' Aggrieved by the order of the IIIrd Senior Civil Judge and Rent Controller, Karachi (West), dated 31st May, 1986, whereby he has ordered his eviction from House No,A-290/C, North-Nazimabad, Karachi (hereinafter called "the demised premises"), the appellant-tenant has filed this appeal.
2. The relevant facts, briefly stated, are that being the owner/landlady of the demised premises, the respondent filed an application under section 15 of the Sindh Rented Premises Ordinance, 1979 (for short, "the Ordinance") for eviction of the appellant on the grounds of default in payment of rent at the rate of Rs,700 p.m. For the months of October and November, 1984 and March and April, 1985, and for her own personal bona fide use and occupation and for that of sons and daughters.
3. The appellant contested the application by filing a written statement contending inter alia, that the landlord of the demised premises is one Syed Waris Imam. He had inducted him in the demised premises. He had been receiving the rent and issuing rent receipts in his own name. The application had been filed in the name of wrong landlord with mala fide intention. The alleged default was denied and it was pleaded that the rent had been deposited in advance till December, 1985 in Rent Misc. Application No,328/81 showing S. Waris Imam as landlord. It was also pleaded that under the direction of the landlord he had paid a sum of Rs,1,405 towards K.M.C., Excise and Taxation Department and Water and Sewerage Board Tax, from time to time. It was agreed to be adjusted against rent. It was also pleaded that he had, with the consent and permission of S. Waris Imam, spent a sum of Rs,3,600 towards whitewash and another sum of Rs,1,000 towards the repairs of drainage. The personal need, as pleaded, was also denied. It was further pleaded that besides the house where landlord is presently residing, he owns the adjacent house bearing NoA-289, Block-C, North Nazimabad, Karachi and the House No,V-E-23/5, Nazimabad, both of which he had given on rent as and when they had fallen vacant. Certain allegations were also made against S.Waris Imam to the effect that having failed to forcibly evict the appellant, he had filed this case to get him evicted on false and frivolous grounds.
4. Out of the pleadings of parties, the learned Rent Controller framed the following issues:--
(1) Whether the applicant is owner of the suit premises?
(2) Whether the opponent is a wilful defaulter?
(3) Whether the applicant needs the suit premises for her personal bona fide use?
(4) What should the order be?
' He answered all the three issues in the affirmative and consequently allowed the application as stated above. Hence this appeal.
5. After hearing the arguments of Mr. Shafaat Hussain, Advocate on behalf of the appellant and Mr. Muhammad Ishaq Shams, Advocate for the respondent and upon perusal of the impugned order as well as the Rent Controller's record, I reached the conclusion that there was no merit in this appeal. Consequently I dismissed the appeal by a short order of date.
6. With regard to issue No,1, Mr. Shafaat Hussain attempted to argue that after his having been inducted into the demised premises by the respondent upon execution of the agreement of lease, dated 28th October, 1974, the appellant all along dealt with S. Waris Imam as landlord and paid rent to him. The rent was also deposited in Court vide Misc. Rent Case No,328 of 1981 in his name and that the same had been withdrawn by him. A legal notice dated 12th March, 1984 was also served upon the appellant on behalf of S. Waris Imam claiming therein himself to be the landlord and the appellant as his tenant. It was stated in the notice that he required the demised premises for his personal bona fide use and for the use of his wife. Mr. Shafaat Hussain also invited my attention to the averments made in the written statement to the effect that S. Waris Imam was actually the real owner of the demised premises and that the respondent (his wife) was only a bainamidar.
8. I do not find any merits in the contentions of the learned counsel for the A appellant. Having admitted that he was inducted in the demised premises as tenant persuant to lease agreement, dated 28th October, 1974 which was executed between him and the respondent, it was not legally open to him to deny the ownership of the respondent so long as he continues to be in occupation of the demised premises. Besides S. Waris Imam, the husband and attorney of the respondent, has also deposed in his affidavit-in-evidence that the respondent is the owner of the demised premises and that the appellant is continuing as her tenant in respect thereof under the agreement of tenancy dated 28th October, 1974. During his cross-examination also he reiterated that the suit premises is in the name of his wife and that he has been maintaining her rights therein from the beginning. He has also deposed that it was she who had settled the terms of tenancy herself with the appellant. He also denied the suggestion that at the time of commencement of tenancy, he had posed himself to be the owner and his wife, the respondent to be bainamidar.
Even otherwise in the receipts of the payment of taxes etc.. Issued by the K.M.C., Excise & Taxation and the Karachi Water and Sewerage Board, brought on record at the instance of appellant, the name of Mst. Asafa Khatoon, the respondent, is shown as the owner of the demised premises.
