1988 PLP 2078 (CLC)

7. Making his submission regarding the alleged personal requirement of the disputed shop by the respondent for herself and her six sons who were allegedly out of employment the counsel contended that there is no reliable piece of evidence on record to substantiate this contention. He submitted that there was only a statement of the son and attorney of the respondent to this effect but it was not corroborated by any of her witnesses. The learned counsel for the appellant placed reliance on the following case: (1) Sitaldas v. Muhammad Saffar, P L D 1984 Kar. 87 In this case the default in payment of rent was said to be of 21 years. Munawar Ali Khan, J. held: " . . No plausible explanation has been given by the appellants for this delay. Normally no landlord would tolerate his tenant continuing in possession of the rented premises without paying rent for such a long period." It was, therefore, held that the landlord had failed to prove the default on the part of the tenant.

8. To substantiate the appellant's case against the ground of personal requirement, the learned counsel for the appellant, sought to place reliance on the following cases: (i) Noor Mohammad v. Iqbal Ahmed, 1985 C L C 1007. It was in that case held by Ally Madad Shah, J. as under:‑ "The expression" require the premises in 'good faith' is not without significance and it indicates that the landlord has to establish his 'good faith'. In other words, he has to establish this requirement by tangible evidence and not by only making simple statement that he needs the premises for his own use. Should mere statement of the landlord that he needs the rented premises for his own use be sufficient for obtaining eviction of a tenant, the expression, if that view were to prevail hardly a tenant can escape eviction on such ground, In the instant case, the respondent did not disclose the circumstances which had prompted him to do any business there." (ii) Barkat Ali v. Sughra P L D 1980 Kar.

223. In that case on the application for ejectment it was alleged that 4 of the applicants were unemployed and they wanted to start their business in the premises in occupation of the tenant. It was held by Fakhruddin G. Ibrahim, J. that: " .the onus was all the more on the applicants landlords to prove that they had intended to start a particular business and had the financial capacity to do so, for as late as 1966 ....................... In this state of the evidence I am in agreement with the learned counsel for the appellant that the landlords had failed to prove that they required the premises for their personal use for that burden cannot be said to be discharged by bare and bald statement in the evidence that some of the landlords were unemployed and they wanted to start some unspecified business."

9. Mr. Mohmmad Ziauddin, learned counsel for the respondent, on the other hand, submitted that the parties were at daggers drawn since long as is evident from the large number of documents brought on record, namely, Ex.l. D, a complaint by the respondent to the Martial Law Administrator, the F.I.R. lodged with Police Station Jamshed Quarters, Ex.1/K and Ex.l/N etc. He urged that s perusal of these documents also clearly establishes that the appellant was in arrears of rent from September 1972. He submitted that the dispute between the parties arose some time in 1968 after the change of the electric meter from the name of the respondent to that of the appellant. He urged that after the dispute between the parties it could not be believed that the appellant paid the rent to the respondent without obtaining a receipt. He also urged that at least the default in respect of months of May, June and July 1978 was established inasmuch as after the quarrel between the parties which led to the filing of the criminal cases and it was not possible for the appellant to have paid the rent to the respondent without obtaining the receipts.

10. In the facts and circumstances of the case I feel that I would not be in a position to pursuade myself to upheld the impugned order on any of ‑the two grounds on which the eviction of the appellant has been ordered by the trial Court. To start with one has to look at the application for eviction of the appellant made on 19‑10‑1978 under section 13 of the then West Pakistan Urban Rent Restriction Ordinance, 1959. The two grounds, namely, the default in payment of rent and the personal bona fide requirement of the applicant of the disputed premises are given in praras 3 and 5, respectively of the application which are reproduced below:‑ "(3) That the opponent has wilfully failed to tender the rent from September 1972 till today and he is in arrears of rent amounting to Rs.2,920 uptil September 1978. (5) That the six out of seven sons of the applicant are out of job and the applicant for her own benefit and for the benefit of her sons needs the shop for bona fide personal use as aforesaid. "

11. It is one of those extraordinary cases of default in payment of rent where rent for a period of six years has been allowed to remain in arrears. There is no statement made in the application with regard to the efforts made by the respondent in demanding the rent in question. It is not even stated therein as to whether any legal notice of any personal demand through some respectable persons was made to secure the payment of rent. Similarly on the point of personal requirement for herself and her six sons who were allegedly out of job, the applicant has not stated as to what were the ages, professions and the names of the sons for whom the shop was required. It is also not suggested as to what business sought to be carried out in the demised premises by the applicant and or her sons. It was at the evidence stage that the son and attorney of the respondent filed his affidavit in evidence dated 12‑12‑1979 deposing, inter alia that it was, firstly, in January 1973 that he and his brother Chand requested one Mr. Khalilur Rehman to ask the appellant to pay the arrears of rent from September 1972 at the rate of Rs.40 per month. Mr. Khalilur Rehman allegedly told the attorney of the respondent that the appellant had refused to pay the dues and claimed himself to be the owner of the shop, that in February 1977, he again requested the said Mr. Khalilur Rehman to ask the appellant to pay rent and Mr. Khalilur Rahman told him that Abdullah claims to be the owner of the shop and refused to pay the rent. And lastly, it was in March 1978 that he requested the same Mr. Khalilur Rehman to ask the appellant to pay the rent and this time he misbehaved with him. The deponent attorney further stated that he used to send respectable persons to the appellant because he had refused to talk to him. Names of those respectable persons are not disclosed by‑ him. The respondent's attorney further deposed that it was on 10th September, 1978 that he sent an application to S.H.O. Jamshed Quarters through post. The S.H.O. asked him to bring his arbitrator to police station and it was in compliance of the said direction that he took Qazi Abdus Salam to police station where Abdullah, the appellant, alongwith his arbitrator, was present. Qazi Abdus Salam asked the appellant to pay him the arrears of rent since September 1972 but the appellant thereupon lost temper and said that the suit shop was given to him by God and that he would not pay the dues.

