1986 PLP 1755 (MLD)

Sh. Ehsan Elahi for Respondents. Date of hearing: 21st May, 1986. This appeal is directed against the order passed by the learned VIIIth Rent Controller, (South) Karachi, dated 22‑8‑1985, directing the appellant to handover vacant possession of the premises to the respondent within one month from the date of the passing of the order.

2. The facts of the case briefly are, that the respondent No.1 namely, Muhammad Akber, filed an ejectment application against one Muhammad Iqbal, (respondent No.2) and the appellant alleging that the respondent No.2 was originally his tenant in respect of the premises bearing. No .1001, Mahmoodabad, Karachi at a monthly rent of Rs.500 and that the respondent No.2 had without the consent of the respondent No.1, sublet the said premises to the appellant. It was further averred that the respondent had committed default in payment of rent as well as rent had not been tendered to the respondent No.1, from January, 1984. Another ground on which ejectment was sought by the respondent No.1 was that the premises in question were required in good faith by the respondent No.1, for his own use as he was a sick man and wanted to settle in Karachi.

3. The case was originally filed by the respondent No.1 before the XlXth Rent Controller, Karachi but on 16‑1‑1985 the case was transferred to the learned VIIIth Rent Controller, Karachi who has now passed the impugned order It was pointed out by Mr. Raja Sikandar Khan, learned Counsel for the appellant that the learned VIIIth Rent Controller, Karachi after receiving the case on transfer from the learned XIXth Rent Controller, ordered on 31‑3‑1985, that the respondent No.2 be served by registered notice, A.D. for the next date of hearing. Thereafter, the diary of 25‑4‑1985 maintained by the learned Controller shows that he had proceeded ex parte against the respondent No.2 on the basis of some earlier report of the bailiff that notice issued against the respondent No.2 had been pasted outside his house. On the basis of this the learned Rent Controller held the service to be good and as the respondent No. 2 was absent on that date, it was ordered that the case against him would proceed ex parte. teed order, the learned Rent Controller

4. Turning to the impugned order the learned rent controller after framing the issues gave all the findings in favour of the respondent No.1 and decided the case in his favour, ordering the appellant's eviction from the premises.

5. I have heard Mr. Raja Sikandar Khan and Mr. Ehsan Elahi, learned counsel appearing on behalf of the appellant and respondent No‑1, respectively.

6. The first contention of Mr. Raja Sikandar Khan is, that the order passed by the learned Rent Controller, dated 25‑4‑1985, proceeding ex parte against the respondent No.2 was erroneous as the service of notice on the respondent No.2 could not be held to be good by the learned Rent Controller. The learned counsel contended that although on 31‑3‑1985 the learned Rent Controller ordered that the respondent No.2 be served by registered post, A.D. but on 25‑4‑1985 which was the next date of hearing in the case thereafter the respondent held the service of notice against the respondent No.2.4o be good. This, according to learned counsel, has resulted in serious prejudice to the appellant, as the respondent No.2 was a necessary party in the case and his absence from the case at a crucial stage was fatal to the case of the appellant since all the parties whose presence before the Court was necessary to enable the same to effectually and completely adjudicate upon the questions involved in the case were not present before the Court. The learned counsel also pointed out that when the case was before the XIXth Rent Controller the respondent No.2 was appearing in the case and had even filed affidavit in support of his case.

7. The perusal of the record of the case before the learned Rent Controller shows that the contention of the learned counsel is not incorrect as the case diary signed by the learned Rent Controller 25‑4‑1985 clearly shows that after passing the order, dated 31‑3‑1985, the learned Rent Controller did not proceed further in the case on the basis of that order, but held the service on the respondent No.2 to be Food on the basis of some earlier report which is not even evident r1om the record. However, this argument does not help the appellant much, because on the point of subletting, for which the presence o the respondent No.2 according to the learned counsel, was essential before the learned Rent Controller, the case of the respondent No.1 has not been controverted at all by the appellant. Reference in this respect may be made to the affidavit filed by the appellant wherein the specific allegations of the respondent No.1 in respect of subletting of the premises have not been denied at all. Since on the factual plank, the case of the respondent No.1 has been admitted by the appellant, it does not lie in his mouth to plead now that prejudice has been caused, to him on account of the absence of the respondent No.2 from the, case.

