1985 PLP 215 (MLD)

Date of hearing: 12th December, 1984. This is a second appeal filed by the appellant/landlord. An ejectment application had been filed on 22-8-1974 by the appellant for the ejectment of the respondent from the residential house in question on the following grounds:- (a) Default in the payment of rent since March, 1974. (b) Personal requirement of the appellant and his, family. (c) Unauthorised construction made by the respondent/tenant without prior approval of the appellant. The ejectment application was resisted by the respondent who denied the various allegations made in the ejectment application. On behalf of the appellant, the appellant himself gave evidence. On behalf of the respondent, apart from examining himself, the respondent examined two other witnesses, namely Noor Muhammad and Qasim. By order, dated 18-11-1975, learned Rent Controller Karachi allowed the ejectment application of the appellant on the ground of personal requirement and on the ground that respondent had made default in the payment of rent with effect from March, 1974. The ground of unauthorised construc tion was not accepted by the learned Rent Controller. An appeal was filed by the tenant and by order, dated 29-4-1982, the learned VIth Additional District Judge, Karachi allowed the appeal. Being aggrieved, the present second rent appeal has been filed by the appellant/landlord. I have heard Mr. A: Aziz Shaikh, learned counsel for the appellant and Mr. Umar Yusuf Dada, learned counsel for the. respondent.

2. On the ground of personal requirement the case of the appellant was that he and his family members were residing in a one-roomed rented premises and the landlord of that rented premises had obtained en order of ejectment against the appellant. In the ejectment application, the appellant did not disclose that in all he owns three houses and one godown. In his cross-examination, however, he has stated as follows:- "I have two other houses also which are rented out to tenants. It is a fact that I sold my one house to Hussain Bhai before about 6 months of filing the present case. It is a fact that I had accepted one Juma as my tenant after receiving Pagri of Rs.8,000 or near about. I sold that house. There is my godown which is on rent. It was previously a house."

3. From this evidence it is apparent that all this evidence was intentionally withheld by the appellant. From the ejectment application he wanted to give an impression to the Rent Controller that he had only one house which was in occupation of the respondent whereas he himself was residing in a one-roomed rented premises. On the basis of the facts that later on came on record in the cross-examination of the: appellant and from the evidence. adduced by the respondent it had become obvious that the ground of personal requirement was taken in the ejectment application with mala fide intention. The appellant had no case at all for requiring the premises in question on the ground of personal requirement. The finding of the learned Rent Controller on the ground of personal requirement in favour of the respondent has been rightly reversed by the First Appellate Authority.

4. On the ground of default, the learned Rent Controller found "that rent had been paid up to February; 1974 and that rent since March, 1974 had not been paid and that money order alleged to have been sent by the respondent of Rs. 40 that is for the two months. rent, in June, 1974 was not proved by the respondent to have been sent. As far as the sending of the money order is concerned, the original money order coupon is on record. No doubt the appellant had denied in his cross-examination that he had refused any money order but on the other side there is the documentary evidence in the form of the money order coupon supported by the evidence of the respondent. Then it has come on record through documentary evidence that in July, 1974, the respondent, after filing a miscellaneous rent application, started: depositing rent with the Rent Controller. The First Appellate Authority has taken the view that the money order had been sent in June, 1974 and on the basis of the evidence on record I am not inclined to interfere in such finding of the First Appellate Authority.

5. The only other point that remains to be considered and decided as regards the default is the payment of rent for the month of March, 1974. Mr. A. Aziz Shaikh, learned counsel for the appellant, very frankly and very fairly conceded that in case the evidence about the sending of the money order is accepted and it is also accepted that the rent of March, 1974 had been paid, there would have been no default as there was no agreement in writing between the parties existing at the time in question. It has also been noticed that , the ejectment application had been filed on 22-8-1974. On the question of payment of rent for the month of March, 1974, according to the learned counsel for the appellant, ' as no receipt has been produced, the finding of the learned Rent Controller that rent of March, 1974 also had not been Paid should not have been reversed by the First Appellate Authority. This question has to be decided on the basis of the entire evidence on record. No doubt the receipt of December, 1973, January, 1974 and February, 1974 have been produced. But there is some evidence on record about the payment of rent of March, 1974 and that is, evidence of the respondent himself and the evidence of his relative Qasim. The assertion on behalf of the respondent was that the rent was being collected by son of the appellant and the appellant had also admitted in his evidence that the rent was being collected by his son. On this evidence coupled with the fact ,that the son of the appellant did not appear in the witness-box, the reversal of the finding that rent of March, 1974 had not been paid is neither arbitrary nor perverse. Another view might have been possible but the view of the First Appellate Authority is also possible on the evidence on record. In the circumstances I am not inclined to interfere with ,the order of the First Appellate Authority.

6. I find no merit in this appeal, Second Appeal. No. 55 of 1982 is dismissed taut with no order as to costs:

7. It is further ordered by consent that the rent of December, 1984 will be deposited as previously and with effect from January, 1985, the rent will be paid directly by the respondent to the appellant. All the rent that has already been deposited and that will be deposited in future by the respondent can be withdrawn by the appellant. H.B.T. Appeal dismissed.