1989 PLP 4446 (MLD)

Rajib Ali v. Darius Kandawala PLD 1984 Kar. 14 rel. (i) Sind Rented Premises Ordinance (XVII of 1979)-- --S.15--Personal requirement and reconstruction--Pleas of personal requirement and reconstruction are, not mutually destructive. Dawood v. Mohammad Yaseen PLD 1982 SC 227 rel. Siddique Mirza for Appellant. Munib Ahmad Khan for Respondent. Applicant Mohammad Ashraf filed ejectment application against respondent Jehan Shah seeking his ejectment from a portion of quarter No.J/71, Korangi Township, Karachi, in which he is a tenant at the monthly rent of Rs.50. Case of the applicant is that the respondent has defaulted in the payment of rent from January 1979 to June, 1981. Applicant also pleads that he wants to reconstruct the quarter for which he has obtained necessary permission from concerned authorities and he also states that the premises are required by him for the use of his family which, at the moment, is residing with his father but this accommodation is not sufficient. Respondent Jehan Shah in his written statement admitted the tenancy and added that he is a tenant since about 1969 and that the appellant had purchased the premises only two years before the filing of the written statement. He denied being defaulter and stated that the appellant had gone to Saudi Arabia on employment and at his instructions rent was paid to his father upto 10th January, 1980. Thereafter appellant's father demanded enhanced rent and did not accept the rent whereafter it vas sent by Money Order which was also refused. The respondent then commenced depositing rent in Court in Misc. Rent Case No.3412/80. The respondent also denied the grounds of reconstruction and personal requirement.

2. After recording the evidence of the parties, learned Rent Controller passed ejectment order on 10-2-1983 but on appeal this Court remanded the same vide order dated 24-11-1985 for re-trial on the ground that both the parties had produced insufficient evidence. After re-trial learned Rent Controller dismissed ejectment application vide order dated 30-11-1986. The landlord has now come in appeal. Counsel of the parties have been heard. I would separately take up the three grounds of ejectment. DEFAULT

3. Learned Rent Controller starts from the presumption that no rent receipts had ever been issued by the appellant/landlord. He says that "It is an admitted fact that no rent receipt was being issued by the landlord to the tenant." Perhaps learned Rent Controller relies on the following sentence in the cross -examination of appellant's father/Attorney "It is a fact that no rent receipt was issued to any tenant". This admission should however be read in the light of the admission of respondent himself in his cross-examination that "I used to pay rent to the father of applicant and obtained such receipts". This admission of the respondent is so specific that the authenticity of Qalandar Khan's statement becomes doubtful. At any rate, it is not correct to say that it is an admitted position that no rent receipt was ever issued to the respondent.

4. Be that as it may, the position is that the Appellant claims that the; respondent committed default in the payment of rent since January, 1979, and he, affirms this allegation on oath. It is held in 1985 CLC 30 that when a landlord states on oath that rent for a certain period has not been paid or tendered and tenant adduces no evidence except making a statement himself that it was paid and also produces a witness who deposes that rent was paid before him, then If under these circumstances, tenant shall be deemed to have failed to prove, payment of rent because landlord's statement on oath had shifted the onus to the tenant to prove payment of rent and this onus is not discharged by a mere statement of tenant and a witness. In view of this authority inescapable conclusion is that the respondent has failed to prove payment of rent since January, 1979. I Moreover, while in the case of above authority the tenant had produced a witness before whom the rent was allegedly paid, the respondent of this appeal had not produced any such witness and his claim rests entirely on his own statement. He I is thus in a much weaker position than the tenant in the above authority. In this connection a reference may also be made to PLD 1982 SC 465 which holds that when there is a word against word, then the party on which onus lies must fail. It cannot be denied that the onus to prove payment of rent lies upon the tenant. As such, this Supreme Court judgment also goes against the respondent. Here, the admission of the respondent becomes relevant in which he said that he used to pay rent and obtained such receipts. This renders his testimony doubtful.

