1988 PLP 1636 (MLD)

This first rent appeal is directed against the order dated 7th October, 1981 passed by the learned Xth Senior Civil Judge/Rent Controller, Karachi by which the ejectment of the appellants was ordered on the ground of default and personal bona fide use. The brief facts giving rise to the present appeal are that respondent Noor Muhammad filed an ejectment application against the appellants, inter alia, alleging therein that he was owner of property bearing No.1003 situated in Pir Ellahi Bux Colony, Karachi. That the opponent No.1 was a partnership firm, while Opponents Nos.2 and 3 were its partners. That the ground floor of the above property was rented out to the Opponents at monthly rent of Rs.350 and the Opponent No.2 had executed such an agreement on 16th July. 1970. The rent was payable in advance on 1st day of every calendar month. That the opponents had failed to pay rent from 1st June, 1977 and an amount of Rs.1,400 was outstanding against them being rent for the period from 1st June to 30th September, 1977. That the opponents have failed to pay the electricity charges and gas charges. It was further stated in the application that the applicant was residing on the first floor of the premises in question, and the accommodation in his possession was not sufficient for his requirement keeping in view his large family and therefore, he required the said premises bona fide for his personal use and that of his family. The opponents filed written statement and denied the allegations. It was stated that the rent was offered to the applicant but he refused to accept the same. That they had paid the electricity charges to him as he used to accept 12% of the bills from them. That the applicant was trying to sell the premises and wants to get the opponents evicted from the premises on the basis of default, and therefore, he has created the ground of default by not accepting the rent. On the pleadings following issues were framed. (1) Whether the opponent has committed default in the payment of rent? (2) Whether the opponent is liable to pay the electricity and gas charges? (3) Whether the applicant required premises in question bona fide and in good faith? The applicant Noor Muhammad examined himself and closed his side. On the side of opponents, Aziz Mian was examined. At the time of arguments the issue No.2 was not pressed before the learned Rent Controller. As far as the remaining two issues were concerned the learned Rent Controller decided the issues No.1 and 3 against the opponents/appellants and allowed the ejectment application. I have heard MrAbdul Mateen Khan, Advocate .for the appellants, Mr.Rehmat Ellahi Advocate for the respondent, and have also gone through the R & P of the case. It was contended by MrAbdul Mateen Khan, Advocate, that the appellants/opponents had kept Rs.1,400 as deposit with the applicant/respondent, and the arrears of rent as alleged were also Rs.1,400 which could be adjusted from the deposit. In support of his contention the learned ~counsel has relied upon P L D 1980 S C

298. Mr.Rehmat Ellahi Advocate has contended that the plea raised by the learned counsel regarding deposit of consequent adjustment was neither taken in written statement nor it was suggested to the respondent in cross‑examination and therefore, the adjustment could not be allowed. That it was the duty of the appellants to pay rent to landlord, and in case of refusal they had to tender it' by money order, and if the same was not accepted then they could deposit the same in Court. That the appellants had failed to deposit upto the month of December, 1977, and the first deposit which they made in the Court was on 4‑1‑1978, therefore, they were clearly defaulters. I have considered the contentions of the learned counsel. The evidence of respondent Noor Muhammad shows that the appellants were defaulters from 1st June to 30th September, 1977 and that they had failed to pay or tender the rent. He has also produced the rent agreement dated 16‑7‑1970 as ExA‑1 to show that the rent was payable in advance on 1st of every calendar month. He has further stated in his affidavit that he and his family members numbering ten were residing on the first floor of the premises in dispute consisting of three rooms, and the accommodation was not sufficient for their needs and therefore, he required the premises for his personal bona fide use and that of his family. He has denied a suggestion that he had tried to sell the premises in dispute to one Dost Muhammad and had received Rs.10,000 in advance. He has denied that he had refused the rent tendered by the Opponent. He denied a suggestion that he had constructed more rooms on the second floor. According to him, the terrace was covered by the walls. He denied that the present accommodation with him was sufficient for his needs. Opponent /appellant Aziz Mian has stated in his affidavit that they had offered rent to the applicant/respondent but he refused to accept the rent and, therefore, they were not defaulters. He has further stated that they have been depositing rent in