' The appellant has challenged the order passed by the Controller ejecting him from the ground floor of house No, C-31, Block J, North Nagimabad. The respondent had filed application for ejectment on the ground that the appellant had carried out repairs without the permission of the respondent and is deducting its cost from the rent. The other ground was that he requires the premises for his own bona fide personal use and occupation. The learned Controller accepted both the grounds and allowed the ejectment application. He further held that by deducting the rent the appellant has committed default.
2. Mr. Naik the learned counsel for the appellant has challenged both the findings of the learned Controller. So far as the default is concerned the learned counsel has contended that as no agreement of tenancy has been produced before the Controller there is nothing on record to show that date or time for payment of rent was fixed by any agreement. He further contended that in January, 1981 full rent was paid for the month of December, 1980 and the deduction started thereafter. The ejectment application was filed on 23rd February, 1981 before the expiry of sixty days from the date when rent became due. In these circumstances it is contended that there is no default. It has been also contended that in the application there is no allegation that default has been committed by the appellant. The learned counsel endeavoured to contend that as there is no plea with regard to default the Controller could not have given a finding that the appellant has committed default and is liable to be ejected. It is correct that there is no specific plea alleging default committed by the appellant but it can be implied from the fact that full rent was not being paid by the appellant. It is a rule of justice that the opposite party should have notice of the allegations made against him because without it he cannot have a fair opportunity to meet it.
Reference can be made to PLD 1981 Kar.
150. However, from the allegations in the application it was clear that the respondent was complaining that half of the rent for the month of January, 1981 has not been paid and illegally adjusted towards the repair charges incurred without the consent of the respondent or the permission of the Controller. The learned Controller, therefore, proceeded to consider what is the effect of such illegal deduction and came to conclusion that it amounted to default in payment of rent. The appellant produced evidence to show that the repair expenses were incurred with the consent of the landlord. This has not been established by the letters relied upon by the appellant.
During evidence agreement of tenancy was not produced. In the application for ejectment the respondent had stated the terms of tenancy and produced a copy of the tenancy agreement. This agreement has not been denied. In fact in the written statement reliance has been placed upon this tenancy agreement even after its expiry. This agreement provides that the rent shall be paid in advance on the first of every month. After deducting 50% of the rent for the month of January, 1981 the balance was remitted on 2nd February, 1981 (Exh. 9). In these circumstances there was a clear default.
3. The ejectment has not been granted only on default. The second ground is the respondent's requirement for use and occupation for himself and family members. The respondent has stated that at the time when the house was rented out he was living alongwith his family in Zambia. He has stated that he has come back from Zambia having resigned from his job and wants to permanently settle in Pakistan and, therefore, requires 1,he premises. The learned counsel for the appellant has challenged the finding of the Controller on the ground that the bona fide of the respondent has been established on record. The learned counsel has contended that earlier in 1977 the respondent had made similar demand and gone back to Zambia. The respondent has stated that he had arrived in the year, 1977 and asked the appellant to vacate the premises as he wanted to settle in Pakistan but later on he changed his mind and went back to Zambia. In his cross- examination the respondent has admitted these facts B and stated that now he has come back again after four years and will permanently settle here. Earlier demand can militate against respondents bona fide only if the appellant is able to show from the evidence that the claim made by the respondent is not true and he has been able to prove his case.
4. The learned counsel for the appellant has also challenged that the respondent has not proved that he has come back to Pakistan to permanently settle here. In this regard the respondent has produced a certificate from his employer in which it is stated that the respondent has resig ned from his service. Immediately after resignation from bis job he came to Pakistan. On 23rd February, 1981 the respondent filed application for ejectment. Thereafter from record it seems that he filed his affidavit of evidence dated 13th April, 1981 and he was cross-examined on 28th September, 1981. It is, therefore, established that since his arrival the respondent is present in Pakistan. It is not conceiveablc that any person who may be in service abroad can afford the luxury to remain absent for about 9 months. Today the respondent is present in Court but I did not allow him to address as no notice has been so far issued to him. However, this clearly show that the respondent-has come to Pakistan to permanently settle here and on this account his bona fide cannot be doubted.
5. The learned counsel for the appellant has contended that the bona fide requirement has been proved. From the evidence it is clear that the respondent's family consists of his wife two sons and one daughter. At that time one son was student of XI Class in Government College and the other one was studying in 9th Class in Habib School and the daughter was studying in Monteseri School at Karachi. No doubt in the absence of respondent his family members were living with his father- in-law but this does not mean that once respondent has come to live in Pakistan his family members should continue to reside with his in-laws only because they have been living there so far. The respondent has not only established that his requirement is bona fide but has also proved that the disputed house in more suited to his requirement.
6. The learned counsel for the appellant then contended that the disputed premises has a first floor consisting of three rooms, in which respondent's mother is residing. The respondent has stated that there is only one room. It is an admitted position that the respondent's mother is residing on the first floor. Even if the statement of the appellant is accepted that there are three rooms on the first floor no evidence has brought on record to show the nature and extent of accommodation provided by those rooms. Even otherwise three rooms will not satisfy the requirements of the respondent's family.
' The appeal is, therefore, dismissed in limine.