12. With regard to the bona fide personal requirement the shop by the applicant and his six sons, the attorney of the applicant who is also his son deposed as under;‑ "That myself and my five brothers are out of job and we need the said shop for bona fide personal use and the contents of the ejectment application are true and correct."

13. It is to be seen that here the attorney excluded the applicant for whom the premises, according to the application, were required and included himself also as one of the sons for whom the shop was required. He also did not disclose the names, ages and other particulars of his other brothers who were allegedly out of job. So also he did not disclose as to what business was proposed to be done in the said shop. This issue could not therefore be satisfactorily proved.

14. Now it seems appropriate if I immediately refer to the affidavit in‑evidence filed on behalf of the applicant by Mr. Khalilur Rehman. He deposed that he is carrying on business of welding at Jamshed Road. Where the appellant also does the same business. He has then stated that in March 1973 he was requested by the applicant's son Altaf and Chand to go to the appellant to demand rent from September 1972, at the rate of Rs.40 per month since he was refusing to pay them. He accordingly went to the appellant but he refused to pay the rent and said that he was the owner of the shop. Again at the request of Altaf he requested the appellant to pay the arrears but he told him that the shop belonged to him and none also has any right on it. Lastly, in March, 1978, he again at the request of Altaf approached the appellant with a request to pay the arrears of rent. On this occasion the appellant shouted at him and said that he (the deponent) should not intervene. He then deposed that Altaf was afraid to go to Abdullah himself as Abdullah was involved in a murder case.

15. It is thus evident for the affidavit‑in‑evidence of this witness filed on behalf of the respondent that he had faithfully supported the version of the appellant's son and attorney. It is, however, significant to note that the affidavit‑in‑evidence of this witness was also sworn on the same date on which the son and attorney of the respondent had sworn his affidavit‑in‑evidence viz. 12th December, 1979. The introduction of this witness as well as the other witnesses produced on behalf of the respondent for the first time at the stage of evidence casts grave doubts on their being true witnesses. No independent person, who might have intervened or used his good office at the instance of two contesting parties, could care to remember so for exactly the month and year of his intervention in the matter as it has been done by this witness. Moreover, no independent respectable person would act in the manner at it has been done by Mr. Kalilur Rehman. He has deposed that for the first time he approached the appellant with a request to pay the rent to the respondent, he flatly refused to do so. Yet obviously for no good reason he could have thought of coming to him second and third time with the same requests. Moreover, none of the said two witnesses have deposed that it was known to him personally that the appellant was actually in arrears or rent since September 1972 onwards from the appellant. Their demand was admittedly based on the information conveyed to them by Altafur Rahman, son and attorney of the respondent. Their evidence does not, therefore, even prove the admission of the alleged arrears of rent by the appellant. The main aspect, therefore, that arises for consideration is whether the respondent had been able to prove that the appellant was in fact in arrears to rent from September 1972. Here it is to be noted that neither in the application it is specifically stated that the rent receipts were regularly issued to the appellant nor the son and attorney of the respondent in his affidavit‑in‑evidence has so said. In the absence of any such averments, I am not inclined to accept that the copy of rent receipts produced on behalf of the respondent (Ex.1/B) is a genuine document.

16. From the various documents brought on record, such as Ex. K and Ex.l/N and Ex. 1/R etc. it is evident that the difference between the parties arose somewhere in or about August 1978. In this view of the matter the stand taken by the appellant seems to be correct that the responent declined to accept the rent for the month of October 1978, which led him to remit the rent for the months of September and October 1978 through money order and upon her refusal to deposit the same and the future months rent in the Court.

17. For the foregoing reasons, I am inclined to hold that the respondent has failed to prove that the appellant was in arrears of rent from September 1972 as claimed by her. On the contrary, the appellant's statement that he had paid the rent upto the month of August 1978 remains uncontroverted inasmuch as the respondent did not come in the witness‑box to deny this fact. The attorney of the respondent having been appointed only on 10‑10‑1970 could not depose out of his own personal knowledge about a fact which relates to the period prior to his appointment. It is further pertinent to note here that it was neither pleaded nor proved that Mohammad Altafur Rahman was acting as a Rent Collector of the applicant prior to the execution of the power of attorney in his favour. Moreover, the evidence produced on behalf of the respondent in the form of Rent Receipts, Ex.l/B (if it was to be held genuine) was also to the effect that the respondent /landlady was receiving the rent personally from the appellant. I, therefore, hold that the appellant was not at all in arrears of rent so as to give her a cause of action to file the ejectment application against him. In so far as the case regarding bona fide personal need is concerned, I have already held in para 13 above that this issue also could not be satisfactorily proved by the respondent.

18. In the result, the appeal succeeds and the impugned order is set aside. The parties shall, however, bear their own costs. H . B . T . /M‑279/ K Appeal accepted.