1992 PLP 1232 (MLD)

This First Rent Appeal is directed against the judgment of I1nd Sr. Civil Judge and Rent Controller Karachi (Central), dated 30‑4‑1989, whereby he dismissed the application of the appellant for eviction of the respondent from the disputed premises. Briefly stated the facts of the appeal are that the appellant is the owner and landlady of a building on Plot No. D‑17, Block `H', North Nazimabad, Karachi. The respondent is her tenant in respect of one portion of that building on the ground floor at the monthly rent of Rs. 2,

600. The appellant filed the application under section 15 of the Sindh Rented Premises Ordinance, 1979, against the respondent for the ejectment on the grounds of default in payment of rent from 1‑8‑1987 to 30‑11‑1987 and requirement of the premises for her bona fide personal use. The respondent contested the application. In his written statement he admitted that the relationship of landlady and tenant between the parties, but alleged that the rent was at the rate of Rs.1,700 p.m. and that not Rs.2,

600. He had paid rent to the appellant till September, 1987. When the rent of October, 1987 was tendered to the appellant, she refused to accept the same and insisted on enhancing the same to Rs.2,

600. Hence the respondent tendered the same by money order. On her refusal to receive the money order, ‑he started depositing the same in MRC No. 1141 of 1987‑with the Controller. Hence he was not in arrears of rent. He has challenged the bona fides of the appellant and has stated that she does not require the premises/house, in his occupation, for her personal use. According to him this false plea has been raised only in order to pressurise the respondent to increase the rent. The parties filed their evidence in the shape of affidavits accompanied with the documents. The deponents were cross‑examined by the advocates for the respective rival parties. The learned Controller took up the issues as to the default in payment of rent and the requirement of the premises for the bona fide personal use of the appellant and after taking into consideration the evidence so adduced by the parties, he found all these issues in favour of the respondent and dismissed. the application. I have heard Mr. Dastagir, advocate for the appellant and Mr. Abdul Majeed Khan, advocate for the respondent. So far as the issue of default in payment of rent from August, 1987 upto November 1987 is concerned, the same revolves around the question as what was the rate of the rent. If rent was Rs.1,700 p.m., then there was no, default, but if‑it was Rs.2,600 p.m., then there is default. The oral evidence of the appellant, Mst. Kulsoom Begum, the landlady, corroborated by the rent agreement dated 1‑10‑1983 and the evidence of her Income Tax Advisor Mr. Faridi Siddiqui, corroborated by the income‑tax return, is the only evidence from the side of the appellant on the rate of rent. The evidence of Mr. Fareedi Siddiqui and the returns of income‑tax are nothing but admissions made by the appellant in her own favour and therefore carry little weight. However, so far Pas the rent agreement is concerned, which would have carried great weight, it has been denied and the respondent has alleged that it is forged. He has denied his signatures on the tenancy agreement. The learned Controller has embarked upon a comparison of the signatures of the respondent on the agreement with his admitted signatures as provided under Article 84 of the Qanun‑e‑Shahadat, and has come to the conclusion that the signatures on the tenancy agreement purporting to be of Muhammad Siddique, do not resemble the signatures of respondent Mohammad Siddique, which were taken in the Court. The learned Controller has further observed and rightly so that since the execution of the tenancy agreement has been denied by. the respondent, so also his signatures thereon and that the, agreement is not attested by the Controller, Sr. Civil Judge or a First Class Magistrate, as required under section 5 of the SRPO 1979 or by the attesting witnesses and therefore it is not authentic. It is, therefore, clear that the appellant has failed to prove that the rent was Rs.2,600 p.m. As against this the respondent has produced receipts Exhs. A/1 to A/7 and A/10, which are purported to have signed by the appellant. These receipts' show that the rent was Rs.1,700 p.m. No doubt, the appellant has denied the genuineness of these receipts as well as signatures thereon, but the learned Controller on a comparison of the signatures of the appellant on these receipts with her signatures obtained in the Court, came to the conclusion that the same resembled inter se. I have also compared the signatures and find myself in agreement with the observation of the learned Controller. I, therefore, have no hesitation in coming to the conclusion that the appellant has miserably failed to prove that the rate of rent is Rs.2,600 p.m. and the respondent has succeeded in proving that the rent was Rs.1,700 p.m. Hence there is no scope for interference in the findings of the learned Controller that there was no default in payment of rent. So far as the issue of requirement of the premises for bona fide personal use is concerned, the appellant has tiled affidavits to the effect that she is an old lady aged 63 Years (by now she has become about 68 years) and was suffering from number of diseases and was advised by doctors not to climb upstairs. Her evidence is corroborated by that of Dr. M. A. Zafar, who produced such medical certificate which he had issued. The appellant and Dr. MA. War