1. ' This is an appeal under section 21 of the Sind Rented Premises Ordinance, 1979 against the order of the Vlth Rent Controller, Karachi, in Rent Case No, 2880 of 1975 dated 27th November, 1979 by which the application of the respondent landlord was allowed and the appellant was directed to hand over vacant possession of the premises within 30 days of the date of the order.
2. ' The facts of the case are as under.
3. ' The respondent is landlord of the residential premises No, 584/12 Gulberg, Federal B Area, Karachi having purchased' the building from the previous owner, namely, Safia Begum, wife of Lt. Abdul Hamid Khaira by registered sale-deed on 21st April, 1975. The appellant at the time of the change of ownership of the property was tenant in respect of the aforementioned premises under lease agreement dated 16th May, 1970. The monthly rent was Rs, 200 payable in advance by the first day of every calendar month, and the appellant had deposited by way of security a sum of Rs, 400 against the due fulfilment of the covenants on his part. The said security deposit was liable to. Be refunded by the landlady to the tenant on handing vacant possession of the property to her on termination of tenancy.
4. ' The respondent filed an application under section 13 of the West Pakistan Rent Restriction Ordinance; 1959 for ejectment of the appellant from the premises on the grounds of default and of requiring the rented accommodation for bona fide personal use. It was the case of the respondent that he himself was the tenant of the landlord who was a Government servant and who had been pressing him hard to vacate the same as he had to vacate the accommodation provided to him at Bizerta Lines, Karachi. He had stated that he had no other accommodation of his own in Karachi.
5. ' The appellant filed written statement on 5th January, 1978 before the Controller in which he inter alia raised the grounds that he had not received any valid notice of the transfer of property and that the premises were not required by the respondent for his bona fide personal use. He had further contended that the assertion that the landlord of the respondent had asked him to vacate the accommodation was only a false story concocted for creating a ground for ejectment. He had also raised the plea that the respondent wanted to enhance the rent to an exorbitant extent to which the appellant had not agreed and, therefore, the application for his ejectment had been filed before the Controller. The Controller recorded the depositions of the parties and, after hearing the arguments, allowed the application for ejectment in the impugned order already referred to and hence the appeal. On behalf of the appellant the following contentions have been raised.
(1) That no fair opportunity was given to the appellant of putting forward his case as his application for summoning witness had been rejected.
(2) That the finding that the appellant was a defaulter was factually wrong.
(3) That the respondent did not need the premises for his bona fide personal use and, therefore, the further finding of the Controller on the point was also wrong.
6. Before dealing with the contentions raised it may be observed that the plea that no notice was served on the appellant with regard to the transfer of ownership cannot be considered to be a defence to the application for ejectment in that it is admitted position that the appellant was tendering rent to the respondent. Once the rent is tendered and accepted, the appellant is considered to have acquiesced in the position with regard to the relationship of landlord and tenant and cannot be permitted to raise any pica with regard to the aforesaid relationship.
7. ' With regard to contention No, 1 referred to above, a persual of the record or the case before the Controller would show that the appellant was given proper and full hearing. He was served with notice of the application in December, 1975 and remained absent on the first date of hearing. He also remained absent on the date of hearing fixed for 21st January, 1976. His Advocate filed power on his behalf on 10th February, 1976 and the written statement was filed as late as on 5th January, 1978. It is further apparent from a perusal of the record that the plea that he had no notice of the change of- ownership, as taken in the written statement, was not in consonance with his writing on the money order coupon wherein he had stated that verbally and in writing he had got the information that since the month of April, 1975 the respondent had purchased the property from the previous owner. Incidentally, the writing on the coupon mentioned that the appellant was sending by money order the rent for the month of April. There was no explanation in the written statement about the aforesaid writing on the money order coupon received by the respondent. It is also obvious from a perusal of the record that, although the appellant was served with notice of the application on 23rd December, 1975 he kept avoiding appearance in Court till vakalatnama on his behalf was filed on 10th February, 1976. It is also apparent from the record that the plea with regard to being given no opportunity to put the case of the appellant before the Controller has been totally misconceived. It is apparent that the matter before the Rent Controller was transferred from one Court of Controller to another and was received in the Court of the VIth Rent- Controller on 5th April, 1977. Although process was issued for 9 dates to the Advocate for the appellant, the same could not be served and, therefore, the Advocate for the respondent had made an application under Order V, rule 20 read with section 151, C. P. C. On 20th November, 1977 for ordering the service of notice on the opponent and his Advocate by publication as they had been avoiding service of process issued by the Court. The deliberate delay is apparent from the application dated 5th February, 1978 which was headed S Application to allow the opponent to lead evidence." In the aforesaid application the plea was taken that although the witnesses of the appellant (then opponent) were in attendance all of them happened to be absent when called by the Court as all of them had left for call of nature. This application -obviously was left in the office of the Court on 5th February, 1978 as the endorsement on it is of 6th February, 1978 and since the Advocate who made the application was absent, it was dismissed for want of prosecution on 21st February, 1979.
