This is a second appeal against the Judgment dated 12th October, 1977 passed by the Additional District Judge, Karachi in rent appeal No. 616/75 maintaining the findings of the learned Rent Controller and upholding his ejectment order dated 13-9-1975.
2. Facts giving rise to this appeal briefly stated, are that the appellant is a tenant of the respondent in respect of the 1st Floor Bungalow situate on Plot No. 44-C, Block Vl, Federal is Area, Karimabad, Karachi at the rate of Rs. 350 per month since 1969 under an agreement of tenancy dated 31-1- 1969. The appellant failed to pay the rent for the months of January, February, March and April, 1974 with the result that the respondent filed an ejectment case on the grounds, inter alia, default and bona fide personal use. The learned Rent Controller granted the said application and passed an ejectment order dated 13-9-1975. Being aggrieved of the said order the appellant filed an appeal before the Additional District Judge, Karachi which was dismissed by him by judgment dated 12th October, 1977, against which this second appeal has been filed by the appellant.
3. The contention of the learned counsel for the appellant is firstly, that there is no wilful default in payment of rent on the part of the appellant. In support of his contention he submitted that the respondent bad left for Lahore without leaving any address with the appellant, and so the appellant was unable to send the money order to him. He further submitted that the learned Courts below had wrongly relied on letters written by the appellant to the respondent Exhs. A/1 to A/3 dated 1-2-1972, 1-9-1973 and 4-7-1973 in proof of the default. The alleged default pertained to the months of January to April, 1974 and these letters were of no avail as they all pertained to a period prior to the period of default in these proceedings.
4. I have gone through the record of the Courts below and I find that the contention is not sound inasmuch as the default of the period in dispute is not based on these letters. In fact, the default in payment of rent is established on certain other facts, namely that the appellant was making payment by cheques and was sometime depositing the rent by himself in the account of the respondent maintained by him with the National Bank of Pakistan and subsequently with the Habib Bank Ltd., Karachi. Even assuming the assertion of the appellants of not having the address of the respondent to be correct, it was open to the appellant to deposit the amount of rent in the account of the respondent maintained by him with the Habib Bank Ltd. In any case, he could send the amount of the rent by money order on the last known address of the respondent.
5. The learned counsel for the respondent. However, submitted that the appellant was in the full know of the address of the respondent inasmuch as the letters produced by the respondent were written by -the appellant to him at his address other than Karachi.
6. The second contention in relation to the default in payment of rent allegedly committed by the appellant, as advanced by the learned counsel for the appellant, is that there had been a practice of accepting rent by the respondent in lump sum. `The contention is again unfounded, firstly, because the agreement Exh. A-4 creates a monthly tenancy in favour of the appellant with a liability to pay monthly rent in advance. Merely two or three instances of accepting rent in lump sum for two or three months will not be sufficient to establish a practice and changing the terms of the tenancy agreement.
7. In result, the learned counsel for the appellant has not been able to satisfy me on the point of default that it was not wilful.
8. The second contention, with regard to the bona fide requirement of the premises for the personal use of the appellant as well as of his son, was that under section 3 (a) of section 13 of the Urban Rent Restriction Ordi--nance, 1959, three conditions are to be fulfilled by the landlord in cases of a residential building, enumerated as under :-- `(3) (a) A landlord may apply to the Controller for an order directing of the tenant to put the landlord in possession
(i) in the case of a residential building, if-
(a) he requires it in good faith for his own occupation or for the occupa--tion of any of his children ;
(b) he is not occupying another residential building, suitable for his needs at the time, in the same urban area in which such building is situated ; and
(c) he has not vacated such a building without sufficient cause after the commencement of this Ordinance in the said urban area ;
9. According to the learned counsel, the last condition has not been fulfilled in the case, inasmuch as the respondent was residing at the time of commencement of the tenancy on the ground floor of bungalow on Plot No. 44-C, Block VI, Federal B Area, Karimabad, Karachi which he vacated and let out the same during the continuation of the present tenancy and after the commencement of the Rent Restriction Ordinance, 1959. Admittedly, the respondent has vacated the premises in his occupation and shifted to Al-Azam Square, but Mr. Abrar Hussain, learned counsel for the respondent submitted that at that time his son Syed Agha Haider was in service and he did not require the premises for himself and he being alone shifted to two rooms fiat at Al-Azam Square and vacated the ground floor of the said bungalow in order to add to his income. There seems to be substantial reason for vacating the said premises by the respondent and I find that all the three conditions laid down above have been fulfilled by the respondent. However, the crucial question in the case will be whether the respondent required the premises in good faith for his own occupation and for the occupation of his son. Admittedly the respondent is an old man of about 80 years of age. The respondent has stated in his application that be required the premises in question in good faith for occupation by himself as well as his children and grandchildren. And other members of his family inclusive of his son (retired as Assistant Commissioner) and that the respondent was suffering from high blood-pressure and he was medically advised to shifted to a better place. He further stated that after the retirement of his son from Government service he needed a bigger house to accommodate his bigger family. So far as the allegation of the respondent's suffering from high blood pressure and being medically advised to shift to a better place is concerned, it was not at all stated by him in his deposition. It is however, established, as deposed by the respondent as well as his son, that the premises is required for bona fide personal use o children) who wanted to shift to Karachi to start his legal practice, as no question was put in cross- examination as to the need of his son.
10. Mr. S. H. Rizvi, learned counsel for the appellant at the close of his arguments submitted that an event subsequent to the proceedings has taken place and it, being material should be taken into account. The event is that the son for whom the respondent required the premises is no more alive.
Mr. Abrar Hassan, learned counsel for the respondent confirmed this sad event and stated that the son of the respondent has expired all of a sudden as a result of heart attack, but his six children are now at the mercy of their grandfather. I find from the application itself in para. 4 that the requirement was not only for son of the respondent but also for his grandchildren. The death of the son of the respondent, to my mind, does not change the situation; rather it aggravates inasmuch as it is now the legal liability of the grandfather, the respondent under the Shariah, to maintain the children of his deceased son.
11. The upshot of the above discussion is that I find no jurisdictio in disagreeing with the conclusion arrived at by the Courts below on both the points of default as well as the point of bona fide requirement for personal use.
12. In result, the appeal is dismissed with costs.
13. Mr. Rizvi requests for four months' time to vacate the premises to which Mr. Abrar Hassan willingly agrees. The appellants is, therefore, directed to vacate the premises within four months subject to his depositing rent in the Court of the Controller.