1986 PLP 1327 (MLD)

(c) Sind Rented Premises Ordinance (XVII of 1979)‑‑ ‑‑Ss. 15(2)(vii) & 21(1)‑‑Personal bona fide requirement‑‑Proof‑ Landlord neither got examined his son in evidence for whom premises in dispute were alleged to be required nor produced other evidence to justify plea of personal bona fide requirement‑‑Landlord, held, failed to prove bona fide personal requirement in respect of disputed property in circumstances. Hassan Jaffar for Petitioner. Shahenshah Hussain for Respondent. Date of hearing; 17th March, 1986. This is a rent case which relates to a shop situating on ground floor of the Building No. 571/4, Shah Faisal Colony, Karachi. The said shop belongs to mst. Razia Sultana, wife of appellant Raisuddin and respondent Fazlur Rehman is occupying the same as a tenant. On 2‑7‑1980 the appellant instituted ejectment proceedings, seeking ejectment of the respondent from the demised premises on two grounds namely, default in payment of rent for the period from January, 1980 to June, 1980 and personal requirement. The respondent opposed his eviction denying both the allegations. The learned Rent Controller after considering the evidence produced by the parties dismissed the ejectment application by his order, dated 21‑2‑1983. Aggrieved by this order the appellant has filed the present appeal. After hearing the arguments of the learned counsel for the parties, the appeal was dismissed by short order, dated 17‑3‑1986 with no order as to costs for reasons to be recorded separately. Following are the reasons in support of the said short order. As for the default in payment of rent, the plea raised by the landlord in his ejectment application was that the respondent /tenant was in arrears of rent for six months i.e. from January, 1980 to June 1980. Total amount due from him is specified to be Rs. 1,

200. In addition to the rent arrears, the appellant has pleaded, the respondent has failed to pay electricity charges for 200 units. In support of his case the appellant has filed only his personal affidavit wherein he has repeated the above assertion made in the ejectment application, adding that the electricity charges outstanding against the respondent are Rs.

990. As against the above evidence, the respondent has deposed that he had paid the rent for the months of January, February, March and April, 19'80 to the appellant but he has not issued any receipt for the same. As for the months of May and June, 1980, his evidence is that he had tendered the rent for the said two months to the appellant but he refused to accept the same and on his refusal he sent the rent by money order which too was refused. Thereafter, he sought permission from the Court and started depositing the rent in Court. He has relied upon money order coupon in support of his contention. It is not denied that the rent for May and June was sent by the respondent through money orders but it was not accepted. However, the appellant has denied that the respondent had paid rent for four months from January 1980 to April 1980. He has also denied that he ever refused to issue receipt in acknowledgment of payment of rent for these months. Nor doubt after the appellant denied having received the rent as well as electricity charges for the aforesaid period the burden was on the respondent to prove the payment. In absence of rent receipt, it is difficult to believe that he had made the payment for the said four months. The conclusion will, therefore, be that the respondent has no paid the rent as well as electricity charges for the disputed period o four months. Admittedly rate of monthly rent was Rs. 200 and; therefore, rent arrears due from the respondent came to Rs.

800. So far electricity charges are concerned, the learned counsel for the respondent drew my attention to the order dated 31st May, 1982, which was passed in the case relating to dispute between the parties over disconnection of the electric supply to the respondent's shop. It is clearly mentioned in this order that the parties had agreed that the electricity charges would be paid by the respondent at the rate of Rs. 50 p.m. Thus, the total amount that was due from the respondent on account of electricity charges was Rs.

200. In this way the respondent was in arrears of Rs. 1,000 (i,e. rent arrears Rs. 800 plus electricity charges Rs. 200). As against this amount the learned counsel for the appellant frankly conceded that the deposit of Rs. 1,500 which was made by the respondent was lying with the appellant. According to him the only condition attached go to the deposit was that it was returnable at termination of the tenancy. Consequently, he agreed with the view that the said amount of the deposit was adjustable towards the dues against the respondent and as such if necessary adjustment was allowed no arrears would be outstanding against the respondent. This being the position, the respondent would not be ejected on the ground of default in payment of rent. As regards the ground of personal requirement taken by the appellant in support of the ejectment application, it is in the following words." that the applicant needs the premises .for his personal use." In his affidavit .in evidence he has, however, made improvement upon his pleading by stating that he requires disputed premises for his personal use, as his son Nadeem Nayar aged about 19 years has started hotel business and further that this hotel cannot be run properly unless the disputed shop is got vacated. Since he has produced no other evidence to justify his plea of personal, requirement and has not even examined his son Nadeem Nayar in: evidence, it is difficult to believe that his young son of 19 years of age, obviously lacking experience in hotel management would require the disputed shop for his hotel. It is admitted by him that hotel started by his sort has already been closed down. Moreover; he ha admitted that three other shops which were got vacated and are is possession of the appellant are lying unutilized. The only explanation furnished by the appellant for closure of the hotel is that the three shops in which the hotel was started were not sufficient for hotel purpose. My attention has been invited to judgment of this Court, dated 5‑12‑1985 in the case bearing No. First Rent Appeal No. 336 of 1983 by which the appeal filed by the same appellant against the order of Rent Controller dismissing his ejectment application in respect of another shop in occupation of another tenant has been dismissed. Only perusal of this Judgment it appears that precisely the same arguments were advanced in that case for eviction of the tenant but the learned Single Judge who has delivered the Judgment was not impressed be the arguments submitted on behalf of the appellant and, therefore, dismissed the appeal. Similarly, I am not convinced from the evidence produced by the appellant that his need of disputed shop is bona fide and is based on good faith. Accordingly the findings arrived at by the learned Rent Controller on the question of personal requirement are correct. For above reasons, as stated above, the appeal was dismissed. H.B.T. Appeal dismissed.