1989 PLP 4735 (MLD)

3. Admittedly, the deceased Syed Bachal Shah had paid rent to the respondent till September, 1967. It is also an admitted positron that after the property was reverted back to the respondent, he required the appellants to pay rent at the rate of Rs.400 per month from October 1967 till July, 1983, amounting to Rs.76,000 and also future rent at the same rate vide notice dated 26-7-1983. On the date of filing the ejectment application the appellants were said to be in arrears of rent amounting to Rs.76,

000. The question of default was accordingly the First issue before the Controller.

4. It was further contended by the respondent that he was in service of Pakistan Railways at Karachi, and was allotted a quarter. Upon retirement from a his service in the year 1975, the respondent vacated the quarter and shifted to the rented quarter of his son who was also an employee of Pakistan Railways at Karachi. The respondent has been living there alongwith his ten family members. It was also urged by the respondent that three of his sons were grown up and their marriages have been held up for want of sufficient accommodation. He, therefore, requires the premises in dispute for his personal bona fide use as well as for his sons and other family members while contending the second issue before the Controller.

5. The appellants, in their written statement, have denied for want of knowledge, the receipt of notice under section 30 of Displaced Persons (Compensation and Rehabilitation) Act, 1958, upon the late Syed Bachal Shah. It is also denied for want of knowledge that the deceased` had accepted the respondent as his landlord and made payment of rent to him. It is also contended by the appellant that the respondent is entitled to claim rent from the appellant from the date of issuance of PTD and therefore the appellants had not committed the default. Again it is urged by the appellants that the rate of rent was Rs.90 p.m. and accordingly they deposited the arrears of rent from July, 1967 to August, 1983 at the said rate of Rs.90 per month in a miscellaneous rent case. Hence there was no default in payment of rent.

6. With regard to issue No.1(1), I agree with the learned Ist Senior Civil Judge and Rent Controller, Hyderabad, that although the respondent has claimed rent at the rate of Rs.400 per month, there is no documentary or other satisfactory evidence to establish that the rent of the premises was Rs.400 per month. I, therefore, uphold the finding of the lower Court that the rent payable by the appellant was Rs.90 per month as admitted by them in their pleadings" and depositions.

7. The next issue relates to the question of committing default by appellant from October, 1967. It is an admitted position that on 1-10-1967 PTD was issued in favour of the appellants' father and on 11-6-1983 the Supreme Court of Pakistan in CA.No.125/75 vide judgment (Exhibit 21) set aside the order of the High Court and cancelled PTD/transfer in favour of the appellants. It is pertinent to note that whereas the appellants in para 2 of their written statement have denied the receipt of notice under section 30 of the D.P. Act and also payment of rent by their father to the respondent for want of knowledge, in para II thereof they have admitted that their father must have paid the monthly rent. In cross -examination Syed Sabir Hussain Shah, one of the appellants has admitted that the property was transferred in the name of the respondent in 1960 and his late father had been making payment of rent to the respondent upto September, 1967. He has also admitted that the tenancy agreement was executed in the year 1960 between his father and the respondent. Similarly, it is also admitted by him in cross-examination that he had not tendered or offered rent after receipt of notice dated 26-7-1983 (Exhibit 23). Under these circumstances, the burden of proof is upon the appellants to show that in any case after 11-6-1983 (Exhibit 21) when the Supreme Court of Pakistan finally dismissed the claim of the appellants over the property and restored the disputed property to the respondent why the appellants failed and neglected to tender rent to the respondent. It was as late as 16-6-1983, when RA.No.276/83 was riled by the 'appellants, in which they deposited the arrears of rent amounting to Rs.17,460 at the rate of Rs.90 per month. I accordingly hold that the, appellants have committed default in payment of rent.

8. With regard to the personal bona fide requirement of the respondent, it is contended by him that he was a Railway employee and retired from service in 1975. Upon his retirement he vacated a Railway quarter in his possession and shifted with his ten family members to another Railway quarter allotted to his son, who was also an employee of Pakistan Railways at Karachi. It is stated by him that the present accommodation is insufficient for the use and occupation of the respondent and his ten family members. Further, three of his sons are grown up and their marriages have been withheld for want of sufficient accommodation. In examination-in-chief it is stated by him as well as by his two sons namely Mirza Nasim Ahmed and Mirza Mahfooz Ahmad that the present accommodation consists of two rooms only and that the respondent does not own any property other than the demised premises either in Hyderabad or in Karachi. One Ghulam Shah, who is defence witness and also father-in-law of appellant No.1, admits that the family of the respondent consist of ten members. Similarly, it is admitted by the appellant No.1 that the respondent has three major sons. The main contention of the appellants is that whereas the respondent had retired in 1975, the present application for ejectment was filed in 1984 almost after nine years of his retirement and therefore the same is mala fide. Reference here may also be made to an extract from para 12 of written statement of the appellants, which is as follows:- "In case there would have been- insufficiency of accommodation as alleged by the applicant (respondent herein) then the rent application must have seen the light of the day in the year 1975 when the applicant retired from Railway service arid was deprived of Government accommodation and at the time there would have been every justification in the contention of applicant that on account of insufficiency of accommodation the applicant has in reality been subjected to inconvenience due to insufficiency of accommodation but having passed complete one decade in the present accommodation alongwith the members of his family at Karachi the contention of the applicant that he requires the disputed house as the applicant's present accommodation at Karachi is his sufficient loses its significance and credence."

9. Thus according to the appellants in the year 1975, when the respondent had retired and was deprived of Government accommodation, there was every justification for him to file proceedings against the appellant's ejectment on the ground of personal bona fide requirement but with the passage of time, his plea for personal bona fide requirement, has lost its significance and credence. I do not agree with the learned counsel for the appellants. Personal bona fide requirement of a landlord may exist for a considerable long time and may give rise to continuing cause of action. He may hopefully look forward to better circumstance and may refrain himself for the time being from suing his tenant on personal bona fide requirement. It is therefore erroneous to assume that he has waived his right to sue the tenant if he has not sued him at a given time. In the present case there are however much more compelling reasons than existing 9 years back for the respondent to institute ejectment proceedings.

10. The respondent by his irrebuttable evidence is able to show that his three sons are now of marriagable age and their marriages have been held up for want of accommodation. The appellants have also admitted that the respondent has three major sons and the fact that he was not aware if the respondent has any other property either in Karachi or in Hyderabad. It has not been disputed that the respondent has ten family members or that the present accommodation of the respondent consists of two rooms. The contention of the learned counsel for the appellant, therefore, does not appeal to me and therefore, I uphold the finding of the learned Controller on this issue as well.

11. Resultantly, I dismiss the appeal with costs and order the appellants to vacate the house in question within two months hereof. M.Z.S./S-469/K Appeal dismissed.