' By a short order dated 16-8-1992 this appeal was allowed and the impugned order dated 8-8-1991 passed by the V Senior Civil Judge and Rent Controller, Karachi East directing ejectment of appellants from 2nd floor of house constructed on Plot No,15-M, Block-2, PECHS, Karachi was set aside. Following are the reasons for the same.
2. The facts of the case are that late Dilawar John, predecessor of the appellants, was tenant of respondent in a portion of second floor of house constructed on Plot No, 15-M, Block-II PECHS, Karachi at monthly rent of Rs,213 including Rs,43 as water and conservency charges. The respondent/landlord filed application in the Small Causes Court, Karachi for distress warrants against Dilawar John stating that he had not received rent of the premises from the deceased tenant from April 1981 to October, 1981. However, on a statement by the respondent before the said Court, that he had received rent aforesaid, application for distress warrant was dismissed.
' Respondent then filed Rent Case No,134/83 under section 14 of the Sind Rented Premises Ordinance, 1979 on the grounds that he had retired from the Government service and required disputed premises for his personal bona fide need. The application was dismissed and in appeal filed by respondent, the case was remanded to Rent Controller for further evidence. Accordingly, during further evidence it was brought on record that after retirement of respondent, premises in same building had fallen vacant, which he let out and did not occupy the same. The learned Rent Controller dismissed application under section 14 of the Ordinance and respondent did not file any appeal against the said order.
4. Respondent then filed Rent Case No,973/1987 against the appellants who had succeeded as tenants being the heirs of the original tenant late Dilawar John. The grounds on which the eviction was sought, were default and personal bona fide requirement. The appellants contested ejectment application and filed written statement in which they contended that neither they were defaulters in payment of rent nor the premises in dispute were required by the respondent for the use and occupation of his son Muhammad Haroon for whom respondent stated that the premises were required.. Respondent filed his own affidavit-in-evidence Exh.4 and gave the details of the period of default and also about requirements of the disputed premises for Muhammad Haroon, the son of respondent. Appellant No,1 filed his affidavitin-evidence denying both default and personal requirement. He produced as many as 8 receipts of payment of rent of the disputed premises in the account of respondent in the National Bank of Pakistan. He also produced 4 money order coupons and receipts Annexures 3-1 to 3-4 showing that the rent was offered to respondent who had refused to accept the same, whereafter it was deposited in the office of the Rent Controller.
5. The learned Rent Controller framed the following points for determination:
(i) Whether opponents have committed wilful default in payment of rent?
(ii) Whether applicant requires the demised premises for personal bona fide use of his son Muhammad Haroon in good faith?
(iii) Whether the application is not maintainable under Order II, rule 2, C.P.C.?
(iv) What should the order be?
6. On assessm ent of evidence the learned Rent Controller decided both the issues No,1 and 2 regarding default and personal need in favour of the respondent. Issue regarding maintainability of application was also decided against the appellants. As a result thereof, application for ejectment was allowed and the appellants are directed to hand over the vacant possession of the premises to respondent. This appeal is directed against the said order.
7. Mr. M.L. Shahani, learned Advocate for the appellants has contended that no account of rent was filed by the respondent in so far as deposits made by appellants were concerned. After the conclusion of evidence and arguments, the learned Rent Controller summoned the record from the office of Nazir and without notice to appellants, dug out the default on his own, and held erroneously that appellants were defaulters. It is next contended that the learned Rent Controller has not even cared to see that before the Small Causes Court, respondent had alleged that there were arrears of rent against the ancestor of appellants but he soon realised that there was no default and on the basis of his statement, application for distress warrants was dismissed. It is also pointed out that there is no explanation by the respondent with regard to refusal of money orders sent to him by the appellants whereafter timely deposits of rent were made in the Court. The calculation, made by the respondent were not substantiated through evidence and observation of the learned Rent Controller that he had summoned the record of the Nazir and found that appellants were defaulters, cannot be considered as evidence of default against appellants.
8. It is next contended that admittedly, other premises owned by the respondent on the ground floor and in the same building were vacated by another tenant but were not occupied by the respondent or his son Muhammad Haroon. Even the offer made by the appellants that they were ready to occupy the vacant premises on the ground floor and vacate the disputed premises, if the landlord so agreed, was not properly appreciated by the Rent Controller and that this clearly proved mala fides of the respondent. The contention of the learned Advocate further is that although respondent filed two Nikhanamas of his daughters, he did not bring anything on record to show that Muhammad Haroon was either married or was to marry and that for his need the premises were required. Even Muhammad Haroon was not examined to support the respondent on that issue. It is lastly contended that none of the pleas raised by appellants are discussed in the impugned order and it shows that the Rent Controller has not applied his mind judicially to the facts of the case. In support of these contentions the learned Advocate has referred to Province of Sindh and 3 others v. Agha Sikandar Ali Khan 1990 CLC 1644, wherein while dealing with the appeal of the landlord who failed in getting eviction of the tenant, it was held that it was necessary on the part of landlord who was in occupation of other premises which belonged to him to prove that said premises did not cater for his needs. The appeal of the landlord was dismissed. Reliance is also placed on Hassan Malik v. K.R.S. Iyer 1990 CLC 1729, where this Court held that by withdrawing the rent disposited in Court the landlord had waived his right to proceed against tenant for eviction on ground of default. It was also held that the dismissal of landlord's ejectment application was rightly ordered. The learned Advocate then referred to Mrs. Ruby Misso v. Miss Kaniz Fatima and others 1990 CLC 1320, where this Court maintained the finding of the Rent Controller who while deciding the issue of personal bona fide requirements, had held that the landlord having rented out portion of premises during pendency of ejectment proceedings and there being no evidence that portion in possession of landlady was not suited to her need, had dismissed ejectment application.
