1. ' This First Rent Appeal is directed against the order, dated 2-3-1983 passed by the XVII Senior Civil Judge/Rent Controller, Karachi, whereby he allowed the eviction application filed by the respondents and directed the appellant to hand over peaceful vacant possession of the premises in question within sixty days from the date of order.
2. ' The facts giving rise to this appeal are that the respondents are the owners and landlords of Plot No.2, opposite Taj Masjid, Mehmoodabad Gate, Karachi and the appellant is the tenant in respect of portion consisting of three rooms at the monthly rental of Rs.110. The respondents filed eviction Application No.3842 of 1981 against the appellant on the ground of (1) default in payment of rent from July, 1981 onwards, (2) certain additions and alterations without the permission of the respondents and (3) on personal requirement. The appellant resisted the eviction application.
3. ' The respondents filed an affidavit-in-evidence of their attorney Munshi Ahmed Din besides affidavit-in-evidence of Muhammad Yousuf Tariq and Ghulam Sarwar. In rebuttal the appellant filed his own affidavit-in-evidence besides affidavit-in-evidence of Alim Din and Choudhry Abdul Aziz. They were cross-examined by the learned counsel for the respective parties.
4. ' The learned Controller after taking into consideration the evidence adduced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties allowed the eviction application only on the ground of default vide his order, dated 2-3-1983.
5. ' The appellant being aggrieved against the order, dated 2-3-1983 of the XVII Senior Civil Judge/Rent Controller, Karachi, has preferred this First Rent Appeal on the grounds disclosed in the memo of appeal.
6. ' After service of the notice, the respondents filed cross-objections on 2-6-1983.
7. ' Mr. Anwar Tariq the learned counsel for the appellant has contended that the learned Controller erred in holding that the appellant had committed default.
8. ' On the other hand Mr.A.R. Siddiqui the learned counsel for the respondents has submitted that the order of the Controller is in accord with evidence on record and law.
9. ' The respondents averred in para.3 of the eviction application that "the opponent is a difficult tenant and never pays the rent regularly and has not paid the rent from July 1981 onwards and hence committed wilful default in payment of rent hence for this act liable to be ejected". The appellant stated in his written statement that "the opponent is always eager to pay the rent to the landlord at the agreed time but on many occasions the applicant due to his touring type of business is always away from Karachi and it is in his-convenience that he comes to collect accumulated rent from the tenant as is evident from the receipts executed by him". The attorney of the respondents reiterated the same facts in his affidavit-in-evidence. The attorney admitted in his cross-examination that he used to go to the appellant to collect the rent. The attorney admitted in his cross-examination that he collected the rent from the appellant of two or three months together on many occasions and issued such receipts. The attorney voluntarily stated in his cross- examination that "in fact, opponent was not paying me rent regularly, and whenever I went to him to collect the rent he avoided on one pretext or another pretext and giving me different times to come again. Ultimately whenever I collected rent for two or three months, I used to issue receipts for the same. I used to issue receipt against payment of every monthly rent". The attorney denied the suggestion that he did not go to collect the rent for the month of July, but in fact he was going every day to demand the rent. It is incorrect that appellant offered him rent, but he avoided it deliberately.
10. 'The attorney was cross-examined at length and it is pertinent to note that no suggestion was made to him that on many occasions the respondent due to his touring type of business was always away from Karachi. The attorney deposed that he is running General Store. This fact was not denied by the appellant.
11. ' The appellant filed his affidavit-in-evidence and stated therein that the respondent used to visit the bakery of the appellant to collect the rent some times month by month and an many occasions after the expiry of 2/3 months as it was convenient to him and issued receipts. The appellant also stated that he started depositing rent with the permission of the Controller in Misc.
12. Rent Case No.4183 of 1981. The appellant also stated that the respondent remained outside Karachi due to his touring and he could not be traced out in spite of his best efforts for payment of rent at his residence.
