1989 PLP 53 (CLC)

‑‑‑S.15‑‑Personal requirement‑‑Landlord required premises for his personal use and for use of his son to carry on business‑‑On basis of evidence on record, case for bona fide requirement of shop in question made out‑‑Ejecteement of tenant ordered on ground of bona fide personal requirement of landlord. Mehre Alam Siddiqui for Appellant. Muhammad Akram Zuberi for Respondent. Date of hearing: 12th November, 1983. This first rent appeal has been filed by the tenant appellant challenging the ejectment order dated 9‑4‑1980 passed by the Rent Controller. Rent Case No.3626 of 1979 was filed on 18‑7‑1979 by the respondent for the ejectment of the appellant from the shop in question on the grounds of personal requirement and default in the payment of rent w.e.f. January, 1978. The ejectment application was resisted by the appellant. The parties examined themselves. By the impugned order the Rent Controller decided both the issues in favour of the landlord holding that the appellant had committed wilful default in payment of rent, as he had not paid rent from January, 1978 and it was further held that the respondent required the shop for his own use. I have heard Mr. Mehre Alam Ziddiqui, learned counsel for the appellant and Mr. Muhammad Akram Zuberi, learned counsel for the respondent.

2. The shop is' situated in Saddar Co‑opeartive Market, Karachi. Initially the case of the respondent was that he had entered into an agreement of partnership with the appellant for a period of 5 years and reliance was placed on a partnership agreement. After the expiry of the period of 5 years the appellant was asked to vacate the premises. Clause 1 of the Partnership Agreement required the appellant to pay Rs.400 per month to the respondent out of the profits of the business. After the expiry of 5 years, there was exchange of some legal notices between the parties and thereafter the respondent filed and application under section 20 of the Arbitration Act before the Civil Judge, Karachi. In that case the defence taken by the appellant was that the partnership agreement was a camouflage and in fact the appellant was the tenant of the respondent and this technique was adopted, as respondent himself was the allottee of the shop from the Co‑operative Market and he was not permitted. to sublet the premises. By order dated 28‑5‑1979 the learned Senior Civil Judge, Karachi, dismissed the application of the respondent holding that the agreement had expired. As the appellant had taken up a plea that he was a tenant at a rent of Rs.400 per month, the respondent acknowledged the appellant to be the tenant of the premises in question and on 18‑7‑1979 filed Rent Case No.3626 of 1979 against the appellant for his ejectment on the grounds of default and personal requirement. On the question of default the learned counsel for the appellant stated that rent had been tendered through money‑orders and thereafter Misc. Rent Case Nu.4643 of 1978 was filed and on 9‑8‑1978 a sum of Rs.1,600 being the rent from June to September, 1978 had been depoisted and thereafter regularly rent is being deposited in the miscellaneous rent case. Receipts of the landlord showing the deposit of rent by the appellant were not produced before the Rent Controller. Mr. Mehre Alam Siddiqui, learned counsel for the appellant, stated that he has the receipts regarding the rent deposited in miscellaneous rent case available with him and the same could not be produced by the appellant due to inadvertence before the Rent Controller. Mr. Akram Zuberi submitted that even at the appellate stage if the receipts are produced and they show that there was no default, he would accept the decision of this Court about the default after taking into consideration the receipts. As such the receipts had been produced alongwith a statement. On behalf of the appellant three money‑orders have also been produced which were refused by the respondent. One money‑order is dated 1‑8‑1978 and two money‑orders are dated 3‑9‑1978. The receipts in Miscellaneous Rent Case 4643 show that for the first time on 9‑10‑1978 a sum of Rs.1,600 was deposited and thereafter regular rents have been deposited up‑to date. Although the case of the respondent in the ejectment application was that the rent had not been paid since January, 1978, in the first legal notice dated 9‑7‑1978 no demand was made about the month payments. In the second notice dated 22‑8‑1978 on behalf of the respondent no demand was made for the monthly payments w.e.f. January 1978. On the contrary in the second notice dated 22‑8‑1978'. a reference is made to a money‑order for Rs.300 sent by the appellant to the respondent alleging the amount to be the rent of the shop for" the months of June and July, 1978, which money‑order was refused by the respondent. If ds.800 had been sent through money‑order by the appellant claiming the amount to be rent for the months of June and July, 1978, the respondent should have pointed out that in fact the rent was payable from January, 1978 but this was not done. Admittedly no receipts were issued for the monthly payments which were made by the appellant to the respondent. In this view of the matter it can safely be concluded that the payments upto May, 1978 had been made and thereafter the three money‑orders were sent and the rent receipts of the Miscellaneous Rent Case No. 4643 of 197 show that there is no default in the payment of rent. The finding o the Rent Controller on the question of default is accordingly reversed and it is held that the appellant was not a defaulter.

3. On the question of personal requirement, in the affidavit‑in evidence of the respondent it was stated that after the expiry of 5 years of the agreement, he had asked the appellant to vacate the shop as the same was required by him for his personal need and for the use of his sons who had now become major and wanted to carry on the business in the shop in question. In para. 8 it was mentioned that the shop was required for respondents bona fide personal use and for the use of his sons Muhammad Ali and Muhammad Naseem who will carry on business alongwith the respondent in the shop in question. In para 9 of the affidavit‑in‑evidence it was stated that respondent had no other shop in Karachi except the shop in question B and wall fixture No.14 is on rent from Co‑operative Development Fund and Projects which was a very small place. There is no. cross‑examination on the question that the wall fixture No.14 was al very small place and that the wall fixture which was on rent from the Co‑operative Market was not sufficient for the needs of the l respondent and his sons. In his evidence also the appellant has not, stated anything significant about the bona fide requirement of the respondent and his sons for the shop in question. The main contention on this issue of personal requirement was urged by the learned counsel for the appellant that the application was mala fide. According to him, in the earlier notices it was no mentioned that the shop was required by the respondent for carrying on business. The statement that this requirement was not mentioned in the notices is not correct. In the first notice dated 9‑7‑1978 o C behalf of the respondent it was stated that the respondent was i bona fide need of the shop for carrying on his own business for the betterment of his future. Mala fides of the respondent in filing o the ejectment application have not been established. In my view, o the basis of the evidence on record a case for bona fide requirement of the shop in question has been made out by the respondent. The finding of the learned Rent Controller on the question of the bona fide requirement is accordingly maintained. 3‑A. As a result, First Rent Appeal No.309 of 1980 is dismissed but with no order as to costs. Time is granted till 30‑4‑1984 to the appellant to vacate the premises.

4. It. may be noted here that according to the appellant he had paid Rs.0,000 as a deposit to the respondent. Mr. Akram Zuberi states that the respondent will give a cheque in the sum of Rs.20,000 to be drawn in favour of the appellant to the learned counsel for the appellant in the next three days. M.Y.H/M‑536/x. Appeal dismissed.