1. ' This appeal under section 21 of the Sind Rented Premises Ordinance, 1979 has been filed by the appellant/tenant against the order of eviction passed by the Controller on grounds of default in payment of electricity charges and personal and bona fide requirement of respondent.
2. The respondent instituted Rent Case No. 303/80 against the appellant seeking his ejectment on the grounds of default, personal and bona fide requirement and nuisance. The Rent Controller granted the application on the ground of default and personal requirement but rejected the same on the ground of nuisance. The respondent has filed cross-objection in this appeal challenging the findings of Rent Controller on the issue of nuisance as well. I will deal with the contention raised in the appeal first and thereafter consider the cross-objection of respondent. The default in the application is alleged against the appellant only in respect of electricity charges which is as follows :- "7. That all these acts of the opponent/tenant amounts to nuisance and create much troubles and nuisance for the applicant. He has again stopped paying the electric charges since February, 1980 payable in March, 198u and onwards. Hence he is a wilful defaulter."
2. ' The appellant denied the above allegations made against him and stated in his written statement that the respondent has shifted the sub-meter which was installed in the premises occupied by him to the premises in occupation of respondent. It was also alleged that after shifting of sub- meter the appellant was prevented from taking reading of the same. It is further alleged that no reading of sub-meter was provided by the respondent to enable the appellant to make payment of the electricity charges. The respondent in his evidence admitted shifting of meter from the premises of appellant to his own premises. It is also an admitted position that the main meter is in the name of respondent and he received bill regularly for electric consumption. In the evidence before the Controller the respondent neither produced the bills of the main meter nor the reading of the sub-meter recorded during the month of February and March, 980. The respondent did not mention either in his ejectment application or in the affidavit of evidence the amount of dues against the appellant on account of electricity charges. No doubt the electric charges were to be paid alongwith the monthly rent as admitted in the evidence but there is nothing on record to show that the rent is payable in advance or by a specified date or time. In the absence of such an agreement the electric charges for the month of February, 1980 could be paid by the appellant before 30th April, 1980. The rent application was filed in the Court on 27-4-1980, and therefore, it cannot be said that on the date of presentation of rent case, the appellant was a defaulter in payment of electricity charges. Apart from it in the absence of any specific claim of electricity charges due against the appellant for the month of February, 1980, the Rent Controller could not bold him defaulter in payment of the same. The Rent Controller in his order found that the appellant admitted in his cross-examination that in the month of March the applicant had informed him that 93 units were consumed. Similarly, the Rent Controller also found that the appellant did not deny that Rs. 666 are due against him towards electricity charges but has simply shown his ignorance to this fact. Both the conclusions of Rent Controller are based on misreading of evidence and on incorrect inference drawn from the evidence on record. The relevant part of the cross-examination of appellant in the original file of Controller is recorded as follows :- "It is incorrect to suggest that in the month of March, 1980 the applicant informed me that 94 units were consumed or that he demanded Rs.
3. 32.90 as electric charges. It is incorrect to suggest that applicant used to give the number of consumed units of electricity of each month and its charges or that I did not pay the same. I cannot say if Rs. 666 are due against me towards electricity charges upto the month of August, 198i."
4. The conclusions of the Rent Controller are not at all supported by the above statement of appellant in cross-examination. Apart from it the respondent in his cross-examination did not mention the number of consumed units of electricity for the months of February and March, 1980 or the amount due as electricity charges and as such the suggestion made to appellant in cross-examination in this regard was of little evidentiary value. In addition to A it even if it be assumed that the respondent intimated the appellant the amount of electric charges due in the month of March, 1980, the application as filed on 27-4-1980 was still premature. I, therefore, reverse the finding of Rent Controller on issue of default and hold that the appellant was not a defaulter in payment of electricity charges on the date of filing of ejectment case.
5. ' The next issue in the case relates to the personal and bona fide requirement of respondent. In the rent application this ground is pleaded in paragraph 8 as follows "8. That the applicant's son Mr. Abdul Bari has been married about two years back. His family has got no separate house to live in. The present accommodation on the ground floor in occupation of the applicant and his children is quite insufficient as requirements of family have increased.
6. Therefore, the applicant needs the house in possession of the opponent for the personal bona fide use of himself and for his son/s family."
7. ' From the above averments, it is absolutely clear that need for extra accommodation was felt by the $espondent on account of marriage of his son. It is an admitted position that there are two flats on the ground floor and one flat on the 1st floor in the disputed building. f he appellant was in occupation of one flat on the ground floor while the other flat on the ground floor was in occupation of resnondent at the time of filing of rent case. The accommodation in both the flats on the ground floor is identical. The appellant in his written statement in reply to the allegation of personal and bona fide need of respondent made the following statement :- "8. That the contents of para. No. 8 of the application are vehemently denied. It is further submitted that the applicant use to .Live on ground floor of the Bismillah Manzil which is his own property, and the house of the applicant was adjacent to the house of the opponent which was consisting of three living rooms accommodation which the rented premises was consisting of two rooms accommodation. The applicant owns one flat consisting three big rooms accommodation constructed on first floor of the Bismillah Manzil which was previously on rent with one Muhammad Linter who has handed over the vacant possession of the said premises to the applicant on 5th August, 1980 as he could not have stand the underhand tactics of the applicant to harass his tenant in different ways and means. After getting the vacant possession of the said flat, the applicant himself shifted in it and now a days residing there while the house adjacent to the house of the opponent is lying vacant and the applicant will let it out to the tenant who could satisfy his lust of money."
