1. This appeal under section 21 of the Sind Rented Premises Ordinance, 1979, has been filed by Mgt.
2. Umme Laila, to challenge the order of rejection of her application under section 15(2)(ii)(iii)(iv) and
(vii) of the Ordinance passed by the IIIrd Senior Civil Judge and Rent Controller (South), Karachi, on 15-1--1986 in Rent Case No. 99/85 (Old No. 4915/91). The appellant had sought eviction of the respondents on the grounds of default in payment of rent, causing wilful damage by making additions and alterations in demised premises without her permission, using the residential premises unlawfully for non-residential purposes and bona fide personal requirement.
3. The facts giving rise to this appeal are that on 4-11-1981, the appellant filed an application for eviction of the respondents stating that she is the owner and landlady of the building known as "A.I Manzil" standing on Plot No. 10/3, SR-7, situated on Altaf Hussain Road, Karachi hereinafter called `the demised premises'), that the late Mr. Tahir Hussain was her tenant in respect of the entire first floor residential premises of the above building on ground monthly rent of Rs. 78, that on the death of the said Mr. Tahir Hussain the tenancy of the said premises devolved on the respondents as legal heirs and they are in occupation of the said premises as her tenants, that late Mr. Tahir Hussain was the persistent .Defaulter m payment of monthly rent and used to pay the same at long intervals, but she, in view of close relationship with him, used to show indulgence, that after the death of Mr. Tahir Hussain, the respondents, who were defaulters in payment of rent, instead of tendering the rent to her, have started depositing it at the rate of Rs. 58 p.m. In the Court of Rent Controller under Misc. Rent Application No. 2253/80, that the respondents had caused wilful damage to the said property by making additions and alterations and raising unauthorised constructions thereon at their sweet will, that respondents had gate to reside at their newly-built house in Nazimabad and were keeping the premises in question locked with name plate of respondent Irtiza Hussain, Advocate, which indicated that they intended to use the premises for the purpose of office of Irtiza Hussain, who is an Advocate, that the respondents have thus wrongfully converted the use of the said premises from residential to non-residential without her prior permission and as such have rendered themselves liable to ejectment from the demised, that the appellant reasonably and in good faith needs the demised premises for her own use and for use of her children as she is physically incapacitated and not in a position to climb two staircases and that the three rooms' accommodation in her possession was not sufficient to accommodate her family consisting of herself, nor one unmarried daughter and her son Syed Sadiq Raza, his wife and three minor children.
4. The defendants Nos. 1, 2 and 4 filed separate written statements, whereas defendants Nos. 3, 5 and 6 filed a separate joint written statement. Thus, in all four written statements were filed on behalf of the respondents, denying all the allegations made in the application. It was commonly asserted by the respondents that the title of the appellant is defective and that the rent was Rs. 78 p.m.
5. (inclusive of Rs. 20 of water charges) but since the appellant had discontinued the water supply to the demised premises hence the rent at the rate of Rs. 58 p.m. Was being regularly deposited in Misc. Rent Application No. 2253/80. It was further asserted by them that the respondents Nos'. 1 and 2 had shifted the Nazimabad, whereas the remaining respondents are still in occupation of the demised premises. It was further averred by them that the deceased Tahir Hussain was also using the demised premises for commercial purposes, namely, for his office as an advocate. It was further pleaded by them that the premises in occupation of the appellant has 5 rooms on the floor and two rooms on top floor with all amenities. The appellant was also stated to be in possession of a bungalow in Nazimabad, which consists of 6 rooms on the ground floor and one room on the first floor. It was further pleaded that the appellant wanted to enhance the rent which the respondents denied and hence the application was filed with mala fide intention. It was also pleaded that no whitewash and repairs had been carried out in the demised premises since long. The defendant No. 1 in his written statement additionally pleaded that his deceased father Tahir Hussain used to pay rent to the appellant under protest subject to verification of her title. The deceased Tahir Hussain was also an advocate and that he had placed his name plate on the demised premises. It was also pleaded by him that he had already filed a suit challenging the title of the appellant in the Court of XIVth Civil Judge being Suit No. 775/82 and that it was pending disposal. In the written statement filed on behalf of the respondents Nos. 3, 5 and 6 jointly, additional pleas were raised to the effect that the application was not maintainable and that Syed Sadiq Raza, son of the appellant, being an employee of National Shipping Corporation, was entitled to official accommodation in M.S.C. Flats.
