1. ' Appellant Muhammad Atique has challenged dismissal of his Rent Application No,1657 of 1988 ordered by VIIth Senior Civil Judge and Rent Controller Karachi South, under the impugned order, dated 29-11-1990.
2. ' Parties in their pleadings were agreed that the premises in litigation viz. ground floor of property bearing No,58-A, Block VIII, Karachi Administration Employee Cooperative Housing Society, are occupied by the respondent as tenant of the appellant, on monthly rent of Rs.2,100 excluding gas charges, electricity charges and other charges. There was such rent agreement executed between the parties on 4-5-1987.
3. ' Appellant filed said rent case on 26-11-1988 for eviction of respondent Muhammad Hanif Khan from the premises in litigation, on the grounds of (i) default in payment of rent for September 1988 and October, 1988, (ii) bona fide personal requirement, (iii) respondent being nuisance for the appellant and his family members. Default in payment of rent was alleged for September 1988 and October 1988, while electricity charges were not paid since 1-8-1988, as alleged. Appellant mentioned his requirement of the premises in question for his personal bona fide use on the ground that he was suffering from heart trouble. Respondent was alleged to be nuisance for the appellant, because he used to park his car at the main gate and quarrelled with the appellant on petty matters and started threatening the appellant by using filthy and abusing language.
4. Respondent was said to be owning a house at Karachi which was lying vacant.
5. ' The rent application was contested by the respondent who in his written statement denied the grounds taken for his eviction. In respect of the ground of personal need, the respondent stated that the appellant had five rooms besides dining, drawing and T.V. Lounge on first floor and second floor and such accommodation was sufficient for family of the appellant consisting of eight persons.
6. ' After recording evidence of the parties, learned Rent Controller under the impugned order dismissed the rent application after taking view that no default was committed by the respondent in payment of rent and that the allegation about non-payment of electricity charges since August 1988 was unfounded and not proved and that the appellant had failed to establish his bona fide need and requirement of the ground floor and that the question of the respondent giving threats to the appellant and using filthy language, Was pending before the S.D.M. Saddar in proceedings under section 107, Cr.P.C. Hence this appeal.
7. ' Mr. Waqar Lodhi, learned counsel for the appellant conceded that the appellant had not been able to establish default in payment of rent for September, 1988 and October, 1988, but he contended that the appellant had proved that electricity dues were not paid by the respondent for August, 1988, September, 1988 and October, 1988 although monthly rent was deposited in a miscellaneous rent case on 1-11-1988. Learned counsel pointed out that there were no receipts about electric charges and that since criminal cases were pending between the parties, it was unthinkable that the respondent would pay electric charges to the appellant without obtaining receipts. In respect of the default in payment of electric charges, it was argued that statement of the appellant on oath was sufficient to discharge the burden. In respect of the personal requirement, learned counsel for the appellant referred to para. 6 of the rent application where the appellant stated, that he was suffering from heart trouble and was under treatment for two/three months and that he was advised by the doctor not to go upstairs. It was added that presently the appellant was living on the first floor. Besides this, the appellant wanted to accommodate his children in the premises in litigation, as argued further. In support learned counsel for the appellant cited the cases of:--
(i) Hassan Khan v. Mrs. Munawar Begum PLD 1976 Kar. 832;
(ii) Rajab Ali v. Darius B. Kandawalla and another PLD 1984 Kar. 14;
(iii) Mushtaq Ahmed Khan v. Kh. Mustafa-ul-Hassan (1984 CLC 3093);
(iv) Peerzada Rafiq Ahmed v. Ch. Abdul Rahman (1980 SCM R 772);
(v) Muhammad Ayub Khan v. Muhammad Suleman Soomro (1984 CLC 50);
(vi) Allied Bank of Pakistan Ltd. v. Abdul Majeed and others (1985 CLC 1518);
(vii) Nisar Ahmed Khan v. Noor Muhammad Khan and others (1990 SCM R 544).
8. ' Mr. Amir Raza Naqvi, learned counsel for the respondent argued that the electric charges were being paid and accepted but no receipts were issued. He added that presently the respondent was having a separate electric meter and that he had paid excess amount for the electricity. Learned counsel for the respondent further argued that in his rent application the appellant had suppressed the fact that he had two bedrooms on top of the building and that the appellant had not come to the Court with clean hands and his requirement was mala fide. Learned counsel for the respondent wanted the Court to take note of the improvement made by the appellant in his case. In respect of his illness no medical certificate was produced by the appellant, as argued by the respondent's counsel. The ground of nuisance was not proved as added.
