1986 PLP 2550 (CLC)

‑‑‑Ss. 15(2)(ii) a 21(1)‑‑Ejectment of tenant‑‑Default in payment of rent‑‑Proof‑‑Tenant failing to produce any rent receipt or money order coupon to prove tendering of same through money order‑‑Rent Controller, held, rightly concluded that tenant had committed default in payment o‑rent. Imdad Hussain Kazi for Appellant. M. Shabir Ghoury for Respondent. Date of hearing: 2nd March, 1986. By this common judgment I propose to dispose two appeals F. R. A. No. 261# of 1983 and F. R . A . No. 274 of 1983. Both appeals are filed by same appellant namely, Muhammad Ali against same tenant namely, Muhammad Yaqoob in respect of same premises, a residential House No. 2 in Block No. 9, Dastgir Colony, Federal 'B' Area, Karachi. The facts leading to above two appeals are as follows. The appellant is occupying the disputed premises at monthly rent of Rs.400 as tenant of the respondent. On 18‑2‑1980 the respondent /landlord filed ejectment application seeking the ejectment of the appellant from the house in dispute on the ground of personal requirement. The ejectment application 'was contested by the appellant who denied the allegations of the respondent taking the plea that the respondent is presently living in a house which belongs to him. During the pendency of the said ejectment proceedings the respondent discovered that the appellant was also defaulter in payment of rent‑and as such he instituted another ejectment case against him on 18‑4‑1982 on the ground of default in payment of rent. In this case too the appellant denied the allegations of default and opposed his ejectment from the disputed premises. The learned Rent Controller after taking into consideration the evidence led by the parties allowed both the applications of the respondent by separate judgments, each, dated 19‑2‑1983, directing the appellant to vacate the disputed premises within two months of the judgment. The present appeals are directed against the aforesaid judgments of the learned Rent Controller. After hearing the arguments of the learned counsel for the parties both the appeals were dismissed with no order as to costs by short order 2‑3‑1986 for reasons to be recorded separately. Following are the reasons in support of the said short order. Taking up the first case in which the respondent has sought ejectment of the appellant on the ground of personal requirement, it would appear that the plea raised by the respondent is that he requires the house in question in good faith for his use and occupation as he is presently living in a rented premises the owner whereof is pressing him to vacate the same. While refuting the respondent's plea, the appellant has taken a stand in his written statement that the house in occupation of respondent is his own property and that he has suppressed this fact. In support of his plea the respondent has not only filed his own affidavit but also the affidavit of Inayat Ali the landlord of the house he is presently occupying. It is clear from these affidavits that the respondent is living in rented premises, on the first floor of the House No. 19‑C, Nazimabad No. 4, Karachi No. 81 which belongs to Inayat Ali. Their statement to this effect has gone unchallenged. Not a single question has been put to them in cross‑examination in this regard. The questions asked from Inayat Ali tend to show as if he has not pressed the respondent for vacating his house. It is a settled law that if a landlord who is admittedly living in a rented house has expressed desire to shift to his own house in occupation of his tenant, his need of the disputed house cannot but be construed as genuine and the tenant can be evicted on such ground. In the instant case the appellant has failed to establish his contention that the house in possession of the landlord is his own property. On the other hand, as has been stated above, it is proved from the affidavit of the respondent and his witness Inayat Ali that the respondent /landlord lives in a rented house which belongs to Inayat Ali. As against this the main argument of the learned counsel for the appellant was that the appellant is the fourth tenant of the respondent in the disputed premises, which already shows that once again he wants to relet the house in dispute to some other tenant who is prepared to pay him enhanced rent and as such his need for the house is not bona fide. This allegation has, however, been denied by the respondent. Even otherwise it has been held by this Court in number of cases that mere demand of enhanced rent by the landlord does not disentitle him to seek eviction of the tenant. It has been rightly observed by the learned Rent Controller that in view of the check provided in section 15(a), of the Rent law inasmuch as that after getting the house vacated on the ground of personal requirement the landlord cannot relet the said house, the apprehension of the appellant is misconceived. For above reasons the ejectment application of respondent has been rightly allowed. No interference is called for by this Court. Accordingly the appeal (F.R.A. No. 268 of 1983) was dismissed by short order as mentioned above. Coming to the other case which is covered by F.R.A 274 of 1983, the case of the respondent /landlord as disclosed in his ejectment application is that the appellant has committed default in payment of rent from January, 1980. This allegation has been denied by the appellant in his written statement wherein he has taken a plea that on refusal of the respondent to accept the rent, he started depositing the rent under Miscellanous Rent Application No. 2905 of 1980. While discussing this plea, the learned Rent Controller has correctly observed that the opponent (appellant) has not stated either in his written statement or in his affidavit‑in‑evidence as to when the applicant (respondent) refused to accept the rent from him. The learned Rent Controller has, therefore, referred to the Miscellaneous Rent Application made by the appellant for permission to deposit the rent in Court wherein he has come across the appellant's own admission that the respondent declined to receive the rent from March, 1980. Despite this assertion in the said application the appellant has admitted in his cross‑examination that he started depositing the rent in Court from May, 1980 and the payment was made on 8‑7‑1980. However the learned counsel for the appellant contended that the appellant had paid rent up to April, 1980 to Abdur Rashid and thereafter, when the applicant refused to accept the rent by money order the appellant started depositing the rent in Court. This argument as has been pointed out above, is belied by the appellant's own miscellaneous application under which he had started depositing rent in Court. In the said application it was clearly stated by the appellant that the respondent declined to receive the rent from March, 1980. Therefore, the question of his payment of rent up to April, 1980 to Abdur Rashid did not arise. Even otherwise it is an admitted position that appellant has not produced any receipt in support his case that he had paid rent to Abdur Rashid up to April, 1980. I have perused the affidavit of Abdul Rashid. The appellant has not put any question to him showing that he had paid the rent to him up to April, 1980. Again the appellant's claim that before depositing the rent in the Court he had sent it to the respondent by money order, is also not backed by C any money order coupon or receipt. In view of the material discussed above the learned Rent Controller has come to correct conclusion that even if the rent front May, was deposited in Court, the appellant is unable to prove that he had paid rent for the months of March and April, 1980 for which he has clearly committed the default in payment of rent. Consequently I see no reason to interfere with the judgment of the learned Rent Controller and, therefore, the appeal filed against the judgment of the learned Rent Controller was dismissed. H. B. T. Appeal dismissed.