1988 PLP 308 (MLD)

This appeal has arisen out of the order of the learned IX Senior Civil Judge/Rent Controller, Karachi, dated 27-8-1984 passed in Rent Case No. 4389/78 whereby he dismissed the application for ejectment made by the appellant against the respondent on the grounds of (1) personal requirement, (2) default in payment of rent and (3) for using the house for commercial purposes instead of residential purpose for which it was let out.

2. The defence of the respondent was that of denial. Out of the pleadings of the parties the learned Rent Controller framed the following four issues: "(1) Whether the opponent has committed default w.e.f. April 1975? (2) Whether the case premises is needed by the applicant for his personal use and that of his family bona fide in good faith? (3) Whether the opponent has caused damage to the case property? (4) What should the order be?" He answered the issues Nos. 1, 2 and 3 in the negative and consequently dismissed the applications, as stated above.

3. The learned counsel for the appellant submitted that he would press this appeal only in respect of two grounds viz. personal requirement of the house by the appellant and the default in payment of rent. Making his submission on the point of default in payment of rent the counsel at the outset admitted before me that there was in fact no default in payment of rent at the time of making the application for eviction of the respondent on 26-9-1978. He, however, urged with vehemence that there is enough evidence on record to show that the respondent A was irregular in payment of monthly rent in the years 1975 and 1976. He also urged that it was for the respondent to have adduced the evidence before the Court to show that he had been regularly paying the rent to the appellant which he failed to.

4. In view of the candid admission made by the learned counsel. for the appellant before me to the effect that there was in fact no default in payment of rent at the time when the ejectment application was presented, there is no reason H for me to interfere with the impugned order on this issue. The respondent in para 5 of his affidavit-in-evidence had stated: "After I have remitted the amount by Money Order, moved an application before this Court for permission to deposit the amount of rent in Court as the money (order) sent by me was refused by Wahiduddin. Thereafter I am depositing the amount of rent in Court and there is no wilful default by me." This statement of the respondent has in no way been assailed in cross-examination. The default, if any, committed during the years 1975 and 1976 cannot legally be made the basis for grant of the present ejectment I application when whatever default had been committed by the respondent it had been waived or acquiesced by the appellant by not filing an application for ejectment or adopting any legal proceedings for his eviction on that ground. In this view of the matter I do not find any substance in this appeal in so far as the alleged default in payment of rent is concerned.

5. Now I take up the other ground with regard to the personal bona fide need of the premises in question by the appellant. The appellant's case in this behalf, as pleaded in the ejectment application was that he is employed with Government of Saudi Arabia and his family members including his wife and two children are staying at Karachi and as such the premises in question is required by him for his personal bona fide use in good faith for himself and his family members and for the purpose of giving proper education to the children. The attorney of the appellant deposed this fact in his affidavit-in-evidence as well. In his cross-examination the attorney of the appellant further deposed that the appellant's wife had permanently come back to Pakistan alongwith her children in 1975 and that she did not go back to her husband after that. It is thus evident that the statement of the appellant's attorney in connection with the requirement of the demised premises for the use of his wife and children could not be demolished in cross-examination. The learned Rent Controller's finding to the effect that the appellant did not require the premises bona fidely and in good faith appears to be perverse and/or at least in disregard of the evidence prevalent on record. It was for the respondent to have shattered the evidence of the appellant on this issue but he failed to do so, as already stated above. In this view of the matter, I am clearly of the opinion that the impugned order on issue No. 2 cannot be sustained. It is accordingly set aside. The appeal is, therefore, allowed on the ground of personal bona fide requirement of the premises in question by the appellant.

7. The respondent and his counsel remained absent when the case was called out for hearing. I would, however, grant four months' time to the respondent to vacate the house in question and hand over its vacant possession to the appellant, subject to his depositing the monthly rent regularly in Court as per tentative order of the learned Rent Controller. If the respondent commits default in payment of monthly rent he would be liable to be evicted from the premises in question without notice. H.B.T./H-100/K Appeal allowed.