1986 PLP 705 (CLC)

This appeal is directed against the ejectment order passed by the Assistant Sessions Judge and Rent Controller on 4‑1‑1983. The tenancy and the rate of rent at Rs. 405 per month is not denied. The ejectment had been claimed on the basis that rent for the month of October to December, 1974 had not been paid. It was further alleged that the applicant and his wife were old persons and, therefore, they feel difficulty in climbing the first floor. The disputed premises are situated on the ground floor. The applicant had also claimed that he had grown up children and needs the ground floor.

2. In the written statement, the allegations about default and personal need were denied. It was alleged that the respondent had sent two months rent for October and November but he had not issued the receipts. It was further alleged that the rent of December, 1974 was agreed to be adjusted towards the repairs of the premises which was to be carried out by the appellant.

3. Issues of default and personal need were framed. The applicant examined himself and stated that he had not received the rent for October to December, 1974. He further stated that he used to repair the premises and that he had not agreed to any repairs being done by the appellant nor he had received two months rent and had not issued receipts for the same. He also filed certified copies of two D.Ws. Nos. 229 of 1974 and 330 of 1974 where the appellant had filed his counter‑affidavit stating that he could not pay the rent due to financial difficulties. He stated that his one son and daughter is residing with him as well as his own wife. He stated that the premises on the ground floor and the first floor are the same. He admitted that there were 5 persons living in the premises with him and that the disputed premises had changed many hands. Mr. Wajahatullah who is son of the appellant examined himself in defence. He stated that rent was paid for two months but receipts had not been issued for October and November, 1974. He also stated that they had made repairs and rent of June, 1974 was agreed to be adjusted for the same. He also stated that there were 5 family members of the applicant when they have taken premises and only 3 persons who are residing now. He further stated that the applicant wanted to increase the rent. In cross he stated that they paid rent in first week of December but he could not give the exact date. He denied that they have not paid the rent from 1‑8‑1973 to 13‑3‑1974. He did not know whether the distress warrant had been filed or not. He denied that there was only one room on the first floor. Mat. Kaneez Firdous, wife of the appellant has supported the statement of Wajahatullah but she contradicted Wajahatullah in her cross‑examination by saying that rent of October and November, 1974 was paid by her husband while Wajahat has stated that it was paid by him. She, however, admitted that the respondent was an aged man. Gulzar has made a statement to the same effect.

4. Mr. Mushtaq Riazi has stated that there was only one month's rent due when the present application was filed on 9‑1‑1975 and that the same should have been condoned in view of the fact that there was dispute in respect of the payment of rent. He further stated that Distress Warrant was of no consequence because thereafter the tenancy had been continued.

5. The Rent Controller has found that the rent for October to December, 1974 was not paid by the appellant. The finding is justified in view of the fact that the appellant had not come into the witness‑box personally and, therefore, there was hardly any evidence on the point of tendering of rent by the appellant. Moreover, on the crucial point of payment of rent of November and October, 1974, there was a material difference in the deposition of Wajahat and his mother. Wajahat had claimed that he had paid that rent while Mst. Kaneez stated that the rent had been paid by her husband, the appellant. Gulzar had tried to explain the situation by saying that the rent had been paid by the appellant in the presence of Wajahat. However, I find that the statement of the respondent on this point has not been sufficiently damaged and he has stood his ground and clearly deposed that he has not received any rent from the appellant.

6. However, since there was only one month's default in the payment of rent of October, 1974 when the present application was filed on 9‑1‑1975, therefore, I am of the view that on the basis of default in payment of one month's rent the application for ejectment should not have been allowed but the discretion in favour of the tenant should have been exercised and the appellant should have been allowed to deposit the rent which was due from him. Mr. Mushtaq has told that the same had been deposited by the appellant

7. In respect of the personal need for the premises the respondent had admitted that he had got his daughter married after renting out the premises to the present appellant. He also admitted that previous to that his daughter used to reside with him on upper floor. He also admitted that 5 persons used to reside previously with him and he further admitted that the ground floor was in possession of the opponent before the present appellant and that many tenants had changed in the said premises.

8. I am, therefore, of the view that the respondent had not been able to prove that he was really in need of more accommodation because two of his daughters had been married and his need had, therefore,) been reduced.

9. However, on the point of convenience I find that Murtaza Khan` was 66 years of age and his wife also about 60 years old and since he and his wife are finding it difficult to ascend the stairs, therefore the need for shifting to the ground floor from the first floor had been clearly proved by him. In fact, the same had even been admitted by Mst. Kaniz in the last portion of her cross‑examination.

10. Mr. Musthaq has made a statement on behalf of the appellant that the appellant has no objection to go to first floor if the landlord wants to shift on the ground floor. I would, therefore, allow this appeal with the modification that the appellant and respondent will exchange the accommodation which is at present in their occupation if the same is considered as convenient by the respondent. This appeal is, therefore, allowed. H.B.T. Appeal allowed.