1988 PLP 1202 (MLD)

This appeal is directed against the order of the learned IX Senior Civil Judge and Rent Controller, Karachi, passed in Rent Case No.3422 of 1979, dated 17‑2‑1985 whereby he has dismissed the ejectment application of the appellant in respect of Shop standing on Plot No.7/126, Commercial Area, Liaquatabad, Karachi (hereinafter called the shop in question).

2. The appellant filed an application for eviction under section 13 of the then West Pakistan Urban Rent Restrictions Ordinance, 1959 on 17‑7‑1979 against the respondent on the ground of default in payment of rent for the months of May, 1979 and onward, for personal requirement and for the use and occupation of his physically unfit son Samar Raza for running a hardware business therein and for encroachment on the K.M.C. land by further construction unauthorisedly. The respondent filed written statement denying all the allegations made in the application. He pleaded that the respondent wanted to enhance the amount of rent and hence the application was filed with mala fide intention. He also pleaded that the appellant wanted to give the shop to someone else for getting huge amount of pugree. He further pleaded that he had paid the rent for the month of May, 1979 to the appellant in presence of witnesses and the appellant promised to send the receipt through his son but he did not give the same and avoided with mala fide intention. He also did not come to collect the , rent for the month of June, 1979 as per usual practice and consequently the respondent had to tender the same through money order on 8‑6‑1979. The respondent refused to accept the money order and consequently the rent' was deposited in Court through Miscellaneous Application No.2968 of 1979. The allegation of infringement was also denied. With regard to the requirement of the shop for his son it was specifically pleaded by the respondent that there were two shops belonging to the respondent and he had filed an ejectment application against the tenant of the other shop as well. The minor son was stated to be unfit to do any business and had no experience to run hardware shop. The appellant, father of the boy, was stated to be too old to sit on the shop and he too was unfit and unable to work and assist the crippled boy.

3. Out of the pleadings of the parties the Rent Controller framed the following issues. (1) Whether the opponent has, committed deliberate alleged default w.e.f. May, 1979? (2) Whether the case premises is needed by the applicant for the personal premises of his son Mr.Samar Raza in good faith bona fide? (3) Whether the opponent has encroached upon the KMC land unauthorisedly? (4) What should the order be? He answered the first three issues in the negative and consequently dismissed the application as stated above. Hence this appeal at the instance of landlord.

4. I have heard the learned counsel for the parties at some length. Mr. Abdul Karim Siddiqui, learned counsel for the appellant, relying upon number of authorities, namely, 1985 C L C 1294; P L D 1983 Kar. 570; P L D 1970 Kar. 832; 1980 S C M R 953; P L D 1987 Lah. 553; 1984 C L C 1693 and 1987 C L C 1547, made the following submissions. (i) That Samar Raza, the son of the appellant at the time of making the application was of 13 years of age and that he is polio affected thereby his left arm and right leg are paralysed. The appellant wanted to find out a source of income for his livelihood as he was unable to do any other job. It was then that the eviction application was filed against the respondent. At the time of making the application and even upto the stage of filing of this appeal Farzand Ali, paternal grant father of the boy abovenamed through whom the business was sought to be carried on was alive. He has, however, since died. But in view of the fact that the boy has reached the age of more than 18 years he would be himself in a position to do business with the assistance of employees. Moreover, in the application it is mentioned that he can be assisted by any elderly person and still his maternal‑grandfather who was examined as a witness also would be, available to assist him in the conduct of the business. The counsel contended that mere infirmity was not a ground for rejection o the bona fide requirement of the premises in question for the said son o the appellant. He also emphasised that it was not necessary that the person for whom the premises was required should have a previous experience of the business sought to be carried on. He further urged that the claim of the appellant as made in the application has been consistently adhered to during his examination‑in‑chief as well as his cross‑examination and so also by his witnesses. The failure of the examination of the boy, according to the counsel for whom the business premises was required was not fatal. The counsel urged with vehemence that the learned trial Court has committed an error in not allowing the ejectment application on the ground of personal need of the premises by the appellant for his son Samar Raza. (ii) Making his submission on the point of default in payment of rent the learned counsel for the appellant drew my attention to the fact that the rent for the month of May, 1979 which was payable, as per terms of the agreement dated 29‑5‑1972, in advance every month, was not paid to the appellant. This fact, he submitted, is borne out even from the deposition of the respondent in cross‑examination where he has clearly admitted that. It is a fact that since May, 1979 the rent remained unpaid. He also urged that it is an admitted fact that the rent receipts were being regularly issued by the appellant to the respondent and hence the plea taken by the respondent in the written statement to the effect that the rent receipt for the .month of May, 1979 was not issued on the face of it is false and unsustainable.

