tenant received notice dated 13‑8‑1976 from the new landlady in the last week of August 1976. Tenant contacted husband of the landlady and offered to pay the rent at the rate of Rs.100 but he refused hence the tenant sent the rent for the months of June, July and August 1976 by money order No.456 dated 4‑9‑1976 which was refused. Money order is produced as Annex: G After that tenant deposited rent in the Court from June to September 1976. One short point can be disposed of here. Assuming for the sake of argument without conceding that as claimed by the tenant rent was Rs.100 p. m. Last receipt produced is dated 5‑5‑1976 showing rent paid for the month of May 1976. Tenant has also produced receipt of money order showing that attempt was made to pay rent for the month of June at the rate of Rs.100. Photostat copy of portion of money order produced is Annexure 'F'. There is no endorsement or report of postman on this paper showing that landlord refused to accept this money order. Similarly there is Annexure 'G' produced by the tenant which shows that Rs.300 were sent by money order to Mst. Idris Begum at the rate of Rs.100 p. m. as rent for the months of June, July and August 1976. On this also there is no endorsement or report of the postman whether it was refused or returned. Now if tenant takes the stand that these money orders were returned he should have produced some satisfactory evidence to satisfy the Court by examining the Postmaster, that the rent was refused. The very fact that attempt was made to send rent for three months together by money order Annexure 'G' shows that default was committed. Another thing is that tenant has admitted that rent was deposited in the Court from June to September 1976 which also itself proves that default has been committed. This is so because rent is to be paid every month and not in lump sum. In order to avoid default tenant should have started depositing rent in the Court at the very initial stage. In this case for example when tenant came to know that previous landlord refused to accept rent, he should have straightaway made an attempt to send it by money order and then when he came to know that landlord was not accepting the rent he should have straightaway deposited the same in the Court and he should have continued depositing the same month by month. If tenant chooses to deposit rent in lump sum in the Court then it will be for him to explain because otherwise in the ordinary course of default would be very conveniently attracted. Now we come to the controversy between landlord and tenant on the question of rate of rent. According to the landlady rent is Rs.200 p. m. and she was so informed at the time when the Flat in question was purchased from the previous landlord and at that time tenant was in occupation of it. Landlord told the new landlady that tenant was paying rent at the rate of Rs.200 p.m. and also gave her an agreement Ex.P/2 executed between tenant and the previous landlord on 6th October 1973. This agreement clearly shows that rent payable was at the rate of Rs.200 p. m. Tenant has admitted execution of this agreement. Previous landlord also gave to the new landlady three rent receipts showing tenant was paying rent at the rate of Rs.200 p.m. Ex.P‑3 shows rent of March 1974 was paid at the rate of Rs.200. On 5‑3‑1974, Ex.P‑4 shows rent for October, 1973 was paid at the rate of Rs.200 on 5‑10‑1973 and Ex.P‑5 shows rent for the month of November 1973 was paid at the rate of Rs.200 on 5‑11‑1973. On the basis of these documents landlady was very much positive about the quantum of rent payable by the tenant and sent notice under section 13‑A of the said Ordinance on 19th August '76 in which she has very categorically demanded rent at the rate of Rs.200 p.m. Saeedul Hasan on behalf of the tenant has admitted in his affidavit of evidence in paragraph 5 that notice under section 13‑A of the said Ordinance dated 19th August 1976 from the landlady was received by the tenant in the last week of August 1976 whereupon tenant contacted husband of the landlady and pointed out to him that rent of the Flat was Rs.100 and not Rs.200 as alleged. It is not understandable as to why written reply was not sent against that notice. The tenant very easily could have sent written reply giving in details all what he wanted to say about agreement between him and the previous landlord about reduction of rent. Tenant in his written statement filed in the Court of Rent Controller has not spoken about advance of Rs.5,000 but stated in paragraph 2 thereof that for consideration a fresh agreement of tenancy was executed on 1‑4‑1974 under which the rent was reduced from Rs.200 to Rs.100. Saeedul Hasan in his affidavit in paragraph 3 has stated that tenant paid Rs.5,000 to the landlord who reduced rent from Rs.200 to Rs.100 vide agreement dated 1‑4‑1974. This agreement dated 1‑4‑1974 is available on the record as Annexure 'D'. It shows that it is executed between Fahimul Hasan and Zahid Hussain. It also shows that rent is Rs.100 p. m. It does not show that rent is reduced from Rs.200 to Rs.100. The fact about reduction of rent is not mentioned at all in this agreement. There is no mention in it about advance of Rs.5,000 given to landlord. On the other hand formate of agreement appears to be routine and it shows that it was for eleven months. What is favourable to the tenant is a fact that there are few receipts on the record showing that rent for the months of May, January, April and May was accepted at the rate of Rs.100 p.m. Further scrutiny shows that receipts relating to the rent for the month of May 1974 and January 1974 are not signed by any person neither by Dr.Zahid Hussain Qureshi himself nor anybody on his behalf. There are signatures on the revenue stamp paper in rent receipts of April 1976 and May 1976. Saeedul Hasan categorically stated in his cross‑examination before the Rent Controller that previous landlord took Rs.5,000 from the tenant and reduced rent from Rs.200 to Rs.100 p. m. He further stated that there was agreement with landlord for sale of Flat No.3 for which the landlord took ‑advance of Rs.2,000 from the tenant. Previous landlord did not execute sale‑deed in respect of Flat No.3 so he returned earnest money of Rs.2,

