1989 PLP 1786 (MLD)

3. The said M.S. Thariani contested the grounds of ejectment. He denied the allegation of default in payment of rent with effect from October 1972. The bona fide requirement of the disputed premises by the respondent was also questioned. The said M.S. Thariani died during the pendency of the case, and after his death, the appellants were brought on record as his legal representatives.

4. The parties went to trial on the following issues: (1) Whether the opponents have committed any wilful default in payment of rent? (2) Whether the house in question is required by the applicant for his own use bona fide? (3) What should the order be" (5) The respondent has examined himself (P.W. 1) while the appellants have examined Mst. Gul Bane (D.W. 1), Miss Shamim Thariani (D.W. 2), Mrs. Roshan Thariani (D.W. 3) and Roshan (D.W. 4).

6. On the assessment of evidence, both oral as well as documentary the learned Rent Controller decided issue No.1, against the appellants, while issue No.2 was decided against respondent, and in consequence thereof directed the ejectment of the appellants from the demised premises. It is in these circumstances that the appellants have filed this appeal. Being aggrieved with the finding of learned Rent Controller on issue No.2, the respondent has filed cress -objections.

7. Admittedly there is-no written agreement of tenancy between the parties. Subsection (2) of section 13 of the Sind Urban Rent Restriction Ordinance, 1959; provides that. "(2) A landlord who seeks to evict his tenant shall apply, to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that-- (i) the tenant has not paid or tendered rent due by him in respect of the building or rented land, within fifteen days after the expiry of the time fixed ill the agreement of tenancy with his landlord, or in the absence of any such agreement, within sixty days from the period for which the rent is payable;

8. The respondent has claimed rent from 1-10-197.2 till the filing of ejectment 'application. Mst. Gul Bano (D.W.-1), who is widow of M.S. Thariani has, however, disputed this position. She has placed reliance upon the order dated 15-2-1974 passed by the Judge Small Causes Court Karachi (Annexure A), in which there was a clear finding to the effect that said M.S. Thariani had paid rent in respect of this premises to the respondent. The concluding paragraph of this order is relevant, which is reproduced below: "Considering all these facts; I am inclined to believe the word of the opponent that he has paid the rent uptil September, 1973. The rents. For the months of October and November of course has been deposited with the Rent Controller. As such, there are no arrears of rent outstanding against the opponent. I, therefore, dismiss this D.W. application."

9. This order passed in Distress warrant proceedings was also considered by the learned Additional District Judge Karachi, in Rent Appeal No.7 -of 1976, filed against the order of striking off the defence of appellants, who in his judgment dated 24-3-1980, available on record observed as follows: "D.W. proceeding clearly shows that there was no arrear for the period 1-10-1972 to 30-11-1973. Rent for the months of October and November 1973 was deposited 'on, 6-12-1973 as per Nazir's report in Misc. Application. Thereafter, tenant was depositing rent every month."

10. The statement of accounts filed as "Annexrure-B" to the written statement again clearly shows that the said M.S. Thariani had deposited the monthly rent due regularly in Court upto the period when the application for ejectment was filed before the Rent Controller. The said M.S. Thariani was thus not in arrears when the application for eviction was filed against him. The learned Controller has failed to evaluate the effect of payments which were made by the appellants in Misc. Refit Application No. 2845/73. He also failed to give weight to the order of the learned Judge Small Causes Court, Karachi, which clearly proves that the-said M.S. Thariani was not in arrears when the application for ejectment was filed. The respondent had in-fact denied the receipt of rent from 1-10-1972, and it was not his case at any stage that the said tender was made after the statutory period, viz. sixty days from the time when the rent became due. The respondent had the- audacity to show his ignorance about D.W. proceedings filed by him before the Judge Small Causes Court, Karachi. He is thus a dishonest witness and has not come to Court with clean hands; The finding of Rent Controller on issue No. 1, therefore, cannot be sustained and is set aside.

11. The respondent has also claimed possession of the disputed premises on the ground of personal requirement: He -was not able to convince the Rent Controller about this bona fides claim. According to him he has got no other property to reside except the disputed one. The appellants, however, state that he has got a princely residential accommodation of his own in, Lehri Market Building of Federal `B' Area, Karachi. A list of ten residential and commercial buildings owned by the respondent is placed on record to prove mala fide on his part. The photocopies of extracts of property (Exhs. O/1 to O/4) lend support to this assertion of the appellants. At any rate the respondent quite admittedly is in occupation of five flats. The landlord besides establishing his requirement in good faith must also prove that he does not occupy Any other property in the same urban area suitable to his needs. Section 13(3)(a)(i)(a)(b) of the Sind Urban Rent Restriction Ordinance, 1959, is self-explanatory. I am, therefore, in agreement with the finding of learned Rent Controller on issue No.2, although E for different reasons.

12. For the foregoing reasons the order of ejectment is set aside: The appeal is allowed with no order as to costs. M.Y.H./M-784/K Appeal allowed.