SYED ABDUR RAHMAN, J.-- By this F.R.A, the appellant has challenged the Judgment of IInd Senior Civil Judge and Rent Controller, Karachi Central, dated 12-2-1989, whereby he directed the appellant to vacate the shop in question and deliver its possession to the respondent within 60 days.
2. The respondents had filed ejectment application against the appellant alleging that they had purchased the shop from its previous owner on 9-1-1984. They served the appellant with a notice under Section-18 of the Sindh Rented Premises Ordinance, 1979 calling upon him to pay rent from 1- 1-1984. In spite of service of notice, the appellant did not pay the rent. Hence he was a defaulter. It was additionally contended that the applicants require the shop for their personal bona fide need as Shariq Ilahi, son of applicant No.1, had grown up and was to be set up in business in this shop.
3. The appellant resisted the application. He denied that he was a defaulter. He admitted that he was served with a notice under Section-18 referred to above. He, however, states that since he had paid the rent for the month of January, 1984 to the previous landlady, therefore, he remitted the rent for the months of February and March, 1984 to the respondent by money order and also brought to his notice the fact that he had already paid rent for the month of January, 1984 to the previous landlady. He has also averred that he had paid Rs.50,000/- as 'PAGREE' to the out-going tenant and Rs. 15,000/- to the previous owner for change of receipt. He also claimed to have paid Rs.500/- as security deposit to the landlady. Respondents refused to receive the money order, as he had been insisting to enhance the rent. Consequently the appellant started depositing the rent with the Controller in M.R.C. No.1413 of 1984. Hence he is not a defaulter. He had also denied the allegation of the respondents that the shop was required by them for personal bona fide use. He has alleged that the respondents have generated this false ground after their desire for enhancement of rent was frustrated.
4. The learned Controller took up for consideration the issues as to default in payment of rent and requirement of the premises for personal bona fide use of Shariq son of respondent No.1. After taking into consideration the evidence led by the parties, he found both the issues in favour of the respondents and allowed the ejectment application as shown above.
5. I have heard Mr. Aziz Urfi, learned counsel for the appellant and Miss. Mumtaz Sultana, learned counsel for the respondents. The respondents had purchased the shop by registered sale-dead dated 9-1-1984. They had sent notice under section-18 of the Sindh Rented Premises Ordinance, 1979 to the appellant which is dated 14-3-1984. Obviously by that date he was unaware of the transfer. Before this date he could have bonafidely paid not only the rent of January, 1984 to the previous landlady, but even the rent of February, 1984 to him which had fallen due on 28-2-1984.
However, the fact that he tendered the rent for the months of February and March, 1984 to the respondents by money order, wherein he stated that he had already paid the rent of January, 1984 to the previous landlady and that he was in possession of receipt, shows his bona fides. The receipt for the rent of January, 1984 which had been paid to the previous landlady Mst. Farhat Syed has been produced. It is signed by the previous landlady and is on the printed receipt form of the previous landlady and also bears printed number of the receipt. The receipt is, therefore, authentic.
It was the duty of the respondent to have examined the previous landlady to deny the receipt which he has failed to do. The observation of the learned Controller that the appellant should have taken back the rent of January, 1984 from the previous landlady and should have paid to the appellants is not correct. His finding that the appellant had not proved that he had paid the rent to the previous landlady is also not correct, because the same has been proved by the receipt as well as the statement in the money order at the first opportunity that the same had been paid and receipt is available. Admittedly the appellant is depositing the rent from February, 1984 up to date in the Court and therefore, there was no scope for the Controller to hold that the appellant was a defaulter or that he was not justified in depositing rent with the Controller. Hence I am unable to sustain the finding of the learned Controller that the appellant was a defaulter. The finding is, therefore, reversed.
6. So far as the next issue is concerned, which relates to the requirement of the tenement for the bona fide personal use of Shariq Ilahi, who is grown up son of applicant No.1, there is sufficient evidence on record in support of the said plea. Respondent No.1 has filed Affidavit-in-Evidence in which he has stated that the shop in question is required by him for the settlement of his son Shariq Ilahi in business, who is now grown up and is without any work. He has further stated that they belong to business community and have sufficient experience of business. Shariq Ilahi, according to him, will establish business of general merchandise and the tenement in question is suitable for the said business.
7. Mr. Aziz Urfi, learned counsel for the appellant, attacked the plea of requirement of shop for personal bona fide use on the ground that, although Shariq Ilahi was son of one of the applicants only, all the three applicants have stated that they require this shop for the bona fide requirement of Shariq Ilahi, who is son of one of the applicants. As such, according to him, the need was of one respondent and not of the three respondents. Hence the other two respondents should have given the objection' to this need, whereas one respondent should have stated that the personal bona fide need was of his son alone. According to me this does not make any difference and no such thin dividing line can be drawn between the two. By saying that the shop is required for their personal bona fide use, as Shariq Ilahi son of respondent No.1 will carry on business of merchandise therein, respondents No.2 and 3 only intended to convey their no objection to the requirement of respondent No.1's son. The appellant has not been able to shake the testimony of respondent No.1 on this point either by cross-examination or otherwise. He has also not been able to rebut the evidence led by respondents on this point. By now it is settled law that the contention of the landlady regarding the personal bona fide use, if it is consistent with her pleadings and is supported by her evidence on oath and remains unshaken and disproved in rebuttal, the same shall be accepted as correct. Mr. Aziz Urfi, learned counsel for the appellant, then contended that the respondents had made a demand for enhancement of rent and on refusal of the appellant to accede to such demand, the respondents have generated this false ground and therefore, it should be held to be mala fide. This contention is not acceptable. It was also raised before the learned Controller, who also repelled the same and it will be useful to reproduce his reasoning which reads as under:- The opponent, though has failed to establish his contention with regard to the demand of applicant for enhancement or rent. But this too is without force, as demand of higher rent do not effect the personal use of the applicant. In this regard reliance is placed on 1980 S.C.M.R. 772 wherein it has been held as under:- "Section 13. - Ejectment, requirement for personal use. Demand of higher rent by landlord. Held does not by itself cast any doubt about personal bona fide requirement of premises by landlord if fact of bona fide requirement independently proved."
I, therefore, do not find any justification for interfering with the finding of the learned Controller on the point of personal bona fide need in favour of the respondents. Consequently I uphold the same.
The result of the above finding is that the respondents are entitled to get the vacant possession of the premises, as they require the same for bona fide personal use. I, therefore, uphold the order of eviction and direct the appellant to vacate the shop in question and hand over its peaceful possession to the respondents. However, looking to the fact that he would require reasonable time within which he may be able to find out an alternate accommodation, I allow him one year's time to vacate the shop provided he continues to deposit monthly rent regularly.