1. Being aggrieved by the order of the learned IVth Senior Civil Judge and Rent Controller (East), Karachi, dated 30-9-1986 whereby the application of the respondent for eviction of the appellant had been allowed and he has been directed to vacate the Shop on Plot No. C.D.-1520, Alfalah Society, Shah Faisal Colony, Karachi (hereinafter called `the Shop in question') and hand over its vacant possession within 40 days from the date of the order to the respondent, the appellant/tenant has filed this appeal.
2. The respondent being the owner of the shop in question fried an application under sections 15(2)
(ii) and (vii) of the Sind Rented Premises Ordinance, 1979 (hereinafter called `the Ordinance) on 18- 8-1985 for eviction of the appellant on the grounds of default in payment of rent for the month of May, June and July, 1985 and for his own personal bona fide need. The appellant filed written statement admitting the relationship of landlord and tenant but denying all the other allegations made in the application. He also, inter alia, pleaded that the rent for the months of May, June and July, 1985 had been paid on different dates but the respondent did not issue the rent receipts. It was on 29-7-1985 that the rent for the month of August, 1985 was offered to the respondent but he refused to accept the same and demanded the enhancement of rent to Rs. 650 as against the agreed rate of rent of Rs. 550 p.m. He also declined to issue the rent receipts of the months of May to July, 1985 and attempted to dispossess him from the shop in question with the aid of local Police, the S.D.M./A.C., Malir and anti---Social elements. The appellant thereupon filed Misc. Rent Case No. 1718/85 in the Court of Rent Controller and has been regularly depositing the rent every month from August, 1985 onwards in the said case. In order to protect his interest the appellant also filed a suit being No. 1420 of 1985 for permanent injunction restraining the respondents and all others from interfering with his peaceful possession of the shop in question. The alleged bona fide need of the shop in question by the respondent was also denied.
3. 1n support of his case the respondent filed his own affidavit-in-evidence, whereas the appellant besides his own affidavit-in-evidence, also filed the affidavit---in-evidence of one Nisar Ahmed.
4. After hearing the arguments of the counsel for the parties, the learned Rent Controller framed the following issues and allowed the application by his impugned order as stated above:- "(1)Whether the opponent has committed wilful fault in the payment of rent for the months of May, 1985 to July, 1985?
5. (2)Whether the applicant requires the disputed premises for his personal bona fide use?
6. (3)What should the order be?
7. I have heard the learned counsel for the parties. Mr. Abdul Karim Siddiqui, learned counsel for the appellant vehemently contended that in so far as the alleged arrears of rent is concerned, the learned Rent Controller failed to take into consideration the circumstantial evidence that in his application to the S.D.M., Malir made on 1-8-1985, the respondent had made no mention of the said alleged arrears of rent. He also submitted that D.W. 2 Nisar Ahmed has supported the case of the appellant with regard to the payment of rent for the said three months, to the respondent. The rent for the month of May was paid to Nisar and that of June to Ashraf of Maashallah Enterprises (wrongly mentioned as Bismillah Enterprises in the written statement), who were preparing and issuing rent receipts to the appellant sometimes signed by them and sometimes signed by the respondent. He submitted that since there were cordial relations between the parties, the appellant did neither orally nor through legal notice ask the respondent to issue the rent receipts in respect of three months. The dispute arose, for the first time in August, 1985 when the respondent arbitrarily demanded the payment of enhanced rent at the rate of Rs. 650 p.m. It was because of the refusal of the respondent to accept the agreed rent that the appellant without any loss of time deposited the same in the Court of Rent Controller vide Misc. Rent Case No. 718 of 1985. The learned counsel for the appellant therefore submitted that the appellant was not a defaulter and the learned Rent Controller has fallen into an error in deciding the issue No. 1 in the affirmative.
8. Making his submission regarding the alleged bona fide personal need of the respondent, the learned counsel for the appellant emphasised that it was not, firstly, mentioned in the ejectment application as to what business was proposed to be set up in the demised premises and, secondly, it was not required by him bona fidely but he wanted to make money by letting it out to some person on Pugri or higher rent.
9. Mr. Baqar Hussain, learned counsel for the respondent, on the other hand, supported the impugned order. He submitted that it is an admitted fact that rent receipts were being issued by the respondent to the appellant and nonce it was incumbent upon him to prove the payment of the rent for the months of May, June and July, 1985 by producing the rent receipts in respect of these months. He has failed to do so and hence there is no escape from the conclusion that he is a defaulter and the plea that the respondent had refused to issue receipts for these months is liable to be rejected as false. In support of his contention he sought to place reliance on a decision of this Court reported in 1986 CLC 1481 and 1985 CLC 30.
10. Making his submissions on the question of personal bona fide need, the learned counsel for the respondent contended that the mere failure to mention the nature of business to be carried out by the respondent was not fatal to the proceedings inasmuch as lie has established his case by making statement on Oath as to what business was proposed to be carried out by him in the shop in question. The version of the respondent in this connection was neither shattered in his cross- examination nor any evidence was led by the appellant to the effect that he was actually not in need of the shop in question.
11. I have given due consideration to the submissions made by the learned counsel for the parties and have also perused the evidence led by both the parties as well as the impugned order of the learned Rent Controller. It is an admitted fact that the respondent was issuing rent receipts to the appellant and he himself has produced several rent receipts issued to him. The learned Rent Controller has, in my opinion, rightly held, on the basis of the evidence available on his record, that the appellant has committed wilful default in the payment of rent for the months of May, 1985 to July, 1985. I am further of the view that the respondent's deposition is more straight and confidence inspiring. Moreover, the learned Rent Controller has rightly enunciated the legal provisions of section 10 of the Ordinance in reaching the conclusion that the rent for the three months in question was not paid by the appellant to the respondent. The appeal therefore, fails on this issue.
12. 1984 CLC 2865) and (ii) Abdul Majeed v. Mst. Jamila Khatoon (1984 CLC 2025), which have been followed by the learned Rent Controller. Even if the certificate issued by Nadeem Autos is ignored yet the statement on oath of the respondent in that behalf could not dislodged during his cross- examination. Moreover, during his cross-examination it was suggested to the respondent that he did not work with Nadeem Autos and that he did not possess a certificate of Autos Mechanic from any recognized institute. It was, however, not suggested to him that his statement to the effect that he wanted the shop to carry on the business of Auto Mechanic was false and that he was unable to do the Auto Mechanic work. In fact, there is no cross-examination on this point. The learned Rent Controller, therefore, has rightly decided the issue in the affirmative and I do not find any interference with the impugned order of the learned Rent Controller. No objection can legitimately be taken to the observations of the learned Rent Controller that it is common in our country to do auto-mechanic work without obtaining or possessing any certificate from any recognized institution.