1989 PLP 1009 (CLC)

This appeal is directed against the order of the learned II Senior Civil Judge/Rent Controller (West) Karachi, dated 20‑4‑1987 passed in Rent Case No.255 of 1985 whereby he has allowed the ejectment application of the respondent filed under section 13 of the repealed Sind Urban Rent Restriction Ordinance, 1959, and directed the appellant to vacate the premises in question within one month from the date of the passing of the order.

2. It was on 31‑5‑1979 that the respondent filed the ejectment application for eviction of the applicant on the ground of default in payment of rent for the period commencing from February 1979 till the date of filing the application, conversion of the use of the premises into a poultry farm and personal need for self and his family members. The appellant is the tenant of the respondent in respect of House No.251‑B, Block 10, Federal 'B' Area, Karachi (hereinafter called the demised premises) on a monthly rent of Rs.575 the normal rent is Rs.642 including water charges of Rs.17.45. The learned counsel for the respondent admits that the rate of rent given in the application is Rs.575 per month is not correct.

3. The respondent filed written statement in denial of all the allegations made in the application.

4. After recording the evidence of the parties and their witnesses the learned Rent Controller allowed the application on the ground of default and personal need only as stated above. 5. 1 have heard the learned counsel for the parties and perused the relevant record with their assistance.

6. On the point of default in payment of rent the learned counsel for the appellant submitted that the rent for the months of January and February 1979 was paid by the appellant by depositing the amount of taxes whereas the rent for the period commencing from March 1979 to October 1979 was remitted through money orders vide Exhs.0/5 to 0/10. He also submitted that there was no default in payment of rent for the months of March and April 1979 at the time when the application for eviction was made and as such the respondent had no cause of action to file this application and it was liable to be dismissed on that score, but the learned trial Court failed to take note of this legal aspect. He also submitted that the learned trial Court has misread the evidence when he observed in his impugned order "that the opponent in his cross‑examination stated that he was not authorised by the applicant to pay taxes" inasmuch as the appellant was duly authorised to pay the property tax vide Exh.0/11. The learned trial Court has also, according to the learned counsel, fallen into an error in observing that the applicant was not confronted with Exh.0/11 inasmuch as he did not inquire from the respondent that the said letter was issued by him. He also invited my attention to Exh.0/12, which is a letter written by the appellant to the respondent and the envelope containing the said letter dated 25‑5‑1975 was opened by the learned trial Court, wherein it is mentioned that the rent from January, 1979 was increased by Rs.50 and hence the total rent, including water tax, amounts to Rs.642.40 and that he had paid the KMC and property tax amounting to Rs.972 and Rs.315,90, respectively (totaling Rs.1,287.90), to the concerned authorities The rent for the two months of January and February 1979 in question comes to Rs.1,284.80 whereas the amount of tax was Rs.1,287.90 which has been deposited with the relevant authorities. It is further mentioned in this letter that the rent for the months of March, April and May, 1979 had been sent by separate money orders because Money Order exceeding the sum of Rs.1,000 is not accepted by Postal authorities. He also in this connection invited my attention to Exh.0/4 which is the Money Order Coupon wherein also the appellant had very specifically mentioned that the rent for the months of January and February, 1979 had been, as desired by the respondent, deposited towards taxes and that the receipts for payments of taxes had been sent to him by registered post. The rent for the month of March 1979 was, therefore, remitted through this money order (Exh.0/4). This money order was refused by the respondent but he did not make any endorsement thereon to the effect that the statement made therein was factually incorrect.

7. Learned counsel for the respondent, on the other hand, submitted that in the written statement the appellant had not mentioned the manner in which the amount of rent had been paid. The respondent did not know about the payment of property and KMC taxes. He also urged that Exh.0/11 was undoubtedly shown to the appellant but no suggestion was made to him that it was written by him or that it contains his signatures. He also draw my attention to the fact that in his deposition the appellant had admitted that the adjustment of the amount paid towards taxes was against the rents for the months of February and March 1979 whereas it was in the aforesaid two exhibits claimed to have been adjusted towards the rent for the months of January and February 1979. The counsel also emphasised that if the rent for the month of March had been allegedly sent by Exh.0/4 then why was the appellant depositing the rent in Court, as admitted by him as well his witness, in Rent Case No.4180 of 1979. He further emphasised that no documentary evidence was produced to show that the rent for the months of March 1979 onwards was deposited in Misc. Rent Case. 4180 of 1979. The said amount, according to him, was deposited pursuant to the tentative order passed by the learned Rent Controller on 1‑12‑1980. 8. 1 have given the consideration to the submissions made by the learned counsel for the parties and have also carefully perused the impugned order as well as the evidence prevalent on record. I have reached the conclusion that the order of the learned trial Court on this issue cannot be sustained inasmuch as having been confronted by his letter dated 6‑1‑1979, it was for the respondent, if the said letter was not written by him or that it did not bear his signatures, to say so. The failure on the part of the appellant to ask the respondent that this letter was written by him or that it contained his signatures Has absolutely not necessary on his part. Similarly the mere fact that the appellant had not specifically mentioned in the written statement the manner in which the rent claimed to be in arrears, was paid by him was in no way fall to his defence if he could prove the payment of the said rent. He has, in my opinion. proved the payment of rent for the months of January and February, 1979 by depositing the same towards property and KMC taxes pursuant to Exhs.0/11 and also by remitting the rent for the subsequent months by money order vide Exhs.0/4 to 0/10. The deposit of Rs.972 and Rs.315.90 made by the appellant towards the property tax and KMC tax was borne out from the contents of the aforesaid two documents viz. Exhs.0/4 and 0/12. The respondent did not deny the fact the said document having been sent at this given address. In so far as Exh.0/11 is concerned I may make a mention of it, it is on the letter head of Habib Bank Limited, New Mirpur Town, Azad Kashmir, where the respondent was admittedly posted at the relevant time. The genuineness of this document is, therefore, even otherwise proved. Consequent to my above finding I would reverse the order of the learned Trial Court in this behalf.

