1997 PLP 2283 (MLD)

Ejectment of the appellant was actually sought by respondent on 20‑5‑1989, on the grounds firstly that she needed the premises for her own occupation and use of her family members as she was living with her husband whose house was very old which was required to be demolished for raising a new construction and secondly on the ground of default in payment of rent since July, 1987. Appellant contested eviction proceedings and specifically denied that the respondent always used to issue receipts for payment of rent. He stated that on account of non‑issuance of rent receipts and failure to accept the rent sent through money order, he was compelled to deposit rent in M.R.C. No.56 of 1988 to the knowledge of the respondent. He denied both the grounds and relied upon the averments made in the notices Annexures 'C' and 'D'. He urged hat the ejectment application had been filed for ulterior purpose and so‑called personal requirement of the premises was false and mala fide. In the first instance, respondent filed the affidavit‑in‑evidence of her husband/Attorney while the appellant did not appear to contest the proceedings. As a result thereof, an ex parte eviction order was passed against him on 12‑4‑1990 which was recalled on appellant's application vide order dated 30‑7‑1990. Respondent challenged this order in Constitutional Petition No.D‑1070 of 1990 which was disposed of by consent of parties with the direction that both the parties shall appear before the Controller and adduce evidence while final orders would be passed in the rent case on or before 31‑5‑1992 positively. After remand of the case, respondent's attorney was cross‑examined on behalf of the appellant who appeared as his own witness in rebuttal. Upon consideration of the evidence and hearing parties' counsel, learned Controller held that the premises were bona fide required by the respondent for her own use and use of her family. On the issue of default, learned Controller held that deposit of rent in compliance with the order passed under section 16(1) of the Ordinance was beyond the control of the appellant and there was no default. However, in view of finding on the first ground, eviction from the premises was ordered giving rise to this appeal. Learned counsel for the appellant seriously assailed the finding of the Controller on the issue with regard to personal requirement of the respondent and contended with all emphasis at his command that the 'landlady owned another Flat No.C‑3 on first floor of the building which was got vacated from another tenant namely, T. Dias some times in December, 1987 on the ground of personal need but instead of occupying the same, she had relet the same on higher rent and after receiving heavy advance to one Mumtaz Shah which circumstance strongly militates against her bona fide. On the other hand, learned counsel for the respondent strongly urged firstly that this plea was not raised in the written statement by the appellant and, therefore, he was estopped from leading evidence on this point and secondly, according to the respondent's evidence this flat was vacated by T.Dias in the month of June, 1987 which was immediately let out to Mumtaz Shah on rent. Respondent's witness has categorically denied that T.Dias vacated the flat because respondent had desired to occupy herself. There is considerable force in the submission made on behalf of the respondent that the appellant having not raised this plea in his written statement was estopped from advancing this plea or leading evidence on this point. Accepting that the respondent had let out this flat on rent to Mumtaz Shah, the question for consideration is the point of time. While tire appellant has asserted that the flat was got vacated in December, 1987 i.e., after about two months of legal notice issued to the appellant, the respondent's case is that in fact the flat was vacated in June, 1987 whereafter it was let out to Mumtaz Shah. There is no other evidence to support the view of the appellant and I see no reason as to why the statement of respondent on this point be not accepted. As regards the contention that the appellant was estopped from leading evidence on a plea not raised by him in his written statement, reliance has been placed on T. Motandas v. Anis Ahmed PLD 1987 Karachi 159 and Mst. Akhtari Begum v. Muhammad Qasim 1987 CLC 157 which very clearly support this view. Reverting to respondent's claim to live in her own property, the only ground urged on behalf of the appellant is that she has been comfortably living in her husband's house spread over 1600 sq. yards. Case of the respondent on the other hand is, that the said house is too old and requires reconstruction. In this connection, appellant has contended that no building plan for reconstruction had been got approved by the husband of the respondent, but it is hardly relevant in the circumstances of the case because the present case is not founded on the plea of reconstruction