' This appeal is directed against the judgment and decree of VIIIth Senior Civil Judge, dated 16-12- 1982 whereby the appellant was directed to hand over the disputed flat to the respondent. On 12-11- 1979, the respondent had filed the ejectment application on the ground of default in payment of rent for January, 1979 as well as for personal need as he had been transferred to Karachi and was living in the rented house. The same was resisted by the appellant on the ground that there was no understanding to vacate the flat when the respondent was transferred back to Karachi. It was asserted that in 1976, the rent was demanded to be enhanced from Rs, 400 to Rs, 600 because the appellant wanted to avoid the litigation. It was stated that the respondent does not want the premises but wanted to enhance the rent and that the respondent was serving as Vice-President in National Bank and was entitled to much better accommodation.
2. The default was denied in the written statement and it was stated that rent was sent by a demand draft but the respondent did not encash and that the rent was sent through money order thrice.
3. The issues of default and personal requirement were framed.
4. Qazi Saeed Ahmed examined himself and stated that in 1976 he had informed the appellant that he wanted to live in his own flat as he was transferred to Karachi and gave notice but the appellant did not vacate the premises. It was stated in the affidavit that the respondent had no other property in Karachi and at present he was living in a rented flat (by which it is meant in the opening para of the affidavit). In cross-examination, he stated that he was posted now at Hyderabad. He denied the suggestion that during his posting outside Karachi he did not need the premises for him. He statea that his family was still residing at Karachi in a rented flat and, therefore, his wife and children required the premises.He admitted that he had not stated in his affidavit of evidence that the premises were required for the family. He stated that he was staying at the Guest House at Hyderabad owned by the Bank. He denied that he was staying at Karachi with his relative but admitted that he had not produced the rent receipts of that house. He admitted that rent was enhanced in 1976 when he had asked the appellant to vacate the premises which were required at that time by him for his personal bona fide need. He explained that the default had been committed from December, 1979. He denied that money-orders were refused by him. He also denied receipt of any draft from the appellant which included rent for December, 1978 to April, 1979.
He had produced correspondence between the parties. Girdharilal Bhattia, appellant, had stated that he was tenant since 1974 at Rs, 400 per month. He stated that on 4-10-1977, the respondent had asked him to vacate the premises because he wanted the flat for his own use but when the appellant agreed to accept demand of enhancement of rent, the respondent allowed him to continue at Rs, 600 per month as rent. He further stated that in March, 1979, the respondent started demanding enhanced rent and did not encash his Bank Draft. He also filed correspondence between the parties and registered receipts and M.O. Receipts and stated that he has not committed any default. He stated that respondent just wanted to enhance the rent and that application for ejectment has become infructuous because the respondent had been transferred to Hyderabad and his family was residing with him. He also stated that the present premises were below the standard of the respondent. In cross-examination hi stated that he used to pay rent every month by Bank draft to the, respondent and admitted that rent was increased to Rs, 600 per month from 1-1-1978. He admitted that no letter was written to him for increasing of rent. He did not know if the respondent's family is residing at Karachi but according to his information it was in America. He did not know if the respondent's family was residing at Flat No, 23, Park View Apartments, Clifton. He did not know if the respondent had any property at Karachi. He admitted that the job of the respondent is transferable as he worked in a Bank.
5. The Rent Controller came to the conclusion that since the respondent has no house of his own in Karachi and his family is living in a rented house and there was no evidence that need of the respondent was not bona fide, therefore, the premises were required by him. In respect of non- payment of rent, the Rent Controller held that rent for December, 1978 was payable on 1st January, 1979 and should have been paid within 60 days thereafter, but the tender was much after the due date and that the appellant had failed to prove the tender of rent within 60 days of the date when the rent was due.
6. Mr. Munawar Malik counsel for the appellant submitted that there was only five days' delay in the tendering of rent of December, 1978 and, therefore, the Rent Controller should not have ejected the appellant as West Pakistan Urban Rent Restriction Ordinance, 1979 was applicable in the case and section 13(2) of the same gave discretion to the Rent Controller to eject the tenant or not. It is correct that discretion to eject the tenant or not was with the Rent Controller in spite of proof of non-payment of rent within due date but an explanation had to be submitted by the appellant as to why he could not pay the rent in time. The appellant had been paying rent regularly from month to month and, therefore, he should have tendered the rent of December, 1978 within due date.