8. The next argument of the learned counsel for the appellant is that the learned Rent Controller has erroneously decided the issues of default in favour of the respondent No.1. The contention of the learned counsel in this respect, has been, that the burden to prove default in respect of payment of rent was on the respondent No.1 which he has failed to discharge. As far as this contention is concerned, the respondent No.1 in para. 6 of his affidavit have clearly stated that the appellant had failed to pay rent in respect of the premises from January, 1984 and as such has Committed default in respect of the same. Looking at the appellant's affidavit on the point, there appears to be no specific denial of such allegations. Although in pare 6 of his affidavit the appellant has denied the allegations but such mere denial of genera nature cannot be taken into consideration as denial has to be specific. The appellant has not even stated that rent for the months in question had been paid by him to the respondent No. l or any other person on his behalf. Since there is no specific denial or any positive assertion made in this respect, the version of the respondent No.1 in his affidavit has gone unrebutted. Furthermore, no documentary evidence has been produced by the appellant to establish that the rent for the months in question was paid by him'‑to the respondent No. l . Since the rent case was filed in April, 1984, and allegedly rent Was not paid from January, 1984, , therefore, in any case even if grace period of sixty days is allowed, the appellant clearly committed default in payment of rent for the month of January, 1984. According to Mr. Raja Sikandar Khan, the appellant had tendered rent to the respondent No.1 for the month of April, 1984 by Money Order and thereafter, on 24‑7‑1984 deposited Rs.1,500 with the Rent Controller towards rent for the months of April, May and June, 1984. In support of this contention the learned counsel has shown me receipts although the same do not form part of the record of the case. Be that as it may, but si1w.the appellant has failed to establish 'that the rent for the month of January, 1984 had been paid by him in time to avoid penal consequences of ejectment on the ground of default in payment of rent. The case of the appellant is that he was paying rent either to the respondent No.2 directly or his son‑in‑law, namely, Muhammad Ashraf Khan. However, no receipts have been produced to support this contention. Whatever be the case, the case against the respondent No.1 on the ground of default has been proved.

9. The next contention of Mr. Raja Sikandar Khan is in respect of the third ground, viz. personal use and the same is that the respondent No.1 had failed to adduce sufficient evidene before the learned Rent Controller in support of his plea of personal requirement. In this respect in para. 8 of the affidavit, filed by the respondent No. 1, it was stated by him that he was an old and sick man and wanted to settle down, in Karachi permanently for treatment and therefore, the, premises were required by him for his personal use. However, besides this oral asser tion of the respondent No.1 there was no other evidence laid by him in support of his plea. It is not denied that the respondent No.1 at present is living in his native place, namely, Pindi Gheb, Attock.

10. However, since the assertion of the respondent No.1 in this respect was denied by the appellant in para. 9 of his written statement, the burden of proof to establish good faith or bona fides in respect o his personal requirement was clearly on the respondent No.1. This burden, in my opinion, is not light and the landlord is under heavy obligation to prove good faith or bona fides before any eviction of the tenant can be ordered on the ground of personal requirement. Therefore, in my opinion the last ground has not been conclusively established by the respondent No.1.

11. In any case, since I have already held that the two other grounds taken by the respondent No.1 in respect of subletting and default have been proved, I have no option but to maintain the findings of the learned Rent Controller on the said two grounds. As regards personal requirement the finding of the learned Controller is set aside, subject to the modifications as aforesaid, the order of the learned Rent Controller is maintained and this appeal is dismissed. There will, however, be no order as to costs.

12. As regards the handing over of possession, of the premises to the respondent No.1, it is hereby directed by consent of the counsel, that the appellant shall not be evicted from the rented premises by the respondent No.1 until the expiry of six months from the date of this order. However, in case the appellant fails to vacated the premises after the time allowed by this Court the writ of possession shall be issued by the learned Rent Controller without notice to the appellant. H.B.T Appeal dismissed.