1983 PLP 2647 (CLC)

(3) whether the opponent/appellant has sublet the premises as alleged ? (4) whether the opponent appellant has made himself liable to striking off his defence and has failed to comply with the tentative rent order ? (5) what should the order be ? ,

5. In order to establish her case the husband of the respondent namely Abdul Rashid who is her attorney had put himself in witness‑box and examined as Exh.

1. He had produced special power of attorney, conveyance deed, copies of notice etc. In support of her contention respondent had examined one Tanvir Yousuf as Exh.

2. Thereafter the learned respondent's counsel bad closed his side. From the other side, the appellant examined himself as Exh.

3. Thereafter the learned appellant's counsel had closed his side.

6. The learned Rent Controller taking into consideration the evidence adduced before him and after hearing the learned Advocates of the parties allowed respondent's ejectment application on ground. of default of tenta tive rent order and on ground of personal and bona fide use only, for the reasons given in his impugned order dated 15th September, 1980. The applicant above‑named being aggrieved by the impugned order, has preferred this appeal, on the grounds mentioned in memo of above appeal.

7. By consent of the parties, I bad appointed Nazir of this Court to examine the premises in question and submit his report, which is also available on the file.

8. I have gone through the evidence adduced before the learned Rent Controller as well as through the impugned order dated 15th September, 1980 and have taken into consideration the submissions made by the learned Advocates of the parties before me and have also gone through the authorities cited by both the learned counsel.

8. The first contention of the learned Advocate for the appellant before me was, that the alleged default in compliance with the tentative rent order in respect of the month of July, 1980 was for 4 days only, even if the objections filed by the appellant to respondent's application for striking off the defence of the appellant were rejected. The learned Advocate for the appellant further submitted, that it is clear from the Nazir's report that right from August, 1978, appellant has been depositing rents regularly and punctually before the 15th of each month, it was only in the month of August, 1980 that on account of Eid holidays, upto 16th August, 1980 the rents were deposited on 20th August, 1980 instead of on or before 15th August, 1980. In view of this there was no wilful default on the part of the appellant and even if it was there, the learned trial Court ought to have condoned the same in view of submissions made by him. I have gone through the judgment of the learned trial Court on this issue and find that the learned trial Court in view of the statement of the learned Advocate for the appellant, that although there was no default, but in the alternative the same was only for 4 days, the learned trial Court did not consider the objections filed by the appellant, according to which, the appellant alleged, that he had deposited rent for the month of July, 1980 on 6th July, 1980 vide receipt No. 01789 and rent for the month of August, 1980 on 20th August, 1980 vide receipt No. 12404. It was the duty of the learned trial Court to verify the contentions of the appellant as mentioned in his objections before considering his alternate prayer. This has not been done and as such it is possible, that the contentions raised by the appellant in his objections may be correct, as prima facie from the report of the Nazir on the back of respondent's application for striking off the defence shows, that payments as mentioned in appellant's objections are very much there and as such the learned trial Court ought to have considered and verified from record, whether the payment made on 20th August, 1980 was in respect of August, 1980 as alleged by the appellant or for the month of July, 1980 as alleged by the respondent. Since this was not done by the learned trial Court and further even after scrutinising all these payments, if it is established, that the deposit made in the month of August, 1980 related to the month of July, 1980, then too the default, if any was for 4 days only, for which explanation has been given by the appellant, that there were Eid holidays upto 16th August and as such delay if any was only for 3 days in depositing the said amount. In view of this since the learned trial Court has not considered the objec tions of the ‑appellant, the finding of the learned trial Court on this issue No. 4 cannot be sustained, without considering the objections of the appel lant in this connection.

9. The second contention of the learned Advocate for the appellant before me was, that according to the respondent's ejectment application, appellant was in possession of a portion of the bungalow in : question and as such the other portion of the bungalow was in possession of the respon dent, which he has failed to occupy, if he really needed the same for his personal a4d bona fide use and as such this proves the mala fide intentions of the respondent in filing the ejectment application' in question on personal acid bona fide ground and consequently the same ought to have been rejected in respect of the said ground by the learned trial Court, but the learned trial Court has failed to take into consideration this aspect of the case. The‑learned Advocate for the respondent on the other hand submitted, that respondent was not in possession of any portion of the bungalow in question, and the portion of which reference is being made by the learned Advocate for the appellant has been sublet by him. In view of this, with the consent of both the parties, I appointed the Nazir of this Court to inspect the bungalow in question and. submit his report which is now available on record. According to the report of the Nazir 4 bed rooms, drawing room, dining room and store room with attachments are in possession of the appellant, whereas. 3 rooms, kitchen and W. C. are not in possession of .the appellant but out of these three rooms one room is occupied by Noor Khan and others, who claim to be the tenants of the appellant, whereas remaining two rooms, kitchen, W. C. are in possession of the respondent and are under her lock and key. Besides this there is a servant quarter on the roof of the bungalow, consisting of one room, kitchen and bath room, which was also in possession of the respondent.