' Reliance is also placed on Inayatullah v. Zahoor-ud-Din and another 1987 SCMR 1313, where the Hon'ble Supreme Court held that the landlord deliberately created difficulties in the way of tenants by not accepting the rent in the hope that some omission or slip on the part of the tenants may enable him to carve out a ground for their eviction. The default in payment of rent for two months was held to be not wilful.
9. Mr. Rashiduddin the learned Advocate for the respondent has supported the impugned order and has contended that the respondent had shown the period of default in his ejectment application. He argued that the burden was not on the landlord to prove that rent was received but it was on the tenants to show that they had paid the rent. In support of this contention he has referred to Allandin v. Habib PLD 1982 SC 465, where the Hon'ble Supreme Court held that the landlord having appeared in Court and stated on oath to have not received rent for a certain period, the burden lying upon him was sufficiently discharged and it shifted on tenant to prove affirmatively that he paid or tendered such rent. On the same point, he also referred to Syed Khadim Abidi v. Mst. Geti Ara Begum PLD 1986 Karachi 184, where this Court observed the burden of proof to establish that tenant had not paid or tendered rent would be discharged by landlord's statement on oath in Court that he had not received rent. It was also observed that onus would then shift to tenant to prove affirmatively that he had paid or tendered rent for period in question.
10. It is next contended that a portion on the ground floor was lying vacant when rent case was filed against the appellants and this portion was rented out in the year 1990 to other tenant namely Muqeem. The learned counsel states that the vacant portion on the ground floor, subsequently rented out the Muqeem was not adequate for the resuirements of respondent's son Muhammad Haroon and was therefore rented out during the pendency of ejectment proceedings. It is lastly contended that bona fide personal requirement of respondent for the need of his son was duly established and the impugned order therefore, needs no interference.
11. I have heard the arguments of the learned counsel and have gone through the impugned order, the evidence on record and the case-law referred. On the point of default the finding of the learned Rent Controller is based mainly on his observation that he had called the record of the Nazir and had found out that total amount of rent due was not deposited by appellants. This exercise by the Rent Controller was undertaken after the close of evidence and conclusion of arguments by the counsel for the parties. No notice was given at least to the counsel for appellants to have explained to the Rent Controller, that full amount of arrears was deposited and there were no dues. The conduct of the respondent in refusing money orders further shows that the tenants were C all along ready and willing to pay the rent whatever due, but the landlord avoided to receive the same and consequently all rent due was deposited in Court. The respondent is shaky in his evidence and has given different periods of default in his application and evidence. I have perused the evidence of the parties and find that there was no default much less wilful default. The finding of the Rent Controller therefore, on the issue of default is not sustainable.
12. On the issue of personal requirement there seems a desire on the part of the respondent to cause harassm ent to the tenants by initiating proceedings which had no substance. He first filed an application for distress warrants on the ground that the tenant was defaulter but made a statement in Court that he had received all rent dues and his application was dismissed. He then filed an application under section 14 of the Ordinance which was dismissed and on remand of the case by this Court in appeal, it was again dismissed but no appeal was filed by the respondent.
Having thus failed to succeed in getting appellants ejected, he came with a new plea of default and personal requirement. It is not denied that other portion of the premises on the ground floor had fallen vacant which was rented out by the respondent to a new tenant. Even if he had really needed the disputed premises bona fide and in good faith for accommodating his son Muhammad Haroon, he would have accepted appellants' offer that they were prepared to vacate disputed premises and occupy the vacant portion on the ground floor. Such conduct of respondent, and particularly when Muhammad Haroon is not examined, proves mala fide of the respondent. The finding of the learned Rent Controller on the issue of bona fide personal need and requirement of disputed premises for respondent's son can also not be sustained.
13. It may also be observed that the ground of non-maintainability of application under section 11, Rule 2 of C.P.C. Which was urged by appellants learned Advocate has no force and finding of the Rent Controller on that issue is maintained.
14. As a result of above discussion the appeal is allowed and the impugned order is set aside.
Ejectment application filed by the respondent stands dismissed. In the circumstances of the case, the parties shall bear their own costs.