2009 PLP 615 (YLR)

MRS. QIASER IQBAL, J.

Petitioner has assailed the order dated 17-3-2008 passed by the respondent. No.1 dismissing the F.R.A. No.80/2006 maintaining the judgment of learned Rent Controller passed in Rent Case No.449/ 2002. The petitioner being aggrieved has resorted to file the present petition. The respondent has filed ejectment application under section 15 of Sindh Rented Premises Ordinance, 1979 against the appellant, tenant of flat No.13, Top Floor of the building No.G-16 of RC 12/86 Gondi Street, Bohrapir, Karachi which was rented out @ Rs.1500 per month payable in advance and Rs.500 towards the electricity and gas charges with effect from March, 2001. The appellant paid rent up to May, 2001, later committed the default. The respondent required the demised premises for the use of her daughter 'and. the accommodation in possession of the landlady was insufficient. The appellant filed written statement denied the landlady's contention pleaded that he had pugri at the time of commencement of the tenancy, the rent was agreed at Rs.225 per month. It is averred that out of Rs.1,35,000 paid towards pugri to the landlady, a sum of Rs.75,000 was paid in the year 2001, and the rest of the amount was invested to renovate the demised flat for putting the same in habitable condition thereby incurred Rs.12000, remaining amount of the pugri was paid to the landlady. After the dispute arose between the parties the matter was also taken into consideration by Nazim of Eidgah it was resolved, tenant had agreed to pay the balance pugri amount within one year. The rent for the months of March and April 2001 was offered through money order on refusal, tenant has started depositing the same in M. R. C No.71 of 2002. I have heard learned counsel for the parties, perused the record of the case. Much of the stress has been laid by the learned counsel for appellant towards the payment of pugri amounting to Rs.1,35,000 out of which a sum of Rs.12,000 was invested on renovation of the demised flat. The matter in dispute was referred to Ilaqa Nazim of Nanakwara Saddar Town, could not be resolved. It is urged that the respondent mechanically manipulated the ground of default and personal bona fide use in order to oust the appellant from the premises in his possession. Adverting to the ground of default the tenant was required to pay rent @ Rs.1500 per month and Rs.500 towards electricity and gas charges. Conversely the tenant has examined herself and her husband Muhammad Hanif, one Mustafqa Khan Nazim of Union Council that the rent was Rs.225/20 per month since landlord has claimed rent @ Rs.2000 from the month of May 2001, she started depositing the same in Misc. Rent Case No.471/2002 otherwise proved that no default was committed from May 2001, the husband of the tenant namely Muhammad Hanif in the cross examination admitted that she did not pay the rent from May 2001 to the landlady on account of amount paid towards pugri, initial burden rested upon the tenant to prove the plea raised, for which neither documentary nor oral evidence has been adduced. It is also spelled out that the tenant had started depositing rent in Miscellaneous Rent Application in the year 2002 thereby committed default in payment of rent. The ground of personal bona fide use agitated by the landlady, she intends to marry her grown up daughter and provide a separate accommodation she is residing in an accommodation of one room. The tenant has admitted in the cross-examination that the daughter of the respondent is married. She is residing separately from her husband as she requires separate accommodation. The facts and circumstances revealed from the evidence adduced by, the parties the tenant has committed default in payment of rent due, as mere assertion to the effect that the pugri was paid to the landlady does not bar filing of an ejectment application when the default was committed. The evidence on the point of personal requirement is also consistent with the plea raised, as the daughter of the landlady requires the premises for her personal use admittedly she is residing with the respondent in a house of one room and it is difficult for the respondent to accommodate her daughters' family. The concurrent findings of the two courts below cannot be interfered with at this juncture when the evidence led by the landlady is consistent to her case pleaded in ejectment application. Even otherwise if landlady owns more than one house it is her choice which is required to be taken into account when one house would be required by her for the use of her daughter, matter falls within her prerogative and discretion. In support of the question of the suitability and requirement of the landlady reliance is placed on 2000 SCMR 1992 wherein it was observed: -- "The statement of appellant-landlady on oath was thus quite consistent with her averments made in the ejectment application. Neither her statement was shaken nor anything was brought in evidence to contradict the said statement. The Rent Controller was, therefore, fully justified in accepting the evidence of the appellant-landlady and ordering the eviction of the tenant. Reference in this context, may be made to a recent case of Juma Sher v. Sabz Ali (1997 SCMR 1062)". In view of the above circumstances, the petition is not maintainable in law, the concurrent findings of two courts below do not require interference at this stage. The petitioner is directed to vacate the demised flat within three months and hand over its physical possession to the respondent failing which the law will take its own course. The petition is accordingly dismissed. H. B.T. /Y-1/K Petition dismissed.