13. The appellant admitted in his cross-examination that whenever the respondents came to him he paid him rent and he issued receipts to the appellant. The appellant to a question in cross- examination that "I do not remember when I lastly paid the rent to the appellant but I have receipt of the last payment of rent. I do not know, if I had paid rent upto June, 1981 but however, I paid the rent to the applicant whenever he demanded and later on I am depositing rent in the Court". The appellant denied the suggestion in cross-examination that the attorney came to collect the rent.
14. As for default in payment of rent for July 1981 and onwards, it is an admitted position that the rent for the months of July, August and September, 1981 was deposited in Misc. Rent Application No.4183 of 1981 on 26-9-1981. The attorney of the respondents deposed that he not only went to collect rent for the month of July, 1981 but in fact he was going every day to demand the rent. The attorneyalso denied the suggestion that the appellant offered him the rent and he avoided it deliberately. The appellant denied the suggestion that the attorney had come to him and to collect the rent. The defence of the appellant is two fold, that is, practice of payment of rent in lumpsum for two or three months (2) the respondent used to remain outside Karachi due to his touring and he could not be traced out in spite of his best efforts for payment of rent at his residence. As regards the practice of payment of rent for 2/3 months the attorney deposed that he used to collect every month but the appellant was not paying him rent regularly. As regards the absence on account of tour was not suggested to the attorney. Even according to the attorney he is carrying on business of General Store.
15. ' The learned counsel for the appellant has contended that the appellant started depositing rent in Misc. Rent Case No.4183 of 1981. This is of no avail to the appellant. As required by Subsection (3) of Section 10 of the Sind Rented Premises Ordinance, 1979, the tenant had to offer payment of rent first to the landlord and it was only after his refusal or avoidance to receive the same, he was justified in remitting the rent either by money order or by depositing it in Court. Since he has admittedly not offered the payment of rent to the respondents or their attorney in the first instance, he has clearly committed default. The appellant has failed to discharge the burden about the absence of the respondents or their attorney from Karachi.
16. ' Mr.M. Anwar Tariq submitted that the rent for the month of July, 1981 was deposited within sixty days. According to him the agreement was for eleven months and after the expiry thereof it was not renewed. The appellant started depositing rent within sixty days. Mr.Siddiqui has submitted that, after the expiry of the tenancy agreement the payment of rent was kept alive by the mutual consent which may be implied in their conduct. In the case before me the appellant in clear terms pleaded that he was eager to pay the rent to the respondents at the agreed time. It is clear that the appellant was not disputing the terms relating to payment of rent month to month. Apart from it the appellant neither in his written-statement nor in cross-examination of respondent suggested that the tenancy agreement between the parties has come to an end and he was entitled to pay the rent in accordance with the provisions of the Ordinance. He also did not depose so, in his deposition before the Controller. In this state of evidence, even on the basis of the decision in Abdul Aziz Beg v. Mushtaq Ahmed Sheikh 1980 SCM R 834 he was not entitled to take the benefit of the provisions of the Oidinance. In view of existence of the terms in the tenancy agreement between the parties and the conduct of the appellant that he ought to have paid rent within fifteen days. It seems that the Controller rightly held the appellant as defaulter on' payment of rent. I accordingly maintain the findings of the Controller on issue of default.
17. ' The respondents filed cross-objections and stated therein that the learned Controller, has failed to consider the personal and bona fide requirement of the respondents and he decided this issue in the negative without any justification.
18. ' On the other hand Mr.M. Anwar Tariq has submitted that the order of the learned Controller on this issue is in accord with the evidence on record.
19. ' I have perused the impugned order. The first point on which the learned Controller has decided the issue in negative is that none of the respondents appeared before him in support of the application.
20. ' In Muhammad Sharif v. M.S. Sultan (1981 SCMR 844) the Hon'ble Supreme Court held that if the landlord desires the premises for the bona fide use of his son, then examination of the son in the witness box is not necessary and that evidence of landlord cannot be challenged on the ground of failure to examine the son if the bona fide requirement of the son was otherwise proved by the evidence of the father or by other evidence. In Dilshad Muhammad v. Mst. Zubeda Begulh (1981 SCMR 895) the Hon'ble Supreme Court held that non-appearance of the son of landlady in the witness-box would not be fatal to the claim of landlady as to requirement of the premises for use of her son. In Karim. Baksh v. Haji Arthi Khan and others (1983 SCMR 178) the Hon'ble Supreme Court observed as under:- "The learned counsel for the petitioner contended that the landlord had not himself appeared to state about his bona fide need or his intention to reconstruct the property. His attorney appeared and made a statement and that should not be considered sufficient. It was also said that reliance should not have been placed on the first round of litigation wherein. The application of the landlord for evicting the petitioner was held to be premature.
