The allegations on which the appellant brought the application for ejectment, out of which this appeal under section 21 of the Sind Rented Premises Ordinance, 1979, has arisen might be summarised.
2. The appellant had filed suit No.350 of 1976, against her mother Mst. Tahira Khatoon and others in this Court in which a preliminary decree was passed and in consequence thereof Mr. Nasiruddin, Advocate was appointed as Administrator/Receiver over the property in dispute and other properties left by Ibne Hasan Sheikh, father of appellant. The matter ultimately ended in compromise whereby the premises bearing No.69-C, St. No.4, Sindhi Muslim Co--operative Housing Society, Karachi, became the property of the appellant.
According to the report of the Receiver the respondent who is tenant of one room in the above premises had paid rent at the rate of Rs.135 p.m. To said Mst. Tahira Khatoon till February, 1978, and thereafter stopped making payment. It is also the case of the appellant that the respondent had paid Rs.2,000, out of the rent due for the period from 1-8-1979 to 31-3-1981, at the rate of Rs.135 p.m.
And was thus in arrears of Rs.700. The appellant had received possession of one room in the above premises through the Receiver. She also got possession of another room from her tenant Muhammad A.I through the process of law, but both these rooms together with one room in the premises situated at Jamshed Qrs., Karachi, are not suitable to the need of her family consisting of eight members. She, therefore, required the premises in occupation of the respondent for her bona fide use. The damage to the said premises was also attributed to the respondent.
3. The respondent has controverted the allegations based on facts. He has disputed the default by stating that the monthly rent included water and electricity charges which he is entitled to adjust.
The damage to the disputed premises was also denied. The respondent has further questioned the requirement of the landlady to occupy the premises in his possession.
4. The appellant has examined herself (P.W.1), Syed Tahir A.I, her husband (P.W.2) and Muhammad Asif (P.W.3), while the respondent has examined himself (D.W.1), Muhammad Hayat Awan (D.W.2), Saleem Akhtar (D.W.3) and Muhammad Khalil (D.W.4).
5. On the basis of the evidence available on record, the learned Senior Civil Judge and XVI Rent Controller Karachi, decided all the issues against the appellant and dismissed the application for ejectment wife order dated 30-5-1984, hence the present appeal.
6. I have heard Mr. Alim K. Talib, learned counsel for the appellant and Mr. Akbar Khan Ghori, learned counsel for the respondent.
7. The default in payment of rent in respect of period from 1-3-1978 to 1-11-1978, is not seriously contested by the respondent who has admitted so in his statement (Annexure `D'), recorded in Suit No.350 of 1976, in the following words: "I have not paid monthly rent for March 1978 to November; 1978, and an amount of Rs.1,215 (One thousand two hundred and fifteen) is outstanding against me".
8. The appellant has stepped into the shoes of Mst. Tahira Khatoon with all rights and liabilities. She was, therefore, entitled to recover the amount due from the respondent. The word `due' refers to the rent due in law and recoverable in an action at law. The application for ejectment was filed on 24- 8-1983, and therefore, the aforesaid amount in respect of rent beyond three years does not remain `rent due'. The appellant was thus debarred to press ground of default of this period in application for ejectment. Reference may be had to the case reported as Mst. Hashmi Begum v. Mst. Alya Zohra Begum 1985 M LD 1514.
9. The appellant has also alleged default of rent for the period from 1-8-1979 to 31-3-1981, amounting to Rs.2,700 out of which she admits to have received Rs.2,000 vide receipt (Ex. A/1) dated 12-5-1981. According to the respondent the monthly rent included water and electricity consumption charges. He has, therefore claimed rebate of electricity charges paid through bills.
(Exs. L to L/11). The respondent has placed reliance upon an agreement of tenancy (Annexure `B') executed by Mst. Tahira Khatoon. The execution of this agreement is seriously contested by the appellant and it was, therefore, obligatory upon the respondent to have examined the scribe and the attesting witness. Even if the agreement of tenancy is discharged, there remains satisfactory evidence on record to show that the monthly rent included electricity charges. The certified copies of statement of income and expenses for the years 1975, 1976, 1977 and 1978 in respect of the assets of late Ibne Hasan Sheikh are on record (Annexure `E' to `H'), which show the payment of electricity bills towards the expenses incurred from the assets. This position is, therefore, inconsistent with the plea taken by the respondent. Accordingly the issue of default was rightly decided by the learned Rent Controller in favour of the respondent.
10. The appellant has alleged several acts against the respondent resulting into the damage of her property. There is sketchy evidence in this behalf on record, and it was in such a situation that the learned Rent Controller did not consider it fit to even frame issue and decide it accordingly.
11. The learned counsel for the appellant has eventually confined his argument in the main to the ground of personal requirement. The evidence which is adduced by the appellant shows:-- {1) That the family of the appellant consists of eight members (Annexure A and B, to the affidavit of Syed Tahir A.I (P.W.2).
(2) That all the children of the appellant are getting education.
(3) That there are two rooms in occupation of the appellant in premises bearing No.69-C, Street No.4, Sindhi Muslim Co-operative Housing Society, Karachi.
(4) That there is one room in possession of the appellant in premises at S.M. 4/9, 17, Jamshed Quarters, Karachi.
(5) That the appellant and her family members are used to a better living.
(6)That the appellant is running two establishments.
12. The respondent has alleged mala fides against the appellant. According to him the appellant was interested in getting the rent enhanced and on his refusal to do so, the ground of personal requirement was coined.
13. The appellant has got a large family including the children who are school going. The needs of her family cannot be met with the existing accommodation. She is again running two establishments, one at Jamshad Quarters and the other in Sindhi Muslim Co-operative Housing Society. In this view of the matter, the demand of the appellant to have one more room to accommodate her family members appears to be reasonable. While determining the question of requirement, the Rent Controller should not overlook the new requirement of the landlady and her wish to accommodate her family members in a better accommodation. The demand of additional accommodation in this context cannot be said to be unreasonable. After all the Sind Rented Premises Ordinance, 1979, was not promulgated only to safeguard the interest of both I landlord and the tenant. As observed in Hassan Khan v. Mrs. Munawar Begum reported in PLD 1976 Kar. 832, where the claim on oath by landlady that she required premises for her personal use is found to be consistent with her averments made in application for ejectment and is not shaken in cross--- examination or disproved in rebuttal, then the Rent Controller is left with no other option but to direct the eviction of tenant. The plea of bad faith raised by the respondent is again not substantiated from the record. Under these circumstances the finding of the learned Rent Controller on this issue cannot be sustained and is reversed.
14. In the result; the appeal is allowed with no order as to costs and the order of learned Rent Controller is set aside. The respondent is allowed two months time to vacate the demised premises..