court in miscellaneous application from 1977 to June, 1981. That the owner of the premises had tried to sell the premises to Dost Muhammad and had taken advance from him. That the applicant does not require the premises for his personal bona fide use and that he is in possession of first floor as well as top floor. That they had carried on repairs and spent Rs.3,000 over the same. He had admitted in his cross‑examination that he started depositing the rent in Court after the present case was filed. He also admitted that the applicant/respondent was living on the first floor which consists of three rooms. There is more construction on the top floor but he had not seen the same. In another question he stated that "I can not say that the disputed premises is required by the applicant". From the pleadings of the parties and the evidence produced in Court it is clear that the appellants had failed to pay rent for four months starting from 1st June, 1977 to 30th September, 1977. It is also clear that the rent was neither sent by money order nor it was deposited in Court during the above period. The bare assertion of the appellants that it was offered to the respondent but he refused to accept the same cannot be accepted inasmuch as on one hand it was a word against the word and on the other hand mere offer of the rent to the landlord was not enough. In case of refusal it was the duty of the appellants to have sent the same through money order and if it was also refused, then the same ought to have been deposited in the Court. The plea regarding deposit and its consequent adjustment was neither taken in the written statement nor the respondent was cross‑examined on that point to afford him an opportunity to explain the circumstances. The agreement photo copy of which has been produced as EX.A‑I does show that Rs.1,400 were deposited with the landlord as security which were to be refunded at the time of delivery of possession to him but in view of the fact hat no such plea was taken nor the landlord was cross‑examined on this point, the said amount could not be adjusted towards the arrears of the rent. Moreover, it was specifically mentioned in the agreement that the amount was refundable to the tenant only after the possession of the premises was handed over to the landlord. The case of Muhammad Yousuf v. Abdullah P L D 1980 S C page 298 relied upon by the learned counsel was with utmost respect distinguishable inasmuch as in the reported case the agreement of tenancy had expired and the landlord had not refunded the amount to the tenant, and, therefore, it was observed that the amount of arrears of rent which was Rs.600 and electricity charges had to be adjusted and could be deducted from the security deposit of Rs.1,000 and, therefore, the appeal of the tenant was allowed. But in the present case there was nothing to show that the terms of tenancy had expired and that the, amount of security deposit was not refunded to the appellants. The assertion of the appellants that they had offered rent but the same was not accepted by the respondent was not enough to absolve them from consequences of default. In case of Waqf Muhammad Mehar Ellahi v. Abdur Razzak Limited v. 1983 C L C page 3285 it was observed by this court that:‑ "Even in cases where rent is refused by the landlord it is the duty of the tenant to pay the rent on each successive month whenever it falls due. This obligation on the tenant besides being contractual is statutory as well. On refusal of the landlord it was opened to the respondent to have either sent it by money order or deposited in court immediately." In case of Fida Hussain v. Muhammad Ibrahim Khan 1972, S C M R page 262 it was observed that:‑ "West Pakistan Urban Rent Restriction Ordinance (VI of 1959), section 15(2), Explanation‑‑Tender of rent contemplated in explanation. The rent must be tendered within time prescribed in clause (1). Fact that defaulting tenant had deposited rent with Controller before ejectment application was moved by landlord of no consequences." In view of the above discussion I am of the clear view that the appellants were clearly defaulters and, therefore, the learned Rent Controller had rightly decided the issue regarding default against them. As far as the question of personal bona fide use was concerned, the learned counsel for the appellants contended before me that if the court comes to the conclusion that the appellants had committed default then he will not say anything with regard to the issue regarding the personal bona fide use, and he did not address the court on this point. In view of the above discussion the order passed by the learned Rent Controller Was based on proper appreciation of facts and evidence produced by the parties and does not call for interference. The appeal is, therefore, accordingly dismissed with no order as to costs. However, I allow 4 months time to the appellants to hand over vacant possession to the respondent. I had dismissed the above appeal on 4‑11‑1987 by a short order and these are the reasons for the same. H.B.T./K‑96/K Appeal dismissed.