SYED ABDUR RAHMAN, J.~ This F.R A. Has been filed against the Order of Addl. Controller of Rents, Karachi Cantonment dated 8-11-1989, whereby he directed the appellant to hand over the vacant possession of the rented premises to the respondent within two months, therefrom.
2. The facts forming the background of this F.RA. Are that respondent filed rent case against the appellant that she was his tenant in respect of Shop bearing No.70, Al-Amna Plaza Opp: Capri Cinema, Depot Lines MA. Jinnah Road, Karachi at a monthly rent of Rs. 700/- (Rupees seven hundred). It was further alleged that the appellant had made additions and alterations in the shop without permission of the respondent which has diminished its value and utility. She also alleged that the appellant had defaulted in payment of rent of August; 1982. Finally she alleged that the shop was required by her for her bonafide personal use as she wanted to start her own business therein. The case was contested by the appellant, who submitted that only three wooden shelves were fixed in the shop which were of purely temporary nature and could be removed at any time and that the same did not diminish the value or utility of the shop. The appellant further denied that he was a defaulter. He alleged that he has been paying the rent regularly. The rent of the month of August, 1988 was sent by him by Pay Order dated 13-9-1988, but by oversight he had written that it was for the month of September, 1988. Hence the respondent was not justified in refusing to receive the same and should have adjusted it towards the rent of the month of August, 1988. He has further alleged that thereafter he had been regularly tendering the rent to respondent by Money Orders, but the same were returned as undelivered. From September, 1988 the appellant is depositing the rent in the Court of Addl. Controller of Rents, as the respondent had filed the ejectment application immediately after returning his Pay Order. He has also denied that the respondent requires the shop for her bonafide personal use and has alleged that this ground has been malafidely raised in order to pressurise the appellant to enhance rent. It was alleged that the respondent was already in possession of another shop just adjacent to the appellant's shop which was lying vacant.
3. The respondent filed affidavit of her husband, who was cross- examined by the appellant's counsel at length. In rebuttal the appellant filed his own affidavit and was cross-examined by the respondent's counsel.
4. The learned Controller took up for determination as many as 10 issues and decided all of them in favour of the respondent and allowed the ejectment as shown above.
5. I have heard Mr. Syed Iftekhar Hassan, learned counsel for the appellant and Mr. Syed Ziauddin Nasir, learned counsel for the respondent. As it was rightly put by Mr. S. Iftekhar Hassan, only three issues were pertinent in this case. The first related to the material alterations and additions made in the shop and whether the same had impaired the value and utility thereof. The second was as to whether the appellant was a defaulter in payment of rent from the month of August, 1988. The third was whether the respondent required the shop for per bonafide personal use.
6. So far as issue as to default in payment of rent is concerned, in view of the admitted fact that on 13-9-1988 the appellant had tendered rent amounting to Rs.700/- by Pay Order on M/s. Muslim Commercial Bank Ltd. To the respondent, which the respondent has admitted to have received, but returned the same on the ground that the letter showed that it was rent for September, 1988 whereas the rent of August, 1988 was due. The respondent was not justified in returning this Pay Order. She should have kept the same and should have adjusted it towards the rent of August, 1988. The contention of the appellant's counsel is that it was in fact rent of the month of August, 1988 but the appellant by slip of pen wrote that it was the rent of September, 1988. So far as the rent of the subsequent months is concerned, the same was tendered to the respondent by the appellant through Money Orders which is also admitted by the respondent, but it is explained that the same could not be received by her because she was a working woman and therefore used to remain out of the-house during day time. Apart from that this case was filed before the Controller on 3-10-1988 and by that time the rent of September, 1988 had not become due. The appellant is regularly depositing the rent with the Controller in this case after filing of this rent case. So far as the rent is concerned, the appellant cannot be held defaulter under these circumstances, but so far as the arrears of telephone bills are concerned, the same ought to have been paid by the appellant. The telephone stood in the name of respondent's husband which was got affixed by the respondent in the shop. It was the duty of the appellant to regularly pay the telephone charges. The respondent's husband has filed affidavit to the effect that a sum of Rs, 7,592/- was outstanding against this telephone. It was the duty of the appellant to have produced the receipts to show that he had cleared the telephone bills. Hence so far as the telephone charges are concerned, the appellant has not been able to show that he was not a defaulter.
7. However, so far as the issue as to additions and alterations in the rented premises without the consent of landlady and thereby diminishing of value and utility thereof is concerned, it may be stated that the admitted position is that the appellant did make certain additions and alterations in the shop. Those additions and alterations are fixation of three shelves of wooden planks between the pillars of the shop. It is also an admitted position that this was done without the permission and consent of the landlady. All that is to be seen is whether this act of the appellant is likely to materially impair the value, look or utility of the shop. Although it may be a disputable fact that whether this act has impaired the value or utility of the shop, but there can be no denying of the fact that it is likely to impair the look of the shop. It would make no difference as to whether the construction was temporary or permanent and whether it can be removed and restored to its original condition.
8. So far as the finding as to requirement of the premises for personal use of the landlady is concerned, the respondent's attorney, who is also her husband, has stated on Oath that the shop in question is required by the respondent for carrying on the business of 'Snack Bars'. The appellant's counsel has cross-examined the respondent's husband on this point, but could not shake his testimony. By now the settled law is that it is enough to state on oath that the landlady requires the rented premises for her bonafide personal use and to withstand test of cross-examination successfully. No further evidence is required to be given by her. This proposition is so well settled that it requires no authority to be cited in its support. The appellant's counsel has placed reliance in the cases of (1) Mrs. Nadira Farooqui vs. District & Sessions Judge (1987 M LD 616) (2) Mrs. Rafiqa Begum vs. Mrs. Mahmooda Wahidina (P.L.D. 1987 Kar. 287) and (3) Raja Shahbaz Khan vs. Muhammad Fazal Kiani (1988 C.L.C. 811) which do not apply to this case. The appellant's counsel has contended that the respondent was in occupation of Shop No.76 which was adjacent to this shop and was lying vacant and has confronted her Attorney with the receipt of rent which the respondent had received for this shop. The Attorney of the respondent has admitted that the receipt is signed by his were, but has denied that the shop belongs to his were. Respondent's counsel Mr. Syed Ziauddin Nasir stated from the Bar that in fact the shop belongs to the mother of the respondent, who is alive and not to the respondent. The burden to prove that the shop belongs to the respondent and is in her occupation, was on the appellant which she has failed to discharge.
Hence I do not find any justification to interfere with the finding of the learned Controller on the issue of requirement of the shop for the bonafide use of the respondent. I, therefore, dismiss the F.R A. However, fallow six months time to the appellant to vacate the shop, but this will be subject to his depositing the monthly rent regularly before 10th of every month.