of the said house. Suffice it to say, that the respondent has the right and privilege to reside in her own house and the circumstance that she has been living with her husband in his house for quite some time would not be a bar to seek tenant's eviction for her own use. Needless to point out, the respondent has consistently pleaded and urged that she requires the demised premises for her own use and the use of her family members in good faith which she has been able to establish by sufficient and satisfactory evidence of her husband and attorney. Mr. Azhar Ali Siddiqui, learned counsel for the appellant contended that in view of averments of the appellants denying bona fide requirement of premises in good faith on the part of respondent she ought to have appeared in the witness‑box but I find no force in such contention. At any rate, non- appearance of the respondent herself seeking eviction of the appellant on the ground of personal requirement would not disentitle her to the relief to which she is otherwise entitled under the law. Needles to point out that respondent's husband who appeared as her attorney was fully conversant with the facts of the case and had stood the test of lengthy cross‑examination successfully. Learned counsel for the appellant in support of his contention that there was a heavy burden on the respondent to prove her bona fide requirement in good faith to succeed in eviction proceedings relied upon the following cases:‑‑‑ (1) Riyassat Ali v. Mst. Shamshadi Begum 1982 CLC 1967; (2) National Bank of Pakistan v. Wadhu Mal 1985 CL.C 1053; (3) Allah Din v. Habib PLD 1982 SC 465; (4) Arshad Umar and another v. Begum Nazrul Askari PLD 1985 SC

38. In the first case, the point involved was with regard to retrospective operation of saving clause (3) of section 27 of the Ordinance (XVII of 197)) which is hardly relevant to this case. In the second case, the view taken was that in civil proceedings an issue is to be decided by preponderance of evidence and in case where there is a word against a word, it is the party on whom lay the burden must fail. In the third case, the dictum laid down by Supreme Court was followed in the case at Serial No.2. In the last case, ejectment was sought on ground of bona fide personal use of landlady and her children but they failed to appear before learned Controller for evidence. It was held that this circumstance was not fatal to their plea that they required the premises in good faith for their personal occupation and use. I am at loss to understand as to how and in what manner do these authorities advance the case of .the appellant. On the contrary last case demolishes the plea raised on behalf of the appellant and rather supports the case of the respondent. Reverting to the issue relating to default in payment of rent w.e.f. July, 1987 it would appear that in the legal notice dated 15‑‑10‑1987 Exh.A‑33 respondent had not said a word about non‑payment of rent though she had categorically referred to the rate of rent and fixed deposit of Rs.25,000 In this notice she had all along insisted on her personal requirement of the demised premises for bona fide use and occupation. Appellant had promptly replied by this notice and while denying personal requirement of the respondent categorically stated that in the middle of July, 1987 her husband had contacted him and offered to sell the flat in question whereafter by the end of July, 1987 landlady as well as her husband proceeded to Europe. Before leaving, the respondent had requested him to retain the rent for the next two months and to pay the same to her on her return. The reply went on saying that rent for August and September, 1987 was paid to her on her return in September, 1987 but she did not issue any receipt, on the ground that she had lost the Receipt Book but promised to send the receipts as soon as the Receipt Book was traced. This letter further added that in October, 1987 when the appellant went to deliver rent for October, 1987 respondent received the amount and told him that the receipts for August to October, 1987 would be sent to him in due course as she had now got the receipt book. The letter further adds that instead of receiving receipts, appellant had received the legal notice, therefore, he had sent the rent for November, 1987 through money order which was refused by the respondent. Although this letter had been filed alongwith the eviction application as well as affidavit‑in‑evidence, respondent had no courtesy to mention that she had refused the rent sent by money order. No doubt, respondent's witness denied that the appellant was regular in payment of rent or that respondent was not issuing rent receipts in time or that he had paid the rent up to October, 1987, this statement has been strongly rebutted by the appellant in his evidence who stated that he had paid rent to the respondent up to October, 1987 for which she did not issue receipts with ulterior motive. He stated that before