1. ' This first rent appeal is directed against the order dated 11th November, 1986 passed by the learned IIIrd Senior Civil Judge and Rent Controller (South), Karachi, by which the ejectment application filed by the appellant on the ground of default and bona tide use has been dismissed.
2. The brief facts giving rise to the present appeal are that deceased Noor Muhammad filed ejectment application against the respondents stating therein that the respondents/opponents are his tenants in respect of residential house on monthly rent of Rs,12. That the opponents are habitual defaulters and have failed to pay rent from November, 1979 in spite of repeated requests and demands. That the sons of the applicant who are already married, have no shelter and the other son is also to be married but due to lack of proper accommodation he is not married. The demised premises are required by the applicant for bona fide personal use and occupation. The above application was filed on 14-10-1981 and the applicant Noor Muhammad died on 6-2-1983 and therefore, his wife Mst. Tilyan was joined as applicant. She filed amended application in which the same grounds were repeated. The opponents filed written statement in which they have stated that the applicant has not served them with notice under Section 18 of Sindh Rented Premises Ordinance and therefore, the application was not maintainable. That the relationship and the rate of rent was admitted. However, it was denied that they were defaulters. It was further stated that the applicant had filed D.W. Application No,243/1979 falsely claiming the rent to be Rs,30 per month.
3. The said application was disposed of by compromise whereby 3 months' rent was found due which was paid in the Small Causes Court at the rate of Rs,12 for the months of September, 1979 to November, 1979. That the opponents had, sent rent through money order but it was not accepted.
4. The rent for December and January, was sent by money order but the same was also refused. They approached the applicant to accept rent but it was refused and therefore, the opponents have been depositing the rent regularly in Court and as such they are not defaulters. The personal requirement for the sons was also denied. It was further stated that applicant has sufficient accommodation and the demised premises are not required by her bona fide use and that of her son.
5. ' On the pleadings of the parties the following issues were framed:-
(1) Whether the opponents have failed to pay rent to the applicant from November, 1979?
(2) Whether the applicant requires the case premises for bona fide need in good faith for her sons?
(3) What should the order be?
6. ' In support of her case the applicant/appellant examined herself but the respondents did not produce any evidence and therefore, the matter was decided, ex parte. The respondent filed F.R.A.
7. No,132/1986 to the learned Rent Controller for fresh decision in accordance with law after allowing the respondents to produce their evidence.
8. ' On remand both the opponents/respondents filed their affidavits-inevidence. They also filed certified copy of cross-examination of appellant Mst. Tilyan recorded in Rent Case No,132/1985, certified copy of order passed in D.W. Application No244/1979 by the learned Small Causes Judge, Karachi, P.TI, original rent receipts showing deposit of rent in Misc. Rent Application No,2150/1980, two photo copies of money order coupon, copy of rent receipt deposited in D.W. Application No,243/1979 and 2 receipts of deposit of rent in Misc. Rent Case.
9. ' The learned Rent Controller after taking through the evidence produced by the parties decided Issues No,1 and 2 in negative, and consequently the ejectment application was dismissed.
10. ' The present appeal is directed against the above order dismissing ejectment application filed by the appellant.
11. ' It has been contended by Mr. Asghar Hussain learned counsel appearing for the appellant that the respondent was a defaulter and, had failed to pay rent for 24 months starting from November, 1979 and the learned Rent Controller has erred in deciding Issue No,1 in negative. He has further contended that the house in question was required by the appellant for her personal bona fide need and her children, and the learned Rent Controller has erred in deciding the issue regarding bona fide need against the appellant.
12. ' Mr. Abdul Sattar Khatri learned counsel appearing for the respondent has contended that the respondent had paid three months rent in November, 1979 for which there was documentary evidence on record. Thereafter the husband of the appellant refused to accept rent, and therefore, the same is being deposited in Court and as such there was no default. He has further contended that it was admitted by the appellant in the earlier case that she was residing in a house consisting of 5 rooms. She has also admitted in cross-examination that 2 plots were left by her husband on which her sons are residing. That she did not disclose in the amended application nor in her affidavit-in-evidence in Court that she was in possession of a house consisting of 5 rooms nor she disclosed the fact regarding the 2 houses which were in possession of her sons and therefore, her claim was not bona fide but mala fide.
13. ' I have considered the contentions of the learned counsel. As far as the issue regarding default is concerned, the order dated 25-11-1979 passed by the learned Judge, Small Causes Court, Karachi, shows that Noor Muhammad husband of the appellant had filed D.W. Application No,243/1979 against respondent Moula Bux in which the matter was decided on special oath, according to which the rate of rent was Rs,12 per month, and three months' rent was due against the respondent which was paid by him in Court. The respondent had also produced two money-order coupons and receipts, out of which the first money-order coupon shows that Rs,12 were sent to Noor Muhammad husband of the appellant towards rent of December, 1979 and second money-order coupon shows that Rs,24 were sent to Noor Muhammad towards rent of December, 1979 and January, 1980. The rent receipts regarding deposit in Court show that he had deposited Rs,36 on 8th March, 1980 and Rs,48 on 17-7-1980. The respondent has further stated that he has been depositing rent in the Court in Miscellaneous case regularly. In view of the above documentary evidence and the statement on oath made by the respondent, it is clear that he had paid rent upto November, 1979 to Noor Muhammad husband of the appellant. Thereafter he sent rent for the month of December, 1979 and January, 1980 by money orders but the same was not accepted and therefore he has been depositing the same in Court. Since there was no agreement of tenancy between the parties the rent for the month of December, could be paid in the beginning of March, 1980 and the rent for the month of January, 1980 could be paid in the beginning of April, 1980 and therefore, the respondent was not a defaulter, and the learned Rent Controller has rightly decided this issue in negative.
14. ' Adverting to the issue regarding personal bona fide need, the appellant did not disclose even in her amended ejectment application that she had any house in her possession and that her 2 sons were in possession of the two separate houses. However, she has admitted in cross-examination that the house in which she is residing presently stands in the name of her late husband. She has denied that there are 5 rooms in the said house but according to her there are 4 rooms in the said house. The certified copy of her cross-examination in Rent Case No,132/1985 shows that she resides in Kalry in her own house and there are 5 rooms in the said house. She has further admitted that her deceased husband had left 2 other plots over which Katcha houses are built and her sons are residing in those two houses. She has denied a suggestion that those two houses are Pucca houses. In view of the above admissions made by the appellant about the accommodation in her possession and in possession of her sons, and the fact that she did not disclose these facts in her application as well as in her affidavitin-evidence, the learned Rent Controller has rightly decided this issue against the appellant.
15. In view of the above discussion, the appellant has failed to prove that the respondent was a defaulter and that she requires the demised house for herself and for her sons. The learned Rent Controller has given cogent reasons for C arriving at the above conclusion, and the same do not call for interference. There is no merit in the appeal and the same is accordingly dismissed with no order as to costs.
16. ' I had decided the above appeal on 17-2-1991 by a short order and these are the reasons for the same.