This appeal under section 21 of the. Sind Rented Premises Ordinance, 1979, is directed against the order dated 28-9-1987, passed by VIth Senior Civil Judge and Rent Controller (West) Karachi, whereby he allowed the application of ejectment filed by the respondent against the appellant.
2. The appellant is a tenant of respondent in respect of House No. 633, Block-2, Liaquatabad, Karachi, at a monthly rent of Rs.700. On 31-7-1986, the respondent filed an application for ejectment against the appellant on the grounds of default in payment of rent and requirement of the premises for occupation of his children.
3. The appellant has disputed the allegations in his written, statement filed on 2-9-1986. According to him he had paid rent to the respondent from January 1986 to June 1986, but no receipt was issued in spite of repeated demands. The requirement of the premises for the occupation of children of respondent is also contested by the appellant. .
4. The respondent has examined his two sons namely Ilyas Beg who is also his attorney P.W.1 and Khalid (P.W.-2), while the appellant has examined himself (D.W.-1).
5. On the basis of the evidence, both oral as well as documentary, the learned Rent Controller decided both the issues against the appellant and consequently directed his ejectment.
6. The learned counsel representing the appellant has questioned the legality of the power of attorney (Ex.4/A), and has contended that the power of attorney, being general in nature should have been executed on non-judicial stamp paper worth Rs.75/-. In other words it was pleaded that the proceedings initiated on the basis of such power of attorney were without and legal authority.
The appellant hard, however, not raised any objection about this power of attorney before the Rent Controller and he cannot be allowed to do so at this stage. Even otherwise the Rent Controller is not bound to follow the technicalities of the Code of Civil Procedure, 1908. The cases under the Sind Rented Premises Ordinance, 1979, are to be decided in accordance with special law and, therefore, it is not necessary for him to follow the general provisions of law contained in other enactments.
7. The default in payment of rent for the months from January, 1986 to July, 1986, is alleged by the respondent. Ilyas Beg, the son and attorney of respondent has produced the counter foil of the receipt book (Annexure-D) to prove that the last payment of rent was made in December, 1985, and thereafter no payment was made. The appellant has claimed to have paid rent for the aforesaid period, but states that no receipt was issued to him for this period. According to the appellant he had remitted the rent for the month of July, 1986, through money order, which was refused. The money order coupon is, however, not placed on record, thereby giving rise to a presumption against the appellant. No oral evidence to this effect was adduced by the appellant to discharge his burden. The respondent has, on the other hand proved default through documentary evidence (Annexure-D). Where documentary evidence is available, it will generally play a decisive part in the decision of the issue to which it relates.
8. Admittedly there is agreement of tenancy (Ex.4/B) between the parties. According to this agreement the rent was to be paid regularly. Once the tenant has committed default by not paying or tendering rent within prescribed period he would be liable to be ejected, except where it is shown that default was occasioned due to unavoidable circumstances. No such situation exists in this case. The finding of learned Rent Controller on the issue of default is, therefore, confirmed.
9. The respondent has also sought ejectment of the appellant under clause (vii) of subsection (2) of section 15 of the Sind Rented Premises Ordinance, 1979, for the occupation or use of his son who is going to be married. The personal use as defined by clause (g) of section 2 of the Sind Rented Premises Ordinance 1979, means the use of the premises by the owner, thereof or his wife (or husband), son or daughter. Ilyas Beg (P.W-1) gives the following reasons in support of the requirement of the premises:- "6.That I further say that the present accommodation is not sufficient to meet the requirements of the applicant due to the facts that 5 sons out of them 3 are married also residing with the applicant while the marriage of Khalid Beg is being delayed for want of accommodation.
7.That I further give hereunder the derail of the family of the applicant presently residing with him.
(1) Ilyas Beg with wife and 4 children.
(2) Izhar Beg with wife and 2 children.
(3) Riaz Beg with wife and 3 children.
(4) Khalid Beg Unmarried.
(5) Nauman Beg -do-."
10.Khalid Beg (P.W-2) has fully supported the version of his brother by stating on oath that is marriage is being delayed for want of proper accommodation as the accommodation in their occupation is already congested.
11. Admittedly the respondent owns a double-storey house consisting of 8 rooms, where he is putting up with all his family members. The evidence which has come on record and which is not shaken in cross-examination shows that there are in all 18 members who are residing in this house.
Obviously the present occupation is not sufficient to meet their requirement. Again it is the prerogative of the landlord to ask for his premises for persunal use and unless the circumstances are brought out in the evidence which indicate that this requirement is not bona fide, normally the landlord must be allowed the benefit of the use of his own premises. The anxiety of the landlord can be judged from his letter (Ex.4/D), which clearly makes out a case of ejectment on the ground of personal requirement. The execution of tenancy agreement (Ex.4/B) after the service of notice (Ex.4-D/1) by itself does not cast any doubts about the personal bona-fide requirements, if the factum of bona fide requirement, is independently proved. The word `requires involves an element of need to some extent but the landlord has -not to prove an absolute necessity for invoking this clause. No exception, therefore, can be taken to the finding of learned Rent Controller on this issue also.
12. A grievance has also been made about the rejection of application made by the appellant before the Rent Controller for summoning the respondent as Court witness. The evidence of Ilyas Beg shows that the respondent was very weak and, therefore, unable to appear before the Court.
The application was again made to protract the proceedings.
13 For the aforesaid reasons the appeal stands dismissed with no order as to costs. The appellant is however, allowed two months, time to vacate the demised premises.
M.Y.H./S-398/K