1989 PLP 2493 (MLD)

2. The Relevant facts giving rise to this appeal, briefly stated, are these. On 11th December, 1985, the appellants riled an application under Section 15 of the Sind Rented Premises Ordinance 1979, (hereinafter called `the Ordinance') stating, inter alia, that they are joint owners/landlords of residential flat bearing No. G-7, VIII-G-16, 278/8, Ram Bari Building, Malir City, Karachi (hereinafter called `the Demised Premises'), having inherited the same from late Moinuddin, the original landlord, and the respondent is the tenant of the demised premises, on a monthly rent of Rs.40. The respondent failed to pay or tender rent to the appellants ever since the transfer of the demised premises to the deceased owner above named on 25th October, 1960 by the Settlement Authorities. The appellants claimed to be entitled to the payment of upto date rent, but then stated that they were legally entitled to the rent for the last three years for the filing of the ejectment applications; which the respondent bad failed to pay or tender to them. The rent legally due was thus claimed to be at Rs.1,

440. It was further stated that appellant No. 1 is a widow and she is residing in a rented room in Firdous Colony, Karachi, on payment of monthly rent of Rs.100. The demised premises was thus required by the appellant No. 1 for her personal bona fide use and occupation, who being a widow had no sufficient means to afford to pay the rent of the premises in her occupation. In short, the eviction of the respondent was sought on the grounds of; (1) The default in payment of rent, and (2) for personal use and occupation of the appellant No. 1.

3. The respondent contested the said application by filing a written statement in denial of the allegations made in the ejectment application. He claimed to be in occupation of only one residential Room No. G/7, of the aforesaid building, the rent of the demised premises ac per Custodian's record was Rs.4.50 only. There was no latest municipal assessment of rent thereof at Rs.40 per month. He further alleged that the rent of the demised premises was, in R.C.No.1057/85, mutually agreed at Rs.6 per month. The deceased Moinuddin filed R.C. No.2210/70 against him on the grounds of default and personal need but it was, later on, withdrawn. The present application was thus stated to be hit by principles of res judicata and estoppel. The deceased owner of the disputed premises also owned House No.3/893; Liaquatabad, Karachi, which is a spacious house consisting of three floors including ground floor. The appellant No.3 have vacated the said house No.3/893 and was living in her husband's house at Aurangabad, Nazimabad. It was pleaded that the alleged requirements of appellant No.l was totally mala fide and so also it was denied that the appellant No.l was, residing in rented house in Firdous Colony. The said house, it was stated by the respondent, was that of her son-in-law. The respondent further stated that he was depositing the rent regularly after notice to the appellants in Court vide Misc. Rent Case No.2247/82 in the Court of XIVth Senior Civil Judge, Karachi, under Ledger No.2019.

4. Out of the pleadings of the parties, the learned Rent Controller framed the following issues:- "(1) ???? What is the rate of rent? (2)??????? Whether the Opponent has failed to pay rent as claimed by the applicant? (3)??????? Whether the applicant No.l is in need of case premises bona fide in good faith? (4)??????? What should the order be?"

5. In support of their case the appellants Nos.l and 2 examined themselves as well as three other witnesses, namely, Shoukat Ali, Mohammad, Latif and Syed Hameedul Hasan; whereas respondent besides examining himself produced two witnesses, namely, Syed Nawab Ali and Syed Abid Hussain Chishti. The learned Rent Controller vide impugned order dated 15-2-1988 answered the issues Nos. 1 and 2 in the negative. She also decided the issue No.3 against the appellants by holding that the appellant No.l did not require the demised premises for her personal bona fide use in good faith. Consequently, she dismissed the ejectment application. Hence this appeal.

6. Having heard the arguments of the learned counsel for the parties on 12th December, 1988, 1 passed the following short order:- "Argument heard and concluded. For reasons to follow, the appeal is dismissed with no order as to costs."

7. Now I proceed to record reasons for the above short order. The learned counsel for the appellants assailed before me only the findings recorded on issues Nos. 2 and

3. I have carefully perused the impugned order. The learned Rent Controller has specifically held that the rent of the premises was Rs. 60 per month and that the earlier Rent Case No.1057 of 1969 was dismissed on the ground that the respondent had not committed any default in payment of rent. He has further observed that, as per record of the case in hand, it stands proved that the respondent is regularly depositing the rent in Court under Misc. Rent Case No.2247/82. The learned counsel for the appellant could not dislodge any of the above findings of the learned Rent Controller. There is therefore, no reason for me to interfere with the impugned order on the issue of default in payment of rent, as the learned Rent Controller has arrived at the conclusion after giving due consideration to the material on record. Consequently, the impugned order is maintained in respect of issue No.2.

8. The demised premises were stated to be required by the appellant No.l for her personal bona fide use and occupation. 1t was averred in Ejectment Application that the appellant No.l is residing in a rented room in a portion of House No.10/10, Firdous Colony, Karachi, on payment of rent of Rs.100 per month. The appellant No.l despite having admitted that she is residing in the aforesaid house in Firdous Colony for the last two or three years, failed to produce any rent receipt to substantiate her plea that she is paying rent of Rs.100 per month. She slated that she was unable to produce rent receipt as her/landlord was not issuing rent receipts. She also expressed her inability to produce the landlord of the said house as he was, according to her, a crippled' man. The learned Rent Controller did not believe the version of the appellant' No.l in this behalf and observed that even if the landlord of the said house is a crippled man, he could have been examined on commission. No effort was made, to examine him on commission. The learned Rent Controller has also discussed ' the evidence of the other witnesses examined on this aspect of the case and has, in my opinion, rightly reached the conclusion that the alleged bona fide requirement of the demised premises by the appellant No. 1 was not proved. The only argument advanced by the learned counsel for the appellant in this behalf was that the demised premises was also required by the appellant No.2, who is residing in half portion of a quarter only in two rooms with four sons and wife. The argument is not available to the appellant No. 2 inasmuch as the eviction of the respondent was not sought on the ground of personal bona fide need of the appellant No.2. The plea of the appellants' counsel to the effect that it is the prerogative of the landlord to choose any of the houses owned by him for his' residence is also without substance inasmuch as no such case was, in the first instance, set up in the Ejectment Application and, secondly, the appellants were in any case under obligation to plead and prove that the present accommodation in their occupation was not sufficient for their residence. The evidence of P.W. Shoukat Ali being a heresay has no value and it has been rightly discarded by the learned Rent Controller. She has, I think rightly too, disbelieved the statement of this witness to the effect that he is residing in the same locality, where the appellant No.1 is allegedly residing in a rented premises on account of his failure to produce his identity card.

9. Under the aforesaid circumstances of the case, I do not find any merit in this appeal. It is accordingly dismissed with no order as to costs. M.Y.H./A-539/K.