10. It is clear from the Nazir's report, that both the parties did not give correct and true instructions to their respective Advocates regarding the other portion of the bungalow in question, but it is now established from the Nazir's report, that the respondent is at least in possession of two rooms, kitchen and W. C. on the ground floor of the portion of the bungalow in question and one room with kitchen and W. C. first floor of the‑said bungalow, which are lying locked and are in possession of the respondent. The learned Advocate for the appellant on receipt of the Nazir's report submitted, that Noon Khan and others, who are occupying one big room on the ground floor acre not appellant's tenants, but they are the people, who have been inducted by the respondent in the said premises and the appellant has nothing to do with. them: Be as it may, the factual position is,, that respondent is not in .,possession of the big room on the ground floor of the said bungalow, but her possession is only in respect of two rooms on the ground floor and‑ on room on the first floor, which sire under her lock and key, which fact is‑ not, however destroyed by the learned Advocate for the respondent, after Nazir's report.

11. The question that arises now for consideration is whether respon dent having failed to occupy and use the rooms, which are an her possession for her personal need, application filed by the respondent for ejectment of the appellant on the ground of personal and bona fide use is mala fide and is on account of appellant's refusal to enhance the rent of the premises in his occupation, as alleged by him. Since these facts were no brought to the notice of the learned Rent Controller and no evidence was led by either party in respect of these other rooms on the ground floor of the said bungalow, the learned trial Court did not consider the effect of this additional accommodation which is available and in possession of the respondent, vis‑a‑vis his personal and bona fide need, as alleged in his ejectment application as well as in his evidence adduced before the learned trial Court. The possibility, that on account of occupation of the one big room by Noor Khan and others, the respondent is prevented from occupying the rooms, which are in her possession and the question 'whether Noor Khan and others were inducted by the appellant or respondent would also require consideration. In the absence of any evidence in this connection on the record, it is not possible for me in this appeal to appreciate the arguments advanced by the learned Advocates of the parties on issue No. 2, regarding personal and bona fide need of the respondent or to rely, on Nazir's report:

12. Since the respondent had not pressed Issues Nos. 1 and 3 regard ing default and subletting, before the learned trial Court, the main issue between the parties is, whether the premises in occupation of the appellant are bona fidely and in good faith required by the respondent for her and her family's personal use. The respondent's statement on record, that his family consists of 10 members and the accommodation in her possession is not sufficient for her large family has been supported by her witness P. W. Tanveer Yousuf, but the question why respondent has not occupied the other portion of the bungalow, which is in her possession assumes import ance, vis‑a‑vis her bona fides. Since the parties have led no evidence in this connection and in view of the fact, that both appellant and respondent made prima facie false‑ statements regarding other portion of the ground floor, it would not be safe to decide the question of bona fides merely on the basis of assertions made by the parties and on the basis of Nazir's report. The interest of justice demands, that both the parties be given opportunity to lead further evidence in support of their respective conten tions regarding the portion of the bungalow in question; which is not admittedly in possession of the appellant and thereafter, ‑to. consider the bona fides of the respondent, in respect of the ejectment application filed by her, on the ground of personal and bona fide need.

13. In view of my above conclusions, I would set aside order date 15th September, 1980 of the learned Rent Controller and remand back the case ‑to him to give opportunity to both the parties to lead any further evi dence they may desire, in respect of the accommodation which is available in the said bungalow, beside the one in possession of the appellant and there after to decide Issue No. 2 in the light of such fresh evidence, after hearing the learned Advocates of both the parties and keeping in view the large family of the respondent as well as the present accommodation in posses sion of the respondent, in respect of which there is already evidence on record. The learned Rent Controller will also dispose, of Issue No. 4 after taking into consideration the objections filed by the appellant, on remand.

14. Therefore I allow the above appeal which is disposed of in the terms of the above order with no order as to costs. Since the litigation between the parties is pending from 1977, I would direct the learned Rent Controller to dispose of the case in question on remand, within three months from the receipt of the R and P in accor dance with the law, in respect of Issues Nos. 2 and 4 only, as other issues have not been pressed by the respondent before me as well as before the learned trial Court. Nazir's fee deposited by parties, be paid to Nazir. M.Y.M. Appeal allowed.