1986 PLP 1831 (CLC)

‑‑‑S. 15‑‑Personal bona fide need of landlord, proof of‑‑No particulars with regard to personal and bona fide need were mentioned either in affidavit of evidence or in application for ejectment‑‑In absence of details of personal and bona fide requirement of landlord, eviction application, held,, could not be granted on such ground. Sultan Press Ltd. v. Muhammad Hasan P L D 1985 Kar. 624 ref. (e) Sind Rented Premises Ordinance (XVII of 1979)‑‑ ‑‑‑S. 21‑‑Appellate jurisdiction, exercise of‑‑Default in payment of rent having been established, finding of Rent Controller ordering ejectment of tenant was upheld in appellate jurisdiction of High Court‑‑Findings on damage to property and personal bona fide need of landlord, however, being not supported by evidence on record were set. aside. Abdul Hamid Khan for Petitioner. Sikandar Ali for Respondent. Date of hearing: 2nd February, 1986. I propose to dispose of F.R.A. No. 107/84 and F.R.A. No. 108/84 by this common judgment. In both these appeals the tenant Walumal has challenged the order of Rent Controller, dated 6‑11‑1984 whereby the application filed by the respondent for ejectment of the appellant on the ground of default, personal and bona fide requirement and damages caused to the building was granted. The learned counsel for the appellant contends that the order of the Rent Controller is based on misreading and mis-appreciation of evidence inasmuch as that none of the grounds mentioned in the application can be established on the basis of the evidence led before the Rent Controller. In order to dispose of the contention raised by the learned counsel for the appellant I will state here in brief the following facts. House bearing No. 669 Ward 'B' Shahdadkot consisted both of evacuee and non‑evacuee share. The evacuee share in the property was transferred to the respondent Muhammad Moosa by the Settlement authorities in the year 1965 under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. It was the case of the respondent before the Rent Controller that after purchase of the property the appellant was served with notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, but in spite of service of the notice the appellant failed to pay any rent in respect of the premises in dispute. It is an admitted position in the case that the non‑evacuee share was purchased by the respondent, on 25‑5‑1982 through a registered sale‑deed executed in favour of the respondent by the non‑evacuee. It is further admitted position that on 23‑8‑1982 a notice was served by the respondent on the appellant calling upon him to pay the rent of the premises as a consequence of purchase of non‑evacuee share through registered sale‑deed. The respondent on 27‑4‑1980 instituted rent case No. 70/1980 claiming possession of half of the property (50 per cent) on the basis of transfer document issued in his favour by the Settlement Authorities. After having purchased the remaining 50 per cent share in the property the respondent instituted the other rent case No. 17/1982 claiming possession of the other half of the property. In both the rent cases common ground of default, personal requirement and damage caused to the building were raised. The default in rent case No. 7/1980 is alleged from 1965, namely, the date when the property was transferred to the respondent by the Settlement authorities whereas in the second case, namely, No. 17/82 default is alleged from 25‑5‑1982 when the remaining 50 per cent non‑evacuee share of the property was purchased by the respondent under registered sale‑deed. The default in both the cases was disputed by the appellant and it was contended that before the purchase of the remaining non‑evacuee share in the property the appellant was paying the rent of the entire property to the owner Rejhoomal at the rate of 88.23 per month. It is, however, not pleaded before the Rent Controller in any of the two cases that upto what date the rent was paid by the appellant .to said Rejhoomal in respect of the property in suit. Both the above rent cases were consolidated before the Rent Controller and they were disposed of by the common judgment and common evidence was led by the parties before the Rent Controller. In the evidence before the Rent Controller the respondent produced a certified copy of plaint suit No. 67/80 instituted by the appellant in the month of March, 1980 which was exhibited as Exh. 24, in which the appellant made the following statement:‑‑-- "

4. That about 6 months back the defendant No. 1 disclosed that he has purchased 0‑50 paisa share in the house in suit from the Settlement Department and the rest belongs to the defendants Nos. 2 and no notice about this fact has been given to the plaintiff by the defendants Nos. 1 and 2." From the above statement made by the appellant in his suit in which the respondent was defendant No. 1, it is absolutely clear that six months prior to the filing of the suit the appellant became aware of the transfer of 50 per cent evacuee share in the property in favour of respondent No. 1 but in spite of this information it is an admitted position that no rent was either tendered or paid by the appellant to the respondent No. 1 until passing of the tentative rent order by the Rent Controller, on 17‑&‑1982. The learned counsel for the appellant contends that although it is stated in paragraph 4 of the plaint in Suit No. 67 of 1980 by the appellant that he became aware of the transfer in favour of respondent No. 1 but he was not under any obligation to pay the rent to respondent No. 1 for two reasons. Firstly the statutory notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act was not served on the appellant and secondly the respondent No. 1 never admitted the appellant as tenant of the premises. None of the two contentions raised by learned counsel for the appellant could save the appellant from the consequences of default committed by him in payment of the rent. It may be mentioned here that in the year 1974 by Ordinance No. 15 the Evacuee laws were repealed and as a consequence thereof Displaced Persons Act, 1958 was repealed. After the repeal of the Ordinance it was no more necessary for a transferee to have served a notice under section 30 of the Displaced Persons Act on the occupant of the property transferred under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The present rent application was filed in the year 1980 and therefore, at that time it was not at all necessary for the respondent No. 1 to have served a prior notice before institution of the case under section 30 of the Displaced Persons Act. In so far the contention of the learned counsel for the appellant that respondent No. 1 did not admit the appellant as tenant of the premises, this too could not absolve the tenant from the liability of tendering rent to the owner/ transferee of the property. In fact the rent application was instituted on 27‑4‑1980 in which respondent No. 1 treated the appellant as the tenant of the premises. From 27‑4‑1980 till the passing of the tentative rent order, dated 17‑8‑1982 it is admitted position that the appellant did not tender any rent to the respondent No.

