1989 PLP 3590 (MLD)

Zamiruddin Ahmed for Respondent. Date of hearing: 12th February, 1989. An order of eviction was passed against the appellant on the ground of personal requirement of the respondent and on the ground of default. He has now come in appeal.

2. Default was alleged for the month of October, November, and December 1981. The ejectment application was filed on 21st December itself when rent for December had not become payable as yet. As for rent of October, it was payable by 10th of November as provided under Section 10 of the Ordinance as there is no rent agreement between the parties and it could have been paid, as provided under section 15 of the Ordinance, within 60 days of 10th November, 1981, that is, by 10th January, 1982. Similarly, rent for November, 1981 was payable by 10th February, 1982. According to the appellant, rent for October, November and December 1981 was paid in lump sum m the first week of December, but no receipt was issued. Since the respondent was issuing rent receipts in the past and there was no practice between the parties to pay rent without obtaining receipts, this alleged payment in the first week of December, 1981 cannot be believed. Even so, as stated above, there was no default on the date of filing the ejectment application. The claim of the appellant that he was permitted to carry out repairs and adjust the expenses in rent had no basis and is rejected outright. Firstly, such permission should have been in writing. Secondly, the written-statement does not give any details of the repairs of the amount of the alleged repairs. It is unthinkable that the respondent would not bother to know the nature of the repairs or the estimate or expenses and would permit the appellant to carry out whatever repairs he liked without any limits to the expenses involved.

3. As for the personal requirements of the respondent, the case of the respondent is that he was employed in Saudi Arabia but he has now returned to Pakistan on 29-6-1980 and wants to settle in Pakistan and he required the premises in dispute for his own living. No question in this regard was put to the respondent in his cross-examination. The appellant did not either deny in his affidavit-in-evidence the personal requirements of the respondent. The personal requirements of the respondent have been proved beyond any doubt, even otherwise. He has returned from Saudi Arabia in 1980 and since then he had been putting up with his son-in-law, Abdur Raseed Khan, who had also filed his affidavit-in-evidence. The family of the respondent consists of his wife, two unmarried daughters and three young sons (besides three married daughters and one married son who are living separately). Naturally, the respondent wants accommodation. Interestingly enough, the case of the appellant is that the disputed accommodation is too inadequate to meet the requirements of the respondent because they consist of only two rooms without any amenities like kitchen, toilet etc. Further, the counsel of the appellant argued that the rest of the house including the amenities is in possession of two other tenants against whom no rent case has been filed. Such stance was taken in rent proceedings also. The respondent explained this by saying before learned Rent Controller as well as before this Court during hearing, that the other two tenants were his relatives and they had agreed to vacate the premises in their possession. During the hearing of the appeal, the respondent had agreed that if this appeal is dismissed he would not execute the ejectment order till he obtained possession from the other two tenants. Learned counsel of the appellant has agreed that the appeal may be dismissed with this stipulation.

4. I would, therefore, dismiss the appeal with costs with the stipulation that the respondent shall not execute the ejectment order until he obtained the possession of the rest of the house from his other two tenants. After obtaining possession from his other two tenants the respondent shall file an affidavit to this effect and learned Rent Controller shall then satisfy himself on the point before executing the ejectment order. For this purpose he may issue a commission but he shall not record any evidence and shall not un-necessarily delay the execution. The appellant, in the meanwhile, shall continue depositing rent in the Court so that the rent of each month is deposited before the 10th of the following month. Any default in the deposit of rent, for whatever reason shall entitle the respondent to execute the ejectment order immediately. M.Y.H./A-561/K Appeal dismissed.