1. ' This second appeal is directed against the judgments dated 2-4-1978 and 23-8-1978, passed by the learned Rent Controller, at Karachi and the learned Third Additional District Judge, at Karachi, respectively in Rent Case No, 76/74 and in Rent Appeal No, 252/78, respectively.
2. ' The brief facts leading to the filing of the above appeal are that the appellant is a tenant in respect of a shop, situated in Mohammad Ali Co-operative Housing Society, Karachi at Rs, 350 per month since 1972. The deceased respondent filed the aforesaid rent application for ejectment on the two grounds, namely, for default in payment of rent for the period commencing from September, 1973 to December, 1973 and also on the ground of personal requirement. The above application was resisted by the appellant and as many as 5 issues were framed by the learned Rent Controller. The appellant examined himself and also two of his alleged. Partners, namely, Karam All and Jamaluddin, whereas the deceased landlord examined himself. The learned Rent Controller allowed the above application on both the aforesaid grounds by his aforesaid judgment dated 2-4-1978. The appellant being aggrieved by the above judgment filed the aforesaid Appeal No, 252/78, which was dismissed by the learned Third Additional Judge, by his aforesaid judgment dated 23-8-1978 concurring with the findings of the Court below on both the grounds. The appellant being aggrieved by the two judgments filed the second appeal.
2. (a) In support of the above appeal, Mr. Fazalbhoy, the learned counsel for the appellant has urged the following points:-
(i) That both the Courts below erred in discarding the account books produced by the appellant and that the finding on the question of default is not sustainable for the above reason ; (ii)That since the landlord has expired after the passing of the two orders under appeal, the legal heirs cannot support the ground pertaining to the personal bona fide requirement for the reason that the deceased landlord needed the premises for running his business namely, producing the documentary films, which ground cannot be availed of by the legal heirs, namely, widow and the for married daughteRs, ' It was also urged by him that even otherwise the finding of the two courts below on the question of the personal requirement is not sustainable.
3. ' On the other hand it was urged by Mr. Ikram Ahmed Ansari, learned counsel for the respondent that the appellant at the stage of the evidence came out with the plea that the payment was made from the partnership firm and no such plea was taken in the written statement nor it was disclosed that there was any alleged pertnership, in which the appellant and Karam All and his son Jamaluddin were partneRs, ' It was also urged by him that the two orders under appeal on the ground of the personal requirement are sustainable for the reason that one of the married daughters wishes to start the same business, namely, producing of documentary films, which her father was doing. On merits, his contention was that the finding of the two courts on the above question cannot be said to be perverse or contrary to the record.
(b) In my view it will be appropriate to take up the above second contention advanced by the learned counsel for the appellant in respect of the personal requirement of the deceased landlord.
4. It is an admitted position that the property in question now stands vested in the five legal heirs, namely, one widow and the for married daughters, In my view the personal requirement of a married daughter cannot be equated with the personal requirement of the deceased landlord, particularly when the work of producing of documentary films involves element of personal skill/experience. Furthermore, the property in question stands vested in the five legal heirs as pointed out hereinabove, the alleged personal requirement of one of the married daughters cannot be substituted in a rent application, which was filed on the basis of the personal requirement of the deceased landlord since the alleged personal requirement of the married daughter in question had allegedly accrued, after the death of the landlord. In this view of the matter, I am inclined to agree with Mr. Fazalbhoy, that the ground of the personal requirement cannot be pressed into service in order to support the two orders under appeal in view of the .Changed situation on account of the death of the landlord.
