1. This appeal is directed against the order of the learned Vth Senior Civil Judge and Rent Controller, Karachi (West) dated 18-3-1986 passed in Rent Case No. 2461/1985 (formerly R.C. No. 1485/77), thereby ordering the eviction of the deceased tenant S.M. Rafique and directing him to hand over the vacant possession of the disputed premises to the respondent within 30 days from the date of the order.
2. On 18-5-1977, the respondent filed an application under section 13 of West Pakistan Urban Rent Restriction Ordinance, 1959 for the eviction of S.M. Rafiq (since deceased) contending, inter-alia, that he is the owner/landlord of the premises situated at 319, Block 14, Naseerabad, F.B. Area, Karachi (hereinafter referred to as the disputed premises') and the deceased appellant was his tenant in respect thereof on payment of monthly rent of Rs. 200 only. The deceased appellant was stated to have committed default in payment of rent for the months of December, 1976, January, February, March and April, 1977 and as such a sum of Rs. 1000 was due and payable by him to the respondent. It was further averred that the respondent had just then returned from Dubai, where he had gone in connection with his employment and his family was in the process of finalizing the arrangements of his marriage. The disputed premises were thus required by him for his personal bona fide use. The respondent claimed that he was then putting up in the house of his sister, who is a doctor.
3. The deceased tenant S.M. Rafiq filed written statement in denial of the respondent's claims. He did not dispute the relationship of landlord and tenant but pleaded that the rent was originally agreed at Rs. 200 P.M. Which was paid at that rate from 1-4-1973 till April, 1975 when it was increased to Rs.
4. 250 P.M. The so increased rent was paid upto April, 1976 when it was again increased to Rs. 275 P.M.
5. He claimed to have paid the rent at the rate of Rs. 275 upto February, 1977, thereafter to have deposited the rent in Court in Misc. Rent Case No. 1539/77 for the period commencing for March, 1977 up to July, 1977. He also claimed to have deposited Rs. 600 as security at the commencement of the tenancy. He thus denied the default in payment of rent. He also stated that the respondent had never issued receipts and since relationship were cordial he also did not demand receipts. He also stated that the rent for the month of February, 1977 at the rate of Rs. 275 had been sent to the respondent through one Choudhry Shabbir Hussain, who was friend of the respondent and his neighbour. The rent was received by the respondent's brother Mr. Zaheer Ahmad, who usually collected the rent and thereafter when he met the respondent he demanded increase in rent and thereupon (deceased tenant) showed his preparedness to increase rent to Rs. 300 P.M. Provided the necessary repairs were carried out by the respondent. The deceased tenant then claimed to have sent Rs. 300 for March, 1977 to the respondent, who refused to accept the same as he was not satisfied with the increase and also the condition for increase. Thereupon the rent for the month of March at the agreed rate of Rs. 275 was remitted in the name of the respondent's brother and upon his refusal the rent for March and April, 1977 was remitted by money order to the respondent, who also refused to accept the same. The deceased tenant thereupon deposited the rent in Court through Misc. Rent Case No. 1539/77. It was also denied that the respondent required the disputed premises for his use. It was further stated that while renting out the disputed premises the respondent had assured the deceased tenant that he could live therein as long as he desired because the respondent had shifted from this house to the bungalow purchased by him.
6. Mr. Zahid Marghoob, the learned counsel for the appellants has raised the following contentions, namely:-
1. That the learned Rent Controller has failed to frame an issue with regard to the rate of monthly rent as there was a dispute between the parties in respect thereof. The learned Rent Controller has thus committed a legal error in not framing the issue in compliance with the mandatory provisions, of framing issues as contained in section 19 (5) of the Ordinance this legal infirmity has rendered the entire order void and unenforceable.
2. That the learned Rent Controller failed to appreciate that the deceased tenant was not a defaulter, but he had, in fact, upto February, 1977 over-paid the rent in the sum of Rs. 1425/- inasmuch as he had paid the rent at the rate of Rs. 250 P.M. From 1.4.1975 to 31-3-1976 and at the rate of Rs. 275/- P.M. From 1-4-1976 to 28-2-1977 as against the rent of Rs. 200/- P.M. Claimed by the respondent, besides, the deposit of Rs. 600/-. The above amount of overpayment was sufficient to cover the period of 7 months whereas the respondent had stated the deceased tenant to be in arrears of rent for only 5 months upto February, 1977.
3. That the respondent had totally failed to discharge the initial burden of proving his alleged personal bona fide requirement of the premises in dispute.
4. That the learned Rent Controller failed to appreciate that it was a case of mere wish or desire on the part of the respondent to occupy the premises in dispute as during his cross-examination, the respondent has clearly admitted the fact that the present accommodation in his occupation was a house built up on 600 Sq. Yds., whereas the rented premises was constructed only on a plot of 120 Sq. Yds.
