1. ' The second appeal under section 15(4), Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance) arises out of the judgment dated 25-3-1977 by the 3rd Additional District Judge and Appellate Authority, Karachi, whereby the first appeal filed by the appellant against the order of eviction was dismissed.
2. ' The appellant was put in occupation of the disputed premises for residential purposes under a written agreement of tenancy dated 1-1-1975, by the respondent for a period of 11 months ending on 30-11-1975, at the rate of Rs, 275 per month as rent. It is common ground that the aforesaid agreement stipulated a deposit of Rs, 325 which was not adjustable to future rents, and one month's rent in advance.
3. ' On 4-11-1975 the respondent filed an application for ejectment under section 13 of the Ordinance against the appellant alleging default on his part for two months, namely, September, 1975 and October, 1975, as well as on the ground of personal use.
4. ' The appellant resisted the application and his case was that the application is mala fide in as such as the respondent had demanded the enhancement of rent and upon the refusal of the appellant to comply the ejectment proceedings were initiated. It was further contended that the rent for the month of September was paid to the respondent by the appellant but no receipt was passed on to him immediately and the respondent had promised to give the receipt subsequently.
5. After waiting for sometime when the respondent did not send the receipt as promised, the appellant contended, the rent for the month of October was sent to the respondent through one Muhammad Ismail but the latter declined to accept the same. The appellant was, therefore, constrained to dispatch the rent for October, 1975 through money order on 21-10-1975, but once again the respondent refused to accept the same. The appellant also denied the plea of the respondent that the premises were required in good faith for his personal use.
6. ' The parties adduced evidence before the learned Controller, after hearing which he came to the finding in favour of the respondent on both issues, namely, that the appellant was guilty of default in the payment of rent for 2 months of September and October, 1975 as well as that the premises was required in good faith by the respondent for his personal occupation as he proposed to get married in the near future.
7. 'Aggrieved by this decision the appellant filed an appeal to the Additional District Judge and appellate authority who by the impugned judgment, affirming the findings of the learned Controller, dismissed the appeal. The appellant has now come up in second appeal before this Court.
8. ' It may be stated at the outset that the learned lower appellate Court modified the findings on the question of default by holding that the evidence on record established default by the appellant in regard to the month of September, 1975. Now subject to this modification, the findings on the two issues which are issues of fact being concurrent, the learned counsel for the appellant was faced with an uphill task.
9. ' Mr. Anis Ahmad, learned counsel for the appellant, however, contended that both the learned lower Courts had fallen into error in misreading the evidence on record and in considering the effect of the established circumstances appearing therein, in reaching their findings against the appellant. In this behalf the learned counsel submitted that in the agreement of tenancy Exh. 5/1 at Article 6 it was clearly stipulated that besides the deposit of Rs, 325 the tenant shall deposit one month's rent in advance. In his evidence the appellant has produced receipt of the rent for January, 1975, Exh. 6/3. It was on the basis of these circumstances that the learned counsel urged that this sufficiently establishes that the appellant had paid rent for the month of January, 1975 over and above one month's rent as stipulated in the agreement of tenancy. This case was put to the respondent who had denied the suggestion that two payments were made in the month of January, 1975 towards the rent. The perusal of Article 6 of the agreement does not seem to support the contention of the learned counsel as what appears to have been agreed was that a fixed deposit of Rs, 325 be kept with the landlord and in terms of other stipulations contained in the agreement, one month's rent in advance for the month of January 1975 was to be paid.
10. Accordingly, it is quite apparent that the rent receipt dated 1-1-1975, Exh. 5/3 is referable to the stipulation for one month's advance rent contained in Article 6 of the agreement.
11. ' Counsel then submitted that the learned Courts below have overlooked the other circumstances appearing in the evidence which tended to support the plea of the appellant that landlord had refused, for ulterior motive, to accept the rent. In this behalf the learned counsel has invited my attention to the money-order coupon. Exh. 7/1, dated 31-10-1975 which was refused by the landlord.
