1989 PLP 3869 (MLD)

S.15--Personal requirement--If a person is living in a rented premises and his own house is on rent, he can seek ejectment of his tenant on ground that he wanted to occupy his house himself. 1986 C L C 2550 rel. M. Iftikhar Ali for Appellant. Date of hearing: 7th February, 1989. Eviction of the appellant was sought on the ground of default in the payment of rent since May 1979 to October 1979, for causing unauthorised additions, alterations and damage to the property and on the ground of personal requirements of the landlady. It was stated that the landlady had seven children and was living in a small cabin, which was not sufficient for her requirements and the owner of the cabin had now demanded its vacation due to his personal requirements. The appellant had denied the truth of all the three grounds. As for default it was stated that it was paid but receipts had not been issued. It appears that rent was not paid even after October 1979 because the appellant claimed that he had sent the rent from November 1979 to April 1980 by money order but the same was refused. It thus appears that money order was sent in April 1980 or thereafter as per averment made in the written statement. It was denied that any damage was caused to the house and on the contrary it was asserted that the appellant had enhanced the value of the property. The bona fide requirements of the respondent were denied. It was further stated in the written statement that the appellant had spent a sum of Rs. 17,800 on the major repairs of the house and the respondent was to pay half of it as her share which she had not done and instead filed the ejectment petition. In the very same written statement it was stated that the respondent had refused to make any repairs in the building on the ground that the rent was very meagre (The rent is Rs.30 per month). The respondent filed her own affidavit in support of her claim and also filed affidavit of the person who is the owner of the cabin in which she is living. The appellant had also filed his own affidavit and affidavits of two more persons in support of his case but neither he himself nor his witnesses appeared in the Court for cross?examination and as such the evidence of the appellant was closed on 6-8-1986. Subsequently on an application having been moved by the appellant for reopening his evidence, the order of 6-8-1986 was set aside and the appellant was allowed to submit himself and his witnesses for cross-examination but this was again not done and the, evidence of the appellant was again closed on 18-2-1987. Thus this is a case of no evidence from the side of the appellant. 2. So far as the default in the payment of rent is concerned, it is an admitted position that the respondent was regularly issuing receipts for the rent paid. The appellant himself filed a number of such receipts. His defence is that he had paid the rent for the months of May 1979 to October 1979 but the respondent had not issued receipts although she had promised to do so. It is not possible to believe this version of the appellant. If the rent of May 1979 had been paid by him and receipt was not issued, it was incumbent upon the appellant to demand the receipt for the rent already paid by him before tendering the rent for the next month. It is highly unlikely that the appellant would continue paying rent for five more months although receipt for the month of May 1979 had not been given to him. Such a behaviour on the part of the appellant is highly unnatural. It was then argued by the learned counsel for the appellant that it was the practice between the parties that rent was paid periodically for many months together and, therefore, the default in the payment of rent for the period from May, 1979, to October 1979 should be condoned. This argument does not fit into the facts of the case. It is not the case of the appellant that rent for the disputed period was paid in a lump sum at any given date. What transpires from the written statement is that the appellant was regularly paying rent from month to month and there was no accumulation of rent. The appellant had unnecessarily brought in the remittance of rent by money order because no money order was sent upto the end of November 1979. A photocopy of the money order coupon filed by appellant shows that the money order was remitted in April, 1980. Besides, in the presence of a written rent agreement para. 3 whereof clearly stipulates that the rent is payable regularly by the 5th of the following month, no practice to the contrary can be pleaded by the appellant. Once the respondent/landlady had asserted that default has been committed by the appellant in the payment of rent from May 1979 to October 1979, the onus to prove the contrary shifted on the appellant/tenant. The plea that it was paid without receipt cannot be believed because as per practice prevailing between the parties, rent was being paid against receipts. In any case, as has already been stated above, there is no evidence whatsoever from the side of the appellant to controvert the assertion of the respondent on oath about the non-payment of rent for the disputed period. Learned Rent Controller has rightly held that the appellant is a defaulter for the disputed period. 