1998 PLP 226 (CLC)

"(1) Whether the opponent has committed default in payment of monthly rent since June, 1994? (2) Whether the premises in opponent's possession is genuinely and in good faith required by the applicant for his own personal bona fide need to run a coaching centre therein? (3) Whether the opponent has ceased to occupy the rented premises for more than last two years and is using the same as godown, if so to what effect? (4) What should the order be?"

5. Respondent filed his own affidavit in evidence alongwith affidavit of his brother Sultan Mohiuddin and produced original tenancy agreement and carbon copies of rent receipt dated 22‑5‑1994 certified copy of Miscellaneous Rent Case No. 92 of 1994.

6. Appellant filed affidavit in evidence of her husband, namely, Mian Manzoor Ahmed said to be her attorney and his employee Shamsuddin. He alongwith affidavit produced original tenancy agreement, carbon copy of rent receipt dated 22‑5‑1994 issued to the opponent for May. 1994, certified copy of Miscellaneous Rent Case No.92 of 1994, certified copy of Court's ledger showing first deposit of rent by the opponent in December, 1994, photo copies of Degrees and certificates showing his qualification and retirement letter from P.A.F., retirement letter from Pakistan Defence Officer Housing Authority, commendation certificate and carbon copies of vacation notices/rent receipts.

7. The parties filed their written arguments and referred case law

8. The learned Rent Controller decided Issues Nos. l and 2 in affirmative, Issue No.3 was not pressed whereas vide Issue No.4 allowed the ejectment application.

9. I have heard the learned counsel for the appellant and learned counsel for the respondent at length. Mr. Muhammad Abdullah for the appellant mainly reiterated the arguments advanced in the rent case as well as taken in the written statement. He contended that respondent has failed to prove the genuine need of personal bona fide use of the disputed premises in the lower Court as such is not entitled to possession. He further argued that appellant has not committed any default in payment of rent and has been paying the same all along to the respondent or his brother Sultan Mohiuddin either by way of tendering the same in person or by sending the same through cheques. They used to issue the receipts after 2 or 3 months of tendering the rent and about the rent of the month of June, 1994 they did not issue receipt in spite of repeated demands. It is further submitted that the rent for the month of July, August, September and October 1994 was sent through cross cheques of Rs.4,000 by appellant's attorney thereafter, the rent was deposited in Miscellaneous Rent Case No.92 of 1994 which has been proved from his evidence and evidence of his witness produced by them in the Lower Court. In support of his contentions he has relied upon the following cases:‑‑ (i) Bin Yameen and 3 others v. Chaudhry Hakim and another 1996 SCMR 336. (ii) Messrs F.K. Irani & Co. v. Begum Feroze 1996 SCMR 1178.

10. Learned counsel for the respondent mainly relied upon the grounds agitated .by him in his case in the Lower Court and stated that appellant has failed to refer any illegality or irregularity or misreading or non‑reading of evidence of any sort from the order of the Rent Controller. He further argued that the Rent Controller has rightly termed appellant as defaulter and also correctly observed that the respondent is in personal bona fide need of the disputed premises. Learned counsel further contended that the rent for the month of June, 1994 was never paid and that the rent from July, 1994 onwards was also neither paid nor tendered by the appellant till December, 1994 whereafter on 5‑12‑1994 the rent for last six months was deposited in Miscellaneous Rent Case No.92 of 1994 for the first time. According to him, appellant neither mentioned anything about counter‑foil of the cheques in written statement nor in miscellaneous rent case, as such production of photo copies of counter‑foils for the first time alongwith affidavit makes it absolutely unworthy, particularly when there are lot of manipulations over the same. On the personal bona fide use, learned counsel submitted that respondent in his affidavit fully proved that he is a retired person and is in utter need of opening a Coaching Centre for his livelihood. The appellant though fully cross‑examined the respondent and his witness but could not shatter their evidence on both the grounds. In support of his above contentions he placed reliance on the case reported as 1996 MLD 1717, and 1996 SCMR 1178 (e) wherein it has been held as under: "(e) S. 15‑‑‑Bona fide personal need of landlord‑‑‑Merely because the husband of landlady had 62 shops in one area and 21 shops in another, would not disentitle her to apply for ejectment on the ground of personal requirement of her son as it is for a landlord/landlady to select as to which of the buildings he she/wishes to use personally or to provide the same to his/her children."