5. That the learned Rent Controller failed to appreciate that mere bald statement of the respondent that he required the premises bona fide for his personal use was not enough and that his failure to give the details of the accommodation in his occupation in the application was fatal to his case.
7. 1981 CLC 1114, 1981 CLC 656 and 1985 CLC 1053.
8. On the point of personal bona fide requirement he cited: - 1986 CLC 2376,1986 CLC 1100 and 1984 CLC 3102.
9. Mr. Mustafa Lakhani, learned counsel for the respondent, on the other hand, submitted that the provisions regarding framing of issues in the repealed Ordinance of 1959 were different, whereas it is not incumbent upon the learned Rent Controller now to frame the issues under section 19 (5) of the Ordinance, that no prejudice has been caused to the appellants by non-framing the issue on the question of rate of rent. The payment of alleged excess amount was not proved by the deceased tenant, that no specific question was put to the respondent regarding payment of excess amount of rent. The respondent had stated that he was issuing rent receipts to the deceased tenant but no rent receipts were produced by him in support of his case, that there was no evidence available to show that the amount of deposit was adjustable against the arrears of current rent, that on the date of presentation of ejectment application the deceased appellant was in default of rent for the months of December, 1976 and January, 1977, that the respondent in his application and so also in his affidavit-in-evidence has clearly deposed that he was temporarily residing with his sister after returning from Dubai and that he was to be married.
10. He submitted that the cases cited by the learned counsel for the appellants were all distinguishable on their own facts. In support of his contentions he placed reliance on the decisions reported in PLD 1982 S.C. 465, 1986 CLC 726, PLD 1976 Kar. 832 and 1982 CLC 1923.
11. I have given my earnest consideration to the submissions made by the learned counsel for the parties. From a bare perusal of the impugned order it is evidently clear that it is not a case of failure to frame the issue. The learned Rent Controller has, as a matter of fact, framed the following three issues:--
(1) Whether the opponent had wilfully defaulted in payment of rent? O.P.O.
12. (2)Whether the applicant required the premises' for his personal bona fide use?
13. (3)What should the order be?
14. The submissions of the learned counsel for the appellants in the context of section 19 (5) of the Ordinance are, therefore, purely of academic nature and do not appear to have any substantial bearing on the facts of this case. I do not, therefore, consider it worthwhile to examine the validity or otherwise of the submissions made by the learned counsel for the appellants in this behalf.
15. However, what I would still prefer to examine is as to whether the omission on the part of the learned Rent Controller to frame a specific issue regarding the quantum of monthly rent paid by the appellant to the respondent has caused any prejudice to the case of the appellant or resulted in miscarriage of justice. The answer to this question would primarily depend upon the scrutiny of the evidence on record with a view to find out if the payment of rent at the rate of Rs. 250/-- P.M.
16. From 1-4-1975 to 31-3-1976 and at the rate of Rs. 275/- P.M. From 1-4-1976 to 28-2-1977, as pleaded in the written statement and urged before me stands proved or not? If it has been proved then it will, in turn, call for the setting aside or reversion of the findings of the learned Rent Controller on issue No. 1. But if it is found otherwise then it would demand the confirmation of the impugned order and the dismissal of the appeal in this behalf. Admittedly no rent receipts have been produced in proof of this fact by the appellants although the case of the respondent throughout has been that the rent receipts were being issued to the deceased tenant on plain paper. During the cross- examination of the respondent no direct question in this behalf was put to him. It was, however, so suggested to Zaheer Ahmed the witness of the respondent, but he categorically denied the suggestion as incorrect. Much emphasis was laid by the learned counsel for the appellants to the effect that in reply to the notice of the respondent the deceased appellant vide his advocate's letter dated 6-4-1977 had mentioned this fact that the rent was increased twice as stated above.
17. The counsel's contention was that instead of repudiating the contents of the notice by sending a reply thereto the respondent straightaway filed the eviction application and hence the averments made in the reply to his notice remained uncontroverted. I do not find any substance in this contention more particularly looking to the fact that in the legal notice dated 28-3-1977 sent on behalf of the respondent to the deceased appellant the rate of rent was stated to be Rs. 200/- P.M.
18. Upon receipt of the reply from the deceased appellant, the respondent filed the ejectment application wherein also the rate of rent disclosed as Rs. 200/ P.M. Hence no inference as sought to be drawn by the learned counsel for the appellant arises from the facts of the case. It may also be observed that while cross-examining the deceased appellant a suggestion was made that the rate of rent from very beginning was Rs. 200/-- P.M. And he replied thereto in the negative. In view of the evidence that has been brought on record there is no escape from the conclusion that the deceased appellant failed to establish the payment of rent for the above months at the rates as claimed by him and hence the failure on the part of the learned Controller to frame an issue regarding the quantum of rent did not cause any prejudice to the appellant nor it has in any manner rendered his impugned order bad in law.
