1990 PLP 1265 (CLC)

On the pleadings of the parties the following issues were framed:‑‑ (1) Whether the opponent has committed default in payment of rent since October 1985 ? (2) Whether the applicant requires the disputed premises for the personal bona fide use of his son ? (3) What should the order be ? That the learned Rent Controller after taking into consideration the evidence produced by the parties decided the Issues Nos.1 and 2 in negative, and consequently the ejectment application was dismissed. This appeal is directed against the above order of dismissing application. Appellant Muhammad Aiwaz Khan has repeated the contents of his application in his affidavit‑in‑evidence. In cross‑examination he has deposed that it is incorrect to suggest that there are 4 shops on the plot. The Shop No.l is in occupation of Nisar Ahmed, who is running his electric goods business. The Shop No.2 is in possession of Abdul Rehman since last 4/5 years. He has denied that opponent is in possession of the disputed shop for the last 7/8 years. In the beginning the shop was rented out at the rate of Rs.80 per month. He has denied that there are 2 shops situated on the back of above shops which are in his possession. In fact that they are not in existence. Tenancy Agreement Ex.14 is not attested by any Rent Controller but the same is attested by Notary Public. It was drafted on his instructions. He has denied that at the time of execution of tenancy agreement advance rent for months, plus Rs.140 as expenses of drafting rent deed were paid to him. He has admitted that the tenancy agreement expired on 31‑3‑1986. That after expiry of tenancy agreement he served the opponent with notice dated 31‑3‑1986 which has been produced as Ex.16. He had informed his advocate about the default committed by opponent for specific month but he cannot say whether the same has been mentioned in the notice. He has admitted that it has been stated in para.5 of the application that amount of Rs.2,120 was paid to him by the opponent as arrears of rent up to month of September 1985 but he had not received advance rent for 11 months. It was correct that some times he used to collect rent from the opponent and some times his son Khalid Aiwaz Khan used to collect rent. Rent receipt dated 4‑4‑1986 bearing No.49 was not issued by him. He has denied that this receipt pertains to his book and was issued by his son, the same is produced as Ex.19. It is correct that he used to issue rent receipts to the other tenants and opponent in the name of Dr. Aiwaz Khan. He has denied that his son has received rent for April 1986 by Ex.19. He has admitted that the opponent tendered rent for the month of May 1986 to him which was refused by him, and thereafter, the opponent started depositing rent in Court. He is carrying business at Shah Faisal Colony and is running General Store as well as doing medical practice. He is a medical practitioner. His son is studying in intermediate privately. He has denied that his son Khalid is doing business alongwith him in General Store. He is running his business since last 20 years and has established business. He has not served notice to his other tenant Nisar for ejectment. Both the shops are adjacent and equal in area. Two years back the rent of the disputed premises was fixed at Rs.180 per month, no advance was taken by him from the tenant at that time. He has denied that he demanded enhanced rent from the opponent before serving notice dated 31‑3‑1986. He has denied that the application is mala fide and the shop is not required bona fide by him for himself and for his son. Khalid Aiwaz Khan son of the appellant has filed his affidavit‑in evidence in which he has stated that he is major and is son of Muhammad Aiwaz Khan. That he intends to run business in the demised shop under supervision of his father. That his father has funds to provide for business. That he is not doing any job or business anywhere else. In cross‑examination he has stated that opponent is tenant in the demised shop since last 6/7 years. He used to collect rent from the opponent as well as his father. Ex.19 pertains to his receipt book. He has admitted that he used to issue rent receipts to other tenants from the same receipt book. Ex.19 was not issued by him and does not bear his signature. He has denied that he had received rent for April 1986 and had issued receipt Ex.19. He has denied that there are two other shops behind the disputed shops. He has admitted that there are two rooms behind the disputed shops which are in possession of his father. There is a street as well as main road is in front and back side shops. He has denied that there are other shops behind the disputed shops. He has also denied that he is running business along with his father at shop which is situated at Shah Faisal Colony. He is Matriculate and will appear in Intermediate examination