3. As for the personal requirements of the respondent, the case of the -respondent is that she has a family of seven children and is putting up in a small cabin which had never been sufficient for her requirement and now, on top of it, the owner of the said cabin was asking her to vacate it. The facts averred by the respondent in her ejectment application were not controverted by the appellant in the written statement and the appellant hereby denied the personal requirements of the respondent. In support of her claim, the respondent produced the affidavit of her son and attorney Abdul Qayyum and also filed the affidavit of Rashiduddin, the owner of the cabin. This Rashiduddin stated that he had asked the respondent to vacate the cabin as he himself required it for the use of his children. As against this, the appellant has produced no evidence. It is a settled principle of law that if a person is living in rented premises and his own house is on rent, he can seek the ejectment of his tenant on the ground that he desires to occupy his house himself. 1986 C L C 2550 is an authority to that effect. In the present case, the respondent is not living even as a tenant but merely as a licensee of Rashiduddin and in the face of the fact that Rashiduddin demands the vacation of his accommodation, the respondent can legitimately seek the vacation of the appellant from her house. The appellant had not denied in his written-statement that the family of the respondent consisted of respondent herself and her seven children and as such this fact stands admitted. A small cabin measuring 10' x 12' is certainly not sufficient for such a large family. It was not sufficient in 1980 when the children were small and now that nine ears have elapsed since then and the children have grown up, the paucity of Y the accommodation in which the respondent is living is certainly more aggravated. I would, therefore, uphold the findings of the learned Rent Controller in respect of personal requirements of the respondent as well. 4. The appellant may not have caused any damage to the premises but he has certainly effected alterations therein. The appellant had stated in the written? statement that he had spent a sum of Rs.17,800 on the repairs of the house and it was agreed that 50% of the expenses would be paid by the respondent/landlady. I am of the view that such an agreement should have been reduced into writing and in the absence of a written agreement to this effect, it cannot be believed that the respondent had agreed for the expenditure of Rs.17,800 and to share half of it. In view of the fact that the rent of the premises is only Rs.30per month, it does not appeal to reason that the respondent would have agreed for the expenditure of such a huge amount on the repairs. The written-statement does not give the details of the repairs or any details of expenditure on such repairs but it nevertheless appears that a wooden staircase in the building had been replaced by a concrete staircase. Now, this is an old evacuee building consisting of about eight tenements, as per statement of learned counsel for the respondent which was not controverted by the learned counsel for the appellant, and the respondent is the owner of only one tenement which is the tenement in dispute. If the common staircase of this building was to be repaired, the owners of all the tenements in the building must share the expenditure of such repairs or replacement after a general agreement between them on the subject. The respondent alone was not bound to effect repairs to the staircase. If the appellant replaced the staircase, he did so at his own responsibility and without any permission from the respondent. The respondent is, therefore, not liable to meet its costs. Moreover it is not clarified in the written statement as to when this repairs or replacement of the staircase was undertaken. It is pertinent to note that the appellant had filed a civil suit for the recovery of the expenditure he incurred on this staircase but not only this suit has since been dismissed but the appeal filed by the appellant has also been dismissed by the District Court. 5. Lastly, it was argued by the learned counsel for the appellant that all the grounds taken by the respondent for the ejectment of the appellant are false because the attorney of the respondent (Abdul Qayyum) has admitted in his cross-examination that the appellant had misbehaved with them whereafter the ejectment case was filed. This argument is not correct. This averment of the' attorney of the respondent only sows that the respondent filed the ejectment case after the misbehaviour of the appellant. It does not mean that the misbehaviour of the appellant was the cause, or the only cause, of the filing of ejectment petition. 6. In view of what has been stated above, I am in agreement with the findings of the learned Rent Controller. The appeal is accordingly dismissed with costs. M.Y.H./A-609/K Appeal dismissed: