1989 PLP 947 (CLC)

Civil Miscellaneous Appeals Nos. 1732 and 1733 of 1980: These applications for producing additional evidence have been presented only on 29‑10‑1988. No justification has been given for making these applications so late. The appeal is pending since 20‑11‑1986. All the documents now sought to be produced are old and were in existence even at the time when the proceedings were pending before the learned trial Court. I do not, therefore, find any justification to accede to the request made herein. The applications are, therefore, dismissed.

2. By this single judgment I propose to decide these two appeals arising from the combined order of the learned Rent Controller passed in Rent Case No.1357/1985 and Rent Case No.1358/1985 on 12‑10‑1986, thereby allowing the applications for eviction of the appellant from the two residential premises viz. G/2 and G/3, Khatoon Manzil, Shaikha Road, Lyari Karachi (hereinafter called 'the demised premises') of which the appellant is tenant on a monthly rent of Rs.30 p.m. each tenement.

3. The relevant facts are that on 28‑3‑1989 the respondent filed two applications separately under section 15(2) (ii) & (vii) of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as 'the Ordinance') for eviction of the appellant from premises referred to above on the grounds of default in payment of rent and for personal use. With regard to the default, it was mentioned in para. 2 of the application 'that the opponent had failed to pay rent or tender the monthlv rent as and from December, 1979, to date despite repeated demands"". In his affidavit‑in‑evidence the respondent unfortunately did not make a mention about this alleged fact whereas the defence of the appellant was of denial. He also asserted that he had been regularly paying the rent due but the respondent did not issue receipts for the rent tendered by him. Therefore he was compelled to send it from December, 1979, onwards through money orders which the respondent accepted and acknowledged. However, the burden of proof was on the respondent. In his affidavit‑in‑evidence the only averments with regard to default in payment of rent made are that he was not interested in any increase in rent and that he never refused to receive rent as and when tendered. The appellant has committed wilful default as can be seen from the Nazir's report. The appellant also examined his son Owais in Rent Case No.1357/1985, who deposed in his affidavit‑in‑evidence that his father, namely the respondent, had filed the above case against the appellant on the ground of default in payment of rent and on the ground of bona fide' personal need for himself and his sons and daughters. He did not depose about the rent being due from December, 1979 as alleged in the application. During his cross‑examination, however, he deposed that there is no dispute about the rent as it is being deposited in Court." In the Rent Case No.1358/1985, also the respondent no doubt stated "that whatever was stated in the application was correct and that the appellant had been very irregular in payment of rent and that he had committed wilful default in the payment of rent." He also deposed that the respondent never tendered any rent and that he never refused to issue any receipts. At the same time, he further deposed that he was not very keen to collect the rent and was mainly concerned about providing himself and his family living accommodation. In this case he examined his another son named Sarfraz as his witness, who in his affidavit‑in‑evidence did not make any mention about default in payment of rent. However, during cross examination he deposed 'there is no allegation of default." 3‑A. In the presence of the above evidence led on behalf of the respondent in support of his allegation regarding d fault in payment of rent. I am not in a position to endorse the finding of the learned trial Court. It was the basic responsibility of the respondent to have led satisfactory and convincing evidence in support of the allegation of default in payment of rent made in application, which, as already explained above, he unfortunately failed to do. Consequently, the finding of the lower Court on this issue is reversed and the appear is allowed. It brings me to the only other issue involved in these appeals, namely, whether the respondent required the demised premises for his and his sons' personal bona fide use. In this connection it is to be observed that in both the applications for eviction it was mentioned by the respondent that the present accommodation of the respondent is just two rooms of 8' x 8' which was hardly sufficient for his large family consisting of his wife and sons Owais (For whom the premises was required in Rent Case No.1357/1985 and Sarfraz (in Rent Case No.1358/1985). Additionally, it was also pleaded that he is a chronic heart patient and needs sufficient/additional/separate accommodation for himself.

5. The appellant in his written statement pleaded that the respondent had 5 rooms in his possession which were sufficient for his bona fide need and for the use of his family. He also denied that the respondent was suffering from heart ailment. It was a mala fide plea with a view to create a ground for his ejectment. In this behalf, the respondent in his affidavit‑in‑evidence reiterated the same contentions which he had made in the applications. He also deposed that he is a very aged person, with acute heart ailment and cramps apart from failing eye‑sight. He cannot, therefore, reside on the first floor since he cannot climb, down and ascent, the staircase except with great difficulty and stress. His son Owais, who was examined in Rent Case No.1357/1985 supported his case. Likewise his son and witness Sarfraz in Rent Case No.1358/1985 in his affidavit‑in evidence supported his version in this behalf. It was during his cross‑examination that the respondent, however despite having denied that it is a three‑storeyed building, admitted that there were three rooms on the ground floor, two rooms on the first floor and three rooms on the second floor. During his cross‑examination, P.W. Owais also admitted that there were total nine rooms in the whole building of which four had been let out and five were in possession of the respondent and his family. He repelled a suggestion made in the cross‑examination that only six family members of the respondent were living in the five rooms. It was also admitted by P.W. Sarfraz that there were nine rooms in the building of which five rooms were in possession of the respondent and his family members, while four rooms were let out to two other tenants. The case as set up by the appellant that the accommodation available in the building, as given by the respondent in the applications was factually incorrect was thus proved through the cross‑examination of the respondent and his witnesses.

6. The learned counsel for the appellant invited my attention to the fact that if the respondent has three additional rooms which he did not disclose in his application, he is not entitled to the relief for eviction on the ground of personal need obviously for the reason that he did not approach the Court with clean hands. Even otherwise the learned counsel for the appellant urged with vehemence that the accommodation of additional three rooms available on the second floor of the building was much more than the accommodation presently occupied by the appellant inasmuch as the appellant is admittedly in possession of one two rooms whereas there does exist three rooms accommodation on the second floor which was not disclosed by the respondent in his applications. The learned counsel, therefore, urged that the application is liable to be dismissed on that score alone. Relying upon a decision reported in 1984 CLC 755, wherein it is held that "where the landlord does not come to Court with clean hands and by suppressing material facts in rent application filed on the ground of bona fide .requirement, he is not to be allowed the relief by the Court inasmuch as it reflects on his bona fides." He also invited my attention to yet another authority reported in PLD 1985 Kar. 639 wherein it is held that 'in ejectment application on the ground of personal requirement the landlord must place before the Rent Controller all necessary details which are required for granting relief'. He also submitted that in this very authority it has further been held .that the term "child" means sons and daughters but it cannot extend to the grand‑child or grand‑children.

7. The learned counsel for the respondent, on the other hand, could not satisfy me that there was no non‑disclosure of the material fact in the application that there is a three‑room accommodation available available on the second floor of the building in question. He, however, emphasised that the respondent is a heart patient which is proved through the evidence led on record before the trial Court in both the cases. The Medical Certificates prove his version that he is an B old man and had remained admitted for heart ailment in the Jinnah Post‑Graduate Medical Centre and National Institute of Cardio Vascular Diseases. The learned Rent Controller in his impugned order has also referred to this piece of evidence and has held that the applicant was a heart patient and that he should not be allowed to climb the staircase.

8. No doubt in the normal course if a landlord, as held by the Courts in the above‑referred cases, does not come with clean hands he is not entitled to the relief, but in the instant case, I think, that the ends of justice require that keeping in view the ailment of the respondent, a fact which has been rightly taken into consideration by the trial Court on the basis of the documents prevalent on record, he should not be deprived of the relief.

9. Mr. Abdul Naseer Khan, learned counsel for the respondent, had during the course of hearing, I may observe, suggested that the appellant would not mind to accommodate the respondent by giving the ground floor premises and shifting to the first floor as he had also suggested during the trial of the case before the learned Rent Controller. I had at one point of time called upon the respondent to accept this offer but he declined to accept it saying that the nature of construction of the first floor is such that no outsider can be ID allowed to stay. This fact is disputed by the appellant. Be that as it I may, I am not going to attach any importance to the oral averments made by the parties now before me but looking to the age of the respondent who is present in Court today and also relying upon the findings recorded by the learned trial Court with regard to his ailment, I deem it proper to allow him to get one tenement out of the two. The appellant, when enquired preferred to retain G/3 with an exclusive right to use latrine and bath rooms. The respondent thereupon gave an undertaking that he would not use the latrine and bath room on the ground floor.

10. In the result, the F.R.A.995/1986 fails and is hereby dismissed whereas F.R.A.996/1986 succeeds and is allowed in the manner as E indicated above. The appellant, however, is allowed two months' time to vacate the demised premises No.G/2, subject to his paying monthly rent regularly for that period to the respondent. M.Y.H./S‑275/K Order accordingly.