9. ' The relationship of landlord and tenant was created by a tenancy agreement Exh.8 executed on 4-5-1987. Para. 5 of the tenancy agreement says that the tenant will pay electricity and gas charges consumed in the said premises while the landlord would pay Government taxes and Municipal taxes. In para. 4 of his affidavit, appellant Muhammad Atique stated that as per the terms of the tenancy agreement, the respondent was liable to pay the electricity and gas charges according to the consumption. In para.6 of the same affidavit, the appellant stated that the respondent used to pay him electricity charges to the extent of 1/3rd of the total bill and he used to pay gas charges to the extent of 50% of the total gas bill. He added that the respondent had failed to pay electricity charges amounting to Rs.1,844 and gas charges amounting to Rs.439 for the period of August, 1988 to March, 1989. With his affidavit the appellant did not produce the relevant bills about electricity and gas. As against this, the respondent stated in his affidavit that he had been paying gas and electricity charges every month regularly without getting any receipt. The appellant did not produce any notice, calling upon the respondent to pay him the electricity and gas charges. In his cross-examination the respondent denied that he had not paid the electricity and gas charges since August, 1988. He admitted that he did not possess any receipt for such payments because receipts were not issued. In respect of the electricity charges and gas charges, there is solitary word of the appellant which has been controverted by word Of the respondent. In the circumstances, the default issue was not proved.
10. ' Under clause (v) of subsection (2) of section 15 of the Ordinance, a tenant can be evicted if he has indulged in such activities as are causing nuisance to the neighbours. The alleged activities of the tenant should cause nuisance to the neighbours, and not to the landlord alone. In the instant case the appellant alleged in his rent application that the respondent parked his car at the main gate, started quarrelling with him on petty matters and became a nuisance for him and for his family members. Appellant did not state if the appellant became nuisance for the neighbours. In para. 8 of his affidavit, the appellant alleged that respondent did not allow him to park his car in the compound or to operate the water pump machine. That the respondent was hurling abuses and extending threats. He also stated that criminal proceedings under section 107, Cr.P.C. were pending between him and the respondent in Court of the S.D.M. Saddar Karachi and that he was apprehending breach of piece and danger to his life at the hands of the respondent. Even if this evidence is accepted, it would not make out a ground for eviction in terms of clause (v) of subsection (2) of section 15 of the Ordinance.
11. ' In para. 9 of his rent application, the appellant stated that he required the premises in dispute on the ground floor because he was suffering from heart trouble and he wanted to live in the premises in question. In para. 9 of his affidavit, the appellant stated that he was suffering from heart trouble since January, 1988 and he was advised by a doctor not to go upstairs. He produced 'copy of a certificate Exh.9 from a private doctor of Rabbania Clinic. Appellant further stated that he had a family of nine members and he required separate accommodation on the ground floor because of his heart trouble and that his existing accommodation of two bedrooms was not sufficient and suitable for his requirement. In his cross-examination, the appellant stated that accommodation on the first floor was almost the same as on the ground floor, except that one bedroom at first floor was converted into a dining and drawing room. That he had two bedrooms, one dining and drawing room and one T.V. Lounge, for nine members of his family. He also stated that after leasing out the premises in litigation to the respondent, a child was born to his son and his mother started living with him. Appellant added that since January, 1988 he had not suffered heart attack. He further stated that he was not ready to exchange his existing accommodation for the accommodation in litigation. This statement shows that the ground of illness is only a pretext for seeking eviction of the respondent. Appellant admitted that the respondent was his third tenant in the premises. In case the appellant was a heart patient he should have produced at least certificate from a heart specialist. He has not produced any certificate from Government Medical Officer. He has relied on a certificate issued by a private doctor, who has not given his name below his signature. In the circumstances the ground of illness has not been proved. The appellant has gone to the extent of filing a complaint against the respondent under section 107 of Cr.P.C.
12. Appellant did not examine any witness in support of his case.
13. ' The authorities cited at the bar could have applied to this case, if the appellant had been able to establish that his requirement of the premises was bona fide. In the case of Hassan Khan (PLD 1976 Kar 832) the assertion on oath by the landlord that he required the premises for his personal use, was found to be consistent with his averments in his application and the same was not shaken in cross-examination or disproved in rebuttal and hence the same was accepted as bona fide. In the case of Rajab Ali (PLD 1984 Kar. 14) the view taken was that the landlord's desire to live in his own house was quite natural. In the present case the appellant is already residing in his own house and while living there he leased out the premises to the respondent. In the cases of Mushtaq Ahmed Khan 1984 CLC 3093 plea of the landlord that he suffered from Artheritic disease was not shaken in evidence. In the present case appellant has utterly failed to prove that he was suffering from heart disease.##TE# In the case of Mushtaq Ahmad Khan 1984 CLC 3093, Pirzada Rafiq Ahmad 1980 SCM R 772 and Nisar Ahmed 1990 SCM R 544 it was held that demand of higher rent by the landlord does not militate against his bona fide personal requirement. There is no cavil with such view. In the case of Muhammad Ayub Khan 1984 CLC 50, the view taken was that a landlord had to produce evidence about his bona fide requirement, while the tenant had to prove bad faith.
14. In the case of Allied Bank of Pakistan Ltd. 1985 CLC 1518 the view taken was that normally word of the landlord that he requires the premises for personal need should be believed unless there are substantial grounds to show that the plea is not genuine. Said case is distinguishable because in the present case the landlord is already occupying the premises owned by him and he seeks eviction of the respondent from an additional area on a medical ground.
15. ' For the foregoing reasons I am of the view that the appellant had failed to establish any of the grounds on the basis of which eviction of the respondent could be ordered. Consequently this appeal stands dismissed with costs.