6. Out of the pleadings of the parties, the learned Rent Controller framed the following issues:-- "(1)Whether there exists relationship of landlord and tenant between the parties?
7. (2)Whether the opponents committed default in payment of rent as alleged?
8. (3)Whether the opponent have damaged the property in case as alleged?
9. (4)Whether the opponents are using the premises for the purpose other than it was let out?
10. (5)Whether the applicant requires premises in good faith for personal bona fide use?
11. (6)What should the order be?
12. After considering the evidence of the parties brought on record and hearing the arguments of the learned counsel for the parties, he answered the issue No.1 in the affirmative and the issues Nos. 2 and 5 in the negative. The issue No.4 was answered as not proved. Aggrieved by the aforesaid order the appellant/landlady has brought this appeal.
13. I have heard Mr. Ibrahim Moosa Lakhani on behalf of the appellant, Mr. Ahmed Yousuf A.I Rizvi for respondent No.1, Mr. Deewan Bashir Ahmed for respondents Nos.2 to 6 assisted by Mr. Badruduja on behalf of the respondent No.2 and Mr. Talmiz Burney on behalf of the respondent No. A I have also perused the evidence led on behalf of the parties. Mr. Ibrahim Moosa Lakhani at the outset stated that he would not press the issue No.3 pertaining to damage allegedly, done to the demised premises. The learned counsel for the parties made quite lengthy arguments before me but after careful perusal of the evidence brought on record I find that there was hardly any justification for such lengthy arguments. I am also clearly of the opinion that there is no merit in this appeal. The learned Rent Controller has recorded the findings on all the disputed issues upon proper appraisal of the evidence of the parties. Now coming to the issue regarding payment of rent, I find that the only grievance with regard to default pleaded m the application is that the respondent had on fanciful grounds started depositing the rent at the reduced rent of Rs. 58 p.m. (instead of Rs. 78 p.m.) in the Court of Rent Controller. No specific period of alleged default, as rightly observed by the learned Rent Controller, is given in the ejectment application. The fact that the monthly rent was Rs.
14. 58 only is also borne out from Annexures `B/1' and B/2, the rent receipts for the months of August, 1979 and February, 1972 filed by the appellant alongwith the application of ejectment. It is further clarified in another letter dated 24-6-1977 addressed by Syed Sadiq Raza for the landlady, who has been examined as a witness of the appellant in the instant case, that the rent was Rs. 58 p.m. And Rs. 20 were for water charges. In para. 7 of his affidavit-in-evidence filed on behalf of he applicant/appellant, Syed Sadiq Raza has filed not clearly stated that the rent was Rs. 78 p.m., whereas he has stated that the respondents were depositing the rent in Court in Misc: Rent proceedings at the rate of Rs. 58 p.m. Here also he has not given the period for which the respondents had allegedly committed default in payment of rent. During his cross-examination Syed Sadiq Raza has again clearly admitted that the rent was A being withdrawn from Court. In the presence of the evidence referred to above, the learned Rent Controller, I think, has committed no error in holding: "it is thus clear that no default was committed any time by the opponents". Relying upon the above-referred two rent receipts, the original whereof were exibited as Exh. 9 and Exh. 10, the learned Rent Controller was fully justified in holding that the evidence produced clearly indicated that Rs. 58 was the rate of rent per month and Rs. 20 were for water charges. The learned Rent Controller also rightly emphasised when he observed: "it is also worthwhile to mention that the applicant never moved any application under section 16(1) of the Sind Rented Premises Ordinance, 1979 for directing the opponent to deposit the rent in Court at the claimed rate which fact goes to show that there was no arrears or any dispute of rate between the parties." In this view of the matter I do not find any justification g to interfere with the impugned order of the learned Rent Controller in respect of issue No. 2 which pertains to the alleged default in payment of rent by the respondents. The appeal consequently, fails on this issue.
15. The next grievance agitated on behalf of the appellant was that the respondents are using the demised premises for the purposes other than that for which it was let-out (issue No. 4). Syed Sadiq Raza, the appellant's witness in his affidavit-in-evidence has stated that having shifted to their own flat in Nazimabad, the respondents had put up the name plate of Irtiza Hussain, Advocate which indicated that the respondents intended to use the premises for non-residential and commercial purposes. The respondents' case in this behalf, as already stated above, is that only respondents Nos. 1 and 2 had shifted to Nazimabad in one residential portion and the demised premises is still in the occupation of the other respondents and that they had not quited it. It was also pleaded by them that the demised premises is situated in commercial area and previously their late father also used this premises for office as well as for residential purpose and so also the respondent No. 1 was using it for his office as well as for residential purpose.
