' Rent Case No, 3219 of 1976 was filed on 28th July, 1976 by the appellant/landlady for the ejectment of the respondent/tenant from the premises in question on the following grounds :-
(a) Nuisance ; (b) Damages to the property ; (c) Personal requirement of the landlady and her children and (d) Default in the payment of rent from October, 1975 till July, 1976.
' The landlady gave evidence in support of her case and one Abdul Satter, a friend of the husband of the appellant, also appeared as a witness in support of the case of the appellant. The respondent was the only witness in support of his case. By the impugned order, dated 8th January, 1980, the ejectment application was rejected. The appellant/landlady has come in this First Rent Appeal before this Court. I have heard Mr. Rashiduddin Ahmed Khan, learned counsel for the appellant and Mr. Khalilur-Rehman, learned counsel for the respondent. On the ground of nuisance there is word against word. The landlady has made the allegations against the tenant, which have been denied by the respondent in his evidence. The learned Rent Controller did not believe the version of the landlady and I find no reason to interfere with this finding of the Rent Controller.
2. As regards damage to property, the case of the appellant was that the respondent had broken the glasses of several windows and had also caused damage to the asbestos sheets. Apart from the evidence of the landlady, which is vague in its contents, there is no other evidence on record.
The allegations have been denied by the respondent. On this issue also I find no reason to interfere with the finding of the Rent Controller.
3. On the point of personal requirement, the case of the appellant/ landlady was that she was residing on the ground floor of the building in question and that the accommodation was insufficient for the needs of her children. In the said building there are four floors, The respondent resides on the top floor, whereas there are several tenements on the first and second floors of the building. It is an admitted position that some portions on the 1st and 2nd floors are lying vacant and they are in possession of the position that after the filing of the ejectment case of the appellant. It is also admitted other tenements in the building on first and second floors had fallen vacant and instead of the appellant and her family occupying the same, these tenements were rented out to other tenants. If additional accommodation was required bona fide by the appellant and her family members, the portions vacated by the previous tenants would not have been rented out afresh to new tenants but would have been occupied by some of the family members of the appellant. Further, there is no explanation about non-occupation of the tenements on first and second floors of the building which are lying vacant. On the state of this evidence on record it could not be appreciated as to how the case for ejectment of the respondent from the top floor of the building in question had been made by Mr. Rashiduddin, learned counsel for the appellant to argue that the tenement in occupation of the respondent on the top floor was the accommodation which was suitable for the needs of the appellant, and her children. No such statement was made by the appellant in her testimony before the Rent Controller. Learned counsel for the appellant referred to Badumal v. Kika Ram (1) and Inter-Horn Limited v. Nisar Ahmad Khan (2) for the proposition that it is the landlord's choice to select any of the tenements in possession of his tenants if the landlord requires any such tenement for his personal needs. These reported judgments do not support the case of the appellant. As observed earlier, some portions on the first and second floors are lying vacant and are in possession of the appellant and after the filing of the ejectment case against the respondent, tenements, which had become vacant, were rented out afresh to new tenants and in these circumstances, without any evidence on record as to why particularly the tenement in occupation of the respondent on the top floor was required for additional accommodation by the appellant and her family, no case for ejectment of the respondent was made out by the appellant.
(1) 1973 SCM R 185 (2) 1981 CLC 981
4. The other ground, on which ejectment was sought, is default in the payment of rent from October, 1975 to July 1976. The landlady has stated in her evidence that she used to issue receipts to the respondent. However, in cross-examination she admitted that in a statement made by her in evidence before a Sub-Divisional Magistrate in a criminal case she had deposed that she did not issue any receipts to the tenants. Mr. Rashiduddin Ahmed, learned counsel for the appoint, has stated that it was an admitted position that no receipts were issued by the appellant. Then a money-order was sent in June, 1976 for Rs, 270 (the admitted monthly rent) and on the money order it was written by the respondent that rents had been paid previously by the respondent but no receipts were issued and as such rent was being sent through money order. This amount was sent in June, 1976 and the money order was accepted by the landlady without any protest or condition. Then there are cheques, which were given by the respondent to the appellant towards the rent during the period in question and the appellant could not specify in her evidence as to which months' rents these cheques related. It is also on record that at the end of June, 1976 Sui-gas supply had been disconnected to the tenant of the appellant. If the entire evidence is evaluated it will be found that in so far as the question of default is concerned, there is the oral testimony of the appellant/landlady on the one side and on the other side there is the oral testimony of the respondent that rent had been paid, which oral testimony is strengthened by the money-order sent in June, 1976, which was accepted by the appellant without any protest or condition and the cheques given by the respondent to the landlady during the period of alleged default. It is not a case of word against word on the question of default where it might be held that a case of default has been made out. It is a case where there is the solitary oral testimony of the landlady on the one hand and the other hand there is the oral testimony of the tenant supported documentary evidence in the nature of 'money order and cheques. There is also enmity between the parties, which has resulted in criminal case between the parties and also disconnection of Sui-gas supplied to the respondent's tenement. On this evaluation of the evidence, a correct conclusion was reached by the Rent Controller that the case of default I the payment of rent had not been proved by the appellant. I find no reason to interfere with the finding of the learned Rent Controller that a case for default has not been made out.
5. As a result, this appeal fails,. F.R.A. No, 122 of 1980 is dismissed with costs.