1986 PLP 1284 (MLD)

Zaheer Hussain Chishti for Appellant. Nasimuddin Shaikh for Respondent. Date of hearing: 3rd March 1985. By a short order, dated 3‑3‑1985 this appeal was dismissed. Here are the grounds of the dismissal.

2. The impugned judgment was passed by XVIIth Senior Civil Judge and Rent Controller, Karachi, on 23‑12‑1981 and the appellant was directed to be ejected from premises No. IV‑A‑256/6 R.C. 8/14 situated in Premchand Building, Ranchore Road, Karachi, on the ground that he had failed to pay the rent of the premises and further on the ground that the premises were required by the respondent for their personal use.

3. The property in dispute was transferred to Muhammad Laiq by Settlement Department by ‑ T.D. in 1961. In 1966 said Muhammad Laiq died and the respondents are the legal heirs of Muhammad Laiq. The appellant has been in possession of the disputed premises since 1948 and, therefore, he is the statutory tenant in the said premises. The application was filed in 1970 on the ground that notice had been sent on 27‑5‑1970 to the appellant to pay the rent at Rs.20 per month but he had failed to tender the rent. Requirement for personal use was also‑mentioned. The appellant raised several objections, namely, further that the rent was time‑barred. It was further stated that notice under section 30 was not bona fide and that the rent was only Rs.9 per month. Receipt of notice under section 30 was not denied. It was stated that rent was first paid by the appellant at Rs.9 per month to deceased Muhammad Laiq and after his death in July, 1969 the respondent No.6 approached the appellant and made false statement that rent of the premises had been increased by authority from Rs.9 per month to Rs.20 per month and since at. that time rent for 16 months had fallen due i.e. from April, 1968 to July, 1969 the appellant paid Rs.320 to the said applicant (meaning applicant No.6) on 1‑8‑1969. The appellant, however, learnt that rent had not been increased and therefore, Rs.320 would be adjusted towards future rent. The need for personal use was not admitted.

4. Issues of rate of rent and default in payment of rent and requirement of personal use as well as the competency of applicant without obtaining of. Letters of administration were framed. After examining the evidence the Rent Controller held that respondent had failed to prove that the rent was Rs.20 per month. In respect of issue of default an payment of rent, the Rent Controller took into consideration paragraph 8 of the written statement of the appellant where he had stated that rent of 16 months had fallen due in July, 1969 and further took into consideration the admission of the appellant that he had not paid any rent after service of the notice on 20‑5‑1970 even at the' admitted rate of Rs. 9 per month.

5. In respect of the requirement of obtaining of Letters of Administration it was held that there was no such requirement under law that a legal heir of a landlord had to obtain letters of administration before filing an ejectment case. Personal requirement was held to be proved and, therefore, ejectment was ordered.

6. Mr. Zaheer Hussain Chishti, learned counsel for the appellant, submitted that on 2‑10‑1970 when the original application of ejectment was filed the same was incompetent in view of the fact that six years had not expired after notice under section 30 of Displaced Persons Act of 1958.

