1986 PLP 1549 (CLC)

‑‑‑Ss. 15(2)(vii) & 21(1)‑‑Personal bona fide requirement‑‑Proof‑ Landlady's attorney and her husband categorically stated on oath that he was suffering from heart trouble and was being treated in Cardiovascular institute and stated in his evidence that he had to climb stairs three to four times a day and that he felt pain and strain while climbing stairs‑‑Testimony of husband of landlady remained unchallenged in cross‑examination‑‑Rent Controller, held, was justified in believing personal bona fide requirement urged‑by landlady in circumstances. Syed Mahtab Rizvi v. Syed Zafar Ahmad 1982 S C M R 962 ref. (c) Sind Rented Premises Ordinance (XVII of 1979)‑‑ ‑‑‑Ss. 15(2)(vii) & 21(1)‑‑Personal bona fide requirement‑‑Exchange of premises‑‑Legality‑‑Personal bona fide requirement of landlady in respect of premises in dispute proved‑‑Contention that if landlady's requirement was bona fide she should have exchanged accommodation in her occupation with that in occupation of tenant repelled on grounds that accommodation with landlady was not sufficient for her use and Rent Controller could not direct landlady to surrender accommodation in her possession to tenant and create new tenancy. Syed Mehtab Rizvi v. Syed Zafar Ahmad 1982 S C M R 962 ref. B.A. Khalil for Appellant . Rashiduddin Ahmed for Respondent. Date of hearing: 8th August, 1985. This appeal under section 21 of the Sind Rented Premises Ordinance. 1979 arises out of the order of Rent Controller, dated 26‑7‑1984 directing eviction of the appellant from the premises on the ground of default, personal requirement in a rent case instituted by the respondent. The Controller granted the application both on the ground of default as well as personal requirement. The default was alleged in the application from August, 1980 to May, 1981 while the personal requirement was based on the ground that the husband of the applicant has developed heart trouble and he feels pain in climbing the stairs of the premises occupied by the applicant and her family members which is admittedly situated on the first floor. In so far the default against the appellant is concerned it is an admitted position that the rent for the alleged period mentioned in the rent application was deposited with the Rent Controller much before the filing of the rent case. The Rent Controller, however, took the view that as the appellant has failed to establish that the rent was refused by the landlady when offered by the appellant, therefore, there was technical default. The appellant in his evidence before the Rent Controller stated on oath that after dismissal of the previous rent case which was instituted by the respondent against the appellant on the ground of default he had gone to tender rent but the respondent refused to accept the rent and, therefore, he started depositing the rent in Court. It is not disputed that the entire rent alleged to have been defaulted has been deposited with the Rent Controller before the filing of the rent case. Although it was disputed in the cross‑examination that the respondent had not refused to accept the rent there is word against word and in these circumstances the Rent Controller should have disallowed the application on the ground of default. It is also significant that the respondent in her application stated that prior to the filing of the application she served a registered notice on the appellant demanding payment of rent but neither any such question was put to the appellant when he was in the witness‑box nor the alleged notice was produced in the evidence. I accordingly reverse the finding of the Rent Controller) on the ground of default. The second ground urged in the application relates to personal and bona fide requirement of the respondent. The respondent's attorney/ husband who was examined in the case categorically stated that he has now developed heart trouble and is being treated in Cardiovascular institute. He also stated in his evidence that he has to climb stairs 3 to 4 times a day and that he feels pain and strain while climbing the stairs. This part of the testimony of the appellant's witness 42 was not at all challenged in the cross‑examination. The learned counsel for the appellant contends that there is no medical evidence on record to establish that the respondent's husband has any heart trouble but as pointed out earlier the statement made on oath by the respondent's attorney was not at all challenged in the cross‑examination and in these circumstances the Rent Controller was fully justified in believing the personal and bona fide requirement urged by the respondent. The learned counsel also stated that the appellant has offered to exchange premises with the respondent but she has refused to accept this offer which shows her mala fide. I have seen the cross‑examination and I find that this offer made to the witness of the respondent was refused on the ground that the present accommodation with the respondent is] not sufficient for their use. Apart from it the Rent Controller has r satisfactorily dealt with this question in his judgment by referring to the case of Syed Mahtab Hussain Rizvi v. Syed Zafar Ahmad 1982 SCMR

962. I therefore, find no reason to interfere with the finding of the Rent Controller on the ground of personal and bona fide requirement. As a result of the above discussion the appeal fails and is accordingly dismissed. The appellant is allowed four months time to vacate the premises. There will be no order as to costs. H . B . T . Appeal dismissed.