privately. He has denied that the shop is not required by them bona fide and the application was filed by his father in order to have enhanced rent. Opponent Abdul Rehman has repeated the assertions made by him in the written statement, and has further stated that he is tenant of Shop No.2 since last 8 years by virtue of rent agreement dated 27‑4‑1985 which later on expired. The applicant had accepted rent in advance from May 1985 to March 1986 at the time of execution of rent agreement in May 1985 which also includes Rs.140 towards miscellaneous expenses. That on refusal to accept rent by the applicant he has been depositing rent in Misc. Rent Case No.276 of 1986. The applicant had forced him to enhance the rent and on his refusal the present case has been filed. The applicant does not require the shop bona fide for himself or for his son. In cross‑examination he has admitted that whenever he used to pay rent to the landlord he used to issue him rent receipt. He has also admitted that the applicant used to write day and month on the receipt when he received rent from him. He paid advance rent to the applicant for 11 months on 29‑4‑1985 and demanded receipt from him for 11 months rent but he avoided on the pretext that he will give him receipt after getting it attested from Oath Commissioner. After one week he again demanded receipt from the applicant who assured him that he will give him receipt later on. He did not send any notice demanding receipt from the applicant. The tenancy agreement was signed by attesting witnesses namely Abdul Razzak and Muhammad Farooque. He paid advance rent for il months to the applicant in presence of his witnesses namely, Muhammad Races and Muhammad Ayub, at about 11‑00 or 12‑00 noon. He has denied that he had not paid advance rent for 11 months and therefore he was not issued any receipt. He has denied that receipt Ex.19 is forged. He has admitted that he had deposited rent in the Court after filing of this rent application. He has admitted that he received legal notice dated 31‑3‑1986 but the same was replied by him. He has admitted that he has not produced reply of notice in the Court. He has denied that at the time of service of notice 6 months rent was outstanding against him. He has denied that rent for 9 months was due against him at the time of filing of the present application. He has denied that applicant requires the demised shop for the personal bona fide use of his son Khalid Aiwaz Khan. He has admitted that he has not produced documentary proof that applicant is owner of several other shops at Hyderabad. The applicant is running School in two shops at the back of disputed shop. The two shops where applicant is running a School by name Sunny Public School were in the custody of the applicant but they have not yet started School therein therefore, he has not mentioned the same in written statement. He has denied a suggestion that there is no School behind the disputed shop. He has also denied that there is a house behind the shop where the widow sister of applicant is residing. He has denied that he possesses shop near Jamia Masjid, which he has taken on rent from some body. He has denied that witness Muhammad Ayub is related to him. Muhammad Races witness of the applicant/respondent has filed affidavit‑in‑evidence in which he has stated that opponent is tenant in shop No.2 at monthly rent of Rs.180 vide rent agreement dated 27‑4‑1985, which was executed in his presence. The opponent had paid 11 months rent i.e. from May 1985 to March 1986 amounting to Rs.1,980 plus Rs.140 towards expenses of rent agreement in his presence, and in presence of Muhammad Ayub, Abdul Razzaq and Muhammad Farooque. The demised shop is not required by the applicant in good faith for his son as he has two shops in his possession on the other side of the said plot, apart from these two shops the applicant and his son are running general store and dispensary at Katcha Klila Hyderabad. The applicant has filed the present application mala fide in order to have enhanced rent from the opponent. In cross‑examination he has stated that opponent Abdul Rehman is not his cousin. The shop in question is situated at the distance of 400 yards from his shop. There are two other shops in front of the road. One shop is in possession of the opponent while other is in possession of Nisar. When he filed affidavit in the Court there was no School behind back of the disputed shop. He has admitted that the widow sister of the applicant is residing behind the disputed premises. When the opponent paid rent for 11 months, he did not get receipt for that amount, at that time Abdul Razzak and Farooque were present. The tenancy agreement was got typed by the applicant. He was not witness of the tenancy agreement. He did not know if the opponent has paid rent to the applicant from October 1985 to March 1986. He