19. Now, I proceed to examine as to whether the finding of the learned Rent Controller to the effect that the deceased appellant committed wilful default in payment of rent for the months of December, 1976, January, February, March and April, 1977 suffers from any infirmity. Here, I find that in his written statement the deceased appellant claimed to have paid the rent upto February 1977. The rent for the month of February, 1977 was stated to have been paid to the respondent through one Ch. Shabbir Hussain. The rent was stated to have been accepted by respondent's brother Zaheer Ahmed. It is further mentioned in the written statement that the respondent never issued rent receipts and since relations with him were very cordial, the opponent (deceased tenant) did not demand receipts. In his affidavit-in-evidence the deceased appellant further deposed that he had been noting down in his account book the rent that he paid each month and the same would be produced before the Court on the date of hearing. No such evidence, however, was adduced by him. During his cross--examination he deposed: It is incorrect that the applicants were issuing rent receipts to him. I always used to ask for rent receipts. He then replied to further question as under:- "I paid the rent for the month of December, 1976. 1 also paid the rent for the months from January, 1977 to April, 1977. I cannot say as to whom I tendered the rent for December, 1976 to February 1977 but it was tendered through Ch. Shabbir Hussain; probably to the applicant.
20. As against this the respondent and his witness Zaheer Ahmad remained consistent in their statements about the period of default and their version could not be shattered during their cross- examination. The appellant, it may further be noted, also failed to examine Ch. Shabbir Hussain through whom the rent for February, 1977, as per written statement, and the rent for December, 1976 to February, 1977 as per reply during cross-examination, was paid. The observations of the learned Rent Controller in regard to the failure of the deceased appellant to prove the tendering of rent by Money Orders arc also valid. I further find that the Money Order slips produced on behalf of the deceased appellant do not bear' the address of the respondent or his brother, to whom these remittances were allegedly made and as such no legal presumption of their having been sent to the addressees at their correct address can be drawn. Lastly, the plea that the arrears of rent for the period in question could be adjusted against the amount of security deposit of Rs. 000/- is also obviously untenable inasmuch as no evidence has been brought on record to show that it was agreed to be adjusted against the arrears of current rent. It was neither specifically pleaded nor proved. Besides, even no suggestion to this effect was made during the cross-examination of P.W.
21. Zaheer' Ahmed, who had admitted the receipt of security deposit of Rs. 600/-.
22. The respondent's case regarding the personal bona fide requirement of the demised premises as pleaded in the application was that he had just then returned from Dubai where he had gone in connection with his employment. He was putting up in the house of his sister, who is a Doctor and that his family was in the process of arrangements of his marriage. The deceased appellant's case, on the other hand, was of mere denial. In his affidavit-in-evidence which was sworn on 17-4-1980, he (respondent) deposed that "I say that negotiations for my marriage were being conducted by my family and I have now been engaged to Miss Razia Ghori, resident of B-146, Block 1, North Nazimabad, Karachi." During his cross examination in August, 1981 the respondent deposed that "my five sisters, namely Dr. Farhat, Ishrat, Mussarat, Rahat and Riffat and my brother Zaheer Ahmed and aunti Mrs. Mukhtar are residing with me." In reply to yet another question he deposed` that "it is incorrect that the present house is our property and the present accommodation is sufficient for our needs."
23. All the arguments advanced by the learned counsel for the appellants before me were made before the learned Rent Controller also. From a bare perusal of impugned order I find that the learned Rent Controller has, in the light of the law as laid down by this Court in several reported decisions, correctly reached the conclusion that the premises in question were bona fide required by the respondent for his personal use. The mere fact that the respondent was putting up on his return from Dubai in the house of his sister would 'not debar him from asking for the possession of his own house which had been long back rented out to the deceased appellant. The mere fact that the Ration Card was not produced to show that the number of persons allegedly residing in the house of his sister would not disentitle him to his claim. It was open to the deceased appellant to lead some evidence to show that the number of persons residing in the house of his sister as deposed to by the respondent were not actually residing therein. No such evidence has been adduced in this case. But it was of no material significance in the facts of this case.
24. Under the aforesaid facts and circumstances of the case I do not find any justification to interfere with the finding of the learned Rent Controller on issue I No. 2 as well.
25. Consequently, the appeal is held to be devoid of force and it is dismissed accordingly. The parties are, however, left to bear their own costs. However, I would allow two months' time to the appellants to vacate the demised premises, subject to their making the payment of rent to the respondent regularly, failing (which they would be liable to be evicted forthwith without notice.
26. M.Y.H./S-413/K