1987 PLP 339 (SCMR)

Date of hearing: 3rd September, 1986. ALI HUSSAIN QAZILBASH, J.‑‑This appeal is directed against the judgment of a learned Single Judge of the High Court of Sind at Karachi, dated 25‑4‑1985, whereby the appeal of the respondent against the order of the Rent Controller dated 31‑3‑1982 for his ejectment from second‑floor of building on Plot No.2‑L, Block 2, P.E.C.H.S., Karachi was accepted and the order of the Rent Controller set aside.

2. The brief facts are that the appellant is the owner of premises No.2/L, Block 2, P.E.C.H.S., Karachi, and the respondent is a tenant under him of the second‑floor of the said building on the monthly payment of rent of Rs.250 plus Rs.16 as water and electricity charges according to the sub‑meter reading. It is alleged in the petition for ejectment that the respondent paid rent including the electricity charges according to the sub‑meter reading upto April 1979 but thereafter from May 1979 he started depositing the rent in the Court of the Rent Controller wherein besides the rent of the premises he deposited Rs.10 per month towards the electricity charges. On account of less deposit towards the electricity amount of Rs.1,414.80 stood outstanding against the respondent and he thus became a defaulter. It is further alleged that the appellant has a large family consisting of four young daughters and four major sons, two of his sons having been married and one having children are only in possession of three bedrooms and as such the accommodation at their disposal is insufficient and the suit rooms are required by the appellant for the use of the appellant and his family members. The application was resisted by the respondent wherein he denied the allegation of default in the payment of the electricity charges and also refuted the allegation of the appellant in respect of his bona fide requirement of the suit rooms. It was contended in the written statement that the appellant has two other rooms on the ground floor which are lying vacant and the accommodation at the disposal of the appellant is quite sufficient and the petition for his ejectment is not bona fide.

3. The pleadings of the parties resulted in the framing of their issues. The first was with regard to the default in the payment of the electricity charges amounting to Rs.1,414.80 and the second was about the bona fide requirement of the suit premises by the appellant. The Rent Controller after recording the evidence of the parties decided both the issues in favour of the appellant holding that the respondent has failed to deposit the electricity charges according to the sub‑meter reading and thus an amount of Rs.1,414.80 is outstanding against the respondent and as such he has become a defaulter. The learned Rent Controller while discussing issue No.2 held that the appellant has been able to establish that he required the suit rooms for his personal use because for such a large family he has only three bedrooms at his disposal and thus the accommodation at the disposal of the appellant is insufficient for his family and passed an order of ejectment against the respondent vide his order dated 31‑3‑1982. The respondent challenged the above findings by way of an appeal in the High Court where the learned Single Judge reversed the findings of the Court below on both the issues and rejected the application of the appellant for the ejectment of the respondent.

4. We have heard the learned counsel for the parties and have gone through the record of the case with the assistance of the learned counsel. As for the default in the payment of the electricity charges, the learned Single Judge did not examine this question in depth but only observed that the dispute about the electricity charges stood unresolved and the respondent in these circumstances could not be held a willful defaulter of the electricity charges.

5. In so far the question of default in the payment of electricity charges is concerned, sufficient evidence has been brought by the appellant that the electricity charges were to be paid according to the sub‑meter reading and not as flat rates. The receipts produced at the trial and which are Exhs. B to B‑4 show that electricity charges used to be paid by the respondent according to the electricity consumed by him. These receipts do not indicate that the respondent had paid electricity charges at the flat rates. The respondent has not been able to produce any evidence excepting his own statement that the electricity charges were paid by him at the flat rates. Since the deposit of electricity charges by him at the flat rate of Rs.10 was not according to the sub‑meter reading, the respondent has defaulted in the payment of rent and, therefore, the trial Court was justified, in holding that the respondent was a willful defaulter in the payment of electricity charges. We, therefore, set aside the finding of the learned Single Judge of the High Court on issue No.1.

6. While reversing the finding of the learned trial Court on the question of bona fide requirement of the suit rooms by the appellant, the learned Single Judge observed that the appellant has admitted that he got two rooms on the ground floor vacated in April 1981 from a tenant where he was running a factory and had he been in need of accommodation for the family he could not have started the factory, therefore, the bona fide requirement had not been proved. These observations of the learned Single Judge, with due respect, are based on wrong assumptions in that it is incorrect that the appellant had started his hosiery factory in the two rooms which he got vacated from the tenant in April 1981. In fact the appellant was running the factory, which is duly registered, in a portion of the ground‑floor since 1973. It seems that he has carried out some expansion in his factory and thus had extended his factory to the two rooms so got vacated. In any case his occupation of the two rooms for running the factory neither contravenes any provision of the rent laws nor would stand in the way of his bona fide requirement of the portion in dispute. It can also not be spelt out from the admission of Mashood Ahmad (Exh.No.6) that the two rooms which the appellant got vacated in April 1981 have again been rented out. According to this witness these two rooms are in his possession. The appellant has a very large family consisting of four young daughters and two sons, two of whom are married and have children. He has put forth his demand for his bona fide requirement in a forth right and convincing manner which has not at all been refuted by any cogent evidence by the other side. The respondent has tried to establish that the appellant got vacated some portion on the ground floor during the pendency of the suit and has rented it out to some other tenant for residential purpose but then his evidence and that of his witnesses is so discrepant and inconsistent that it can hardly be relied upon. We, therefore, hold that the appellant has been able to establish his bona fide requirement by producing cogent evidence. Thus, the finding of the learned appellate Court on this issue is also reversed. 7.In the net result the appeal succeeds and is allowed with costs. M. I. Appeal accepted.