1986 PLP 696 (CLC)

Date of hearing: 3rd November, 1985. This appeal calls into question the order passed on 11‑12‑1982 by XVIth Rent Controller, Karachi, dismissing the ejectment application filed by the appellant.

2. On 2‑3‑1976 the appellant had filed ejectment application a against the respondent claming that the rent of Rs,7pper month had not been paid from 4th June, 1963 and further claiming that the premises were required personally by the appellant for his own use and for tit the use of his family and in order to get Muhammad Yousuf married. It was further alleged that the respondent had made additions and alterations. The respondent in written statement denied the allegations and stated that he had paid rent upto 30th November, 1975, and regent for December, 1975 to March, 1976 was sent to the petitioner. Pe90ersonal need was denied and damage to the premises or alterations of there same was denied.

3. The issues of non‑maintainability of application on account of lack of notice under section 30 and of default, personal requirement were framed. Issue in respect of additions end alterations was not framed.

4. Abdul Ghani examined himself as P. W .1 and made a statement that rent had not been paid from 1964 but admitted that he had not shown any arrears of rent either to the Excise and Taxation Authorities or in the Income‑tax. He admitted that he had no counterfoils of rent paid. He stated that he was owner of the disputed premises as well as the owner of the house in which he was living at Victoria Road, Karachi, and he was also the owner of another flat. He stated that he and his wife and two sons and daughters were living at the Victoria Road flat which was not sufficient for their needs as he had to get his son Muhammad Yousuf married. He admitted in cross‑examination that two of his sisters were also living in the same premises but they had been married and had gone away. Muhammad Yousuf who is son of Abdul Ghani stated that he wanted to get married but could not do so on account of the paucity of accommodation. But in the cross‑examination he admitted that his mother had purchased one bungalow at Ch. Khaliquzzaman Road, Clifton where the entire family had shifted and that his father had given his own flat at Victoria Road (Sir Abdullah Haroon Road) to one of his daughters who has been married.

5. Rashida daughter of the deceased opponent examined herself in defence and stated that her father used to pay rent regularly to the appellant and that he had paid rent upto 30th November, 1975 but receipts were never issued by the appellant. She further stated that on 8‑1‑1976 when notice of non‑payment of rent was given by the appellant her father replied to the petitioner on 20‑1‑1976 and sent a cheque of Rs.280 as rent for the period from 1‑12‑1975 to 31‑3‑1976 and that it was stated in the said reply that rent had been regularly paid upto 30th November, 1975 but receipts had not been issued. She also stated that in view of the statement made by Muhammad Yousuf there was no more any personal requirement of the appellant.

6. Mr. Mahmood Ahmad has submitted that the personal need of the appellant had been established and, therefore, respondent should have been ejected. However, I find that the ejectment application was filed on 2‑3‑1976 but Muhammad Yousuf admitted that in or about 1979 they moved into new premises at Clifton. This statement "was made by Muhammad Yousuf on 7‑8‑1982. But the surprising thing is that Abdul Ghani on 19‑5‑1980, had not at all referred to the position that he had' shifted from the flat in which he was feeling the difficulty of accommodation and the family had moved to another bungalow. Abdul Ghani has failed to show as to what he did with the flat which he had admitted was with him. The consequence, therefore, is that the appellant had one flat at Victoria Road which he gave to his daughter then he had another flat admitted in cross‑examination but he did not show as to what he did with that flat. On the top of it, appellant moved to a bungalow of his wife at Clifton. The same has three rooms and, therefore, obviously the need of the family is clearly met by three bedrooms because previous to that they were having only two bedrooms at Abdullah Haroon Road. Moreover, one of the daughters had already been married. Further admitted position is that there is one flat which was available with the appellant for the purpose of the marriage and separate accommodation of his son Muhammad Yousuf. It is, therefore, apparent that the appellant had not been able to plead any bona fide need for the premises in dispute.

7. Mr. Mahmood then contended that the rent had been in arrears for a long time. I enquired from the counsel as to why the appellant had not issued any notice between 1963 and 1976. The reply was that there was close relationship between the parties inasmuch as the respondent's late father was the uncle of the appellant. In view of this relationship it is not difficult to imagine that the rent if paid may not have been evidenced by any receipts of rent as there was no lack of confidence between the parties before 1976.

8. The first notice of 8‑1‑1976 talks of non‑payment of rent of several months but the affidavit of Abdul Ghani talks of non‑payment of rent from 1963 showing a difference of twelve years. But the respondent had at once replied to the said notice and stated that rent had been paid upto 30th November, 1975 and sent a cheque of Rs.280 as rent for the period thereafter. The appellant did not accept the said rent and returned the cheque on the ground that it was not a complete tender of the amount of rent due. There is obviously a great deal of disparity between what is claimed by the appellant and what is asserted by the respondent. Ordinarily the initial burden of non‑payment of rent is upon the landlord which has been discharged by the appellant when he made the statement that rent had not been paid but his demand that he had not kept any record of the payment of rent makes his statement rather untrustworthy. His further admission that he had not shown any arrears in the return of income‑tax or the statement made to the Excise and Taxation authorities is further indicative of the position that the submission of the respondent might be true. Moreover, the reticence of the appellant from 1964 to 1976 does clearly show that the rent would not have been in arrears otherwise it should have been claimed much earlier. No landlord can allow a tenant not to pay rent for full twelve years. The burden of the payment of rent was of course upon the respondent but the same has been discharged by Rashida making a statement that her father had been paying rent regularly to the appellant. The same is corroborated by the reply to the notice, dated 20‑1‑1976 and is further supported by the cheque which has been produced. It, therefore, appears to me that the statement of Rashida on .this account appears to be more credible. More important is the fact that in notice of 8‑1‑1976, the appellant had claimed arrears of rent in respect of several months only which is more near to the position taken by respondent.

9. Mr. Mahmood then took up the position that even if rent upto 30th November, 1975, is treated to have been paid by the respondent then again the payment of rent by cheque was not proper tender. This is however a very technical ground. It is also stated that if cheque was not acceptable to the appellant then cash could have been sent but the appellant did not take up the position that it was not a proper tender on account of its being a cheque but only took up the position that it was not a full payment. In these circumstances the respondent could not said to be in arrears of rent on the date when the application was filed on 2‑3‑1976 in view of the fact that on 21‑2‑1976 the respondent had deposited the rent in Court. Even if there was any default in the payment of rent on 2‑3‑1976 the circumstances of the case do clearly indicate that it is a case where the discretion in not ejecting the tenant should be exercised in view of the fact that the tenant had first sent a cheque of four months rent on 20‑1‑1976 when the rent of December, 1975 had not become due as it could have been paid by 29‑1‑1976 i.e. sixty days after the date when it had become due, and moreover soon thereafter the respondent had deposited the rent in Court.

10. I am, therefore, of the view that the appellant has not been able to establish any personal need and that the default if any was merely technical and in any case the discretion in condoning the delay in the non‑payment of rent in time should have been allowed in favour of the tenant. The appellant's counsel had not urged that there was any case made out in respect of the additions and alterations.

11. In this view of the matter, this appeal is dismissed. H.B.T. Appeal dismissed.