This appeal is directed against the order passed by the learned Senior Civil Judge/Rent Controller VIIIth, Karachi, on 23rd May. 1981 whereby the application for eviction filed under section 13 of the then West Pakistan Urban Rent Restriction Ordinance of 1959 was allowed on the ground of default in payment of rent by the appellant/tenant, as well as on the ground that the respondent required the premises for her personal use and bona fide need.
1. The brief facts of the case are that the appellant is the tenant of the respondent in respect of Flat No. 1.1 Second Floor, Gowardhan Bhawan No. 4 opposite Raja Mansion, Yaqoob Khan Road, Karachi at a monthly rent of Rs.
30. The ejectment case was filed by the respondent on 5th July, 1978 wherein apart from the plea that the respondent required the premises for her personal use and use of her children it was also pleaded that the appellant is a chronic defaulter in payment of rent which he had not paid or tendered since January, 1976. The respondent filed his written statement and contested the matter.
2. On the pleadings of the parties the following issues were framed by the learned Rent Controller :-
(1) Whether the opponent is a wilful defaulter ? If so since, when?
(2) Whether the applicant required the disputed premises for her personal bona fide use and the use of her children ?
(3) What should the order be ?
3. The respondent examined her husband Ibrahim (Exh. 5) and also produced her son Sultan Mahmood (Exh. 6). On the other hand the appellant/ tenant examined himself, Exh. 7, and produced one Ghulam Mustafa, Exh. 8.
The case of the appellant in his evidence was that he had paid rent upto March, 1976 vide rent receipt Exh. 5/c and thereafter he paid a sum of Rs. 270 to the respondent's son Sultan Mahmood on 9th December 1976. According to the appellant the said Sultan Mahmood had promised to send the receipt for the amount paid as stated above, but he failed to do so. According to the appellant, having thus cleared the rent upto December, 1976 he thereafter sent rent from January, 1977 to October, 1977 by Money Order which was refused by the respondent.
The respondent's attorney Ibrahim and her son Sultan Mahmood who were examined in the case, denied that the appellant paid Rs. 270 or any other amount to Sultan Mahmood. The learned Rent Controller believed their statements and held that the appellant failed to produce any evidence sufficient to prove that Rs. 270 were paid by him to Sultan Mahmood.
The learned Rent Controller further found that the alleged tender of rent from January, 1977 to October, 1977 was not valid tender and that after January, 1977 rent was not tended within a period of 60 days after it became due. It was accordingly held that the appellant was a defaulter having failed to pay rent since April, 1976.
4. On behalf of the appellant, challenging the findings of the learned Rent Controller on issue No. 1 and in order to substantiate the plea of the appellant that he had not committed any default, the learned counsel for the appellant relied upon the evidence produced by the appellant where--in it was stated that rent was paid for March, 1976 which plea was support--ed by the rent receipt Exh.
5/c. .Reliance was also sought to be placed upon the version of the appellant that a sum of Rs. 270 was paid to Sultan Mahmood, who is the son of the applicant, on 9th December, 1976 which according to the appellant cleared the rent for the period upto December, 1976.
It was also urged that before filing of the case, rent for the period from January, 1977 to October, 1977 was sent by Money Order which was refused by the respondent and thus the appellant could not be blamed for non-payment of rent for this period as well.