12. In the space provided for any communication to be written on the money-order coupon, there is a writing in the handwriting of the appellant in which reference has been made to the alleged payment for the month of September, 1975 and the alleged refusal on the part of the landlord to accept the rent through Muhammad Ismail. Learned counsel, therefore, contended that, this writing corroborates the case of the appellant, as no reply was sent repudiating the statements made in this writing. However, the attention of the respondent, who appeared as his own witness in evidence, was not specifically drawn to these statements and the writing was not confronted to him. It is quite possible that the writing may have been inscribed on the coupon when it was returned to the appellant as it has come from his custody. This circumstance, therefore, is of no help to the appellant and, seems to have been rejected accordingly by the two lower Courts.
13. ' The only evidence in support of the allegation that the rent for the month of September, 1975 was paid is that of the appellant's witness Syed Abbas who stated that he was present when the landlord had come to the disputed premises and asked the appellant to vacate the same, and the appellant had demanded receipt for the rent paid by him earlier. However, as rightly pointed out by Mr. Mukarim learned counsel for the respondent, this witness is a chance witness and, therefore, no reliance can be placed on his oral evidence. The circumstances of the case are that receipts were issued to the appellant from month to month except for the month in dispute and no reasonable explanation has been given why the appellant did not insist on the receipt being issued for the payment.
14. In view of the aforesaid circumstances there seems to be no reason to interfere in this second appeal with the concurrent findings of fact arrived at by the two Courts below on the question of default. But Mr. Anis Ahmad contended that even if default has been established it being only for one month, the appellant is entitled to the exercise of discretion in relief of the forfeiture of tenancy.
15. In reply Mr. Mukarim strongly contended that the appellant had taken to false defense by first alleging that the payment of rent for the month of September, was made by him and when he has not succeeded in establishing his plea, he cannot be allowed to turn round and invoke the discretion of the Court. I agree with the contention, specially in view of the concurrent findings by the two Courts below, and no other circumstance appeared in evidence which indicated that the default was not wilful or was the result of circumstances beyond the control of the appellant.
16. ' On the question of personal use the case of the respondent was that he is a young man and proposes to get married for which he needs the premises for the personal use. The respondent has established in evidence, that he is at present residing in his father's house consisting of 3 rooms where 9 inmates are living. Prima facie, therefore, it would not be possible for the respondent to take up residence alongwith his father in a house which is already congested with 9 family members. However, the learned counsel for the appellant urged that no sufficient evidence has been brought on record to establish that the respondent does propose to get married and, therefore, an inference should be drawn that the premises are not required in good faith by him. In this behalf it was urged that the respondent has admitted that he has not yet been engaged and further that the father of the proposed bride, has not been examined as a witness. I do not see any force in this contention. It is the prerogative of the landlord to ask for his premises for personal use and unless any circumstances are brought out in evidence which indicate that his requirement is not based on bona fide ground, normally the landlord must be allowed the benefit of the use of his premises. I, therefore, cannot accept the contention that it was necessary for the respondent to prove by any evidence as a fact that he has intention to marry.
17. ' However, the learned counsel for the appellant was on a very strong ground when he contended that the ground for personal use was not available to the respondent as the period of tenancy prescribed in the agreement had not expired on the date of the application. In this behalf learned counsel referred me to the proviso to subsection (3) to section 13 which stipulates that where the tenancy is for a specified period agreed upon between the landlord and the tenant, the landlord shall not be entitled to apply under this subsection before the expiry of such period. It is not disputed that the period of tenancy was due to expire on 30-11-1975 and the application for ejectment was filed on 4-11-1975, which was clearly before the period the tenancy had to expire. On a bare reading of the said provision the application on the ground of personal use was not competent. Accordingly, the order of ejectment on the ground of personal use is not sustainable.
18. However, since the finding on the question of default has gone' against the appellant, this appeal must be dismissed. I order accordingly, with no order as to costs. The appellant shall have three months' time to hand over possession to the respondent.
19. ' The learned counsel for the respondent agrees that the respondent shall deposit in Court the sum of Rs, 325 being the fixed deposit with him ender the agreement, the District Court, within the period of three months before taking over the delivery of the possession, and the appellant shall be entitled to withdraw this amount. Rent deposited in Court shall be paid to the respondent.