were cross‑examined by the respondent's counsel, but they could not shake their evidence. The respondent has, no doubt, denied the old age and bad health of the appellant, but the denial is not convincing. The appellant appeared before me in Court on every hearing. She is a teacher in Falcon House Grammar School and from a very look and appearance she seems to be a very old and ailing woman. Such an old age brings with it infirmity and senility. I have therefore no hesitation in accepting the correctness of her statement and that of statement of her doctor Mr. MA. War that she is very old, infirm and is suffering from Osteoarthritis and Bronchial Asthama, and that it will be very difficult for her to climb the upstairs to the first floor where she is living presently, hence her desire to get the disputed house vacated from the respondent appears to be bona fide. The observation of the learned Controller that the appellant would not have rented out the other portion of the ground floor to Abdul Majeed, if she was really in need of ground floor on account of her old age and diseases is not convincing because that portion of ground floor was rented out to Abdul Majeed only one year after the induction of the respondent i.e. somewhere in 1983, while the application for ejectment is filed in 1987 i.e. about four years thereafter. The next reasoning given by the learned Controller is that the medical certificate was issued after the institution of the ejectment case and was, therefore, after‑thought story, is also not correct because she had already stated in her application that she was suffering from number of diseases and gave the names of those diseases and explained their details in her affidavit. Hence mere fact that the certificate was obtained after filing of the case does not diminish its value. On the contrary it shows that being of a subsequent date to the filing of the rent application it was the upto date piece of evidence. The learned Controller's last reasoning that the doctor had signed the affidavit in his Clinic and therefore, the same was not authentic is also not correct because a deponent is not compulsorily required to sign the affidavit in presence of the Oath Commissioner. It is enough that he admits and affirms the same in his presence. Moreover, even if there was any defect in the swearing or attestation of the affidavit the same is covered by section 13 of the Oaths Act, which reads as under:‑ "No omission to take oath or make any affirmation, no substitution of any one for any other of them, and no irregularity whatever, in the form in which any one of them is administered, shall invalidate any proceeding or render inadmissible any evidence whatever, in or in respect of which such omission, substitution or irregularity took place, or shall affect the obligation of a witness to state the truth:" The appellant has stated on Oath that she requires the premises in question for her bona fide personal use and has given good reason for the same. She was cross‑examined at length and her testimony could not be shaken. The appellant has no other suitable premises in her occupation. Hence I have least hesitation in coming to the conclusion that her desire was bona fide. The learned counsel for the respondent has relied upon the following cases:‑ (1) Anisur Rahman v. Saira PLD 1985 Kar. 715. (2) Sultan v. Mohammad Hassan PLD 1985 Kar. 624. (3) Samiullah v. Begum Ehsan 1986 CLC 2668. (4) M.S. Khan v. S.M. Siraj 1985 CLC 562. . (5) 1988 CLC 1833. The ratio decidendi of the above rulings is that if there was evidence or circumstances to show that the desire of the landlady was mala fide then the eviction on the ground of personal need should be refused. There can be no cavil with the proposition of law set out in these rulings but all these rulings do not apply to the facts of the present case. As against this Mr. M.G. Dastagif cited the following cases:‑ (1) Manzoor Ali Khan v. Hasham Raza 1983 CLC 2703. (2) Saira Bano v. Anisur Rahaman 1989 SCMR 1366. (3) Mahmoodul Hassan Ansari v. Mohammad Arif Siddiqui 1981 CLC

72. The ratio decidendi of these ruling is that the statement of landlady on oath about his illness supported by the medical certificate and his having withstood the test of cross‑examination successfully was sufficient to discharge the burden of proof. I have, therefore, come to the conclusion that the appellant requires the rented premises for her bona fide personal use. Lastly it was stated from the bar that the respondent was prepared to exchange the premises in his occupation with the premises in occupation of the appellant on the first floor, to which she was not agreeable, as according to her the respondent has a quarrel with some tenants. From their demeanour also I find that the appellant's allegation was not without substance. Hence I accept the appeal and set aside the order of the learned Controller and direct the respondent to vacate the premises. However, I grant three months time to the respondent to vacate the premises, but it will be subjected to his depositing‑monthly rent in the Court. The appellant shall deposit the security deposit of Rs. 20,000 within a period of three months, which will be paid to the respondent when he delivers the possession to the' appellant. However, it is clarified that if there is any damage caused to the premises the appellant shall be entitled to have the same compensated from the said security deposit under the orders of the learned Controller, if she satisfies the learned Controller about the same. A.A./K‑275/K Appeal accepted.