5. I have considered the arguments of the learned counsel and find myself unable to accept the plea that Rs. 270 were paid to Sultan Mahmood on 9th December, 1976. Sultan Mahmood in his statement on solemn affirmation (affidavit Exh. 6) expressly stated that the appellant refused to pay rent from April, 1976 and that the rent used to be received from the appellant by his father. He further deposed that he neither received rent from the appellant nor ever promised to issue any receipt for alleged sum of Rs. 270 which in fact he never received. This witness was cross--- examined by the learned counsel for the appellant and to a suggestion made, he categorically denied that he received Rs. 270 from the appellant, and for the said reason according to the witness, there was no occasion to promise to issue any rent receipt. The above statement of the witness is also corroborated by the evidence of Ibrahim husband of the respon--dent). This witness expressly stated that appellant never paid Rs. 270 to Sultan Mahmood as was alleged. The evidence of defence witness Ghulam Mustafa (Exh. 8) to the effect that in his presence the appellant paid Rs. 270 to Sultan in cash on 9th December, 1976 and that the latter promised to send rent receipt cannot be believed as rightly pointed out by the learned Rent Controller that this witness was unable to even state, as to for what period the alleged sum was paid by the appellant as rent. The evidence was recorded on 4th April, 1981 and it can hardly be believed that in the absence of any material it would be possible for the said witness to state that the alleged amount of Rs. 270 was paid by the appel--lant to Sultan on 9th December, 1976. Obviously this witness had come forward to give evidence in order to oblige the appellant. The evidence of the appellant himself that he paid a sum of Rs. 270 as rent to Sultan towards rent, can also be not believed as on all other occasions rent receipts used to be issued against payments made towards rent by the appellant. The oral evidence produced in support of the alleged payment of Rs. 270 towards rent for the period upto December, 1976. Therefore was rightly rejected. ,
6. Apart from the above disputed payment of Rs. 270 for the period ending December, 1976 1 find that the appellant even otherwise is a clear defaulter in payment of rent for the period from January, 1977 to October, 1977. The appellant failed to produce original money order receipt though in the affidavit it is stated that he had produced a photo copy of the un--delivered money .Order.
No such copy is available on record and none could be pointed out by the learned counsel for the appellant. The alleged tender of rent from January, 1977 to October, 1977 in lump sum by money order after the default had already been committed, would not have the effect so as to were out the default already committed in payment of rent within the meaning of section 13 of the West Pakistan Urban Rent Restric--tion Ordinance, 1959.
7. As regards the other ground on which ejectment was sought namely respondent's requirement of the premises for her personal and bona fide use and use of her children the learned counsel for the appellant argued that the house in occupation of the respondent is sufficient for her use. He was however unable to substantiate the plea raised by him from the material on record. On the contrary the evidence of Ibrahim (Exh. 5) corroborated by the evidence of his son Sultan (Exh. 6) shows that the family of the respondent consists of 12 members and that due to want of accommodation in Chakiwara for his residence and that the other members of the family could not live in the house in occupation of the respondent in Nazimabad for want of sufficient accommodation. In the circumstances the evidence on record supports the plea of the respondent that she requires the premises owned by her for her own bona fide personal use and occupation and also for her children. In the cross-examination of the two witnesses namely Ibrahim Exh. 5 and Sultan Exh.
6. It has not been disputed that the members of the respondent's family consist of 12 persons though it was suggested that the house in occupation of the respon--dent consisted of 4 rooms. The suggestion made as above was denied and thus there is no evidence on record to disprove the statement made on behalf of the respondent. Even if it be assumed that house at Nazimabad consists of four rooms it is obvious that the same could hardly be sufficient to accommodate a family consisting of 12 persons which includes four grown up daughters and four major sons, amongst whom one daughter and one son are married. I am therefore in agreement with the findings of the learned Rent Controller that the accommodation in possession of the respondent in Nazimabad is not sufficient and the premises in dispute are bona fide and reasonably required by the respondent for her personal need and for her children.
8. The upshot of the above discussion, is that I concur with the findings of the learned Rent Controller that the appellant committed default in payment of rent since April, 1976 and that in any case there is no explanation why rent from January, 1977 to October, 1977 was not paid by him in time. I also find that the appellant has not been able to show any illegality or impropriety in the findings of the learned Rent Controller that the premises are required by the respondent for her own personal and bona fide use as well as for use and occupation of her children. o; ;
9. Accordingly the order of the Rent Controller is maintained and the appeal is dismissed with no order as to costs.
10. The appellant is granted time up to 31st August, 1982 to vacate the premises provided he deposits rent regularly every month in the Court of the Rent Controller during this period. In case of default in payment of rent for any month during this period or if he fails to vacate the premises by 31st August, 1982 whichever event happens earlier, writ of ejectment will be issued without any prior notice to the appellant. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.