' Appellant/tenant (hereinafter to be referred as tenant) has filed this second appeal against respondent/landlord (hereinafter to be referred as landlord) being aggrieved against the impugned judgment dated 14-5-1978, of learned Additional District and Sessions Judge, Karachi, whereby order passed by the learned Rent Controller dismissing application for ejectment has been set aside and ejectment has been granted.
2. Briefly stated the relevant facts are that the landlord applied for ejectment against the tenant in the Court of Civil Judge & Rent Controller, Karachi under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter to be referred as the said Ordinance) on the grounds of default in the payment of rent and requirement of premises for personal need. Demised premises consists of one room and a veranda on Plot No, 135, Block 7 and 8, CP & Berar Society, Nishtar Road, Karachi, at the rate of Rs, 159 per month. Tenant contested the proceedings and filed written statement in which the allegations were denied. Three issues were framed with regard to the rate of rent, default and requirement of premises for personal need. Landlord examined himself and the tenant examined himself. The learned Rent Controller dismissed the application of the landlord for ejectment and held that rent was Rs, 159 per month as claimed by the landlord. In appeal findings of the learned Rent Controller on issues of default and personal need have been reversed and ejectment has been granted on both the grounds.
3. I have heard Mr. Abdul Naseer Khan, Advocate for appellant and Mr. Qaiser Qureshi, Advocate for respondent. So far default is concerned the case of the tenant is that there was an agreement between the parties executed on 16-9-1968 which was for 11 months and after the expiry of the said agreement the tenant had become statutory tenant as such he is entitles to pay due rent after 60 days. In this context it may be mentioned that default as claimed by the landlord is for three months i,e, May, June and July, 1975. The tenant averred in the written statement before the learner Rent Controller that rent payable was at the rate of Rs, 142 per month and further that he was paid the rent to the landlord for the months of April an' May on 15-5-1975 and rent for the months of June, July and August was tendered by money order but the landlord refused the same. During the recording of evidence landlord produced agreement Exh. 5-A and assertes that rent was to be paid in advance by 5th of each calendar month. H further admitted that he refused acceptance of money order which reaches him on 15-8-1975 after he had already filed the rent case. Landlord has also admitted in his evidence that the said agreement Exh. 5-A which was for 11 months has not been renewed. Agreement Exh. 5-A on the record show that it was executed on 16-9-1968, rent was fixed at the rate of Rs, 125 per month and it was to be operative for 11 months and was made extendabl at the option of the parties-for further terms. Admittedly, this agreement wa not renewed by the parties after its expiry but the landlord accepted the mu and it also appears that subsequently the rent was increased with the consent of the parties. It is also mentioned in the agreement Exh. 5-A that rent was payable at the rate of Rs, 125 per month by 5th of each month at the most. It is not stated that rent for each month is payable in advance. In any case, the legal position on this point is very clear. It is held in the case of Muhammad Yousuf v. Asadullah that if the tenancy agreement between the parties is for a fixed period, which comes to an end then on the expiry of the agreed period, if the agreement is not renewed and the landlord goes on accepting the rent, the tenant becomes statutory tenant. In view of this legal position Mr. Abdul Naseer Khan argued that according to the landlord rent was due for the months of May, June and July, 1975 and since the tenant has become statutory tenant rent for May was payable on 1st July, 1975 after 60 days as allowed under the said Ordinance and the rent case was filed on 9-8-1975 when rent was due to be paid by the tenant only for the months of May and June but not for the month of July. The learned counsel has further pointed out that in agreement Exh. 5-A in paragraph 3 it is mentioned that the tenant had made a fixed deposit of Rs, 625 with landlord for adjustment against default of payment of electricity charges or damages etc. It is further stated by the learned counsel that this amount of security is more than sufficient to adjust arrears for two months as stated above at the rate of Rs, 149 per month. Reliance is again placed on the same case decided by the Supreme Court as mentioned above. In the circumstance I am satisfied that finding of default is not sustainable.
4. So far the issue of requirement of premises for personal need is concerned the case of the landlord is not very clear. In his application for ejectment before the Rent Controller he has stated that he requires the premises for his personal use as accommodation in his occupation is not sufficient. No further clarification or elaboration is made by the landlord in the application. The tenant took up the plea in the written statement that the landlord did not need the premises in good faith as he was already occupying the house suitable for his family and the demised premises were rented out for commercial purpose and were being used as dispensary as such could not be required by the landlord for residential purpose. Agreement Exh. 5-A on the record is silent on this point but tenant is mentioned by name as Dr. Abdul Rashid. However landlord has admitted in his evidence before the Rent Controller that tenant is running a clinic in the disputed premises when the premises are for residential purpose. Landlord has also stated in his evidence that he is living in the same building on the 1st Floor. Landlord did not raise any objection that premises were not to be used as clinic since September, 1968 when the agreement was executed.
He had the knowledge of this fact because he has been living in the same building. Without going into the question whether demised premise shave been let out for commercial purpose and can be required by the landlord for residential purpose, it will suffice to say that the case of the landlord is not clear and his requirement is not bona fide. He has not made this matter clear in the1 application for ejectment filed by him before the Rent Controller in the first instance. In his evidence he has stated that 1st Floor of the building in which the demised premises are situated is in his occupation and there are two small rooms constructed on the 1st Floor, where he lives with no members of his family. His one son was going to marry and further that he (landlord) suffers from blood-pressure. In his cross-examination landlord has admitted that betterment tax is imposed on commercial premises and the premises in dispute are situate in commercial area. Another admission made by the landlord in the cross-examination is that first floor is consisted of four rooms. It is further stated by him that his elder son is Preventive Officer in Customs and is entitled to Government accommodation. It not clear from the evidence of the landlord as for what particular purpose he requires the demised premises whether for himself or for the use of his family members. Tenant was cross-examined before the Rent Controller on the ground that landlord was heart patient and could not climb the stairs to which the tenant replied that although he had treated the landlord on one or two occasions but he did know that the landlord was heart patient. The tenant also said in his evidence that the landlord lived on the first floor and could climb the stairs conveniently as landlord had climbed the stairs and attended the case in the Court of Rent Controller on the second floor. The evidence produced by the landlord to convince the Court that his requirement of premises for personal need was bona fide and genuine is not satisfactory and he has not discharged this burden in a convincing manner. In addition to that Mr. Abdul Naseer Khan stated that there are other like portions on the ground floor where demised premises are situate, which have been rented out by the landlord for commercial purpose. The learned counsel further made a statement at the bar that one such other portion on the ground floor was vacated about a year ago and the landlord rented out the same again. In this context a querry was made from Mr. Qaiser Qureshi, Advocate for the respondent landlord, who inquired from the landlord, who was sitting in the Court and the landlord candidly admitted that it was correct and further that he has rented out the vacated premises for 11 months and he would have that vacated again when the demised premises in question in this case are restored to him. This admission further adds to the weight of contention raised on behalf of the tenant that demand of requirement o demised premises by the landlord is not bona fide. I, therefore, hold likewise.
5. For the facts and reasons stated above I set aside the impugned judgment and restore the order of the Rent Controller whereby ejectment application has been dismissed. In the result appeal is allowed with costs. PLD 1980 SC 298