2017 PLP 50 (YLRN)

SHAHNAWAZ TARIQ, J.

Through the captioned first rent appeal under section 24 of the Cantonments Rent Restriction Act, 1963, appellant Asrar Ahmed Khan has agitated the impugned order dated 03.04.2014, passed by the learned Additional Controller of Rents, Clifton Cantonment, Karachi, whereby the ejectment application filed by the appellant was declined.

2. The relevant facts narrated in the instant appeal are that the appellant is the owner of double storey building bearing House No.9/II, Creek Lane No.4, Phase-VII, DHA, Karachi, and the first floor of the said house was rented out to the respondent No.1 by the appellant in the terms of tenancy agreement dated 15.03.2009, against monthly rent of Rs.36,000/- payable in advance. The respondent No.1 at the time of signing of the tenancy agreement paid a sum of Rs.2,16,000/- to the appellant as advance rent for six months and a further sum of Rs.50,000/- as security deposit which will be refundable at the time of handing over the vacant and peaceful possession of the said premises after deducting the amount of unpaid bills and damages, if any.

3. It is further averred that due to the shortage of water in entire DHA, most of the inhabitants of DHA have to purchase water through bowser, and water charges were not payable by the appellant in terms of the tenancy agreement. Despite the knowledge of the fact of water problem, respondent No.1 and her husband reduced the rent from Rs.36,000/- to Rs.35,000/- per month as well as deducted advance rent previously paid at the rate of Rs.36,000/- from the period 15.03.2009 to 14.09.2009, while paying the rent in September, 2009, to which the appellant vehemently protested but the respondent No.1 continued committing default in payment of rent which amounted to Rs.41000/- up to 14.08.2012.

4. It is further stated that the rent was to be enhanced by 5% every year but the respondent No.1 did not enhance the same and also committed default in the payment of the enhanced rent. It is also stated that as per clause-1 of the tenancy agreement, the appellant was liable to pay conservancy charges of Rs.6,592/- per annum. on 50% sharing basis as per bills issued by the Clifton Cantonment Board but appellant failed to pay the same and committed default for the sum of Rs.11,261/- w.e.f. 15.03.2009 to 14.08.2012 (41 months). It is also averred that the respondent No.1 required the demised premises for the personal bona fide use of his son namely Shariq Asrar whose marriage was to be solemnized.

5. The respondent No.1 filed written statement and admitted the relationship of the landlord and tenant between the parties regarding the demised premises. It was maintained that the condition of enhancement of rent existed in the tenancy agreement but the appellant never demanded the enhancement of rent. It is asserted that there is no water shortage in DHA and in case of such shortage, the CBC provides free water bowser twice a week. The appellant never purchased water from his pocket as he has 1 inch dia line connection to his water tank and also managed water bowser from CBC.

6. The respondent No.1 denied any default in payment of the monthly rent and asserted that the reduction of Rs.1,000/-- in rent was voluntarily allowed by the appellant to meet the needs of the water as it is obligation of the appellant being the landlord to provide water. The respondent No.1 paid Rs.1000/- per week for water and spent total Rs.3,52,000/- from 15.03.2010 to 15.12.2012. It is further stated that the rent application is not maintainable.

7. The appellant filed his affidavit in evidence and was cross-examined by the counsel for appellant. The respondent No.1 also filed her affidavit in evidence and was cross-examined by the counsel for appellant. After hearing arguments of both the parties, the learned Additional Rent Controller vide order dated 03.04.2014, dismissed the rent application.

8. Learned counsel for the appellant contended that the impugned order is illegal and bad in law. He further submitted that the respondent No.1 in written statement had not specifically denied the personal need of appellant for the use of his son which remained unchallenged. He contended that the Rent Controller has not properly appreciated the evidence adduced by the parties supported with their documents. He further contended that as per tenancy agreement the monthly rent was fixed for Rs.36,000/- which has been admitted by respondent No.1 but she paid rent at the rate of Rs.35,000/- instead of Rs.36,000/- per month, as such committed default of Rs.1,000/- per month. He further contended that the alleged verbal consent by appellant to deduct Rs.1,000/- per month on account of water shortage charges is utter violation of the tenancy agreement and said condition cannot be modified without written document. He further submitted that the respondent No.1 has been depositing rent at the rate of Ps.35,000/- per month in MRC which has established the ground of willful default on her part.

9. Learned counsel further contended that in para 16 of the rent application as well as para 13 of the affidavit in evidence, the appellant has categorically stated that the demised premises is required in good faith for the personal bona fide use of the appellant's son namely Shariq Asrar whose marriage was fixed. He further contended that during the pendency of instant FRA, marriages of both sons of appellant namely Shakeeb Asrar and Shariq Asrar have been solemnized, which proved the claim of the appellant for personal bona fide need of the demised premises for his son Shariq. He further contended that the invitation card of the marriage ceremony of applicant's son and wedding photographs have also been produced in support of the claim of appellant regarding bona fide requirement of the demised premises which are available on the record. He relied on 2013 MLD 882, 2000 CLC 2005, 2012 SCMR 954, 1991 MLD 1774, 1989 CLC 1883 and 1987 SCMR 220.

10. While controverting the contention raised by learned counsel for the appellant, learned counsel for respondent No.2 vehemently contended that the impugned order is just and proper as such instant FRA is liable to be dismissed. She further contended, that the plea of the default is managed as at the time of inception of tenancy, the appellant had not disclosed to the respondent No.1 regarding the non-availability of the water in said premises, therefore, the respondent. No.1 approached the appellant and he agreed to deduct Rs.1,000/- per month on account of water shortage charges and said fact has been admitted by the appellant in his cross-examination.

