1986 PLP 843 (MLD)

The appellant has challenged in this appeal the order of the two Courts below rejecting the ejectment case of the appellant instituted on the grounds of default, personal and bona fide requirements, damage to the property and nuisance. The default was alleged for the months of November and December, 1976, while the‑personal requirement was pressed on the ground that the premises was required for the married daughter of the appellant. The other two grounds namely, damage to the property and nuisance were not decided and it appears that the Controller by mistake considered the issues suggested by the respondent, as issues in the case and since in the issues suggested by the respondent the issues of damage to property and nuisance were not there, these were not decided by the Controller. The First Appellate Authority also did not advert to this aspect of the case. It is contended by the learned counsel for the appellant that 5 issues suggested by the appellant were adopted ,by. the Controller on 2‑10‑1977 but while deciding the case the court erroneously referred to the issues proposed 'by the Opponent which were not adopted by the Court. I have seen the original file of the'‑‑rent case and found that on 2‑10‑1977, the Court had adopted only the issues suggested by the applicant. The issues which were suggested by the Opponent were apparently not considered as proper issues in the case. The Controller it appears while deciding the case acted under some misconception as to the issues and considered the issues proposed by the Opponent as issues framed in the case. The First Appellate Court also proceeded on the erroneous assumption that these issues were not pressed. At the time of admission of, this appeal the learned counsel for the appellant raised the contention that the Rent Controller adopted five issues but decided only three. Out of the three issues decided by the Rent Controller the first related to the default in payment of rent for the months of November and December, 1976, the second related to personal and bona fide requirement of appellant while the third issue related to the failure of landlord to carry out the repairs and white‑washing of the premises since the commencement of the tenancy. The Controller decided the issue of default and personal requirement against the appellant, and with record to the issues of repairs to the premise, the Controller observed that this issue was not pressed. The First Appellate Court though referred to in his judgment the issues originally adopted in the case but strangely enough remarked that issues Nos.3 and 4 were not pressed before the Controller. This approach of the First Appellate Authority was erroneous on its face as the Rent Controller did not consider at all in his order issues Nos.3 and 4 referred by the First Appellate Authority. Issue No.3 which the Controller had stated in his order as not pressed by the parties was totally a different issue. Therefore, the learned counsel for the appellant is correct in contending that the Rent Controller though framed five issues in the case, but did not consider at all two of them. On the issue of default in my opinion both the Court have rightly held that there was no default. There is admittedly no written agreement of tenancy between the parties. The default was alleged by the appellant in respect of the months of November and December, 1976 whereas the rent application was instituted on 3‑1‑1977. The respondent had admittedly tendered the rent for the months of November. and December, 1976 on 3‑1‑1977. The tender of rent on 3‑1‑1977 was within 60 years for the rent for these months becoming due. Therefore, there is no substance in the contention of the learned counsel for the appellant that the default in respect of November, December, 1976 was proved. However, on the question of bona fide requirements of 'the applicant both the Courts proceeded on an assumption that a married daughter of the landlady not being a dependent member of the landlady's family did not fall within the purview of the definition of a 'child' under section 13 of the Sind Rent Restriction Ordinance. This approach of the Court below is wholly misconceived as the expression "children" used in section 13(3) (a) (i) of the Sind Urban Rent Restriction) Ordinance, did include a married daughter of the landlord as well. There is nothing in the language of the statute which could justify this interpretation placed by the Court below on the language of this section., As the Courts below did not examine properly the needs o the appellant with regard to the requirement of the premises by her married daughter in view of the above erroneous approach, I feel its appropriate that the case is sent back to the Rent Controller for re l consideration. I am persuaded to send this case back to Rent Controller, for reconsideration for the additional reasons that the Rent Controller had failed to decide in his order the issues with regard to damage to the property and nuisance which were framed in the case. I accordingly C set aside the orders of the two Courts below, on the issues off personal and bona fide requirement of the ,appellant , send the case back to the Rent Controller with the direction that he will reconsider the issue o personal and bona fide requirement of the appellant in the light of the above observations. The Controller will also decide the two issues with regard to the damage to the property and nuisance adopted by the) Court on 2‑10‑1977 and which were not considered, in his order, date 12‑5‑1979. The parties may be given opportunity to lead any further evidence which they may desire and the Rent Controller will make every effort to dispose of the case expeditiously. In the circumstances of the case there will be no order as costs. M.Y.H. Appeal allowed.