16. After going through the evidence of parties brought on record in respect of this issue, I am convinced that the learned Rent Controller has rightly held that "since there is no written document on record in connection with the purpose of using the premises, mere allegation that premises has been used for commercial purposes is of no avail. Further the appellant has not established that the demisedpremises is being used by the respondent for non-residential purpose. It was specifically pleaded by the applicant that the respondents had quited their residence from the demised premises and shifted to their own newly-built house in Nazimabad and hence it was for her to prove the said fact, which she has failed to prove through any reliable evidence. There are words against words. The suggestions were made to the respondents during their cross- examination about their having shifted to their own house in Nazimabad but all of them denied the said suggestions as being incorrect. On the contrary they specifically asserted that barring the respondents Nos. 1 and 2 all the other respondents are still in occupation of the demised premises.
17. They have also deposed consistently that late Tahir Hussain was also using a portion of the said premises for his office and this fact has not been controverted by the appellant. There is, therefore, no evidence, as rightly held by the learned Rent Controller, to, establish that the demised premises is not being used by the respondents for their residential purpose. The second part of the case, consequently, as pleaded in the ejectment application, namely, that the respondents were keeping the premises locked and had put up the name plate of Irtiza Hussain, advocate, which indicated that they intended to use the premises for purposes of office of the said Irtiza Hussain, automatically stands disproved. In this view of the matter I do not feel persuaded to interfere with the finding of the learned lower Court on issue No. 4 as well.
18. The appellant's family admittedly consists of 4 adult (including one unmarried daughter in 1981) and 4 minor children of his son Syed Sadiq Raza. The respondents' version, on the other hand, was that the appellant has 5 rooms on the second floor and 3 rooms on top floor, besides other amenities and that she is also in occupation of another house known as 'A.I Manzil' 7/14-F, Nazimabad, Karachi, which has 6 rooms on the ground floor and one room on the first floor. The witness of the appellant, however, during his cross--examination admitted that there are three rooms on the upper floor but they are, according to him, not fit for use. The witness of the appellant thus admitted that the appellant has second and third floors in her occupation of which, as already stated, the third floor was not fit for use. This fact was however, not as such mentioned in the ejectment application. So far as the accommodation on the second floor is concerned, the witness of the appellant during his cross--examination stated that there are two rooms, one dining and drawing room and two store rooms, on the second floor besides other amenities. The evidence of the respondents, on the other hand, is consistent to the effect that the appellant has five rooms on second floor and three rooms on third floor besides other amenities. The learned Rent Controller has, therefore, in my opinion--- committed no error in reaching the conclusion that the accommodation presently in occupation of the appellant is more than sufficient for her family members and that she did not require the demised premises in good faith for personal bona fide use. On the basis of the evidence as discussed above, I find myself in complete agreement with the learned Rent Controller in this behalf. In this view of the matter I-do not consider it worthwhile to deal with the other aspect of the case, namely, that the applicant had another accommodation in Nazimabad in her occupation. The other grounds agitated for establishing the personal need in the application as well as in the evidence of the appellant was that she is an old lady of about 75 years of age and about to undergo an eye operation and was physically incapacitated and was not in a position to climb two staircases. This aspect of the case has not been proved through any reliable medical evidence as rightly held by the learned Rent Controller. It is also accordingly repelled.
19. Under the aforesaid facts and circumstances of the case the decision of the learned Rent Controller on issue No. 5 is also upheld.
20. Before parting with the case I would also like to mention that the learned counsel for the respondents, also vehemently attacked the admissibility of the evidence of Syed Sadiq Raza, the witness of the appellant on the ground that he did not possess the Power of Attorney from the appellant. I, however, do not find any `substance in this contention of the learned counsel for the respondents inasmuch as the said Syed Sadiq Raza is the son of the appellant, he has acted as rent collector of the appellant as is borne out from the evidence prevalent on record, Moreover, he has deposed about the facts of the case out of his personal knowledge. The demised premises was also stated to be required by the appellant for herself and for the use and occupation of her said son, Syed Sadiq Raza..In this view of the matter the objection of the learned counsel for the respondents is held to be devoid of force.