1. ' This First Rent Appeal is directed against the impugned order of ejectment, dated 18-10-1982 of learned XII Rent Controller, Karachi.
2. ' Briefly stated the relevant facts are that appellant before me namely Muhammad Saeed is tenant (hereinafter to be referred as such) of half portion of "Ahmar Cottage" on plot bearing No. 23 block 3 in Drigh Township, Karachi-25, Petitioners (hereinafter to be referred as landlords) are sons and daughter of late Rafiurrehman Qureshi, who inducted the tenant into possession vide agreement, dated 11-8-1978, which was valid for 11 months. After the expiry of the agreement tenancy continued and on 10-10-1979 landlords named above filed application for ejectment against the tenant under section 13(2) of the West Pakistan Urban Rent Restriction Ordinance, 1959 on the grounds of default in the payment of rent for six months from 1st May, 1979 to Ist October, 1979 and requirement of premises for the personal use of landlords. Tenant contested the proceedings before the Rent Controller and denied allegations. Tentative Rent Order was passed on 24-4-1980 after which the evidence was recorded. Landlords examined Khawar Rafi Qureshi while tenant examined himself and three other witnesses namely Muhammad Riaz, Manazir Hussain and lqbal Ahmed, Trial Court framed three issues regarding rate of rent, default and requirement of premises for personal use.
3. Trial Court gave finding that the rate of rent was Rs. 450 and the other two issues were also found in favour of landlords and against the tenant in consequence whereof order of eviction has been passed which is impugned before me.
4. ' Mr. A.R. Siddiqui Advocate for the tenant submitted that the findings of the Trial Court were not consistent with the evidence brought on the record, which has been misread. He submitted that the landlords had come to the Court not with clean hands and in the memorandum of application for ejectment asserted that rent payable was Rs.475 per month and the total amount claimed for arrears was specified as Rs.2,850. Mr. Nizam Ahmed, Advocate for the landlords has explained that such mistake has occurred in the memorandum of application for ejectment, which was subsequently discovered and rectified by Khawar Rafi Qureshi in his affidavit of evidence.
5. Paragraph 4 of the affidavit is reproduced as under:-- "That I say initially the premises were let out for a period of 11 months but on the expiry of the said period as per mutual agreement the opponent was allowed to continue on a monthly rent of Rs.450. It may please be submitted that in para 4 of the application under a typographical error the rate has been mentioned as Rs.475 instead of Rs.450 resulting in the subsequent proceedings."
6. ' Mistake stated above by the landlord Khawar Rafi having been made in advertently and rectified as such has not been challenged by the tenant in the cross-examination of Khawar Rafi. Tenant took up the plea before the trial Court that even after the expiry of agreement rate of rent remained same as Rs.325 per month and he kept on paying some time more than that amount as advance and in this manner he had already paid Rs.9,000 as advance, which had to be adjusted against the arrears claimed in the future rent. It was further claimed in the written statement in paragraph 5 that apart from Rs.9,000 paid in advance, Rs.650 was paid by the tenant as security deposit, which was also to be adjusted. Assertion of the tenant that Rs.9,000 was paid in advance to the landlords is rather vague. In written statement in paragraph 9 it is stated that the landlords were already paid huge amount, which came to Rs.9,000 and this extra amount was demanded by the landlords on the pretext that either it would be refunded or the same shall be adjusted towards the future rent. In evidence tenant took a different plea and stated in his affidavit of evidence in paragraph 3 that he had to go outside Karachi in connection with his official duties and looking into the circumstances of his work, he paid extra amounts alongwith monthly rent to the landlords, so that the extra amounts may accumulate and in case he did not pay, then the amount so paid in extra may be adjusted and there should be no default on his part. In paragraph 5 of the affidavit, tenant stated that he made various payments by cheques showing amounts of Rs.375 and 450 and on two occasions Rs.336 vide Cheque No.539477, dated 5-6-1975 and Rs.390 vide Cheque No.717287, dated 8-1-1978. Tenant further maintained before the Rent Controller in his evidence that in the manner stated above extra payments were made to the landlords and that is how a large sum of Rs.9,000 was accumulated with the landlords as rent paid in advance which was to be adjusted. Landlord refused to make the adjustment and on the insistence of the tenant, landlord threatened to dispossess the tenant, who was compelled to file a suit in the Civil Court and obtained Stay. It is stated in the written statement that the said suit was disposed of by the Court in view of written statement filed by the landlords. Mr. A.R. Siddiqui, Advocate for the tenant stated that perhaps the suit was withdrawn.