1. Similarly in respect of the other half portion of the property (50 per cent non‑evacuee share) which was purchased by the respondent, on 25‑5‑1982 through registered sale‑deed, the appellant equally failed to bring any evidence on record to show that until filing of the second rent case or after the sale of the property in favour of the respondent No. 1 the appellant continued to pay rent to the previous landlord. In these circumstances the Rent Controller rightly held the appellant to be a defaulter in payment of rent. The learned counsel for the appellant also contended that even if at is held that the notice under section 30 was not required a notice under section 18 of the Sind Rented Premises Ordinance was necessary in order to determine the default alleged against the appellant in the case. This argument has no force. The application for eviction was filed on 27‑4‑1980 and the filing of the application and service of notice thereof through Court on the appellant could be treated as a notice and it is an admitted position that the appellant did not pay rent of the premises to the respondent even after service of the notice of application for about two years and as such there was no escape from the consequences of default alleged against him. I, therefore, do not find any reason to interfere with the finding of the Rent Controller in so far the issue of default is concerned. The other issue on which ejectment was granted by the Rent Controller relates to personal and bona fide requirement and damage caused to the building. In so far the issue relating to damage caused to the building is concerned learned counsel for the respondent has conceded before me that there was absolutely no evidence to support the conclusion of the Rent Controller on this issue. I have gone through the evidence produced by the respondent before the Rent Controller in respect of the above two issues but I find that the respondent in his cross‑examination categorically admitted that the damage caused to the building was on account of rains. In these circumstances the Rent Controller could not hold that the appellant was responsible for causing damage to the building rented out to him. The finding of the Rent Controller on the issue of damage is accordingly reversed. The last ground on which the ?eviction application was granted related to the personal and bona fide requirement of the premises. The first application for eviction was filed, on 27‑4‑1980 while the second application was instituted on 9‑9‑1982. In both these applications the applicant /respondent only stated that the premises were needed by him for his personal and bona fide requirement. The respondent No. 1 submitted his affidavit of evidence in both the cases before the Rent Controller and he merely repeated the allegation made by him in his application in the affidavit of evidence. No particulars at all with regard to personal and bona fide needs are mentioned either in the affidavit of evidence or in the applications filed by the respondent No.

1. The Rent Controller granted eviction application on the ground of personal and bona fide requirement for the reason that respondent No. 1 was living in a rented premises. Respondent No. 1 either in his application or in affidavit of evidence did not say a word to that effect. No doubt in his cross‑examination he denied the suggestion that he was living in his own house and stated that he was living in a rented house but this statement of the respondent No. 1 in the cross‑examination could not be treated as substantive evidence of the fact that he was living in the rented premises as he omitted to mention the same in his examination‑in‑chief. Furthermore, the statement made by the respondent that he was living in a rented house was challenged in the cross‑examination by putting him question that he possessed no receipts for payment of rent or any agreement. It was also challenged in the cross‑examination that the premises are not let out to him by Noor Muhammad who is alleged to be the landlord of the premises where the respondent No.1 was residing. In these circumstances it cannot be said that the respondent No.1 succeeded in establishing before the Rent Controller in his evidence that he was occupying a house which were hired on rent. Apart from it there was no particulars given by the respondent No. 1 which gave rise to the personal and bona fide requirement of the premises by the respondent. The learned counsel for the appellant has referred to the case of Sultan Press Ltd. v. Muhammad Hasan P L D 1985 Kar. 624 in which a learned Single Judge of this Court while hearing a rent appeal observed that in order to succeed in establishing the personal and bona fide requirement it is necessary for the landlord to set out the details of such requirement which has necessitated the filing of the rent application. I agree with the reasoning given by the learned Judge in the above cited case and I am also of the view that in the absence of the details of personal and bona fide requirement the appellant cannot be held to have made out the case of personal requirement specially as in the present case the respondent himself did not assert that he was living in the rented premises. In these circumstances, there was no occasion for the Rent Controller to have granted the eviction application on the ground of personal and bona fide requirement on the plea that he was residing in a rented premises. I accordingly also reverse 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 as the appellant has failed on the ground of non‑payment/default in payment of rent. The appellant is, however, allowed six months time to vacate the premises on the condition that he shall continue to deposit monthly rent in Court as directed by the Rent Controller. There will be no order as to costs. A.A.???? Appeals dismissed.