1. This is an appeal against the order dated 13-8-1987 of Additional Rent Controller of Rents Karachi Cantonment.
2. The facts are that Mst. Zubaida filed Rent Case No. 23/82 on the ground of default in payment of rent from July 1980 to the filing of rent case and personal bona fide requirements. From the respondents side Mst. Zubaida was examined while appellant Muhammad Azeem examined himself.
3. I have heard Mr. Muhammad Mahboob Khan for the appellant. It is argued that this is a third rent case which has been filed on the identical points therefore the order of the Rent Controller whereby those points have not been considered is bad in law. It is argued that there is no default as appellant is depositing the rent in Miscellaneous rent application since August, 1980 when money order sent by the appellant was refused.
4. Mr. S.M.Rizvi appearing for the respondent submitted that Mst. Zubaida is landlady and appellant is her tenant and she has proved default as well as personal requirement. He has referred to the cases reported in 1985 CLC 3021 and 1980 SCMR 41.
5. Appellant is tenant in respect of residential House No. B-3, 106, Depot Lines, Saddar Cantonment area. The rate of rent is not disputed. The default is claimed from July, 1980. The appellant in his written statement stated that respondent's father E. Suleman filed Rent Case No. 5612/80 against him for ejectment in the Court of Senior Civil Judge and Rent Controller Karachi on the ground of personal bona fide use. This case was dismissed by the Rent Controller for want of jurisdiction.
6. Subsequently the father of respondent again filed Rent Case No. 47/81 before the Additional Controller of Rents, Karachi Cantonment. The same was also dismissed by an order dated 24-3- 1982. Photocopy of the order has beer, produced by the appellant. The third case was filed by Mst.
7. Zubaida on 18-5--1982 i.e. After lapse of two months after the dismissal of the rent case. The contention of the learned counsel for the appellant is that Mst Zubaida was examined in both the previous cases filed by her father and stated that appellant is tenant of her father. The order of the Rent Controller in Rent Case No. 47/81 is speaking order in which he has dealt all the aspects about the ownership of the property. In this rent case Mst. Zubaida admitted that at the time of her statement in the previous cases she was aware that she was owner of the disputed premises and appellant was tenant. She has stated that she had given false statement at the instructions of her Advocate. Her earlier statement has also been produced. She has admitted that after her marriage she authorised her brother to collect the rent from the appellant. The admitted position is that since November, 1980 rent is being deposited in the misc. Rent application and rent was paid up to July, 1980 and the case of appellant is that in August, 1980 rent was offered and money order was refused therefore it is being deposited in the misc. Rent case. All these circumstances have not been considered by the Controller. I am of the view that appellant has not committed default in payment of rent. In her evidence Mst. Zubaida has admitted that after her marriage firstly she shifted to 353/18 Federal B Area and thereafter to Yasinabad which belonged to her late husband.
8. She has admitted that her father filed rent case for personal use and she also filed an affidavit in which she stated that property does not belong to her. She has admitted in No. 47/81 that she is not the owner of the disputed premises.
9. Looking to all the circumstances and conflicting evidence of Mst. Zubaida not supported by any other circumstances nor she examined any witness to corroborate her version about the personal bona fide requirement; not only this but previous two cases were dismissed, on the identical point.
10. Therefore the Controller has erred in passing the impugned order which is set aside. Consequently, appeal is allowed, without prejudice to the right of landlady about her right over property.
11. H.B.T./M-943/R