7. ' Now so far the issue of default is concerned, the case of the landlords is that after the expiry of agreement mentioned above tenant was allowed to retain the possession on the enhanced rent of Rs.450 per month. Khawar Rafi produced before the trial Court agreement A/1 which was executed on 1-1-1971 and expired after 11 months as it was not further renewed. According to this witness the rent was increased subsequently to Rs.450 per month of which he could give documentary evidence for the period of year 1977 and afterwards. He produced bank certificates Exhs. A/2 and A/3 showing tenant having paid rent at the rate of Rs.450 per month through cheques for the period from December, 1977 to April, 1979. He produced certificate of cheques deposited Exh. A/4 to Exh. A/23. Exh. A/2 on the record is certificate issued by United Bank in which nine cheques are specified relating to the period from December, 1977 to September, 1978, each showing amount of Rs.450 credited to the account of Mr.Khawar Rafi Qureshi SB A/C No.2024-B. The cheques were issued from account No.SB 1100, drawn on National Bank of Pakistan, B.G. House Branch Nazimabad, Karachi. Similarly Exh. A/3 on the record is certificate of the same Bank showing five cheques for the period of October, 1978 to April, 1979 crediting Rs.450 on each occasion to the account of Mr. Khawar Rafi Qureshi. The money was drawn from account No.SB 1100 of National Bank of Pakistan B.G. House Branch Nazimabad, Karachi. The above documentary evidence clearly establishes that from December, 1977 right upto April, 1979 rent was paid by the tenant at the rate of Rs.450 to the landlords. In the cross-examination tenant admit before the trial Court that he maintained Account No.1100 and through this account rent was paid. He further admitted having paid Rs.450 per month as rent but further asserted that actual rent was Rs.325 and the remaining amount was extra. He was confronted with documents Exh. A/2 and A/3 and after seeing them admitted that if the payments were made by cheque, they were true. Tenant further admitted in his cross-examination that he never demanded in writing adjustment or return of accumulated amount of Rs.9,000 from the landlords but only made verbal requests. He further admitted to be paying rent to the landlords by issuing cheques monthly. Another categorical admission in the cross-examination of the tenant is that last payment by the cheque was for April, 1979 and thereafter no rent was paid to the landlords directly. From this evidence it is clear that from December, 1977, till April, 1979 landlords have been able to show by documentary evidence that tenant has been paying Rent at the rate of Rs.450 per month. If the landlords have not been able to show that the rent was increased to Rs.450 per month after the expiry of the agreement in 1972, they have been able to show consistent payments of Rs.450 per month by the tenant from December, 1977 onwards. These are in all fourteen such payments of Rs.450 per month by way of cheques. Tenant has admitted this position in cross-examination. Other allegations levelled by the tenant that Rs.9,000 were paid in advance to the landlords by him and that he used to pay the rent at the rate of Rs.450 when in fact the rent was Rs.325 per month are not substantiated. Tenant has quoted two instances when he claimed to have paid Rs.336 on 5-6-1975 and Rs.390 on 8-1-1978 to the landlords. Khawar Rafi stated before the trial Court that he did not remember having received payment of Rs.336 by way of cheque on 5-6-1975. No documentary evidence was produced by the tenant. In any case this was payment allegedly made in the year 1975. About the second payment of Rs.390, Khawar Rafi has explained in his evidence that in addition to the payment of Rs.390 vide cheque, dated 8-1-1978, tenant had paid Rs.60 in cash. In any case in view of the documentary evidence brought on the record and admissions made by the tenant as discussed above it has been proved that the rate of rent was Rs.450 from December, 1977 onwards and the tenant had failed to pay rent from May, 1979 to October, 1979 for six months which is admitted by the tenant in his cross-examination before the Rent Controller. Other allegations made by the tenant are not proved. It is contended by the tenant that Rs.650 as per terms of agreement are lying with landlords as security deposit which are to be adjusted against the payment of arrears. Clause 8 of Agreement, dated 11-8-1971 shows that tenant had deposited Rs.650 as security deposit to remain in the custody of the landlord which had to be refunded to the tenant when he vacated the house. The tenant B has not vacated the house. In any case even if this amount is deducted, it would not help the tenant very much for the reason that it may account for the rent of one month and a part of second month when the default is alleged to be for six months. I am, therefore, of the opinion that on the ground of default ejectment granted is perfectly justifiable.