21. ' As regards the personal,ieed of the landlord, we find that a finding of fact has been recorded by the Rent Controller that the family of the landlord/respondent consists of three wives, fourteen daughters and three sons and that he had no house to 'live in Dera Ismail Khan proper, though he was conducting his business there. It was also found on good evidence that by installing oil extracting machines in the premises and making alterations its utility had been impaired. The plan duly sanctioned by the local authority for its reconstruction was also placed on record and duly proved. In the circumstances the evidence on record was sufficient to warrant the findings of fact recorded by all the authorities and the mere fact that the landlord did not appear in the witness- box was no ground for rejecting the claim. Leave to appeal is therefore refused."
22. In view of the above legal position, I am of the view that the learned E Controller has committed error of fact as well as of law in dismissing the eviction 'petition on this ground.
23. The other ground on which this issue was decided in the negative is that it reveals from the power of attorney that the respondents are residents of "1140/18, Federal 'B' Area, Karachi "instead of the residential address disclosed in the receipts. The learned Controller did not examine the relevant aspect of the matter to find out whether the plea of the appellants was acceptable. Since the bona fide requirement was with reference to insufficient accommodation, the Controller should have examined this aspect o the case to find out whether the plea of bona fide requirement had been made out. It is pertinent to note here that throughout the conduct of the' case before the Controller, the appellant/tenant had at no time raised the question that the landlords were not residing at House No.5 Masjid Qasaban Building Mir Karam Ali Talpur Road, Saddar but were residing at 1140/51, Federal 'B' Area, Karachi.
24. ' Naturally in view of the pleadings of the parties, there was not even an issue framed on the question whether the appellants are residing in Saddar or not, and I fail to see how the Controller could make out a new case for the parties which was neither in their pleadings nor even was it urged by the appellant/tenant in the defence before the Controller. The Controller has, therefore, fallen in an apparent error of law.
25. In the- present case before me it is pointed out that the respondents have grown up sons and daughters and the present accommodation for them and their family members is insufficient and the respondents are facing great difficulties. It is also averred in affidavit-in-evidence that they are living in rented premises. The attorney of the respondents to a suggestion in cross-examination stated that the respondents are residing with him in Sadder, which is rented premises. The attorney also denied the suggestion that his sons own their separate houses. The attorney described the ages of the respondents in his deposition. The attorney replied to a question that eldest son of Respondent No.3 is seven years old. The age of the eldest son of the Respondent No.2 is five years and the age of Respondent No.1 is 10/11 years. It has also come in his evidence that Respondent No.1 has four children while Respondent No.2 has three children.
26. ' As against the above evidence, the appellant stated in his effidavit-in-evidence that all the respondents are themselves of young ages and their children are within the ages of couple of months extending to 4/5 years only. The appellant also stated that they are living comfortably in their houses and they do not require further accommodation for their sons and daughters among whom none has crossed the age of even six years. The appellant denied that the owners of the premises required it for bona fide use.
27. It is apparent that the averment in the application about requirement of the premises for their occupation has been fully supported in respondents' attorney's deposition and nothing has been brought in cross-examination which could show that the claim of personal requirement is to be false or is based on wrong statements. The evidence of the respondents' attorney in this case fulfilled the stand laid down by the Superior Courts.
28. The result is that the cross-objections succeed only on the ground of personal requirement as the learned counsel has not pressed cross-objections on the other ground.
29. For the reasons aforementioned I find no merit in First Rent Appeal No.258 of 1983 and dismiss the same. The appellant is allowed to vacate the premises in question on or before 31-1-1987 subject to deposit rent as ordered by the Controller. There will, however, be no order as to costs.