1985 PLP 184 (MLD)

Ss.15 (2)(vii) & 21(1)--Personal bona fide need--Evidence--Absence of Cross-examination--field, absence of any cross-examination to landlord, evidence led by tenant after evidence of landlord, was of title consequence--Mere fact that landlord was living in bungalow was not enough to disentitle landlord to claim possession of premises occupied by tenant unless further shown that premises in occupation of landlord was owned by him and was better in point of accommodation and other amenities. Samiuddin Sami for Appellant. M.H. Siddiqui for Respondent. Dates of hearing: 20th and 22nd January, 1985. This appeal under section 21 of the and Rented Premise Ordinance, 1979 is filed against the Order of eviction passed against the appellant by the XII Senior Civil Judge and Rent Controller, Karachi, on the ground of default, subletting and personal requirement on an application filed by tire respondent. In his eviction application before the Rent Controller the respondent alleged that his real tenant was one Mohomed Haider Khan, who has sub-letted the premises to tire present appellant in July, 1974 and accordingly it was stated that the said Raider Khan failed to pay the refit of (lie premises from July, 1974 to the respondent. In addition to the default then ground subletting and personal requirement were also urged by the respondent in the rent case. The appellant and the said Haider Khan resisted the application and they denied that Mohomed Haider Khan was the tenant of the premises and pleaded that in fact the appellant was the tenant of the premises and Haider Khan had only negotiated for taking the above premises on rent from Azhar Khan. It is an admitted position that both Haider Khan and Azhar Khan are real brothers and it has also come in evidence, that Azhar Khan .came from last Pakistan in or about February, 1973 while these premises were obtained on Rent in March, 1973. The rent Controller after recording evidence of the parties held that the real tenant was. Harder Khan (respondent No.1) in the rent case and as Haider Khan had admitted non-payment of rent by him, therefore, he was held to be defaulter il5 payment of rent and accordingly the application was allowed both on, the ground of default and subletting. The Rent Controller also found in favour of the respondent on the ground of personal bona fide requirement and in consequence thereof the application was granted on all the three grounds urged in the eviction application by the respondent. I have heard the learned counsel for the parties at length and after hearing them I am of the view that the findings of the Rent Controller on the grounds of default and subletting deserve to be reversed. I may 'mention here that while granting the application on the ground of default ,the Rent Controller was much influenced by the fact that the real tenant of the premises was Haider Khan the brother of the present appellant and, therefore, I will first deal with the question of subletting in the present case. The respondent in his affidavit of evidence before .the Rent Controller stated that he let out the house in dispute to Harder Khan in the month of March, 1973 at the monthly rent of Rs.75 and that Haider Khan was required to pay rent regularly an each calendar month. He further stated that opponent No.2 (the present appellant) has nothing to do with the tenancy right of the premises. He also denied that the tenancy in respect of the premises was joint in favour of Haider Khan and the present appellant. In cross-examination he stated that he was not aware since when the present appellant started living in the premises in case. He however admitted that in the month of July, 1974 he came to know that the opponent was living in the premises in. case. He stated that he used to go to collect the rent personally and rent was paid to him regularly upto June, 1974. tic admitted that there is no written tenancy agreement between the parties anti that the rent for the months of September, October and 5ioverfiber was remitted by money order by the present appellant which was received by one Hasin Bano. To a question in cross-examination lie denied that the dispute arose between the parties when the present appellant asked him to execute the agreement of tenancy and issue him the rent receipt and immediately thereafter he admitted in cross-examination that whenever tie visited the premises in case he found the present appellant there. This admission in the cross-examination was followed by further statement that tie came to know in the month of July, 1974 that Haider Khan had left the premises. It is significant that prior to the filing of the rent case the respondent served a notice dated 29-1-1976 through an Advocate on Haider Khan and in paragraphs 3 and 4 thereof' he made the following statement:- , "

3. That since July, "1974, you did not pay or tender the rent to my client and did riot discharge your obligation as tenant.

4. That my client did not receive any rent from Mr. Azhar Khan also and lastly he sent two money orders of Rs.350 and Rs.175 stating the period of arrears from September and October, 1975 and from November, 1975 Simply in order to show that the rent is being paid regularly." It is no where stated in the above notice that Rs.350 and Rs.175 remitted by Azhar Khan through money order towards rent of premises were received by a person other than the respondent. On the contrary a reading of the two paragraphs quoted above will show that the rent was received by the respondent himself personally. In the evidence before the Rent Controller the counterfoils of two money orders are produced alongwith the affidavit of Azhar Khan (the present appellant). These documents are at pages 275 to

