1. ' Appellant Abdul Malik is a tenant of the respondent Bali Ejaz Ahmed in a portion of house No.52/2- A, "B" Area, Liaquatabad, Karachi, at monthly rent of Rs.250, exclusive of electricity charges, since 10- 9-1974. The respondent filed Ejectment Application No.5571/79 before the Rent Controller No.11, Karachi, on 7-12-1979, on the grounds that the appellant had made default in payment of rent from 9-9-1979 and also had failed to clear arrears of electricity charges, and had damaged the property by making unauthorised alterations therein, and put the premises to use other than that it had been let out for and also that the premises was required by him (the landlord) for his own use. The appellant resisted the application on all the grounds. The learned Controller (IXth Senior Civil Judge/Controller, Karachi) allowed the application on the grounds of default in payment of rent and electricity charges and personal requirement of the respondent, by order dated 20th February, 1983. This appeal is directed against that order.
2. ' The learned counsel for the appellant has contended that there was no default in payment of rent and that electricity charges were paid whenever they were asked for by the respondent and he has made reference to several documents which will be mentioned hereinafter. He has further contended that the respondent does not need the premises for his bona fide use. On the other hand, the learned counsel for the respondent has urged that the rent was not paid from the month of September, 1979 onwards and there were outstanding arrears of electricity charges against the appellant and he had failed to clear them. He has also urged that the respondent bona fidely needs the premises for, accommodating his large family.
3. ' The evidence adduced by the respondent consists of his own affidavit and certain documents filed by him' and also affidavits of his three witnesses, namely Abdul Salem, Mehmood Alam and Riaz Ahmed.
4. ' The evidence put forth by the appellant is his own affidavit and certain documents filed by him.
5. ' The main issue in dispute is that of non-payment of rent and electricity charges. The respondent's case has been that the rent was not paid from 9th September, 1979 till the filing of the ejectment application on 17-12-1979 and the balance of the arrears of the electricity charges to the tune of Rs.1188.30 upto September, 1979 and the electricity charges for the months of October and November, 1979 also were not paid. The respondent has filed in evidence copies of the statements of the electricity consumption by the appellant. He has also filed in evidence copies of the statements of the electricity consumption by the appellant. He has also filed in evidence a statement of the payments made to him by the appellant towards the electricity charges. A copy of this statement is Annexure 'F' to the main application. This document is not disputed. It indicates that a sum of Rs.1,396.58 was outstanding as the electricity charges and a sum of Rs.1,361.92 was paid and a sum of Rs.34.66 remained outstanding. The break up of the sum of Rs.1,361.92 also is shown therein. This document was executed by the respondent in token of receipt of the payments made by the appellant and its delivery to the appellant was acknowledged by him under his signature. The document is dated 25-10-1979. The payments towards the electricity charges were made in pursuance of a letter dated 14-10-1979 addressed to the appellant by the respondent mentioning that electricity charges for 8 months from January to August, 1979 were oustanding against him. It follows that the arrears of the electricity charges outstanding upto August 1979 were cleared upto 1979, except a small sum of Rs.34.66, as reflected in the statement of account Annexure 'F' to the ejectment application. The learned Controller did not give due consideration to this aspect of the case. There remains question of payment of electricity charges for the months of September, October and November, 1979 as the ejectment application was filed on 17-12-1979. But the electricity charges for that period were to be paid when the bills therefor were received and there was no default.
