1995 PLP 702 (CLC)

Shaikh Liaqut Hussain for Respondent. Dates of hearing: 27th and 28th November, 1994. This appeal has been filed assailing order dated 31‑12‑1991, passed by the learned 2nd Additional Controller of Rent, Clifton Cantt., Karachi in Rent Case No. 76 of 1989, filed under section 17 of the Cantonment Rent Restriction Act (XI of 1963). The eviction of the appellant was sought on the ground of default in payment of rent from January 1985 and bona fide requirement of the premises by the landlord for his personal use. The dispute also came up for consideration in regard to quantum of rent. The appellant is a tenant since the days of the respondent's mother who died in 1983. In the application filed by the respondent it is stated that initially the rent was Rs.25, which was increased to Rs.50 per month. The appellant in his written statement pleaded that the rent was increased for the reason, that the appellant had constructed additional room with the permission of respondent's mother and because of the aforesaid additional accommodation, the rent was increased to Rs.50 per month. Later on he handed over the additional room to the landlady and rent was reduced to Rs.25 per month. The above allegations have been denied by the respondent. In the above context, it is pertinent to point out that though the appellant has alleged the construction of the additional room but he has not given the details as to when the alleged construction was raised or the possession of the room was delivered by him to the landlady, which led to reversion to the original quantum of rent. Since it is the case of the appellant that the rent was reduced to Rs.25, the burden of proof was on his shoulders to establish that the rent was reduced as alleged. The respondent has denied the above allegation. There is only word against the word. The appellant having failed to bring satisfactory evidence on record in proof of reduction of rent as alleged by him, it is held that the rent was Rs.50 per month. On the ground of default, the learned Controller found that the appellant had committed default in payment of rent from January 1985. The case of the appellant is that the rent was paid by him to the respondent till December 1987. Thereafter, the respondent had demanded rent at the rate of Rs.100 per month. He, therefore, sent the rent from January 1988 by money order which was refused. Thereafter, he filed Miscellaneous Rent Application No. 32 of 1988 against the respondent and under the orders passed by learned Rent Controller started depositing rent in Court from January 1988. With regard to allegation of the respondent that rent is due from January 1985, the plea of the appellant is that he had paid rent upto December 1987 but no receipt was being issued by the respondent. The respondent in consonance with his plea in the application asserted in evidence that the appellant had not paid rent from January 1985. However, in cross‑examination no question was put to the respondent challenging the above assertion, although the appellant reasserted the payment of rent till December 1987. The appellant is an old 8 tenant and no doubt, quite often old tenants do not demand receipt as it may be taken an expression of distrust in the honesty of the landlord, but the appellant has not pleaded such case. On the contrary, in his Miscellaneous Rent Application it is pleaded by him that he had repeatedly demanded rent receipts. If it was so, there was an element of distrust between the parties. The appellant therefore would have adopted some other mode for tendering the rent, like payment by Money Order or depositing the rent with the Controller as he did in 1988. It therefore cannot be accepted that the appellant had continued to pay rent as alleged till December 1987, in absence of any independent evidence in proof of alleged payment. The appellant alleges that the rent for the months of January and February 1988 was tendered by money order, but neither the money order receipts nor coupons have been produced. With regard to deposit of rent with the learned Rent Controller, it may be observed that the appellant has not produced all the receipts or any report from the Nazarath of the said Court. Even if the rent deposited by the appellant before the Rent Controller is accepted as alleged, such deposit was made at the rate of Rs.25 per month. It has been found that the rent was Rs.50 per month. The above deposit is, therefore, of no avail to the appellant. The payment of rent means the payment of agreed rent and not part of it. The ejectment case was filed in September 1989. The computation of rent deposited by the appellant from January 1988 to August 1989 at the rate of Rs.25 per month, would cover rent till October 1988. There would still be default in payment of rent from November 1988. No exception therefore can be taken to the findings of the learned Rent Controller on this issue. Coming to the ground of personal requirement the appellant has pleaded that he was a retired Government servant and aged 66 years. He was not keeping good health. He requires the premises for his own use. The appellant had pleaded that the respondent had sufficient accommodation in his possession in the same building. In evidence the respondent reiterated the contents of his application in the rent case. He did not deny that he was in possession of the premises in the same building. He did not deny that the accommodation in his possession is sufficient for his need. He did not assert that the accommodation in his possession was not suitable to his needs. He neither disclosed particulars of the premises in his possession, nor other particulars that may lead to the inference that the premises in his possession in the same building is not suitable to his needs. The case of the respondent is based on bald statement that he needs the premises for his personal use. He even suppressed the fact that he was in possession of the premises in the same building. The above circumstances indicate want of good faith. The respondent for his success on the ground of personal requirement, in the circumstances of the case, was bound to disclose that he was in possession of the premises in the same building, that the said premises was not suitable to his needs and ought to have disclosed circumstances as to how the premises in his possession was not suitable to his needs and how and in what manner the premises in possession of the tenant was suitable for his needs. Mere assertions that he was retired Government servant or was of old age and ill were not sufficient to establish goodfaith of the requirement. Under section 17(4)(a) the landlord is firstly required to prove his good faith and secondly he has to show that he or the member of his family, as the case may be, is not occupying any other residential building suitable for the needs at the time, in the cantonment area concerned or in any area in the vicinity, thereof and thirdly that he or the said member has not vacated such a building in the said area or vicinity without sufficient cause after the commencement of the said Act. All the three conditions must co‑exist. If he fails to satisfy any of the said conditions, in spite of counter‑plea, he is not entitled to order of eviction of the tenant from the residential premises in possession of the tenant. The case of the appellant that the respondent is in possession of sufficient accommodation in the same building having remained unrebutted, in failure of assertion on the part of the respondent that the premises in his possession is not suitable for his needs, it is to be inferred that the respondent is in possession of the accommodation sufficient to his needs, in absence of any explanation and particulars, portraying the so called unsuitability of the premises already in his possession. It is therefore held that the respondent has failed to establish the requirement of the premises for his personal use in goodfaith. The findings of the learned Rent Controller on the above issue therefore cannot be sustained and is hereby reversed. In view of the finding that the appellant has defaulted in payment of rent the appeal is dismissed. By consent the appellant is given two months' time to deliver the vacant possession of the premises in question to the to the respondent. A.A./M-2338/K Appeal dismissed.