8. There was application for restoration of the aforesaid Miscellaneous Application filed by Advocate for the appellant (opponent) on 21st February, 1979 on which notice was ordered to be issued and orders restoring the application were passed on 17th March, 1979, on condition of payment of costs of Rs,
100. However, the Advocate for the appellant (opponent) made another application on 15th August, 1979 for recalling order dated 17th March, 1979 so far the awarding of costs was concerned, and on this the learned Rent Controller ordered issue of notice. This application was incidentally dismissed on 19th August, 1979 due to the absence of the Advocate who had filed it. It is, therefore, more than apparent that not only was the appellant given every opportunity to submit his case before the Controller but, as the 'record shows, all efforts were made to delay the proceedings as far as possible. The contention that no proper opportunity was afforded is, therefore, totally misconceived, as already stated.
9. ' With regard to the plea that the premises were not in fact required by the landlord for his own bona fide personal use, it was sought in the written statement to show that the statement that he had been asked to vacate the rented premises in which he was residing was false. However, it is apparent from a perusal of the evidence on record that the evidence of the respondent about his requirement of the premises C in question for his own occupation, as stated in the application for ejectment, were totally supported by his evidence and stood the test of cross-examination. The respondent also denied that he had asked for enhancement of rent. In Rafiq Ahmad v. Ch. Abdur Rehman, a decision of the Supreme Court it was inter alia held that demand of higher rent by landlord does not by itself cast any doubt about personal bona fide requirement of premises by landlord if fact of bona fide requirement is independently proved. In Hasan Khan v. Mst. Munawar Begum, a decision of this Court where ejectment on the ground of requirement for personal use found to be consistent with his averments in his application and not been shaken in cross- examination or disproved in rebuttal it was held that the plea had to be accepted. I have, therefore, no hesitation in coming to the same conclusion as the Controller with regard to the finding on this point. The only other point raised in the arguments was that the finding of the Controller with regard to default in the payment of rent was not justified inasmuch as admittedly the transfer of ownership took place on 21st April, 1975 and, therefore, there could be no question of payment of rent for April. However, as already stated, there was the endorsement of the appellant in the coupon attached to the money order wherein he had stated that he was sending the rent of the month of April, 1975 and, therefore, it was for him to explain as to how this had occurred. It was also for him if so advised to call the previous owner as witness to prove that be had paid rent to her for the month of April and, therefore, no rent for the same month was due to the respondent. Obviously by failing to do so and by failing to explain his endorsement on the money order, he cannot now be heard to say that the rent was for the month of May, and not for the month of April. No fault can, therefore, be found with the decision of the learned Controller in this respect. However, in any case, since the finding with regard to the personal bona fide requirement of the landlord goes against the appellant, the result could not be different.
10. ' I accordingly find no substance in this appeal which is dismissed with however no order as to costs. The appellant is hereby directed to give vacant possession of the premises to the respondent within two months of the passing of this Order. 1980 SCMR 772 PLD 1976 Kar. 8321 2 1 2