5. Learned counsel of the respondent relied upon PLD 1985 Karachi 741 (Habib Ahmad v. Liaqat Hussain) which holds that under section 10 of the 1979 Ordinance it is compulsory for the landlord to issue receipt. This is correct. 1 would go even further and say that section 10 makes it mandatory that rent should be paid against receipt and if receipt is not given, rent should not be paid. Section 10 is as much applicable to tenant as to landlord. When a landlord does not give receipt, the proper course for the tenant to follow is to tender it by Money Order and if money order is also refused the rent should be deposited in I Court. This authority says that when rent receipts arc not being issued, oral statement of tenant must be believed unless it is untrustworthy. In view of the admission of the respondent in his cross-examination on his second affidavit-in-evidence after remand that he used to pay rent against receipts, his oral statement becomes totally untrustworthy and even on the strength of the Authority relied upon by his counsel, the respondent has failed to prove payment of rent of the disputed period.

6. Learned Rent Controller is of the view that since the Appellant did not take notice of default for about two and a half years, he should be disbelieved. There is no ground whatsoever to reach this conclusion. If this argument is accepted, and ejectment application on the ground of default must be filed immediately on the occurrence of default; otherwise default would not been believed.

7. Even if the respondent is to be believed that rent into 10th January, 1980, had been paid and Rs.50 sent vide money order coupon dated 11-2-1980 Ex.02 (page 75 of R & P) pertains to the period 11-2-1980 to 10-3-1980, it follows that rent was payable in advance that is why it was sent on the very first day of the month for which it was due. After refusal, the money order must have been delivered back to the respondent by about 20th February, 1980. No rent was admittedly sent by the respondent by money order thereafter. Thus, there is admitted default for the months of March, April, May, June and July. When the rent was deposited in Court for the first time on 16th July, 1980, the respondent had already committed default by neither tendering the rent by money order nor depositing the same in Court. Learned Rent Controller has incorrectly given benefit of June vacations to the respondent. Firstly, even before June, the respondent had become defaulter and, secondly, I understand there is no hitch in F the deposit of rent during June vacations and, thirdly, rent was not deposited even after the vacations were over on 30th June. It was deposited 16 days thereafter. There is hardly any justification to condone all this admitted default.

8. During the course of evidence the respondent claimed that he had paid to the previous owner of the house. This claim is not made in the written statement. Being out of the pleadings it cannot be taken into account. Secondly, the previous owner Haji Shah (AW-3) has denied having received this amount. There is no independent evidence in support of this claim of the respondent. The respondent has examined other co-tenants RW-2 Nuran Shah, RW-3 Chun Shah and RW-4 Lal Shah but they also claim to have paid Rs.10,000 each. They are thus interested witnesses and their corroboration of each other is of no value. The claim is rejected as baseless

9. For the above-noted reasons I am of the view that the respondent has been proved to be a defaulter for the entire disputed period and so far as default I since January 1980 onward is concerned, it cannot be denied even on the basis of the pleadings and averments of the respondent himself. PERSONAL REQUIREMENTS.

