1989 PLP 983 (CLC)

M . A . H . Bhatti for Respondents (called absent). Date of hearing: 22nd May, 1988. The above appeals are directed against a common order dated 7‑1‑1985 passed by the learned Xth Senior Civil Judge/Rent Controller, Karachi in Rent Case No.4382 of 1987 granting the respondent's ejectment application on the ground of personal requirement but rejecting the other grounds, namely, default and conversion of user of premises. The landlord being aggrieved by the above order has filed First Rent Appeal No.70 of 1985, whereas the tenant being aggrieved by the above order has filed First Rent Appeal No.80 of 1985. The above appeals had come up for hearing on 10‑4‑1988 when the same were adjourned at the request of the learned counsel for the appellant in the above First Rent Appeal Mr. A.H. Bhatti on the condition that in case he was not available on the next date of hearing no further adjournment would be given and he would make alternate arrangement. This case has been called out several times since morning but nobody has appeared for the appellant in the aforesaid First Rent Appeal N9.70 of 1985, for the respondent in the aforesaid First Rent Appeal No.80 of 1985.

2. I have heard Mr. Rehmat Elahi, learned counsel for the appellant in First Rent Appeal No.80 of 1985 and for the respondent in First Rent Appeal No.70 of 1985, 1 have also gone through the record and the order under appeal.

3. As regards First Rent Appeal No.70 of 1985, it may be observed that the learned Rent Controller has rejected the grounds of default and unauthorised conversion of user. The latter ground, in my view, has been correctly rejected as the premises were used for the same purpose as was used in 1976 during the life time of appellant's landlord's father. However, as regards the default, the learned Rent Controller has relied upon a judgment of a learned Single Judge of this Court reported in 1988 M L D 7506. The plea taken by the respondent /tenant was that from the very inception he was paying accumulated rent with the consent of the landlord. The learned Rent Controller has not taken into consideration the effect of the case of Mrs. Alima Ahmad v. Amir Ali P L D 1984 SC 32 and the case relied upon by Mr. Rehmat Elahi, namely Inayat Ullah v. Zahoor‑ud‑Din and another 1987 S C M R 1313. I am, therefore, inclined to remand the case to the learned Rent Controller on the question of default as I am also inclined to remand the case on the ground of personal requirement.

4. I would, therefore, allow the above appeal and would remand the case with the direction that the learned Rent Controller shall decide the question of default afresh inter alia, in the light of the above judgments and other judgments, which may be pertinent.

5. Adverting to First Rent Appeal No.80 of 1985, it may be observed that Mr. Rehmat Elahi has vehemently contended that the averments as to the personal requirement contained in para 10 of the ejectment application and para 18 of the affidavit‑in‑evidence are vague inasmuch as nothing has been brought on record to indicate as to when the respondent /landlord in the above First Rent Appeal had retired from the service and what was his age when he retired. He has further submitted that the learned Rent Controller has also not taken into consideration the effect of the evasive reply of the respondent /landlord that three shops in the building owned by his wife might be lying vacant. In my view, it will be just and proper to remand the case to the learned Rent Controller with the direction to decide the above ground of personal requirement afresh alongwith the other ground of default. Both the parties may be provided opportunity to lead further evidence on both the above grounds.

6. The above two appeals stand disposed of in the above terms with no order as to costs. The learned Rent Controller shall decide the case within six months from the date of receipt of this order. M.Z.S./S‑290/K Order accordingly.