has denied a suggestion that applicant requires the disputed shops for the personal bona fide need of his son, as he has got 4/5_ shops. He has no documentary proof that applicant has several other shops at Hyderabad. He has admitted a suggestion that opponent has taken a shop on rent in Jamia Masjid Unit No.8 Latifabad, Hyderabad. He has denied that opponent has shifted his business in the shop at Jamia Masjid and he is using the disputed shop as godown. Another witness Muhammad Ayub has filed his addidavit‑in evidence supporting the respondent and his witness Muhammad Raees. In cross -examination he has stated that the opponent paid rent for 11 months to the applicant in his presence at 11/12 noon, at that time he (witness) Abdul Razzak, Muhammad Farooque and Raees were present. The tenancy agreement was got written in the premises in question. He is also witness of tenancy agreement. He did not know who had typed the tenancy agreement. There are two shops behind the back of the disputed shop, where School is being run. He cannot say whether at present School is still running but it was being run when he used to visit the premises. He did not know if the sister of the applicant is residing behind the disputed shop. He has admitted that the opponent has taken a shop on rent near Jamia Masjid Unit No.8, Latifabad. He did not know if the applicant requires the disputed shop for personal bona fide use of his son Khalid. He has denied a suggestion that he does not know the facts of the case and he was deposing at the instance of the opponent. He has denied that at present one Haji Nisar is tenant in the adjoining shop where he is running his business of making Iron Gates and Grills. I have heard Mr. Raja Khan learned counsel appearing for the appellant, Mr. Jamshed Ali Khan lzarned counsel appearing for the respondent, and have also gone through R & P of the case. It was contended by Mr. Raja Khan learned counsel appearing for the appellant, that the appellant had proved that the respondent had failed to pay nine months rents up to the time of filing of the ejectment application and the learned Judge has erred in deciding issue regarding default against the appellant. He has further contended that the appellant had proved before the learned Rent Controller that he required the demised shop for the bona fide use of his son and the learned Rent Controller had erred in deciding the issue regarding bona fide requirement against him. Mr. Jamshed Ali Khan learned counsel appearing for respondent has contended that the appellant had failed to prove default as well as personal bona fide need and therefore, the learned Rent Controller had rightly decided the two issues against appellant. I have considered the contentions of the learned counsel. The applicant has specifically stated in the ejectment application that the rent was payable in advance before the 5th day of each calendar month. That the opponent is wilful defaulter in respect of payment of rent since October 1985. That under the agreement in case of default of payment of monthly rent or electric charges for two months consecutively the opponent shall be liable to ejectment. These assertions had been repeated by the applicant/appellant in his affidavit‑in- evidence. It has been admitted by the respondent in cross‑examination that whenever he used to pay rent to the landlord, he used to issue rent receipt to him. He has also admitted that the applicant used to write day and month on the rent receipt when the same was received from him. The stand of the respondent that he paid 11 months rent in advance to the applicant on 29‑4‑1985 but he did not issue receipt on the pretext that he will give the same after getting it attested from Oath Commissioner appears to be absurd and afterthought. This 11 months rent is said to have been paid to the appellant at the time of execution of rent deed but the same has not been mentioned in the rent deed. Had the rent been paid in advance as stated by the respondent there was no earthly reason not to mention the same in the rent deed. As far as the evidence of witnesses Muhammad Races and Muhammad Ayub examined by the respondent is concerned, the same appears to be absurd and unbelievable inasmuch as if they were present at the time of execution of rent deed then why none of them acted as witness to the execution of rent agreement. Witness Muhammad Ayub has stated, in cross- examination that he is also witness of tenancy agreement but surprisingly enough the rent deed' does not bear his signature. Even it was not suggested to the appellant in cross‑examination that he had received the advance rent for 11 months in presence of witnesses Muhammad Raees and Muhammad Ayub. Even respondent himself does not say that the tenancy agreement was signed by Muhammad Ayub as well. The notice dated 31‑3‑1986 copy of which has been produced as