1979 PLP 854 (CLC)

Date of hearing : 5th December, 1978. This second appeal by the tenant/appellant under section 15(4) of the West Pakistan Urban Rent Restriction Ordinance, 1959, seeks to impugn the judgment of the learned first Appellate Court, given on 27-4-1978, affirming the decision of the learned Rent Controller, whereby he allowed the rent application filed by the respondent/landlord and directed the ejectment of the tenant/appellant from the rented premises occupied by him.

2. The dispute in the instant case is in respect of premises on the ground floor of the building bearing No. AKI-9S-10, situated at Daryabad, Liaquat Street, Karachi. The appellant is the respondent's tenant in respect of the said premises, consisting of 3 rooms, on a monthly rent of Rs. 100 since the past 14 or 15 years. According to the appellant, the practice was that the respondent/landlord used to himself collect the rent of the premises. However, as he failed to collect the rent for the months of December 1973, January 1974 and February 1974, the appellant sent him the rent for the said period, amounting to Rs. 300, by a money order dated 26-3-1974. This money order, however, was refused by the respondent as in the meanwhile, on 6-1-1974, he had filed an application before the learned Rent Controller for the ejectment of the appellant on the twin grounds of default in the payment of rent and bona fide requirement of the premises for his personal residential purposes.

3. The appellant, in his written statement, denied that he was a defaulter and contended that the respondent had himself failed to collect the rent for the aforesaid 3 months because of ulterior motives. 1t was also denied that the respondent required the premises for his own use or that of his children. Both the learned Rent Controller and the learned first Appellate Court have held that the appellant has defaulted in the payment of rent. However, whereas the learned Rent Controller has held that the default was committed only in respect of the rent due from the month of Decem ber 1973, the view taken by the learned first Appellate Court was that the default had been committed for 3 months, namely, December, 1973 and January and February 1974. Both the lower Courts have further held that the requirement for personal use was bona fide.

4. Mr. Ali Ahmed Shaikh, the learned counsel for the appellant/tenant, has submitted that the failure of the appellant to pay rent for the alleged period of default was in fact occasioned on account of the respondent deliberately avoiding to collect the rent from the appellant as had been his invariable practice in the past. Two questions arise in the matter of the default. The first is what is the period for which the default was committed. Since there appears to have been no agreement between the parties, the rent was to b;, paid within 60 days from the period for which it was payable. The rent for December, 1973, thus was payable on the 1st of March, 1974. while the rent for January, 1974 and February, 1974, was respectively due on the 1st of April and the 1st of May, 1974. As such, on 26-3-1974, when admittedly appellant sent to the respondent by money order the rent for the months of December, 1973, January, 1974 and February, 1974, the rent was over due only for the month of December, 1977. The second question which has to be considered in the matter of the alleged default was whether the failure to pay the rent for December, 1973, could reasonably be considered as wilful or on account of the negligence of the appellant or whether it was due to either a bona fide mistake or the failure was at least partly due to or on account of the action of the respondent. The appellant - has been the tenant of the respondent for about 14 or 15 years, as stated by him in his evidence. There is no allegation that during this entire period any default has been committed by him. In view of his past unblemished record in the matter of payment of rent, it is unreasonable to expect that the appellant, would suddenly commit default in the payment of rent, for one month and then try to cover it up sending the rent due by money order. I am inclined to the view that there is substance in the contention of the appellant that the rent for December, 1973, could not be paid in time as the respondent had not, according to his practice, come to collect the same.

5. There remains the other ground on which the ejectment of the appellant has been ordered, namely, the ground of personal requirement by the respondent landlord. It appears from the evidence of the respondent that his family consists of as many as 14 members while the accommodation in his possession is only one big room. By any standard this accommodation would be wholly insufficient for such a large family. In my view, a landlord cannot be denied the claim to occupy this own house if he is living in such a congested accommodation. One son of the respondent is married and he too resides alongwith his wife with the respondent. This is an added reason in support of the respondent's bona fide claim for acquisition of the premises in question.

6. Mr. Ali Ahmed Shaikh, the learned counsel for the appellant, however, relied upon the second proviso to subsection (3) of section 13 of the Rent Ordinance, which reads as follows :- "Provided further that where the landlord had obtained possession of a residential, scheduled or non-residential building or rented land under the provisions of sub-paragraph (i) or sub-paragraph (ii) he shall not be entitled to apply again under the said sub-paragraphs for the possession of any other building of the same class of rented land unless such residential, scheduled or non-residential building or land is no longer suitable for his needs at the time."

7. The learned counsel submitted that by an order passed on 7-2-1975, in Rent Case No. 561/1974, the respondent had obtained possession, under the provisions of section 13(3) (a) (i) of the Rent Restriction Ordinance, of a residential accommodation in the very same building in which the premises in dispute are situated. This accommodation, however, consists of only a single room as :rated by the respondent in his evidence, which was given some months after he had obtained possession of the said accommodation.. This room, as already stated, is wholly insufficient for his large family. Furthermore, the ejectment application out of which the present appeal has arisen, was filed by him much before the accommodation was acquired. by the respondent in Rent Case No. 561/1974. As such, the proviso relied upon by the learned counsel for the appellant would not be applicable in the instant case.

8. In support of the orders of the learned lower Courts, Mr. Umrani, the learned counsel for the respondents, relied upon the second proviso to clause (b) of subsection (3) of section 13 of the Rent Ordinance, and submitted that inasmuch as the appellant owns a residential accommodation in the same urban area, he is liable to summary eviction. The appellant in his evidence has admitted that he has a residential accommodation in Hussainabad area consisting of 3 rooms. As such, even on this ground, the appellant is liable to ejectment.

9. For the reasons stated by me above, I find no merit in this appeal. I would accordingly, dismiss the same with costs. The appellant would deliver vacant possession of the premises in question to the respondent within 60 days of the date of this order. M. A. K, Appeal dismissed.