leaving for London respondent had received the rent for July, 1987 and asked him to retain two months' rent which would be received by her on her return. On her return. he had paid rent to her for August and September, 1987 but on both the occasions rent receipts were not issued to him on the pretext that printed Receipt Book had been misplaced. He then paid the rent for the month of October, 1987 and asked her to issue the receipt when she assured that she would send all the receipts in due course of time. These material statements of fact were not controverted during the cross‑examination of appellant and only question put to him was that he had not mentioned in the written statement that the rent for July to October was paid to respondent or that she had not issued the rent receipts, therefore. It is pertinent to point out that the respondent while denying default in his written statement had referred to Annexures ' C' and ' D' to the application which categorically serve the purpose and clearly give out his version even before the institution of the ejectment proceedings. In view of categorical denial by the appellant and this assertion that rent had been paid burden had shifted to the respondent to show that rent was in fact not paid but she did not step into the witness‑box to controvert this statement. Her non‑appearance for evidence is, therefore, fatal and gives rise to an inference that the statement of appellant was not untrue. The matter does not end here. Appellant subsequently remitted rent for the month of November, 1987 by Money Order No.62 dated 8‑11‑1987 and rent for December, 1987 as well as November, 1987 through separate Money Orders Nos. 1203, 1204 dated 9‑12‑1987 which were refused. He has produced original money order coupons Exhs.0/1 to O/3. It is pertinent to note again that this statement of fact or correctness and genuineness of the money orders was not rebutted during the cross‑examination which in law would be deemed to have been accepted. Conduct of the appellant is also evident from the circumstance that failing in his endeavours to remit rent to the respondent, he had voluntarily deposited rent in M.R.C. No.56 of 1988 w.e.f. 26‑1‑1988. All these circumstances taken together would show that he had all along been making endeavours to remit rent but it was the respondent who was creating problems for him and avoiding to accept the rent sent by way of money orders. I, therefore, hold that there was no default on the part of the appellant in respect of the period prior to the eviction proceedings. Learned counsel for the respondent contended that learned Controller had taken a wrong view by holding that there was no default in compliance with the tentative rent order dated 2‑4‑1990. By this order, Rent Controller had directed the deposit of arrears of rent from July, 1987 to March, 1990 within one month from the date of order subject to adjustment of the rent deposited in M.R.C. No.56 of 1988. Appellant was further directed to deposit future rent from the month of April, 1990 before the 10th of each calendar month. Learned counsel conceded that in so far as the order relating to the payment of arrears of rent, it was illegal and defective on the face of it as the Controller did not calculate the exact amount to be deposited by appellant lout he contended that the, later part of the order with regard to deposit of future monthly rent was lawful and valid. Learned Controller while deciding this point came to the conclusion that the order dated 2‑4‑1990 regarding deposit of rent was passed in the absence of the appellant and as soon as he came to know about the rent order he had deposited a sum of Rs.7,200 in Court as per direction and that it was beyond his control to deposit arrears of rent as per the rent order. It has been urged before the that even after passing the tentative rent order the appellant continued to deposit monthly rent in M.R.C. No.56 of 1988. Be that as it may, learned Controller has already exercised his discretion in favour of the appellant and the only circumstance that the appellant continued to deposit monthly rent in Miscellaneous Rent Case instead of Rent Case No.487 of 1989 would amount to a technical default in compliance with the later part of the Order. I am not inclined to upset the finding of the learned Controller also for the reason that the appellant had all along been depositing rent in the name of the respondent though in a different case number. He would thus not be liable for penal consequences as the law looks to the intention of a party, rather than his conduct which on the face of it was innocent. Reliance on Ghulam Hussain v. Mst. Rosan Bibi 1986 SCMR 1714 in this connection, in my view is totally misconceived in view of distinguishable facts. In view of what has been stated above, there is no merit in this appeal which must fail and is hereby dismissed. Appellant is allowed 60 days' time to vacate the premises. A. A./T‑12/K Appeal dismissed.