There is no allegation made by him that he had tried to pay the rent of December, 1978 to the respondent and that respondent had declined to receive the same. In fact, in para. 2 of his affidavit, the appellant stated that he had sent the draft for rent of December, 1978 to respondent in April, 1979. The same was admittedly not, in any case, even sent earlier than before 6-3-1979 and, therefore, there was clear default in the payment of rent of December, 1978. The respondent's counsel has drawn my attention to the fact that the appellant has not even proved that the said draft was received by the respondent because there is no A.D. Receipt filed. Mere production of postal receipt dated 6th March, 1979 alongwith copy of the letter, dated 6-3-1979 could have justified the raising of presumption under section 27 of General Clauses Act that the said letter might have been received ;by the respondent. But the difficulty is that the respondent had clearly stated that he had not received any such draft. And in this view of the matter it was incumbent upon the appellant to prove that the post office had in fact delivered the said draft of Rs, 2676 to the respondent but no such proof has been tendered and, therefore, there is in fact a proof to the contrary that the draft had not been received by the respondent. I am of the view that if there was a proof of proper tender of rent within some time of the date by which the rent could be tendered then the Rent Controller should exercise the discretion in favour of the tenant. But in the present case there is no clear proof of receipt of the draft by the respondent. The appellant had not cared even to ascertain from the office as to what was the fate of his draft. In these circumstances, it is difficult to exercise discretion in favour of the tenant. There is no explanation at all from the appellant as to there is such acknowledgement due receipt, which should have been signed by the respondent. Consequently, the Rent Controller was justified in not exercising discretion in favour of the tenant and coming to the conclusion that rent of December, 1978 was in default.
7. In respect of personal need the appellant's counsel contended that the respondent has been harassing the appellant and getting the rent enhanced from time to time and giving the threat of getting the premises vacated on account of the personal need. He drew my attention to a similar situation which had happened in, July, 1976 when the respondent was transferred from Sukkur to Karachi and had asked the appellant to vacate the premises but the appellant had refused and, thereafter, negotiation had taken place between the parties as a result of which rent was enhanced to Rs, 600 from Rs,400 and thereafter, the respondent did not press for the eviction of the appellant. Factum of such events is not disputed by the respondent but the respondent's counsel submitted that if the respondent had once accommodated the appellant then the same should not be treated as a permanent disqualification for him. Respondent's counsel had further contended that the rent had never been enhanced on the demand of the respondent but it was a voluntary offer on the part of the appellant that he had increased the rent from Rs,400 to Rs, 600. I am of the view that the increase of rent in respect of the premises which are in possession of tenant for a good deal of time is a regular phenomena in view of the fact that the value of rupee has been going down and, therefore, if a reasonable increase is demanded by the landlord or agreed by th tenant then the same should not be regarded as a factum against the bona fide attitude of the landlord. The respondent had foregone his right to get the appellant ejected in 1976, but the same should not become a permanent disqualification for him to seek the ejectment o his tenant in case the respondent can establish to the satisfaction of the Court that he is really in need of the premises.
8. It is an admitted position that the respondent has no other accommodation available to him in Karachi and that he was in Karachi when he made the application for ejectment and, therefore, he needs the premises for his family.
9. In this respect, the appellant's counsel has raised two fold contentions. One is that the respondent has been transferred back to Hyderabad and, therefore, he does not need the premises in dispute any more. Respondent's counsel's reply is that the family of the respondent is still in Karachi and they are, therefore, in the need of the premises and hence the need has not discontinued. The respondent's counsel has pointed out that the respondent is living in the Guest House of his Bank at Hyderabad and he cannot, therefore, keep his family with him in the Guest House and, therefore, as a matter of necessity he has to keep his family at Karachi and hence, the need of the premises. In these circumstances, it is reasonable to conclude that the need of the respondent for the premises is continued and the fact that he had no other accommodation of his own in Karachi justifies the grant of ejectment of the appellant. The appellant's counsel had stated that the respondent was living with some relations. Even if the respondent's family is living with relations, the same cannot be treated as a premises of the respondent, and, therefore, the bona fide cannot be challenged. The respondent had stated in his affidavit that he was living in a rented accommodation and he had given the address where he was living and the appellant was confronted by the respondent with the question that appellant was residing at Flat No,23, Part Vie Apartment, Clifton but the appellant was not in a position to deny th same and it is, therefore, reasonable to conclude that the respondent' family was living in a rented accommodation at.
Clifton.
10. Last submission of the appellant's counsel was that the present premises are not upto status of the respondent who is a Vice-President of National Bank and should therefore, be living in a fashionable locality. It is for the respondent to decide as to where he wants to live. The suitability of the locality has to be considered by the respondent and if he is prepared to close his eyes to status and live in a colony which is below his status then it is his choice and the same cannot be attributed to be a mala fide choice. However, I am not suggesting for a moment that the present premises are situated in a low class colony.
11. The result is that this appeal is found to be without merit and is hereby dismissed. However, in order to enable the appellant to secure alternate accommodation for himself, I would allow 6 months' time to the appellant to vacate the premises provided he continues to deposit the rent regularly with the Rent Controller. Direct writ of possession without notice to the appellant will be issued against the appellant after six months from today but it can be issued earlier in case the appellant fails to pay the rent.