1994 (PLP)

The appellant has called in question the order passed by the First Senior Civil Judge and Rent Controller, Karachi Central dated 13-11-1989 dismissing an application which had been filed by him under section 15 of the Sindh Rented Premises Ordinance.

2. The appellant had sought ejectment of the respondent from the demised shop situated in Nazimabad, Karachi which had been let out to the latter on a monthly rent of Rs.235. It had been alleged that the respondent had committed default in payment of rent as after paying rent for the month of November, 1982 he started depositing monthly rent in Court with effect from December, 1982. Thereafter, the respondent committed default as rent for July, September and November, 1983 was not deposited by the 10th of the succeeding month. It was further alleged that .rent for November, 1983 and December, 1983 was also deposited late by the respondent. The respondent had also committed default in regard to rent due for the months of January and February, 1984. It was further alleged that the shop in question was required in good faith for the personal use and occupation of the appellant as he was a practising lawyer.

3. The application was resisted by the respondent.

4. Upon the evidence recorded by the learned Controller the learned Controller found that rent was paid by the respondent to the appellant up to December, 1982 and thereafter rent for the months of January, February and March, 1983 was tendered by the appellant by three money orders and after refusal of the appellant to accept the same the respondent started depositing the rent in Court vide Miscellaneous Rent Case No. 855/83. However, according to the learned Controller, there was no such material placed on record by the appellant from which the alleged default could be spelt out. The learned Controller was also not impressed by the appellant's plea in regard to his personal requirement as according to him, the appellant had admitted in his cross-examination that he had previously filed a rent case against the opponent in respect of the shop in question on the same ground of personal requirement but the case was subsequently withdrawn by the appellant. The appellant, according to the learned Controller, had also admitted in his cross-examination that he had let out a house consisting of three rooms to one Mr. Aijaz and other premises situated on the first floor of the house to Mr. Humayun during the pendency of the ejectment proceedings:

5. Although I am inclined to agree with the findings arrived at by the learned Controller on the first issue in respect of the alleged default but so far as the findings on the other issue are concerned, the same, in my opinion, are liable to be reversed. Although the shop in question is admittedly a small shop nevertheless choice of the premises remains with the landlord and it is not for the tenant to determine the requirement of the landlord. So far as the allegation that the landlord had previously filed a rent case on the ground of personal requirement in 1981 which was subsequently withdrawn is concerned, although there appears to be no controversy in respect thereof but, as was explained by the appellant during his cross-examination, the case was withdrawn by him on intervention of the people of Mohalla and the appellant had agreed to allow a year's time to the respondent to occupy the premises on the condition of enhanced rent. The case was thus compromised on the said terms. It may be pointed out that the mere fact that the rent application earlier filed by the appellant was withdrawn does neither operate as res judicata nor the same J militates against the bona fides of the appellant. Another ground which prevailed upon the learned Controller was that the appellant had let out two tenements during the pendency of the ejectment proceedings but, again the learned Controller has failed to realize that the premises let out by the appellant during the pendency of the case were of residential nature. In any case, they were different from the premises in question. The appellant has explained that he was sharing his chamber with another advocate which is situated in Sunny Plaza, Hasrat Mohani Road, Karachi but the premises in question was suitable for the requirements of the appellant. What the learned Controller had to consider in the circumstances was the nature of the premises required by the appellant and the premises let out by him during the pendency of the case. As evidently the nature of the premises let out by the appellant during the pendency of the case was different, the same in no way could militate against the, appellant's bona fides. The appellant appears to have prima facie established that the premises were reasonably and in good faith required by him for his personal use and nothing could be placed on record by the respondent to render the genuineness of the appellant's case doubtful.

6. In the result, the appeal is allowed and the order of the learned Controller is set aside and the respondent is directed to hand over possession of the premises to the appellant. However, two months' time .is allowed to the respondent to vacate the premises. A.A./W-94/K Appeal accepted