283. A perusal of these documents will show that a money order covering the rent for the month of September and October, 1975 amounting to Rs.350 was remitted to Abdul Matin (respondent) which was received by him on 1-1-1976. Similarly another money order of Rs.175 covering the rent for the month of November, 1975 was also remitted to flip respondent which was received by him on 1-1-1976. Both these money orders were sent by Muhammad Azhar Khan (the present appellant) and the signature of the persons who had received the above money orders is shown as "Abdul Matin". The respondent in his evidence before the Rent Controller contended that these two money orders were received by her neighbour Hasin Bano. However, as pointed out earlier the money orders are purported to have been signed by one Abdul Matin and in view of the fact that the respondent admitted receipt of these money orders there is clear presumption that the money orders were received by him. It is also significant that neither any person was summoned from the Post Office to prove that the signatures appearing on tire counterfoil of the money order were not that of Abdul Matin nor the respondent examined the said Hasin Bano who is alleged to have received the two money orders. In these circumstances the rejection of this important piece of evidence and the admission of the respondent his notice dated 29-1-1976 was wrongly brushed aside by the Rent Controller by a comparison of signatures on flip money order with the admitted signature of the respondent on the ejectment application. The procedure for comparing of the two signatures adopted by the Rent Controller was wholly unwarranted in the present circumstances of the case as the initial burden to prove in the circumstances of the case that the money orders were received by someone else was not discharged by the respondent Apart from it there was hardly any justification fur adopting tire course followed by the Rent Controller in the case in view of the admission made in the notice dated 29-1-1976 served by the respondent immediately before institution of the rent case against Haider Khan and the present appellant. The appellant and Haider Khan both in their evidence categorically stated that tire premises were let out to the present appellant and that it was the appellant who used to pay the rent of the premises. The appellant in this regard is also supported by two independent witnesses Abdul Samad Khan and Ali Mohomed who are motor mechanic and barber in the snare locality anti who have stated that they have found the appellant occupying lire premises from early 1973. The further fact that the appellant though became aware of the alleged subletting in July, 1974 taut filed the application after about two years also lends support to the contention of the appellant flint he was the real tenant of the premise. The appellant has also produced before the Rent Controller his National Identity Card and the driving license on which the address of disputed premises is shown as his residential address. The driving license is dated 15-5-1973 and the identity card is dated 10-1-19'

14. After going through the evidence in the case, I am of the view that tire appellant has succeeded in establishing that he is the tenant of the premises in dispute. The default in the application is alleged against the tenant from 1 July, 1974 till the filing of the rent application which was filed in February, 1976. The appellant as welt as Raider Khan the alleged tenant contended before the Rent Controller that the rent was paid upto July, 1976 and the Rent Controller while passing the tentative rent order accepted the contention of the appellant and made a direction for deposit of rent from February, 1976. In the final order the Rent Controller while holding the tenant defaulter in payment of rent did not mention the period for which the default is allegedly established. Apart from it there is also no direction in the final order against the tenant to deposit the balance of arrears of rent if it is presumed that the tenant was found to be a defaulter by the rent Controller for the period mentioned in the application on the contrary, tire fact that thu respondent accepted the money order remitted to him towards the rent of September, October and November, 1975 show that the rent was being paid regularly by the appellant. The Rent Controller while holding the tenant as defaulter was mainly influenced by the fact that the appellant was found to be the sub-tenant of the premises and since Haider Khan (the alleged tenant) had admitted that he has not paid rent, therefore, he was held to be a defaulter. As I have already reached the conclusion that the real tenant of the premises was Azhar Khan and there is evidence on record to show that the respondent received the rent for the month of September, October and November, 1975 which was tendered by him he could not be treated as a defaulter in payment of rent. I accordingly reverse the findings of the Rent Controller on the ground of default as well. In so far the plea of personal and bona fide requirement is concerned I find that the respondent in his application as well as in his evidence categorically stated that he got married in 1980 and lie has got now three children and at present lie is residing with his mother in a two rooms rented flat and as such he wants to occupy his own house. The following statement was made by the respondent in his affidavit of evidence before the Rent Controller with regard to personal and bona fide requirement:- "

5. That I am residing with my mother in a two rooms flat a rented accommodation with my wife, children and other family members. I am working as Chartered Accountant in a very reputed firm of Chartered Accountants in Pakistan and I require separate accommodation for myself, a drawing room for my guest and my own use, and separate accommodation for my children. I do not possess and own any other house except the house in possession of the opponents. The premises aforesaid is require for my personal bona fide use." This statement of respondent is supported by another witness Nazir Ahmed and his sister Mrs. Shamini Islam. The evidence led by the respondent on the issue of personal tired bona fide requirement is consistent with the statement made by him in his eviction application and could not be shaken in. the cross-examination. The learned counsel for the appellant contends that the respondent is living in a very spacious and luxurious bungalow and Amil Colony, Karachi, and that there is evidence on the record to show that he has left the flat where he was allegedly staying with his mother at Aslam Road; Karachi after the marriage. To support his contention the learned counsel relied on a registered A.D. envelope which is said to have been addressed to the respondent on the address of Aslam Road, Karachi, and was returned by the postal authorities with the remarks "left". He also relied on the process which was issued in this appeal and which according to the learned counsel was not served on the address shown at the Aslam Road. He also referred to the statement of the, appellant in his affidavit of evidence before the Rent Controller in which the appellant has stated that the respondent is living in a bungalow at Amil Colony and the learned counsel stated that his statement of the appellant was not controverted in cross-examination. The contention of the learned counsel has no force. The respondent when he appeared in the witness-box was asked any question in cross-examination suggesting that he was residing at Amil Colony Karachi nor the registered A.D. envelope which was allegedly returned by the postal authorities with the remarks "left" was confronted to the witness when lie was in-witness-box, during cross-examination. In the absence of any cross-examination to the respondent in this behalf the evidence led by the appellant which was after the evidence of the respondent in the rent case was of little consequence. Apart from it, mere fact that the respondent is now living in a bungalow is not enough to disentitle Trim to claim the possession of the present premises occupied by the appellant unless it is further shown that the premises now in occupation of the respondent is one which is owned by him and is better in point of accommodation and other amenities. I accordingly confirm the findings of Rent Controller on issue of personal and bona fide requirement. As a result of the above discussion the appeal is dismissed but there will be no order as to costs. The appellant is allowed four months time to vacate the premises subject to the condition that he shall continue depositing monthly rent for this period with the Rent Controller and if he fails to vacate' the premises after this period he will be evicted without notice. H.B.T. Appeal dismissed.