9. Making his submissions with regard to the personal requirement of the respondent for the demised premises, the learned counsel for the appellant contended that in para.7 of the application it is mentioned, without any details, that some of his family members were residing at Karachi. Likewise on his affidavit‑in‑evidence, having badly said that the demised premises is required by him for his personal use as well as for the use of his family members bona fide and in good faith, he stated that his one san was studying at Karachi and was living at 260‑A Block‑I North Nazimabad. The learned counsel for the appellant in this connection further submitted that the application for eviction was made under section 13 of the repealed Sind Urban Rent Restriction Ordinance, 1959, which envisaged the making of an application for eviction in the case of a residential building, if the landlord required the same for his own occupation or for the occupation of any of the children. The expression "for the use of his family members" as mentioned in the application, according to the learned counsel, was not in accordance with law and on that score also the application was liable to be rejected. The counsel in this connection further contended that no independent witness has been examined by the respondent to support his version as pleaded in the application, namely, that some of his family members were residing in Karachi and that his son was getting education in Karachi. On the contrary, he drew my attention to the admission made by the respondent during his cross‑examination that one of his sons Asad Ali Khan was getting education at Islamabad. The learned counsel for the respondent, on the other hand submitted that in para 7 of the application all the relevant facts required to be stated in justification of seeking eviction of the tenant for personal use of the landlord have been mentioned. He stated that oral request was made by the respondent to vacate the demised premises but the appellant failed to comply therewith. He also urged with vehemence that no cross examination was done about the personal need of the respondent.

10. Relying upon an authority in the case of Sami v . Begum Jehan 1986 C L C 2628 the learned counsel for the appellant also urged that good faith was to be proved by clear and definite evidence which could inspire evidence but there was no such evidence, according to him, available in this case.

11. I have carefully gone through the evidence of the parties in regard to this issue and I find that during his cross‑examination the respondent has admitted that he was living with family at Rawalpindi. He, however, stated that his son Azhar Ali Khan started living in Karachi about 4/5 years back. It has come in evidence of P.W. Hashim Hussain, Acting Head Master, where the above‑named son of the appellant was getting education, that he had left the said school after obtaining transfer certificate on 29‑3‑1981. It is further pertinent to note that in para 12 of the application where the respondent mentioned the dates when the cause of action for filing the application arose to him, he has not given any date when he asked the respondent to vacate the premises on the ground of his personal reed. There is in fact no mention of the cause of action having arisen to him for filing the application in respect of the alleged personal bona fide need. It has rightly been urged by the learned counsel for the appellant that the respondent has not led any independent and reliable evidence to support his version that some members of his family were residing in Karachi and that it was for them that he wanted the premises in question. The contention of the learned counsel for the appellant to the effect that the demised premises could be claimed only for the use of the appellant or his children as is embodied in section 13(2) of the repealed Sind Urban Rent Restriction Ordinance, 1959, is not without substance. I am satisfied that no oral or written request was made by the respondent before filing the ejectment application to vacate the house for his personal bona fide use or for the use of his family members. Even otherwise on the basis of the evidence brought on record I am convinced that the respondent has failed to establish his bona fide need for the house in question. The mere statement of the respondent that he wanted the said house for A his family members was by itself not sufficient when he has not categorically proved that in fact his family members were residing in Karachi or that he had on that score requested the appellant to vacate the said house.

12. In so far at the admission of Azhar Ali Khan in school is concerned, it was in the year 1978 and the failure on the part of the respondent to present an application immediately thereafter further shows that his alleged requirement for the said boy was also not bona fide. Moreover, he has admitted that his above‑named son is residing with his maternal grandfather. In so far as his being an employee is concerned, it is not a new factor and that he had been making his family to shift as and when his transfer is made from one place to another place. Moreover, before parting with the case, I would like to point out that the appellant had specifically pleaded in the written statement that he had demanded the enhancement of rent of the demised premises to Rs.2,000 and that the respondent was cross‑examined also on this aspect of the matter which goes to establish that the application was not made in good faith but with mala fide intention.

13. For the foregoing reasons, the impugned order is set aside on this issue as well.

14. In the result, the appeal is allowed and the impugned order is set aside. The parties, however, shall bear their own costs. M.B.A./A‑450/K Appeal accepted