1988 PLP 244 (MLD)

M. Sajad E. Halai for Appellant. Muhammad Sadik for Respondent. Date of hearing: 29th February, 1988. This appeal under section 21 of the Sind Rented Premises Ordinance, 1979, is filed by the. appellant/landlord against the order of the Rent Controller dated 21‑12‑1983. By the impugned order the Rent Controller dismissed the application of the appellant for eviction of the respondent on the grounds of default and personal bona fide requirement. The default was alleged in the application from September, 1978 while the personal bona fide requirements were expressed on the ground that the premises occupied by the respondent were needed by the appellant for his own use as well as for the use of his family and dependant children. On the issue of default the Rent Controller reached the conclusion that the rent for the months of September, October and November 1978 was sent by money orders which was established by Ex. 5‑A, 5‑B, and 5‑C, (the money order coupens). It was also concluded by the Rent Controller that after refusal of the rent by the appellant the respondent started depositing rent in Misc. Rent Case No. 5849 of 1978. On the issue of personal bona fide requirement the Rent Controller reached the conclusion that the evidence led by the applicant did not establish a case of personal bona fide requirement. In arriving at this conclusion the Rent Controller took into consideration the fact that the appellant failed to establish any new circumstance having been created after letting out of the premises in question to the respondent Learned counsel for the appellant contends that the findings on both the issues are not supported by the evidence on record and the conclusions arrived at by the Rent Controller are otherwise based on conjecture. In so far the issue of default is concerned the Rent Controller reached the conclusion that the rent was tendered by the respondent for the months of September, October and November, 1978 by money orders and this fact is not disputed in evidence by the appellant. The learned Rent Controller also mentioned while dealing with this issue that after refusal of the money orders by the landlord/appellant the rent was being deposited by the tenant in Miscellaneous Rent Case No. 5849 of 1978. Although no receipts were produced before the Rent Controller to establish the deposit of rent by the respondent in Court but in this appeal the learned counsel for the respondent has placed before me photo copies of the rent receipts showing deposit of rent by the appellant in Miscellaneous Rent Case No. 5849 of 1978. I had given time to the learned counsel for the appellant to go through these receipts and show if there was still any default in payment of rent after taking into consideration the amount deposited by the respondent through these receipts in the above rent case. Learned counsel though admitted that if these deposits are taken into consideration there would be no default but made a grievance that these receipts should have been produced before the Rent Controller at the time of leading evidence in the case. It is true that these receipts were not produced before the Rent Controller but the fact remains that if the rent was deposited by the tenant before the Rent Controller whether he could still be treated as a defaulter for the technical non‑compliance of the procedure namely non‑production of the receipts before the Rent Controller. As the eviction of respondent was dependent on a finding by the Controller that he has failed to pay or tender rent in accordance with law it cannot be held so in the present case m view of the above evidence of deposit of.rent by him. As already stated above the learned counsel for appellant does not dispute that if these payments are taken into consideration there would be no default on the part of the tenant, I see no reason to interfere with the finding of the Rent Controller on this issue. The second issue which was decided against the appellant in the rent case related to the personal and bona fide requirements of the appellant. The appellant in his rent application in paragraphs 4 and 7 stated as follows:‑‑ "

4. That the applicant is presently staying with his son, with scanty accommodation which is not sufficient and therefore, he bona fide requires the premises in question in good faith for his personal use and for the use of his children dependents, upon him.

7. That the applicant has one wife and one daughter and the present accommodation is extremely inconvenient and uncomfortable to them. The applicant, therefore, needs the premises for his personal use in good faith." In reply to these averments all that was said by the respondent in his t written statement was that the allegations contained in these paragraphs are false. In his evidence before the Court the appellant made a statement which is consistent with his averments in his ejectment application namely that he is presently residing with one of his sons who himself is living in a rented premises F and that the accommodation therein is insufficient for him as well as for his family and dependent children. It has sufficiently come in evidence that the appellant has one wife and one dependent daughter and that at the time of institution of the rent case he was living with one of his sons who is a married person. The only suggestion made by the respondent to the appellant in cross -examination was that the real intention behind filing this application was to evict the respondent from the premises and then to sell the premises to another person. This suggestion was denied by the appellant in cross‑examination. In his own evidence the respondent stated that the real object of filing the present application is to evict the respondent from the premises and to hand over the same to another person on a higher Pagri amount. However, except the bare words of the respondent in this regard no other evidence was led to substantiate these allegations. There was neither any case pleaded in the written statement nor any suggestion made to the appellant in cross‑examination by the respondent to the effect that there has been no change in the circumstances in which the appellant had let out the premises to respondent. In the absence of any such case having been pleaded by respondent, it was not possible for the Controller to hold on the basis of evidence in the case that there was no change in the circumstances which prevailed at the time of letting out of the premises by the appellant to respondent learned counsel for the respondent attempted to build a case both before the Rent Controller as well as before this Court to justify the order of Rent Controller that the premises were let out to respondent m the year 1974 and he shifted to one of his sons and filing of present ejectment application in the year 1980 will show that during this short period of 6 years no change in the circumstances could have taken place. The argument of learned counsel is based on mere conjecture and on the finding of Rent Controller. The evidence of appellant on the issue of personal and bona fide requirement is not only consistent but nothing could be brought in his cross‑examination to shake his testimony. There is also nothing in the evidence produced in rebuttal by the respondent to contradict the appellant. I accordingly reverse the finding of Rent Controller on this issue and grant ejectment application on the ground of personal and bona fide requirement. There will be no order as to costs. The respondent is allowed four months time to vacate the premises. M.Y.H./G‑65/K Appeal allowed.