Ex.16 shows that the respondent had failed to pay six months rent as contained in para.3 of the agreement of tenancy and thus he was wilful defaulter. Admittedly the respondent did not send any written reply to the appellant in response to the above notice and his contention that he had replied the same orally is absurd and cannot be accepted. The observation of the learned Rent A Controller that the appellant/landlord has not clearly mentioned the specific period of arrears is against the record inasmuch as the period of default has been specifically mentioned in the notice, application and the affidavit‑in‑evidence. In view of the above discussion, I am of the considered view that the appellant had proved that the respondent was a defaulter. Adverting to issue No.2, it is the case of the appellant/landlord in his application that he required the demised shop for his own use and for the use of his son. In para.4 of the notice dated 31‑3‑1986, it has been specifically mentioned that the applicant requires the premises/shop for his personal use and for the use of his son and other family members. This assertion has been repeated by the appellant in his evidence and he is further supported by his son Khalid Aiwaz Khan. On the other hand the evidence of the respondent shows that the shop in question is not required by the applicant bona fide but he wanted to enhance reftt. In cross‑examination he has admitted receipt of notice dated 31‑3‑1986. He has further stated that he has not produced documentary proof to show that applicant is owner of several other shops at Hyderabad. The applicant is running a school in two shops at the back of disputed shop. He has denied a suggestion that there is a house behind the shop where the widow sister of applicant is residing. He has denied a suggestion that he possesses shop near Jamia Masjid, which he has taken on rent. Witness Muhammad Raees produced by the respondent has admitted in cross‑examination that there are two shops in front of the road out of which one in possession of the opponent and the other shop is with one Nisar. At the time when he filed affidavit in the Court there was no school behind the back of the disputed shop. He has further admitted that widow sister of the applicant is residing behind back of the disputed premises. He has further admitted that he does not know whether the opponent has paid rent to the applicant from the month of October 1985 to March 1986. The applicant does not require the shop in question for his son as he has got 4/5 shops. He has no documentary proof that applicant owned several other shops. He has admitted a suggestion that opponent has taken a shop on rent in Jamia Masjid Unit No.8 Latifabad, Hyderabad. He has denied that opponent has shifted his business to that shop. Witness Muhammad Ayub has stated in cross‑examination that there are two shops behind disputed shop, where School is being run. He could not say whether at present School is being run but it was not run when he was visiting the place. He did not know that presently the sister of the applicant is residing behind the disputed shop. He has admitted, that the opponent has taken a shop on rent near Jamia Masjid Unit No.8 Latifabad, Hyderabad. He does not know whether applicant requires the premises in question for personal bona fide use for his son namely Khalid Aiwaz. He has denied that presently one Haji Nisar is tenant in the adjoining shop where he is running business. From the above discussion, it is clear that the applicant is not in possession of any shop in the building where the demised shop is situated. It is also clear that witnesses Muhammad Ayub and Races do not know whether the applicant requires the demised shop for the bona fide use of his son. Admittedly the two shops on the front side are in possession of the respondent and one Nisar, while the two rooms behind the demised shop are in possession of the sister of the applicant who is residing there. In this view of the matter, the appellant has successfully proved that he requires the demised shop for personal bona ride need of his son and the finding of the learned Rent Controller is, therefore, untenable and the same is set aside, and the issue No.2 is decided in affirmative. In view of the above discussion, this appeal is allowed. The impugned order passed by the learned Rent Controller is set aside, and the respondent is directed to hand over vacant possession of the demised shop to the appellant within four months subject to the condition that he continues to pay monthly rent regularly on or before 10th of every calendar month. In case the respondent fails to hand over vacant possession to the appellant as directed, the learned Rent Controller shall issue writ of ejectment without issuing prior notice to the respondent, in case any execution application is filed. A.A./M‑1081/K Appeal allowed.