1984 PLP 1979 (CLC)

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑

. ‑‑ S 13(2)‑Eviction of tenant‑Default in payment of rent‑Ejectment petition filed on ground of default in payment of rent for 4 months Advance rent of 6 months already lying deposit with landlady‑D‑.fault, held, technical‑It would reduce law to a farce, if tenant ejected for being in debt to landlady when in fact landlady indebted to tenant. P L D 1980 S C 298 rel. Respondent (absent). This appeal is against the order of the learned Rent Controller dated 17-7‑1980. He allowed the Rent Application of the respondent and gave time of three months to the appellant for peaceful possession of the premises to be delivered to the respondent/landlord.

2. The Rent Application was filed by the respondent Mst. Husain Bi daughter of Abdul Rehman against the appellant Inayat Ali Khan under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 for the ejectment from the Shop No. 7/95, Group 7, Commercial Area, Liaquatabad, Karachi. The case of the respondent before the Rent Controller was that the appellant was her tenant in the premises in question on the monthly rent of Rs. 120 under the Rent Agreement dated 8‑2‑1975. The monthly rent of the premises in question was to be paid by the 8th of each month in advance. The appellant failed to pay the rent for four months from September to December, 1975. Secondly the respondent/landlady required the said shop/premises for her personal use and occupation.

3. The appellant in his written statement has denied the allegations of the respondent and has stated that he did not default in the payment of the monthly rent. However, the landlady refused to accept the rent as she was interested to increase the rent to which the appellant did not agree. The appellant then sent the rent for 3 months by money order dated 12‑12‑1975 which was also refused. In addition to this the appellant had paid Rs. 720 as advance rent for six months vide receipt dated 8‑2‑1975. The landlady does not require the premises in question for her own personal bona fide use and she is interested in letting out premises on enhanced rent after ejecting the appellant.

4. The following three issues were framed by the learned Rent Controller :‑ "(1) Whether the opponent committed wilful default in payment of rent ? (2) Whether the premises in question is required by the applicant for her ,personal use ? (3) What should the order be ?

5. The learned Rent Controller found first and second issue in affirmative and, therefore, he allowed the Rent Application with costs.

6. Syed Hamid Ali Rizvi Advocate argued‑the appeal on behalf of the appellant. The respondent, however, did not appear though served.

7. Respondent Mst. Husain Bi at Exh. 5 avers that she has rented out premises for 11 months in 1975. Before renting out the premises she did herself business in it and due to illness she found it better to rent out the premises to the appellant. After the period of eleven months the notice was given to the appellant to vacate the premises but he did not do so. He closed the shop for about 3 months and had gone away somewhere. She is now quite fit and healthy and she requires the said premises for her own bona fide use. She avers that she will carry on General Store business herself. At present she is alone but her son is in Saudi Arabia for two years and he will return soon.

8. Her second witness is Israr Ali Khan at Exh.

6. Israr Ali Khan deposes that the respondent/landlady was doing business of General Store in the disputed shop prior to renting it out to the appellant. The landlady complained to him regarding the default being made by the tenant and quarrelling with her. The appellant had told him that ht would not pay the rent and further told him that be would vacate the shop only when the respondent pays him Rs. 5,000 in lump sum.

9. Next witness is Muhammad Hanif who states that the old landlady was doing business in the shop of general stole before letting it out to the appellant and the appellant used to quarrel with the respondent, hence she requires the premises for her own use.

10. The appellant has examined himself at Exh.

8. He contends that he was paying regularly the rents but since the landlady did not accept the rents, therefore, he sent the rents for three months through money order in December, 1975 which was also not accepted by the landlady and she refused to accept the same. In fact the quarrel is with regard to the enhancement of the rent. She wants Rs. 200 rent per month whereas be is not prepared to pay Rs. 200 rent per month. It is not a fact that she needs the premises for her own bona fide use.

11. I have gone through the entire evidence on record. The respondent is an old lady of 85 years and the appellant being a quarrelsome person is taking advantage of her age and refused to pay the rent. It is not controverted that the landlady was doing business of general store before renting it out to the appellant. Her son is in Saudi Arabia and he would soon return. In the meantime she wants to do the business herself. The bulk of evidence is in favour of the landlady and the appellant/tenant. "It is true that the appellant had not demanded the return of his deposit on the expiry of his lease, and further as the debtor, it was for him to find the creditor, therefore, he should have informed the respondents to adjust the arrears of rent against his deposit with the respondents. This he did not do, but even on the footing that this resulted in a failure to pay rent within the meaning of section 13 of the said Ordinance, it was a very technical default and it would reduce the law to a farce, if the respondent was evicted for being in debt to the respondent (on account of his failure to pay rent) when in fact the overall position was that the respondent was in debt to the appellant. Therefore, there could not be a more appropriate case for the exercise of the Court's discretion under section 13 of the said Ordinance in the tenant's favour. Accordingly, even on the footing that the appellant was in technical default in the payment of rent on the date of the eviction application filed against him, we have no hesitation in exercising our discretion in his favour.".

13. The above authority gives the edge in favour of the appellant. Although the appellant has committed a technical default but since his deposit of Rs. 720 satisfies the rents in arrears, I hold that the issue No. 1 in respect of the default may be answered in favour of the appellant/tenant.

14. Issue No. 2 in respect of the requirement of the premises bona fidely by the respondent for her own use goes in favour of the respondent and the requirement appears to be genuine and on no account it could be disregarded. The contention of enhancement of the rent is not proved except what the appellant says in his deposition. The bulk of the evidence is in favour of the landlady/respondent.

15. In the result I dismiss this appeal. The appellant should hand over the peaceful possession of the premises in question to the respondent/landlady within a period of two months from the date of this order. M. B. A. Appeal dismissed.