11. I have given anxious thought to the contentions advanced by the learned counsel for the parties and have gone through the evidence recorded by the learned Rent Controller. Apparently eviction was sought on the grounds of personal bona fide need and default in the payment of rent. The plea that respondent rented a portion on the ground floor of disputed premises at Rs.2,000 Rs.1,000 as rent and Rs.1,000 as hire charges (excluding water, conservancy, electricity and telephone charges) since 1987 as per tenancy agreement, is proved and is not disputed by the appellant. About default respondent as well as his brother in their affidavits as well as in cross examination have specifically said that appellant has failed to tender rent from June 1994 till 5‑12‑1994 when for the first time he deposited the rent amounting to Rs.12,000 from July, 1994 to December, 1994 in Miscellaneous Rent Case No.92 of 1994. The rent for the month of June, 1994 was neither paid to the respondent or his brother nor was deposited by the appellant in the said miscellaneous rent case at any time. The appellant has not been able to break this contention of the respondent though he was sufficiently cross‑examined. On the contrary the appellant Mian Manzoor Ahmed, Attorney of Mst. Farida Manzoor, the original appellant, in his cross‑examination has admitted that he is not in possession of any rent receipt from June, 1994 till the date of his examination. He has also admitted that he deposited the rent from July, 1994 to December, 1994 in Miscellaneous Rent Case No.92 of 1994. He in cross-examination has stated that he issued cheques to Sultan Mohiuddin and obtained receipts and also admitted that in miscellaneous rent case as well as in written statement he has not so mentioned about the obtaining of the receipts of the cheques. About the counter‑foil of cheques he denied the suggestion that the same are forged. On the face of it the counter‑foils of the two referred cheques show cutting and interpolation tendering their sanctity entirely doubtful and unworthy. For the purpose of evidence these song of documents cannot even be taken into consideration. From the evidence of both sides it becomes crystal clear that the rent for the month of June, 1994 has never been tendered or deposited by the appellant. So far depositing of rent in miscellaneous rent case on 5‑12‑1994 for the month of July to December, 1994, on the face of it shows that the said rent was deposited on 5th December, 1994, making appellant a clear defaulter. Once a tenant is proved to be a defaulter, even late payment of rent will not take him out of the category of defaulters. Since the plea of counter‑foil of the cheques was not taken in the written‑statement as well as in miscellaneous rent case by appellant, therefore, evidence recorded on the same if any cannot be relied upon. Honourable Supreme Court in the case of Bin Yamin and 3 others v. Ch. Hakim and 6 others, 1996 SCMR 336 (e) has held as under:‑‑ "Practice and procedure‑‑‑No evidence can be led or looked in support of a plea which had not been taken in pleadings."

12. In the case of Noman Ahmad v. Mst. Ghazala Iqbal 1996 MLD,1717, this Court dismissed first rent appeal on the ground of default as well as personal bona fide use exactly having the same facts as that of the case in hand.

13. On the ground of personal bona fide use, the respondent in his ejectment application as well as affidavit in evidence has categorically stated that he being highly qualified experienced teacher and having retired as Assistant Professor from Defence Housing Authority Degree College on 31st August, 1994 is jobless and wants to run his own Coaching Centre in the disputed 8 premises. His educational experience and qualifications referred above has not been challenged by the appellant and simply saying that Coaching Centre is not a legal business will not take away his right of asking disputed premises for his personal bona fide use. The learned Controller has rightly observed that the rented premises in possession of the appellant is required by the respondent in i bona fide good faith for his own personal use for running a coaching centre for which he has ample experience. On personal bona fide need, Honourable Supreme Court in the case of M/s F.K. Irani & Co. v. Begum Feroz 1996 SCMR 1178, has observed at plaeitum (d) and (e) as under:‑‑ "(d) S. 15‑‑‑Bona fide personal need of landlord‑‑‑Suitability of opening a departmental store by landlord in any one of the available premises entirely depends upon the choice of the landlord‑‑‑Such need and choice, however, should be real, genuine . and not tainted with mala fides. " "(e) S. 15‑‑‑Bona fide personal need of landlord‑‑‑Merely because the husband of landlady had 62 shops in one area and 21 shops in another, would not disentitle her to apply for ejectment on the ground of personal requirement of her son as it is for a landlord/landlady to select as to which of the buildings he/she wishes to use personally or, to provide the same to his/her children. "

14. For the above said reasons, I am of the opinion that learned Controller has rightly exercised the discretion in favour of the respondent/landlord and there is hardly any ground to interfere with his findings. Accordingly, the appeal is dismissed in limine. The appellant is ordered to vacate and hand over disputed premises to the respondent within 60 days. H.B.T./F‑26/K Appeal dismissed.