10. The applicant/appellant is employed in Gulf States and his family is I putting up with his father. He states that he wants to shift his family from his father's house to his own house and adds that his father's house is not sufficient even for other members of the family and all are inconvenienced due to paucity of space. In his written statement the respondent did not admit or deny the claim of the appellant but made a meaningless assertion in the following words. "The alleged bona fide requirement of the said applicant for the said rented premises as alleged or otherwise. I have not been able to make any head or tad of this sentence. After perusing the evidence, learned Rent Controller came to the conclusion that the appellant has failed to establish the bona fides of his requirements because he has seven family members and the demised premises consist of one room only which cannot be sufficient for him. In my view this is no argument. It is none of the business of a tenant to decide whether the tenement in his possession shall or shall not be sufficient for the requirements of the landlord. Something is always better than nothing and at the moment, applicant's family does not have even one room at their disposal. Learned Rent Controller is also influenced by the fact that appellant's father had a market and two flats besides the residential house in which he is living alongwith his own family and the family of the Appellant All this is irrelevant. Firstly, family of the appellant cannot live in a market. Secondly, the markets and flats are not lying vacant. Thirdly, even if they are lying vacant, they are not the property of appellant and the appellant cannot be forced to his father to keep appellant's family in his market or in his flats or in his two other quarters. AW-1 Qalandar Khan, appellant's father and attorney, stated in his affidavit-in-evidence that at present he was living in Quarter No.K/380 which was on a 120 sq.yard plot which consisted of three rooms and he had twenty six family members. He has given full list. Out of 26, 12 are his own family members wife, sons and daughters, appellant's family consists of seven persons, his other son Farid Khan's family consists of 3 persons, and his daughter Gul Khatoon's family consists of 4 persons. He was not cross-examined on the point of extent of his family members or the accommodation in his possession. It must therefore be assumed that it is an admitted position that appellant's father is keeping a family of 26 persons in a three-roomed house. As a matter of fact, the respondent admits all this in para. 5 of his second affidavit-in evidence filed after remand. This is certainly insufficient accommodation and the desire of appellant to move his family from the house of his father, where it is living under joint family system, and shift it to his own house, albeit in one room for the time being, appears to be genuine and bona fide. Respondent's further averment in para-5 that appellant's brother had purchased two houses is irrelevant. Appellant is not expected to ignore his house and seek refuge in the house of his brother or father. I get support from PLD 1984 Karachi 14 (Rajab Ali v. Darius Kandawala) in which this Court has held that desire to live in one's own house is quite natural and must be held to be bona fides unless mala fides is proved. In the same judgment it is held that it is not for the tenant to determine the suitability of accommodation.

11. Learned Rent Controller has also observed that the appellant has taken two inconsistent pleas, those of personal requirement and reconstruction which contradict each other but on this point I was referred to PLD 1982 SC 227 (Daood v. Mohammad Yaseen) in which it is held that pleas of personal requirement and reconstruction are not mutually destructive. Learned Counsel of the respondent claimed that this is an overruled authority but he did not substantiate his claim.

12. In my view the appellant requires the demised premises for his bona fide use and occupation. RECONSTRUCTION.

13. In para 4 of ejectment application the appellant claimed that he desired to construct a new building on the Site. He has produced necessary sanction from Building Control Authority as Ex.A-2 which was sent to him through covering letter Exh.A-1. These arc photocopies and learned Rent Controller has rejected them because originals had not been produced. This was not proper. If he was not satisfied with photo-copies, he should have asked the appellant to produce the originals. Any adverse inference could be drawn only if the appellant did not produce the original in spite of order of the Court. Besides, there was nothing to feel suspicious about ExhsA-1 and A-2. The respondent has also not disproved the genuineness of Building Plan which he could have done by summoning I concerned official alongwith relevant record from Building Control Authority but he did not do so. Learned Rent Controller has observed that the portion in rest of the house is not in possession of respondent is only one room whereas the his possession and as such reconstruction cannot take place unless the entire house is vacated because ExA-1 and ExA-2 envisage reconstruction of the entire house. However, Building plan was submitted with first affidavit filed before remand but the deponent was not questioned in cross-examination on this aspect and therefore this point cannot be raised in arguments. The appellant is serving in Gulf States. He has no place to live in Pakistan. His family is living with his father. He has purchased a quarter. He wants to shift his family to his own property but it is not sufficient and adequate for his needs. He warns to replace the existing structure with a new one. He got sanctioned building plan from Building Control Authority of KDA. Under these circumstances, the desire of appellant to reconstruct the premises must be held to be genuine.

14. In view of my above observations I am of the view that the appellant is entitled to seek ejectment of the respondent on all the three grounds, of default, personal requirement and reconstruction. I would therefore set aside the impugned judgment, accept the appeal and direct the respondent to vacate the demised premises. He is allowed one month's time, ending 31st May, to hand over vacant possession to the appellant. The appellant is also awarded costs of the appeal. M.Y.H./M-841/K Appeal allowed.