000. The amount of Rs.5,000 was in respect of disputed premises taken by the previous landlord prior to the agreement of sale in respect of Flat No.3. Athar Ali and Company were Advocates of the tenant. It is a fact that tenante served previous landlord with notice for return of Rs.5,

000. Saeedul Hasan produced photo copy of notice as Ex. 5‑A. This notice is dated 3rd August 1979 addressed by Mr. Athar Ali, Advocate to Mr. Khalid Hussain Qureshi son and attorney of Dr. Zahid Hussain Qureshi. The contents of this notice, which are very pertinent are reproduced hereunder:‑ "Dear Sir, NOTICE Under instructions and on behalf of our client Mr. Fahimul Hasan son of Rafiul Hasan, Muslim, adult, r/o Flat No.l, Plot No.4, Qadri Manzil Usmania Colony, Nazimabad, Karachi‑18, we have to state as under:‑ (1) That you had agreed to let out the above‑mentioned Flat to our client on the agreed rent of Rs.200 per month with a fixed deposit of Rs.600 i.e.(3 months advance rent) in 1973. (2) That subsequently in 1974 you told to our client that, if my client pays Rs.5,000 you will reduce the rent at Rs.100 p.m. which is the actual and reasonable rent. (3) That my client paid to you Rs.5,000 and on that basis my client has been paying the rent at Rs.100 per month to you since 1974 as per this second agreement and of which he has got the rent Receipt upto May, 1976. (4) That in June, 1976‑you approached to our client and informed him of your intention to dispose of the entire property including the above‑said premises. (5) That our clients offered to purchase above premises. (6) That you offered him to give Flat No.3 instead of Flat No.l which is in occupation of our clients. (7) That you accepted Rs.2,000 as advance for the Flat No.3 of which our client has got the receipts. (8) That you have not executed the Sale Deed of Flat No.3 in spite of repeated demands and requests. (9) That you again approached to our client and kept him on mere promises that you will give him the ground floor Flat just adjacent to our client Flat which promise has not so far been fulfilled by you and you returned Rs.2,000 in June 1976. (10) That due to your false promises our client has suffered a heavy loss and could not purchase any other suitable place and also suffered mentally. I, therefore hereby call upon you to return Rs.5,000 to our client which was kept with you as advance rent for Flat No.l and also Rs.600 as above rent deposited with you. You are also requested to send the copy of the Sale‑Deed to our client and also to inform the new landlord that Rs.100 per month are to be adjusted in future rent for the advance of Flat No.l till November 1976 as the rent of the above‑said Flat. Kindly take notice that if the reply is received within a wee k from the receipt of this Notice, my client has given clear instructions to take civil and criminal proceedings against you at your risk and costs which please note‑' It is very clear from the contents of the above notice that tenant was indulging in double talk. On one hand he stated that Rs.5,000 were paid for reducing the rent from Rs.200 to Rs.100 and at another place he called upon the landlord to return Rs.5,000 which were kept with him as advance for Flat No.l. In this context Saeedul Hasan further continued in his cross‑examination before the Rent Controller and stated that tenant has not yet filed a suit for recovery of Rs.5,000 from the previous landlord but he intends to file a suit. This witness further stated land lady made an application before Martial Law Authorities where agreement was executed between. tenant and the landlady resolving the controversy of quantum of rent with the finding that rent was at the rate of Rs.200 p. m. He further deposed that tenant filed Suit No.1762/1977 for declaration that rent of premises in question was Rs.100 p.m. but subsequently the same suit was dismissed as withdrawn. Tenant filed another Suit No.3658/78 for cancellation of agreement arrived at between the parties before the Martial Law Authorities but plaint was rejected under Order 7, Rule 11, C.P.C. vide order dated 33‑9‑1980. This witness also admitted that landlady got two distress warrants issued against the tenant and rent was recovered from the tenant at the rate of Rs.200 p.m. The learned counsel for the landlady stated that one distress warrant No.33/1978 yielded Rs.1,200 as rent for six months at the rate of Rs.200 p.m. Other Distress Warrant No.292178 yielded Rs.1,200 as rent for six months. Evidence discussed above clearly shows that so far the landlady is concerned at the time when she purchased the Flat she was given an assurance that tenant was paying rent at the rate of Rs.200 p.m. and some receipts and rent agreement in respect thereof were given to her on the basis of which she issued notice under Section 13‑A of the said Ordinance. On the basis of these documents she was fully justified to recover rent at the rate of Rs.200 and not Rs.100 p.m. This can be a controversy between the tenant and the previous landlord but certainly not the new landlord. Tenant could take step to have this controversy resolved between him and previous landlord. There is also agreement duly signed by the parties before the Martial Law Authorities Ex.P‑

