1995 PLP 861 (MLD)

This appeal under section 21 of the Sindh Rented Premises Ordinance, hereinafter to be referred as the Ordinance, is directed against an order dated 8‑8‑1991 passed by Vth Rent Controller, Karachi (East), directing appellant's eviction from first floor of building constructed on Plot No.15‑H, Block‑2, P.E.C.H.S., Karachi. Respondent filed an application under section 15 of the Ordinance against the appellant seeking his eviction from the disputed premises on the ground of default and personal requirement. The tenancy commenced on 1‑8‑1972 and rent was fixed at Rs.320 per month, inclusive of property tax, pumping charges and sui‑gas charges. It was stated in the application that the appellant committed default in payment of rent from 1‑8‑1987 to 30‑11‑1987. It was also stated that the premises occupied by the appellant were required by the respondent who wanted to accommodate to his two married daughters, namely, Ghazala Farooq and Shaista Farooq. Respondent also stated that earlier to this, he had filed an application for eviction of the appellant under section 14 of the Ordinance, which was dismissed and F.RA. No.454/85 filed by him before this Court, was also dismissed on 22‑1‑1987. Appellant filed written‑statement and denied both the grounds and further stated that the respondent through notices had desired that the appellant should enhance the rent and because such demand was not accepted, ejectment proceedings were filed afresh after the respondent failed to have the appellant ejected in the earlier round of litigation. Respondent filed his affidavit‑in‑evidence and produced copies of two notices dated 3‑5‑1981 and 6‑6‑1981, appellant's daughter/attorney Mst. Zubeda Khatoon filed her affidavit‑in‑evidence and she produced power of attorney in her favour executed by appellant, five deposit receipts and some other documents including affidavit‑in‑evidence of the respondent in the earlier rent case. The learned Rent Controller on perusal of the pleadings of the parties determined the following points: (1) Whether respondent has committed wilful default in payment of rent? (2) Whether the applicant requires the demised premises for personal bona fide use of the married daughter Ghazala Farooq in good faith? (3) Whether application is maintainable? (4) What should the order be?

2. Learned Rent Controller held that appellant was wilful defaulter, personal bona fide need of respondent's daughter was held as‑not proved, the application filed by respondent was held as maintainable and in the result allowed the application by impugned order. 3. 1 have heard the appellants learned counsel and perused the entire record. Respondent and his counsel were called absent without intimation. It has been contended by appellant's learned advocate that there was no default in payment of rent and appellant was particular in depositing rent in Misc. Rent Case because of earlier round of litigation initiated by respondent under section 14 of the Ordinance. The appellant has given the details of various payments made by him including money order which was refused by the respondent. He has referred, to certain portions of respondent's cross examination which, according to the learned Advocate clearly indicate that there was no default. It is also argued that the issue of bona fide personal requirement has since been decided against respondent, who has not challenged the finding on said issue and has not appeared in Court today to support the impugned judgment, he would not argue the said issue the finding on which is in appellant's favour. It is lastly contended that because of failure of respondent to get an ejectment order against the appellant in the first round through an application under section 14 of the Ordinance, the subsequent rent case was filed frivolously when respondent knew that there was neither any default nor the premises were required bona fide and in good faith for the use of his daughter or daughters.

4. In his ejectment application, the respondent has particularly pleaded that the rent was not paid from 1‑8‑1987 to 30‑11‑1987. He reiterated the same in his affidavit‑in‑evidence. In cross‑examination the respondent however admitted, "it is correct that the opponent had sent a money‑order tendering rent for the demised premises. It was refused by me and thereafter he started depositing rent in Court. It is correct that opponent is depositing the rent regularly and I am withdrawing the rent from the Court." It has further been admitted by respondent in cross‑examination, if the rent being deposited in Court regularly then there may not be default". The impugned order of the learned Rent Controller shows at more than one place that various receipts of deposit in Misc. Rent Case was produced by the appellant but he was unable to show as to for what period that deposit was made. The learned Rent Controller also stated that he called the report of Nazir in respect of all the deposits made by the opponent in Court. If there was any ambiguity or if the Rent Controller was not clear in understanding as to for which period the deposits were made, he should have called upon the counsel of the appellant to have explained such ambiguity. Such an exercise is not undertaken by the learned Rent Controller. He has, however, taken pains to refer to various deposits and has inferred that these deposits were for a particular period. This approach of learned Rent Controller, in my view, was not correct as a proper explanation from the attorney of appellant was not sought during cross examination. The report of the Nazir which the learned Rent Controller had called, is available on the R & P of the case and has been perused but it does not clearly indicate if there was any default as held by the learned Rent Controller.

5. It is also pertinent to point out that the respondent had filed a case for distress warrants before the Small Causes Court at Karachi being D.W. Application No.192/89 but the said application was dismissed.

6. As a result of above discussion, I am clear in my mind that no default was committed by the appellant and the finding of learned Rent Controller on the issue cannot be sustained. The learned counsel for the appellant did not argue regarding the non‑maintainability of the application and the finding of the learned Rent Controller on that issue is sustained. I, therefore, accept this appeal, set aside the impugned judgment and dismiss the ejectment application filed by the respondent. These are the reasons for the short order passed on 20‑5‑1993. H.B.T./S‑1101/K Appeal accepted.