9. Under the aforesaid facts and circumstances of the case, I do not feel hesitant to hold that the issue No,1 has been rightly decided in the affirmative by the learned Rent Controller. The impugned order on issues No,1 is, therefore, maintained.
10. In so far N issue No,2, relating to default is concerned, it is pertinent to note that the respondent had claimed that the appellant had committed default for four above-mentioned months while depositing the rent in Court in Misc. Rent Case No,328 of 1981. In his affidavit-in-evidence filed by her husband and attorney. S. Waris Imam, it was stated that the appellant had committed default for the month of March, 1985 on 9-7-1985. On the said date, it may be noted, the appellant had deposited Rs,2,800, i.e, four months' rent. The default in payment of rent was thus confined to only one month, viz. March, 1985. The learned Rent Controller has also not discussed this aspect of the case as to whether the default in respect of payment of rent for March, 1985, allegedly committed on 9-7-1985 was proved on the basis of the Nazir's report (Annexure D prevalent on page 59 of R & P). The learned counsel for the appellant invited my attention to the suggestion made to and the reply made by P.W. S.Waris Imam during his cross-examination, wherefrom it appears that the appellant had claimed to have deposited the rent in Court for October-November on 15-9-1984 and for March-April on 11-2-1985. The respondent's witness deposed that he was unable to say or did not remember if the rent for the said months was deposited on the aforesaid dates in advance.
It is further pertinent to note, as already pointed out, that in the written statement it was pleaded by the appellant that he had deposited advance rent during December, 1985.
11. In view of the above evidence on record, I am of the opinion that the respondent has failed to establish the default as pleaded in the application and/or later on deposed by her witness and hence the finding of the learned Rent Controller on this issue cannot be sustained. It is accordingly reversed and answered in negative.
12. Assailing the findings of the learned Rent Controller on issue No,3 pertaining to peronal bona fide requirement of the demised premises by the respondent for herself and her two sons and three daughters, Mr. Shafaat Hussain submitted that when the house was let out to the appellant, the respondent's entire family comprised of seven members who used to live in a rented house constructed on only 133 sq.Yds; whereas only one month prior to the institution of the ejectment application, the respondent with her sons had shifted to a house which has four rooms and is constructed on plot of 200 sq.Yds. The family members of the respondent, according to him, on the other hand were reduced to four persons only inasmuch as three of her daughters had been admittedly married. The respondent, therefore, the counsel so urged. Can conveniently and comfortably accommodate herself and her family members in the house presently occupied by her. He also tried to show that the husband of the respondent also owned two houses, one in Nazimabad and another in NorthNazimabad which had fallen vacant on several times and were let out by him after the institution of the ejectment application by the respondent against the appellant. In his submission, the need of the respondent (wife) is the need of her husband as both of them are expected to live together and as such she is not legally entitled to seek eviction of the appellant. The contention of the appellant's counsel are without substance in view of the evidence prevalent on record. Besides, the fact that the respondent felt the necessity of taking on rent a tenement having more accommodation than the one where she was earlier residing, goes to support her case of bona fide need of the demised premises which has an accommodation of four living rooms rather than to throw any doubt on her bona fides.
13. The learned Rent Controller's decision on issue No,3 is also, in my opinion, based upon proper appreciation of the evidence on record as well as of the various authorities referred to and discussed in his impugned order. I have been referred to the cross-examination of S. Waris Imam, the witness of respondent by the learned counsel for the appellant, but I do not find that his evidence on this aspect could at all be shattered. In reply to a question he deposed that it is not a fact that he has got only four family members with whom he is residing presently. In reply to yet another question, he specifically replied, "I have three daughters. They have been married but they are still living with me. It is not a fact that they do not live with me. In his affidavit-in-evidence, he deposed that the appellant alongwith family members is residing in a rented house. This statement of fact made by him also remained uncontroverted. On the contrary, the counsel for respondent urged, and in my opinion rightly too, that the averments made in paragraph 4 of the application regarding the requirement of the demised premises by the respondent for her own use and occupation of her two sons and three daughters in good faith, was not specifically denied in the written statement. The authorities cited by Mr. Shafaat Hussain before me, reported in 1984 CLC 1769 and 1988 CLC 1833, are distinguishable on their own facts and hence I do not deem it necessary to deal with them. In my opinion, the learned Rent Controller as already observed, has committed no error either in appreciating the evidence or applying the case-law to the facts of this case. Consequently the Rent Controller's finding on issue No,3 is also upheld.
14. In the result, the appeal fails on issues Nos.1 and 3 and it is dismissed accordingly. The parties are, however, left to bear their own costs. The appellant is, however, allowed four months' time to vacate and hand over peaceful and vacant possession of the demised premises to the respondent subject to his depositing the monthly rent regularly in Court. In case of default, he will be liable to be evicted forthwith without notice.