1. ' This second appeal has been filed by Abdul Karim under section 15(4) of the Sind Urban Rent Restriction Ordinance, 1959, against the ejectment order, dated 28-2-1979 passed by the Joint Civil Judge and Rent Controller, Hyderabad, and judgment dated 27-2-1982 of IInd Additional District Judge, Hyderabad, whereby the appellant has been ordered to hand over the vacant possession of the premises to the respondent within one month.
2. ' Brief facts are that respondent is landlord of Shop bearing No, I C. S. E. 28/2377, situated at Sarwar Kabir Lane, Shahi Bazar Hyderabad. The appellant is the tenant of the respondent on a monthly rent of Rs, 240 per month since 1st May, 1974, and such agreement about the tenancy for 11 months was executed between the parties. On 14-1-1975 the respondent gave notice to the appellant to hand over the premises on 3-1-3-1975 as per terms of the agreement. It is further case of respondent that appellant deliberately and intentionally had not paid the rent from April, 1975, till April, 1976. The other ground mentioned in the rent application is that he requires the premises for personal bona fide use. The appellant filed written statement on 17-11-1979 wherein he denied both the allegations and stated that he has been depositing the lent is the Court of joint Civil Judge and Rent Controller, Hyderabad vide his order dated 28-4-1976, therefore, there is no default. On personal requirement his contention in the rent application is that respondent is already running a medical store in the name of Shamim Medical Store, at Latifabad, Hyderabad. The Rent Controller on the pleadings of both the parties framed following issues:-
(1) Whether the opponent committed willful default in the payment of rent?
(ii) Whether the landlord. Requires the premises in good faith for his personal bona fide use?
3. ' Issues Nos. 1 and 2 were decided against the appellant and he was directed by the Rent Controller in the order to hand over the vacant possession to the respondent. The appellant went in appeal which was also dismissed by the learned IInd Additional District Judge. He has now come in Second Appeal. The learned counsel appearing on his behalf has contended that learned District Judge while dismissing the appeal has not given his findings on the point of default. He has also stated that as far as the bona fide requirement of the respondent is concerned there is misreading of the evidence which requires consideration. He has relied upon the case of Fazal Rehman v.
4. Muhammad Siddique (1). The learned Advocate for the respondent has submitted that there are concurrent findings on the issue of personal bona fide requirement in favour of the respondent and there is no misreading of any evidence. I have gone through the evidence and both the orders. On the point of default the respondent in his evidence before the Rent Controller stated that notice was served on appellant on 14-1-1975 and after that appellant stopped the payment of rent and failed to pay rent from April, 1975, till April, 1976, and thereafter he filed the present application. He has admitted that appellant also filed rent application bearing No, 171 of 1975. He has produced the order of the Court which is at Exh. 25 in the rent case and which reads as follows:- "Applicant has prayed for permission to deposit rent in the Court as according to him, applicant is not prepared to accept rent from him. Other sides Advocate has no objection if he is allowed to deposit rent is the Court without prejudice to opponent/landlord's rights. Accordingly applicant is allowed to deposit rent in the Court at his Own risk and costs without prejudice to opponent/landlord's rights."
5. ' On the other hand, appellant made an application Exh. 39 supported by affidavit under Order XVI, rule 1 read with section 151, C. P. C. Wherein it was prayed to summon the concerned clerk of the Nazir to submit rent account deposited in respect of Rent Application No, 163 of 1976 in the case of Muhammad Anwar v. Abdul Karim. The Rent Controller dismissed that application. The appellant alongwith the application which was dismissed due to non-prosecution enclosed the copy of the order sheet of rent case (p. 137 of file), dated 26-11-1976 of IIIrd Senior Civil Judge and Rent Controller, Hyderabad in which it is stated that rent from April, 1975 to November, 1975, has been deposited in the Court in Rent Miscellaneous Application No, 171 of 1975, and Nazir was directed to transfer the same amount from R. A. No, 171 of 1975 to the account in R. R. No, 163 of 1976. The Rent Controller in his order stated that the permission to the appellant A was granted to deposit rent in Court vide order, dated 28-4-1976. Further he has discussed all the relevant dates he has not allowed to be summoned the Miscellaneous Rent Cases Nos. 171 of 1975 and 163 of 1976, and I am of the view that the Rent Controller has not applied his mind properly and erroneously held the appellant is a defaulter. This point needs consideration.
6. ' The next contention about personal bona fide requirement of the respondent concerned 1 have perused the evidence of respondent Muhammad Anwar he has admitted that till 1972 he was running Asrar Medical Store in same shop. He has stated that thereafter he rented the same to Typhon Company. He again rented out the same premises to one Rehmat Ullah and thereafter the present appellant became the tenant of the respondent. Moreover, he gave notice to the appellant on 14-1.1975, in which he asked the appellant to hand over vacant possession to him by 31st March, 1975. The respondent has filed rent application on 15th April, 1976 after the lapse of 15 months of notice, which shows that he was not in need of the premises immediately.
(1) 1980 CLC 492 From the evidence it is also clear that he is in habit of changing tenants from time to time for reasons best known to him but I must say that be has not proved the bona fide requirements.
7. Therefore, on this issue I must say that he has failed to substantiate his requirement. As stated above I set aside the impugned orders passed in this case, and the case is remanded back to the Rent Controller. He is directed to give an opportunity to both the parties to adduce oral as well as documentary evidence and then decide the question of default and decide the case on merits, according to law.