1989 PLP 428 (CLC)

2‑A. The respondent filed an ejectment application against the appellant on 11‑4‑1981 on the grounds of default in payment of rent for the period from Ist January, 1979 to Ist March, 1981 at the rate of Rs.125 per month plus electricity charges of Rs.50 per month; for personal bona fide need and also for causing nuisance. The appellant filed written statement denying the claim of the appellant and pleading that the rent of the demised premises including electricity charges was in fact Rs.125 only. The appellant also stated that the rent for the month of June, 1979 had been, on the refusal of the respondent, deposited in Court through Misc. Rent Case No.3207/1979. The rent for the period from January, 1979 to May, 1979 was claimed to have been paid to the respondent.

3. On the basis of the pleadings of the parties the learned Rent Controller formulated the following points for determination. "(1) Whether the rent of Rs.125 is exclusive of electricity charges? (2) Whether the opponent has defaulted in payment of rent since January, 1979 ? (3) Whether the applicant requires the premises for his personal bona fide use ? (4) Whether the opponent by starting the business of Motor Cycle workshop has caused nuisance ? (5) Whether the opponent paid Rs.7,000 as Pagri (goodwill) to Habib? If so its effect ? He has answered the first three points in the affirmative; whereas point No.4 has been answered in the negative.

4. The respondent in support of his case examined himself only, whereas the appellant besides examining himself produced two witnesses, namely, Salahuddin and Ahmed Hussain. The learned Rent Controller vide his impugned order has allowed the ejectment application as stated above; hence this appeal.

5. I have heard Mr. Shakruddin Mansoor, learned counsel for the appellant, and have with his assistance perused relevant record of the lower Court. The learned Rent Controller has answered the issue No.l, namely, that the rent of the premises was Rs.125 per month exclusive of electricity charges, in favour of the Respondent on the ground that the statement of the respondent made in his affidavit in evidence to this effect had remained uncontroverted inasmuch as not a single question was put to him during his cross examination in this behalf. The learned counsel for the appellant could not dislodge this finding of the learned trial Court with regard to the evidence prevalent on record. I have myself examined the same and I find that the learned Rent Controller has in this behalf not committed any error whatsoever. Consequently the impugned order is upheld on this point.

6. On the point of default for the period from Ist January, 1979 to Ist March, 1981 the learned Rent Controller again decided this point on account of the failure of the appellant to cross‑examine the respondent in this behalf as well. The respondent in para 3 of his affidavit‑in‑evidence has categorically mentioned that the rent for the period from Ist January, 1979 upto 28th February, 1982 (both months inclusive) amounting to Rs.4,750 has not been paid by the appellant to him. I have gone through the cross‑examination, as done by the appellant of the respondent and I find that this statement regarding default in payment of rent has also remained uncontroverted. In this view of the matter, the finding of the trial Court does not call for interference. Moreover, it may be pertinent to point out here that in view of the finding on issue of electricity charges of Rs.50 payable by the appellant over and above Rs.125 the default was obvious inasmuch as the, rent, if at all, tendered by the appellant would have been at the rate of Rs.125 and not at the rate of Rs.175 per month, inclusive of electricity charges.

7. On the ground of personal bona fide need of the respondent, the learned counsel for the appellant submits that a shop adjacent to the shop of the appellant is lying vacant and the appellant had for that reason made an application for summoning additional evidence but since it has been dismissed today by this Court, there is no material now left for him to attack the impugned order on this point. The learned counsel for the appellant however, submitted before me that the respondent is a washerman by profession and hence his need of the demised premises could not be said to be bona fide inasmuch as he washes the clothes at the river and then irons them at his residence. It is again pertinent to note there that in his written statement the appellant's stand was that' it was not known to him that the respondent is a washerman or not. .At any rate to say that a washerman does not require the premises for his use is obviously untenable and does not require much discussion.

8. For the foregoing reasons, the appeal is held to be devoid of force and it is accordingly dismissed. At this stage learned counsel B for the appellant prays that at least 8 months' time be allowed to the appellant to vacate the premises as he is carrying on his business of scooter repairing in it.

9. Mr. Ismail Kassim, learned counsel for the respondent however, is agreeable to the allowance of three months' period for vacating the premises. He states that the case is of 1981 and seven years have already passed since the commencement of the proceedings in the lower Court.

10. I would, however, allow four months' time to the appellant to vacate the demised premises and hand over its vacant possession to the respondent subject to his depositing the monthly rent regularly in Court in terms of the tentative rent order passed by the learned Rent Controller. In case the appellant fails to hand over the possession on the expiry of the period allowed hereby he shall be liable to be evicted forthwith without notice. M.Z.S./B‑98/K Appeal dismissed.