8. In view of the above statement of appellant in the written statement the respondent in his affidavit of evidence appears to have made improvement in B evidence when he stated in paragraphs 6 to 8 to the following effect :- "6. That I say that due to the marriage of my son Abdul Bari, the requirements of my family and children have increased as the present accommodation on the ground floor is insufficient hence I need the portion in possession of the opponent for my and my children's personal bona fide use as I do not want to let it out any more.
7. That I say that since I am patient of lungs disease and my wife is a patient of heart, hence we need the house on ground floor as we have been advised not to climb up by our medical Advisors.
9. We all will live in the suit premises in future, as we need a portion on ground floor.
8. That I say that my son and his family is not prepared to leave their abode on ground floor hence under compelling circumstances, I had to occupy the first floor, but that has affected my health and the health of my wife adversely and badly. Unless I and my wife live on the ground floor without using the stairs we are likely to suffer the diseases of affected lungs and heart respectively."
10. There can be no doubt that the personal and bona fide need expressed by, the respondent in his application was not the same as stated in evidence before the Controller. There was a definite improvement in the case when the respondent alleged requirement on ground of his being a T. B.
11. Patient and his wife being a heart patient in the evidence before the Court. But in spite of this improvement in evidence there was still no justification for ordering ejectment of appellant on ground of personal and bona fide requirement o respondent. The admitted position on record is that the respondent now occupies flat on the ground floor and one flat on the 1st floor which is constructed over both the flats on the ground floor. The respondent was living on the ground floor at the time of filing of application and the need for extra accommodation was felt on account of marriage of his son as stated in the application. The respondent got vacated the flat on the 1st floor during pendency of the rent case and voluntarily shifted in that flat. In his evidence the justification for seeking eviction of applicant from the ground floor is given as his own illness and that of his wife. The appellant stated that he is suffering from T. B. And his wife is a heart patient. In cross- examination he admitted that at present he is posted at Snujawal and came to Hyderabad at week's end. He also admitted that he suffered from T. B. 10 or 15 years earlier and that now for the last 10/k5 years he is fully recovered. He further stated in cross-examination that his wife is a heart patient before 1980 and that she was hospitalised for such disease. Although he denied the suggestion that his wife is not a heart patient or suffered from heart ailment but in view of the fact that he did not originally plead in the application that the premises was required by him on account of heart ailment of his wife the bare statement of the respondent in these circumstances regarding his wife's illness could not be accepted. In fact in the original application no such case could possibly be pleaded by the respondent as he was already occupying other flat on the ground floor which had the same accommodation as the flat occupied by the appellant. This improvement made in the evidence by the respondent perhaps became necessary as during pendency of rent case he got possession of a flat on the 1st floor of the same building. No reason whatsoever was assigned by the respondent for shifting to 1st floor when the respondent and his wife needed the ground floor accommodation on account of their illness. It is also not explained as to why the accommodation on the ground floor could not serve the need of respondent and his wife when it is admitted that the portion on ground floor occupied by them is identical in accommodation to the portion occupied by the appellant. It is also unexplained in the evidence as to why the portion on the first floor which became vacant after institution of the case could not be utilized by the son of respondent for whose benefit the ejectment case was filed. After going through the evidence on record I am of the view that the respondent failed to establish personal and bona fide D requirement in respect of the premises occupied by the appellant and circumstances show that the application lacked bona fide. The finding o Rent Controller on this issue is, therefore also, reversed.
12. ' I will now deal with the cross-objection of respondent filed against the finding of Rent Controller in respect of issue of nuisance. The ground of nuisance is pleaded in paragraph 6 of the application as follows ' That the opponent has created nuisance for the applicant as he keeps himself ready in fight whenever the applicant used to take reading of the consumption of the electricity from the sub- meter installed within his premises. The sub-meter had become a point of dispute, hence the applicant displaced the sub-meter and affixed it at a place where it is readable to all without any impediment. Tbis fair act of the applicant has annoyed the opponent and he has filed a rent case indulging in fruitless litigation against the applicant in order to harass him only."
13. ' From the above statement in the application it appears that the appellant used to quarrel with the respondent at the time of taking reading of the sub-meter which was installed in the premises of appellant and, therefore, he got the sub-meter shifted to his own premises. This act of the respondent allegedly annoyed the appellant, who filed some rent case aginst the respondent in order to harass him. In his affidavit of evidence before the Rent Controller the respondent made the following statement on this issue :- "4. That I say that the opponent has created nuisance for me as he always crop up quarrels on the reading of consumption charges for the sub-meter. He had filed a false and vexatious case in this Court against me which was dismissed on 30-7-1980. The opponent is an undesirable tenant."
14. I am unable to understamd how filing of a rent case by the appellant against' respondent amounted to an act of nuisance. Although it is alleged that the Rent Case filed by appellant was vexatious and frivolous but the copy of judgment in that case has not been produced in evidence.
15. In so far the allegation of respondent that the appellant used to quarrel with him at the time of recording the reading of sub-meter is concerned, the same is no more available as the respondent according to his own statement got the sub-meter shifted to his own premises. The Rent Controller was, therefore, justified inrejecting this plea of respondent. I accordingly find no substance in the cross-objections filed by the respondent.
16. ' For the above reasons I accept this appeal, set aside the order of Rent Controller and dismiss the ejectment application of respondent. There will however, be no order as to costs. 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.