5. Khawaja Sharful Islam learned counsel for the respondent submitted that it has come in evidence that Samar Raza, the son of the appellant for whom the premises in question is required is a polio affected person and his left side is completely paralysed. He is, therefore, personally unable to do the business as has already been pleaded and deposed to by the witnesses produced on behalf of the appellant. He submitted that the death of the grandfather through whom the business was sought to be carried on, as per averment made in the application, the appellant's case in respect of personal requirement, as originally pleaded, stands demolished. He criticised vehemently that the production of the grandfather as a witness was with a view to improve the case as originally set up application. He further urged that the application was moved with a mala fide intention to harass the appellant who had declined to accede to the demand of the appellant for enhancement of rent. He submitted that in the written statement and so also in his deposition the respondent has clearly stated that the appellant wants to dispose of the shop in question on pugree and further to deprive the appellant of the source of his income inasmuch as he is doing business in the shop in question eversince, 1972. He further submitted that the mala tides of the appellant was further borne out from the fact that all the available grounds for seeking eviction, namely, default in payment of rent, the alleged infringement of certain land besides the personal requirement were taken in the application. He also drew my attention to the fact that the appellant did not mention in the application that he had also adopted ejectment proceedings against his other tenants of the adjoining shop on similar ground as taken in the ejectment application presented against the respondent.

6. With regard to the default in payment of rent for the month of May, 1979 the learned counsel submitted that alongwith the written statement the respondent had filed a photostat copy of the money order receipts and the coupon but the same are not presently available on record. He also submitted that in fact the rent for June, 1979 was remitted to the appellant which he declined to accept with the result that the respondent was put to necessity of filing miscellaneous application for permission to deposit the rent in Court. It was since then that the rent is being regularly deposited in Court.

7. With regard to the admission made by the respondent during his cross -examination to the effect that `since May, 1979 the rent remains unpaid'. He submitted that it was out of context. According to him the Rent Controller has mistakenly mentioned the month of May instead of the month of June, 1979. He also contended that the application on the ground of default in payment of rent from May, 1979 was also premature inasmuch as factually the respondent has been making the payment of rent sometimes in the beginning and sometimes after the expiry of the month. The application having been presented on 17‑7 1979 was premature inasmuch as sixty days had not elapsed from the date the rent for the month of May, 1979 had become due.

8. Having given my earnest consideration to the submissions made by the I learned counsel for the parties and after perusal of the evidence prevalent on record I am convinced that in so far as the default in payment of rent for the month of May, 1979 is concerned it stands proved not only through the evidence of the appellant but also by the specific admissions made by the respondent during his cross‑examination. I am not impressed by the contention of the learned counsel for the respondent that it was a mistake on the part of the Rent Controller to have recorded the month of May instead of June while recording the answer given by the respondent to a question put to him during his cross -examination. Even if it was so, it was open to the respondent to have moved the Court concerned for rectification of the said alleged mistake. This was admittedly not done, and therefore, there is no reason for me to ignore the specific statement made by the appellant and recorded by the Court in this behalf.

9. So far‑ as the plea regarding the application having been made prematurely it is sufficient to state that no evidence has been brought on record particularly on this aspect of the case nor was it so specifically pleaded in the written statement. In this view of the matter, the oral contention now made by the learned counsel for the respondent cannot be accepted.

10. In so far as the non‑availability of the certain documents filed alongwith the written statement, I do not find myself in a position to comment upon it either way inasmuch as it was for the respondent to have moved the Court concerned or this Court earlier in time, if it was a fact as alleged by the respondent that the said documents were filed and were allegedly removed from the record of the lower Court. I am concerned with the documents as are prevalent on record, and in doing so I am clearly of the opinion that the payment of rent by the respondent for the month of May remains unsubstantiated. The impugned order, therefore, on this issue deserves to be set aside and reversed. I order accordingly.

11. Now coming to the other ground, namely, the requirement of the shop in question for the bona fide need of the respondent's son, I find that on the basis of the case as pleaded originally in the application and sought to be substantiated through the evidence of the appellant and Farzand Hussain, the maternal grandfather of the said son, that the learned trial Court has rightly decided this issue and it does not call for any interference at this end. The admitted position is that Samar Raja, the son of the appellant for whom the premises in question is required is not physically fit in a position to run the business independently. It was for this reason that the appellant had himself pleaded in the application that his paternal grandfather, Farzand Hussain, will assist him in the conduct of the business proposed to be set up for him in the premises in question. The contention of the learned counsel for the respondent that with the death of the maternal grandfather of tae said son the entire complexion stands changed, is well placed and deserves to be accepted. It was not only on account of tender age of the boy that the assistance of some elderly person was needed for carrying on the business but also because of his being physically unfit on account of his left side being paralysed that the assistance of some elderly person was required to be given to him. No doubt, Syed Ahmed Ali Naqvi, the paternal grandfather of the said son Samar Raza, has also deposed that he would render assistance to him but looking to his old age and also that he is employed with a company and remains on duty during the day time, he would not be in a position to really render any assistance to him. Be fiat as it may, even otherwise in view of the averments made in the application for ejectment I am not impressed by the evidence of this witness. Besides, it being obviously an effort to improve the case as originally pleaded is legally unsustainable. For the foregoing reasons I would hold that the alleged requirement of the shop for Samar Raza, the son of the appellant is neither genuine nor bona fide and hence on this ground. the appeal D must fail.

12. In the result, the appeal partially succeeds to the extent and in the manner indicated above and the respondent, is therefore, directed to hand over vacant possession of the shop in question to the appellant within six months from today, subject to his depositing the monthly rent regularly in Court in terms of the tentative order of the trial Court. If the appellant fails to comply with this term he would be liable to be evicted forthwith without notice. AA./F‑57/K Appeal partly accepted.