6. ' Next question is that of payment of rent for the months of September, October and November, 1979. The learned counsel for the appellant has contended that the sum of Rs.1,361.92, the payment of which was confirmed under the receipt dated 25-10-1979 (Annexure 'F' to ejectment application), included rent for the months of September and October, 1979 amounting to Rs.500. But it is clear from the notice dated 14-10-1979 (Annexure 'E' to the ejectment application) and the receipt dated 25-10-1979 (Annexure 'F' to the ejectment application) that the sum of Rs.500 included in the sum of Rs.1,361.92 was part payment towards the arrears of the electricity charges. The learned counsel for the appellant has alternatively argued that even if the sum of Rs.500 were adjusted towards the arrears of the electricity charges, there was no default in payment of rent. According to him, the rent had been paid upto the month of September, 1979 And the rent for the month of October, 1979 had become due in month of November, 1979 and the default in payment thereof, if any, could be construed to have occurred from 31st December, 1979, after the expiry of 60 days, whereas the ejectment application was filed on 17th December, 1979, i.e. before the default in payment of rent for the month of October 1979, had become mature for legal action. He has argued that likewise there no default was committed in payment of rent for the month of November, 1979, and question of default for payment of rent for the month of December, 1979 did not arise as the ejectment application was filed during the course of the Month. It appears from the documents filed by the parties, particularly from the rent receipts, that the tenancy between the parties was on monthly basis from 10th of one 'month to 9th of succeeding month. Rent was admittedly paid for the month having ended on 9-9-1979. Accordingly, the rent was to be paid for the period from 10-9-1979 onwards. The tenancy month of September, 1979 expired one 9-10-1979. The matter was then governed by the Sind Urban Rent Restriction Ordinance, 1959, and as provided under clause 1 of subsection 2 of section 13 thereof, default in payment of rent for the tenancy month of September, which expired on 9th of October, 1979, accrued from 9th December, 1979, after the expiry of sixty days, and default in payment of rent for the month of November, had not become mature by the time the ejectment application was filed on 17-12-1979. It is borne out from the evidence brought on the record that there was dispute between the appellant and the respondent over the accounting of the electricity charts and, in these circumstances, non-payment of rent for the month of September, 1979 till filing of the ejectment application was not to be construed as wilful default.
7. Moreover, the respondent was holding a sum of Rs.750 as the deposit made by the appellant.
8. Obviously, the appellant was not guilty of wilful default in payment of rent. The learned Controller was, therefore, in error in holding the appellant as a wilful defaulter in payment of rent and the electricity charges.
9. ' The other ground which found favour with the learned Controller for ordering ejectment of the appellant was that the respondent bona fidely needed the rented premises for his own use. In this respect, the respondent'k case has been that he wanted the premises for accommodating his large family. The rented premises is a part of the building which is in occupation of the respondent/landlord. The porition of the building which comprises the rented premises was let out for commercial purpose. It was let out in September, 1974. The respondent has described his personal need in paragraph 10 of ejectment application as under: "That the applicant is an old man of about 75 years of age and is living in two rooms only with his son, daughter-in-law and the six children of his son which place is not sufficient for the applicant's accommodation and the applicant requires the premises in good faith for his personal residence and for the occupation of his son and grand son and daughters".
10. ' The respondent has reiterated the ground of his personal need in paragraph 19 of his affidavit in evidence as under:- "That I required the rented premises for my personal bona fide use and for the use of my family as the present accommodation in my possession is quite insufficient for my requirement. He has been supported by his witnesses Abdul Salmi) and Mehmood Aslam. It has been brought in evidence that the respondent has large family consisting of 9-10 persons and they have been living in premises consisting of two rooms. Thus, it has been made out by evidence that the premises in occupation of the respondent is not sufficient to meet his requirements and he bona fidely needs the rented premises for accommodating his large family. The learned counsel for the appellant has, however, contended that the rented premises was let out for commercial purpose whereas the respondent's case is that he needs it fore residential purpose which he cannot do. He has placed reliance on a case Gul Afzal Khan v. Muhammad Hanif PLD 1979 Lah. 398, wherein it was held by a Single Judge that a landlord could not seek eviction of a tenant from a non-residential building on the ground that he needed it for his own occupation. That view was adopted on the basis of the provisions of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (since repealed,) wherein separate provision was contained in subsection (3) thereof for seeking possession of a residential building for the purpose of his own occupation or occupation of any of the children of the landlord and that of non-residential building for the landlord's own use or for the use of any of his male children. But the position in this case is quite different. The porition of the building let out to the appellant is a part of residential building and it is not essentialy a non- residential building. Sometimes necessity leads to such a situation where a landlord is obliged or compelled to put a portion of residential building to a use other than residential. As discussed above, the respondent has made out a case of his bona fidely needing the rented premises for accommodating with large family and there does not seem any legal bar to his getting the premises vacated on that ground. The plea agitated by the learned counsel for the appellant does not seem tenable. The finding of the learned Controller that the respondent bona fidely needs rente,d premises for his own occupation and that of his family members is inexceptionable.
11. ' For the reasons recorded above, the order of eviction of the appellant passed by the learned Controller is upheld only on the ground D that the respondent bona fidely needs the rented premises for his own use and the appeal is dismissed. In the circumstances of the case, no order is made for cost.
12. ' The appellant Is allowed two months time for vacating the rented premises.