P L D 1988 Karachi 533 (PLP)

The respondent has filed this ejectment application against the appellant on the ground of default in payment of rent from June 1982 to April 1983 and for personal use. The appellant is residing on the first floor whereas the respondent is residing on the ground floor. In the written statement the appellant denied the claim of bona fide requirement. So far the claim of default is concerned it was pleaded that the rent was payable at the rate of Rs.300 per month including electricity charges and not Rs.275 excluding electricity charges as claimed by the respondent. It was also stated that the rent was offered to the respondent but she refused. Thereafter money order was sent several times from June 1980 to September, 1980 and on refusal the rent was deposited in Court on 10‑5‑1981. The learned Controller came to the conclusion that default has been committed and the premises is bona fide required for personal use of the respondent. Mr. Aziz Qureshi, the learned counsel for the appellant contended that the main witness of the appellant namely Waqarullah has filed his affidavit of evidence as attorney which was not a properly executed power of attorney therefore, no reliance can be placed on his evidence. It is an admitted position that Waqarullah is the son of a the respondent who is a widow. Even if the power of attorney is rot proper and legal, being the son, He was competent to depose as witness on behalf of the respondent who would have been in a better position to state the facts relating to default as well as personal requirement. In these circumstances this contention has no merit. The learned counsel then contended that the appellant has been anxious to deposit the rent and tendered the rent in the manner permitted under law but as it was refused by the respondent the same was deposited in Court. Therefore, considering the conduct of the appellant the Court should have exercised discretion in favour of the appellant and held that no default has been committed. It is true. that if any default is explained or it is beyond the control of the tenant or that it has been created by deceitful and fraudulent means of the landlord the Controller would be justified to exercise his discretion in favour of tenant and hold that no wilful default has been committed. But to establish this fact the burden lies upon the tenant. In the present case the appellant besides the facts that the rent was first offered, and then remitted by money order and on refusal. deposited in Court has offered no explanation why the rent was not tendered from the month of October, 1980 till the month of :Nay, 1981 when it was deposited in Court. It is a long period of sever, months and even if 60 days' grace period as permitted under law is allowed the appellant still remained a defaulter for a sufficiently long period. A suggestion was made that during this period rent was offered to the respondent but she had refused to accept. This contention is neither proved nor can be accepted. There was dispute between the parties in respect of payment of rent and the appellant had beer, sending money orders and not paying it directly although he is residing on the first floor. It is not believable that after money order had been refused the appellant would again personally tender the rent for a period of five months. The plea in the facts and circumstances of the case is not tenable and, therefore, the' finding of the learned Controller on default is justified. The learned counsel then contended that the bona fide person requirement has not been established. The requirement of the respondent has been clearly stated in the ejectment application. The same has been repeated in the affidavit of Waqarullah. The appellant himself admitted that the respondent's family consists of herself ante three married sons and two daughters one of whom is stated to have been married. They have three‑bedroom house in their possession on the ground floor. One of the daughters of the respondent who is married also visits the house with her children. Therefore, the present accommodation with the respondent is not sufficient for the respondent's. family members whom, particularly the sons, she wants to establish independently in the same premises. Mr. Aziz Qureshi has referred to the evidence of Atauilah in which it has been admitted that two sons have been married. This seems to have happened after the ejectment application had been filed. This in no way discredits his testimony. The learned counsel has referred to P L D 1982 Kar. 182:1 PLO 1986 Kar. 637 and P L D 1988 Kar.

160. The principle laid down. is that if the evidence and the claim of the landlord is consistent and not contradictory then bona fide requirement is proved. Mr. Aziz Qureshi the learned counsel for the appellant has referred to the evidence of Waqarullah and Attaullah in which discrepancies have been pointed out in respect of marriage and Ataullah's ignorance about the names of the girls with whom his brother‑in‑laws have been married or are to be married but such discrepancies do nor materially effect the main statement which proves the number of members of family, their age, requirement and the present accommodation in their possession. Therefore, in my view the bona fide requirement of the respondent has been established. The appeal is dismissed. The appellant shall vacate the disputed premises within three months failing which writ of ejectment shall be issued without notice. A . A . / M‑530/ K Appeal dismissed.