8. ' The second ground is of requirement of premises for personal use. In the application for ejectment it is stated that premises in question are required for personal bona fide use of the landlords as the accommodation in their occupation is small house on an area of 120 sq. yds. which is not sufficient accommodation for four brothers and one married sister, two of whom were going for marriages.
9. As against this the tenant took up the plea in the written statement that the premises in question were not required bona fidely by the landlords, who wanted to increase the rent and on refusal adopted unlawful tactics to eject the tenant. However, Khawar Raft stated in his affidavit before the trial Court that the demised premises were required by him and other co-owners for their personal bona fide need as the present accommodation in their occupation was not sufficient. He further stated that they were a family of six members. The sister Asma is married to Muhammad Shoeeb, who is Engineer in the service with Iraqi Oil Company and he is not permitted to take his family to that country. Consequently Asma with her little daughter is living with the landlords. Khawar Raft has further stated that he and other landlords were living in a house in Federal 'B' Area which is on the plot of 120 sq. yds. consisting of two bed-rooms and one drawing room with no dining room. It is further stated by him that he himself is Chemical Engineer and his brother Ahmar Rafi Qureshi is Mechanical Engineer while his other brother Manzar Rafi is a final year student in Mechanical Engineering. Khawar Rafi has further stated that he and his brother Ahmar Rafi are due for marriages which could not be performed for want of accommodation. This story is not seriously challenged by the tenant in the cross- examination of Khawar Rafi. A suggestive question was put by the tenant to Khawar Rafi in the cross-examination to the effect that landlords did not require the premises in question in good faith for their need which is denied by him. Another question was put to him about the date of his marriage and that of his brother about which Khawar Rafi stated that talks are going on. The tenant in the cross-examination before the trial Court stated that the landlords had other accommodation apart from the demised premises and it was denied that marriages of Khawar Rafi and his brother could not take place for want of accommoda tion. No further attempt was made by the tenant to refute the allegation nor the assertion of the landlord was seriously called in question. In the absence of any serious challenge, it can be said that the landlords have produced sufficient oral evidence to satisfy the Court that demised premises were required for personal need of the landlords jointly. No further interference is called for on the finding of the trial Court on this issue.
10. ' Tenant has examined three witnesses namely Muhammad Riaz Ahmed, lqbal Ahmed and Manazir Hussain. These witnesses had produced their affidavits in evidence before the trial Court.
11. According to these affidavits in presence of the deponents landlords pressed the tenant to vacate the premises or enhance the rent from Rs.325 per month to Rs.700 per month. Time and place is not mentioned in these affidavits. Original affidavits on the record show that only one affidavit was typed leaving blank the places for names. In those blank places names of other witnesses have been written in long hand. Material in the affidavit is same. Only Riaz Ahmed and Manazir Hussain were cross-examined by the landlords. lqbal Ahmed had not offered himself for a cross- examination. Evidence of these witnesses is not trustworthy. They stand falsified in view of the documentary evidence and admissions made by tenant in cross-examination before the trial Court. Muhammad Riaz has stated in the cross-examination that he was standing in the house of his friend Khursheed opposite the house of the tenant when he saw four or five persons having gathered there. He just went there and heard landlords saying that the rent is Rs.700 and not Rs.325 while the tenant was saying that the rent was Rs.325. He further stated that it was in the month of March, 1979 at Maghrib time when he heard the dispute. Manazir Hussain has stated in the cross- examination that incident took place at Maghrib time and he was in the lawn opposite the demised premises for the purpose of study. He was not regular student. Riaz Ahmed and Khursheed were there. There was a row over the rent of the premises. Tenant kept on saying that excess amount be adjusted against the arrears. He denied that advocate had tutored him. He further denied that there was a dispute about enhancement of rent from Rs.325 to Rs.700 per month. Evidence of these witnesses is not worth reliance in the least.
12. ' For the facts and reasons stated above I uphold the impugned order of the Trial Court and dismiss the appeal with no order as to cost. Tenant is directed to hand over vacant possession of demised premises within two months from the date of announcement of this Order.