(c) Reverting to the first contention that the learned two Courts below erred in ignoring the account books produced by the appellant on the question of payment of rent for the months in question, it may be advantageou to refer w para. 4 of the appellant's written statement, in reply to para. 4 of the rent application; in which the default of the 4 months in question was alleged. Para. 4 of the written statement reads as follows :- "4. Para 4. Is absolutely false and is totally denied. The opponent has paid, in cash to the applicant, as per above-mentioned established practice, the rents for the month of September, October and November, 1973 on the following dates when the applicant, as usual, came to the shop to collect the same :- ' Rent for September, 1973 Rs, 350 paid in cash on 18-9-1973. Rent for October, 1973, Rs, 350 paid in cash on 31-10-1973. Rent for November, 1973, Rs, 350 paid in cash on 1-12-1973.
5. ' After collecting those rents the applicants, however failed to issue/ deliver receipts therefor and in view of the cordial relations between the parties the opponents did not insist on the receipts.
6. ' However, to the great surprise of the opponent the opponent received from the applicant a letter dated 19-2-1973 informing the opponent that he i. Had failed to pay rents for the months of September, October and November, 1973 and that the applicant needed the said premises for his own use. This obviously indicates that the applicant had deliberately withheld the receipts for the months of September, October and November, 1973, even after receiving the full rents thereof in cash, with a view to create a false ground of ejectment and with a view to force the opponent to pay higher rent for those premises.
7. ' The opponent, therefore, immediately on receipt of this letter became apprehensive of the mala fide intention of the applicant and by his Advocatas' letter dated 26-12-1973, brought the above true facts to the applicant's knowledge and further by another letter dated 29-12-1973 sent to the applicant rent for the month of December, 1973 by cheque for this amount bearing Cheque No, OXD 86661 dated 29-12-1973 on United Bank Ltd., Bombay Bazar, Karachi. The applicant, however, most curiously retained this cheque for about 13 days and thereafter returned back the same to the opponent by his covering letter dated 11-1-1974. Once again repeating the old story, but without specifically denying that the rents for the month of September, October and November, 1973 had been received by him in cash.
8. ' The opponent, thereupon, forthwith made an application to the Controller being Rent Misc.
9. Application No, 232/74 for permission to deposit the rent in Court and after obtaining this permission has deposited in Court rent for the months of December, 1973 and January, 1974 and shall continue to deposit the same regularly in Court.
10. ' The opponent has thus committed no default in payment of rent whatsoever."
(d) From the persual of the above-quoted para. Of the written statement the following points emerge.-
(I) That the appellant did not plead that there was any partnership firm, in which he and Messrs Karam Ali and Jamaluddin, were partners;
(ii) that the appellant did not aver that there was any practice obtaining at the material time to the effect that one of the partners used to pay rent and the other partners used to record an entry in the account books in respect thereof;
(iii) that the appellant also did not aver that it was within the knowledge of the deceased landlord that the shop in question was used by the three partners for the firm.
11. In my view the learned Courts below have rightly discarded the alleged account books, to which the deceased landlord was a stranger. The tenancy of the shop was in the personal name of the appellant. The appellant could not have proved the payment of the rent for the months in question by producing the alleged account books, which admittedly were not maintained by the appellant himself and were allegedly maintained by Mr. Jamaluddin in collaboration with his father Karam Ali, with whom the respondent had no privity of contract. Even, otherwise, in the absence of any such plea in the written statement, in my view the appellant was not entitled to set up a new case at the stage of the evidence. It is true that the law of pleadings is not strictly applied to rent proceedings, but at the same time a tenant is required to disclose full facts, which may constitute a defence to the ground of default. Furthermore, there is a concurrent finding of the two courts below on the question of default, which cannot be said to be perverse or contrary to the record.
12. Both the Courts below on the state of the evidence on the record could come to the conclusion which found favour with them.
3. In this view of the above discussion the above appeal does not merit, therefore, I dismiss the same with no order as to costs. However, with the consent of the learned counsel for the respondents, I grant six months' time to the appellant from today to vacate the shop in question on the condition that he shall continue to deposit rent with the Rent Controller, in terms of the Rent Controller's order and in case of any default in payment, the respondents shall be entitled to file an execution application immediately on commission of such default.