7. Mr. Nasimuddin Shaikh submitted that the objection was of no consequence in view of the fact that the ejectment was allowed on 23‑12‑1981 which was about 11 years after the filing of the ejectment application and, therefore, the cause of action had matured during the pendency of the proceedings. Reliance was placed upon 1977 C L C 279 where it was held that cause of action maturing during pendency of proceedings the party should not be non‑suited simply for reason of having launched proceedings before maturity of cause of action. In PLD 1978 S C 220 where ejectment application was filed in 1966, and decided by Rent Controller in 1972 and by High Court in 1977 it was held the statutory period of protection against ejectment had lapse during pendency of ejectment application and that even if the case was allowed to commence afresh after 11 years of litigation the result on merits was not likely to be different and, therefore, ejectment was upheld. Respectfully following the Supreme Court's view I reject the objection in respect of the application not being mature in 1970 and I hold that the cause of action had matured during pendency of these proceedings. Learned counsel for the appellant then submitted that there was no default in the payment of rent as the appellant had paid three hundred and twenty rupees in 1969 and another three hundred rupees in 1962. In this respect four receipts are on record. Exh.2‑G is a receipt of Rs.80 showing receipt of‑ rent from July, 1962 to October, 1962. The same is issued by respondent No.6, Muhammad Shafi, and appears to be, dated 31‑10‑1962. It also bears the signature of the appellant under the date of 1‑8‑1969. Another receipt Exh. 2‑H which is for Rs.240 for the period July, 1961 to July, 1962 issued by Muhammad Shafi, respondent No.6, bearing date of 30‑6‑1962. This is also signed by the appellant Farzand Ali. Both these are copies of the original receipts which were alleged to be given to the appellant and, therefore, the appellant had signed on these copies in token of having received the original. These copies of the receipts were put to the appellant, Farzand Alit when he was being cross‑examined on behalf 'of the respondents. As against these two receipts showing that Rs.320 had been paid for the rent of July, 1961 to October, 1962 calculated at Rs.20 per month the appellant produced Exh.0‑1/1 which is a receipt of Rs.240 for the period of April, 1968 to March, 1969 and appearing to bear signature of Muhammad Shafi. There is another receipt of Rs.80, Exh. 0‑1/2 for the period of April, 1969 to July, 1969 appearing to be signed by .Muhammad Shafi bearing date 1‑8‑1969. These two receipts 0‑1/1 and 0‑1/2 were not shown to Muhammad Shafi at the time when he was in the witness‑box either at the preliminary stage or at the final stage and it was only Farzand Ali who produced the same. Farzand Ali was cross‑examined quite seriously in respect of Exhs.0‑1/1 and 0‑1/2 and from the cross‑examination it appears that the respondents do not admit the authenticity of these receipts, whereas Exhs. 2‑G and 2‑H are admitted. The appellant had tried to produce Ex. 0‑1/1 and Exh.0‑1/2 as the originals of the copies of receipt Exh.2‑G and Exh.2‑H but there is a great deal of difference between the contents of one set of copies and the other. set claimed to be original and, therefore, the alleged originals cannot be accepted as the original of the admitted copies of Exh.2‑G and Exh.2‑H. It is not necessary to go into the allegations of the respondent that Exh.0‑1/1 and Exh.0‑1/2 are forgeries but it is enough to note that in the written statement the appellant had clearly, stated that he had paid rent at Rs.9 per month to Syed Muhammad Lalq, deceased, upto his death and thereafter in July, 1969. He paid Rs.320 on 1‑8‑1969 to respondent No.6 as the rent of April, 1968 to July, 1969. There is no mention of another payment of Rs.320 having ever been made by the appellant to respondent Muhammad Shafi as rent of 16 months. It therefore, obvious that the appellant is bound by his statement in the written statement and he cannot take up the position that he had paid another sum of Rs.320 in 1962. The logical conclusion, therefore, is that Exhs. 2‑G and 2‑H are to be accepted as the genuine copies o B the receipts issued by Muhammad Shafi as these copies bear the signatures of Farzand Ali. The other receipts Exhs. 0‑1/1 and 0‑1/2 have, therefore, to be kept out of consideration Exhs. 2‑G and 2‑H show that it was a rent of July, 1961 to October, 1962 only, which has been paid by Farzand Ali, and of course it was paid on 1‑8‑1969, till the time of the filing of rent application in October, 1970 even at the admitted rate of Rs.9 per month. And, therefore, the appellant was irk default for the period of rent claimed by the respondent.

6. The notice, dated 27‑5‑1970 sent by the respondent had demande rent from 1962 at Rs.20 per month. The appellant was not bound t pay rent at Rs.20 per month but he should have at least remitted th rent of three years before the receipt of notice and thereafter h should have paid rent to the respondent regularly but he failed to d so, therefore, finding of default is justified.

7. In respect of the personal requirement Mr. Chishti submitted that para.6 of application was completely devoid of any particulars and hence the personal requirement should have been negatived. I do no agree with this submission. It was enough for the respondent to make a statement that the applicant's bona fide requires the premises is good faith for their own use as they are a large family. Evidence ha not to be pleaded in the application. Appellant's counsel further pleaded that the respondent had suppressed the accommodation which they had with them. I do not find any justification for such submission because in the very title of the application the respondents have shown that four of them were living at Lahore, Vth was living at Aram Bagh and 6 to 11 were residing at 1/7 in the same building in which the disputed premises are situated and of course Syed Muhammad Shafi in his statement .as clearly stated that he was residing in the adjoining premises and that apart from the accommodation that he had with himself there was one room which was in occupation of a tenant. I, therefore, find that there has been no suppression of any fact by the respondent. The learned counsel for the appellant has not been able t contend anything against the personal requirement of the respondents. In fact, the Pent Controller has reproduced a portion of the affidavi of the appellant where he has admitted that Mst. Rashida resides in the neighbouring house. Mst. Rashida is one of the respondents and is putting up with applicant Muhammad Shafi who is occupant of only one room and Verandah and is living there with Syed Muhammad Atiq an Mst. Rashida is a widow and has four female children. It is, therefore, obvious that the respondents Nos.6 to 11 alongwith female children o Mst. Rashida must be having a great deal of difficulty by themselves when all of them are living in one room arid Varandah of the adjoining flat and it is, therefore, obvious that their need for extra accommodation was more than justified. Consequently, I had rejected the appeal on 3‑3‑1985 in view o the above reasons but I had allowed eight months time to the appellant to vacate the premises as Mr. Nasimuddin had graciously agreed to the same on behalf of the respondents in view of the hardships involved for Farzand Ali who is an old man and he will be put to difficulty in" securing alternate accommodation. Direct writ of possession is to issue without notice at the expiry of eight months from 3‑3‑1985 or even earlier if the appellant failed to deposit the rent in Court. A. A. Appeal dismissed.