10. This agreement was executed on 9‑5‑1977. f This agreement also shows that controversy was brought to an end and tenant admitted that the rent pus at the rate of Rs.200 pm. Now if tenant wanted to dispute rate of rent on the basis oaf these documents mentioned above, for him the forum is somewhere else where in fact he went and tried and filed Suit but did not succeed and did not Co further which means that he has admitted his defeat . and is satisfied with his fate that rent is Rs.200 and not Rs.100. I am, therefore, of the view that in this case default is committed and landlord is entitled to recover the rent at the rate of Rs.200 p.m. from the date of purchase of flat in question. So far issue of personal need is concerned, the case of the landlady is not very clear. In her application for ejectment in the Court of Rent Controller she stated that she purchased the property for her personal bona fide use and occupation for herself and her family. Her husband is an employee in P.I.A. and she and her husband are entitled to better and comfortable accommodation suiting their status in life. She further stated that accommodation in her possession of one flat on first floor in the same building was insufficient for her and her husband and her son and another reason was that her husband was a patient of Bronchial Asthma and doctor advised him not to climb stairs. Tenant in the written statement denied this slain: of the landlady and stated that flat in occupation of the landlady and the flat in the occupation of the tenant cannot be combined and intention of the landlady was to get enhanced rent. On behalf of the landlady Inayatur Rehman her husband stated that he was Flight Engineer in P.I.A and wanted rented premises as additional accommodation as he is chronic Asthmatic and cannot climb stairs. In the cross‑examination he stated that his family consists of three members and they are living on the first floor in which there is dining room, drawing room and one sleeping room. He described that in the flat on the ground floor which is tenanted, there are two rooms only. He further stated that he needed ground floor for himself as well as his brother. He also stated that he was residing in Turkey since 21 years on PIA duty and he temporarily comes to Karachi. On the other hand Saeedul Hasan on behalf of the tenant deposed that husband of the landlady is an Engineer in PIA and his status is such that rented premises could act be suitable for his family. Evidence produced by the parties on the ground of personal need is not satisfactory and adequate. Ejectment cannot be granted on this ground. It may be mentioned here that impugned order of ejectment was passed on 16‑1‑1983 against which First Rent Appeal was filed in the High Court on 6‑2‑1983 which became ripe for hearing on 20‑10‑1985. On the next date of regular hearing i.e. 10‑11‑1985 an application was filed by the counsel of appellant under section 21(3) of the Sind Rented Premises Ordinance, 190 for further inquiry or, the ground that Khaliqur Rehman son of landlady was minor during the pedency of the rent case and now has become adult and has get married and is in fact staying with net‑ mortar. This application is supported by affidavit of Mst. Idris Begum in which alts has stated that her scan has got married on 19‑4‑1985 and is living with his wife with her. 0f, this ground also accommodation in question was very much wanted Khaliqur Rehman himself also has filed affidavit in support of the application. On the other hand Fahimul Hasan has filed counter‑affidavit in which, he has not disputed the marriage of Khaliqur Rehman son of landlady. He has further stated that on of landlady although married but most of them resides in the house of his wife's parents and is not permanently residing with the landlady. He has also stated that tie landlady has constructed room on the top of her floor. Counsel for the landlady explained that .it eras only a tin roof. In the interest of justice and in order to reduce multiplicity of litigation I think interference is justified on this ground . Prayer of landlady that her son has got married and with his wife wants to live with her appears tea be very genuine need. If married son wants to live with his parents why he should not be able to do so. On this ground I feel inclined to grant ejectment. Factum of this marriage is not denied. There is affidavit of the landlady as well as her son. There is counter‑affidavit of the tenant and there is affidavit in rejoinder of Mst. Idris Begum. This evidence is more than enough to convince me that need of the landlady to accommodate her married son is bona fide. On this ground ejectment is granted. For the facts and reasons stated above, appeal is allowed and ejectment is granted on the grounds of default and need of landlady to accommodate her married son. Tenant is directed to hand over vacant possession within three months. H. B. T. /5020/ K Appeal allowed.