11. Learned counsel for respondent No.1 further contended that appellant has falsely pleaded the requirement of demised premises for personal use of his son. She also submitted that respondent No.1 in her affidavit in evidence had categorically stated that the son of the applicant has been working at Bahrain as such demised premises is not required for his personal use. She further contended that the counsel for the appellant had not challenged the said claim of the respondent No.1 by putting any question in cross-examination. She also contended that appellant has not filed copies of Nikahnama of the marriage of his son, therefore, the invitation card and marriage photographs have no legal substance to be considered. Learned counsel for the respondent No.1 relied on 1985 CLC 2111, 1989 CLC 160 and 1984 CLC 1938.

12. Perusal of the available record and consideration of the arguments advanced by the learned counsel for the parties reflect that the appellant filed ejectment application against respondent on the grounds of default and personal bona fide need for his son. The appellant let out the demised premises to the respondent vide tenancy agreement dated 15.03.2009, against the monthly rent of Rs.36,000/-. At the time of inception of tenancy, the respondent had paid advance rent of the premises for six months at the rate of Rs.36,000 for the period from 15.03.2009 to 14.09.2009 and also paid Rs.50,000/- as security deposit, refundable at the time of handing over the vacant and peaceful possession of the premises after deducting the amount of unpaid bills and damages if any.

13. It is worthwhile to mention that due to the shortage of water, the respondent No.1 approached the appellant and with mutual consent it was agreed verbally between the parties that the respondent No.1 will pay monthly rent at the rate of Rs.35,000/-, and she would deduct Rs.1,000/- per month from the settled rent on the ground of water shortage. During cross-examination the appellant admitted that rent was fixed at the rate of Rs.36,000/- per month, and respondent No.1 has been paying the rent at the rate of Rs.35,000/- per month and rent was paid for each month. The appellant also admitted that he never raised any objection in this regard nor sent any legal notice to the respondent No.1 regarding less payment of rent. The appellant also admitted that there is shortage of water in rented premises and he did not inform the respondent No.1 about the said shortage. The appellant also admitted that respondent No.1 used to purchase water tankers to meet her needs. He admitted that Rs.1,000/- were deducted with his consent from the rent. The respondent No.1. admitted in her cross-examination that she had not paid her share of conservancy charges to the appellant.

14. Admittedly, the respondent has been paying the rent regularly to the appellant at the rate of Rs.35,000/- and she deducted Rs.1,000/- per month on the ground of shortage of water for which the appellant had extended his consent. Indeed neither the appellant raised any objection nor issued any legal notice to respondent No.1 for payment of the deducted amount. It is well settled that parties would act strictly according to the terms and conditions of the tenancy agreement and any change and modification can be made by the consent of the parties. In present case the appellant himself had permitted respondent No.1 to deduct Rs.1,000/- per month on account of shortage of water during the period of tenancy and the said practice continued without any objection has proved that such modification in rent agreement has been approved by the conduct of appellant. Therefore, non- execution of any written document in this regard will not defeat the right created in favour of the respondent No.1. Resultantly, the appellant cannot take any benefit of such deduction of Rs.1,000/- at this stage to establish his claim for commission of default, hence the appellant has failed to establish his claim of default against the respondent.

15. While dealing with the next point pertaining to the bona fide requirement of the demised premises by appellant, it is essential to mention that the appellant in his rent application as well as affidavit in evidence had categorically stated that the demised premises is required for personal bona fide use of his son whose marriage was to be solemnized. Astonishingly, respondent No.1 in her written statement had not specifically denied the requirement of the appellant for the personal bona fide need of the demised premises for use of his son and said requirement of the appellant remained unchallenged. Such omission could not be covered by the respondent No.1 in her affidavit in evidence whereby she denied the requirement of personal bona fide use of the demised premises and took the plea that appellant's son is permanently working in Bahrain, but the counsel for the appellant had failed to specifically challenge such averments of the respondent No.1 during her cross-examination. Indeed the appellant had made the requirement of the demised premises for personal bona fide need for his son on oath and same was not denied by the respondent No.1 at the first instance in her written statement, therefore, such requirement of the appellant could not be discarded on mere ground that appellant had failed to challenge the averments of the affidavit in evidence of the respondent No.1 to the extent that the son of the appellant is serving in Bahrain. Consequently, respondent No.1 could not build or improve her case on the strength of the plea which was not taken by her in written statement and such omission would be fatal to the subsequent plea agitated by the respondent No.1 in her affidavit in evidence.

16. It is significant to mention that during the pendency of the instant FRA, the marriage ceremony of the appelant's son namely Shariq was solemnized and the learned counsel for the appellant filed the invitation card of marriage and photographs of bride the bridegroom which has prima-facie established the claim of the appellant that demised premises is required for personal bona fide use of his son. The objection raised by the learned counsel for the respondent No.1 regarding the absence of Nikahnama has no legal substance nor is required by the law. The invitation card of the marriage and photographs of bride and bridegroom are sufficient to establish the personal requirement of the appellant regarding demised premises for bona fide use of his son.

17. In the wake of the facts and circumstances discussed supra, the appellant has succeeded to establish his requirement of the demised premises for bona fide use of his son. Consequently, the instant first rent appeal stands allowed and the impugned order dated 03.04.2014, by the Additional Rents Controller is hereby recalled. ZC/A-18/Sindh Appeal allowed.