1998 PLP 982 (MLD)

This first rent appeal is directed against the order of ejectment dated 31-7-1995 passed by the learned IV-Rent Controller Karachi Central. The facts forming the background of this appeal are that the appellant is a tenant in respect of two shops situated in a building owned by the respondent who sought his ejectment through an application under section 15 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance XVII of 1979) on three grounds i.e. personal need, default in payment of rent and nuisance. The application was contested by the appellant and on the basis of the pleadings of the parties the learned Rent Controller framed the following issues:-- "(1) Whether the premises in question is required by the applicant for personal bona fide use in good faith? (2) Whether opponent has committed wilful default in the payment of rent? (3) Whether opponent has created nuisance for the neighbour? (4) What should the order be?" The parties examined themselves. According to the respondent his wife is running a school up to 8th Class in the entire building except the two demised shops and there are about 320 students in the school. She wants to upgrade the school up to secondary level (10th Class) due to pressing demand from the parents of the students and, therefore, the space in occupation of the appellant is required in good faith for that purpose. It is an admitted position that the school is being run in the said building by an Educational Society of which the wife of the respondent is the Secretary. It was averred by the respondent that he requested the appellant several times to vacate the demised premises but he avoided to do so on one pretext or the other. The appellant also threatened him with dire consequences if any legal action was taken against him. The respondent also approached the Councillor of the area but that was of no avail allegedly due to attitude of the appellant. It was further pleaded by the respondent that the appellant stopped paying rent from January, 1991 and committed default which also rendered him liable to ejectment. On the issue of nuisance the respondent deposed that the appellant was supplier of drums, stairs etc. on hire which he keeps on the road as the shops are situate on the main road. Such act on the part of the appellant causes lot of inconvenience to the students as well as the members of the staff. The appellant denied all the allegations of the respondent. He denied that the school was being run by the wife of the respondent. He stated that the school was run by the Educational Society and that it was also recognized by the Education Department. He denied that the number of students mentioned by the respondent was correct or that there was any demand for upgrading the school upto secondary level. According to him the application before the-councillor was moved on false end frivolous grounds and it was also disposed of in February 1992. He denied to have committed default in payment of rent. He claimed to have paid rent up to 14-3-1992. According to him he tendered rent for the subsequent period and on refusal of the respondent to accept the rent he sent it through money orders several times but the respondent did not accept. Therefore he started depositing the same in Court in Miscellaneous Rent Case No. 439 of 1992. He also denied that he committed any act of nuisance. The learned trial Court decided the issue of personal need and default in favour of the respondent but his findings on the issue of nuisance is in the negative. He, therefore, directed ejectment of the appellant. I heard Mr. Jamilur Rehman, learned counsel for the appellant and Mr. Mir Raza Hussain Hyderi, learned counsel for the respondent. I have also perused the record. Learned counsel for the appellant submitted that the impugned order is based on mis-appreciation of evidence and according to him the factual position established on record was not given due consideration by the learned Rent Controller. He further submitted that mere statement of the landlord that he required the premised was not sufficient to establish his bona fide requirement. Learned counsel for the respondent while supported the impugned judgment. On a careful scrutiny of the material available on record as well as submissions of the parties I have come to the conclusion that the order of ejectment was rightly passed in the circumstances of the case. It has been proved that except the two shops the entire building of the respondent is being used for educational purposes and admittedly the school is being run. It is also on record that though the school is managed by the registered Society the wife of the respondent who is the Secretary of the Society is, in fact, running the entire affairs of the School. It is for her to decide to expand the educational activity and if she so decides and additional space is required for that purpose the respondent is entitled to get the vacant possession of the demised premises. It is evident that if the space included in the shops becomes part of the school that will definitely provide more accommodation and convenience to the school. The learned Rent Controller was right in holding that the demised premises are required in good faith by the respondent. As far as question of default is concerned the respondent stated on oath that he did not receive any rent from January 1991. According to the appellant he paid rent in advance up to 14-5-1992 but no receipt was issued to him. In my humble view, it is improbable that in the context of strained relations which existed between the parties for quite sometime, the appellant would pay so much rent in advance without insisting for receipts. Therefore, the finding of the learned trial Court on this issue is also unexceptionable. The upshot of the above discussion is that this appeal is dismissed but in the circumstances of the case, there will be no order as to costs. The appellant is directed to hand over vacant possession to the respondent within sixty days but this would be subject to payment of rent according to law.