' This is an appeal against the ejectment order passed by the learned Bird Rent Controller, Karachi (East), dated 29th October, 1992 on the ground of wilful default and impairing the value and utility of the premises. Respondents/applicant had also sought ejectment on the ground of bona fide personal need, but this plea was rejected by the learned Rent Controller.
2. The appellant in his written statement has taken the ground that there is no default. Respondent used to live out of Karachi, and used to collect the rent whenever she came to Karachi. She left for U.K. Rs,12,000 were paid to her as advance rent by demand draft. Upon her return appellant offered Rs,8,000 being rent for the month of September and October 1988, but she refused, and demanded Rs,20,000 as arrears of rent. As regards the bona fide personal need of premises in question, in written statement it was asserted that daughter of the respondent for whose need premises was required is the married lady, and is a very rich person and living in a very good house.
' As regards to the damage of house in question, the fact was denied.
3. On the pleading of the parties the learned Rent Controller framed the following issues for determination:
(1) Whether the opponent is wilfully defaulter in payment of rent and the water conservancy charges?
(2) Whether the opponent damaged the premises which materially impaired the value and utility of the premises?
(3) Whether the demised premises is required in good faith for the personal use and occupation of her daughter?
(4) What should the order be?
' Finding of the learned Rent Controller on Issues Nos.1 and 2 is in affirmative and on Issue No,3 is in negative.
4. It has been argued by the learned counsel for the appellant that there is no default in payment of the rent as rent of three months was paid in advance and the respondent refused the receipt of payment of remaining two months when offered to her. He has further argued that before the appellant could make an application for deposit of rent in Court, ejectment application was filed and on Court's order, the appellant has been regularly depositing the rent. He has further argued that he has not done any act towards impairing the value and utility of the premises. Premises being old has of course had suffered some damage.
5. The learned counsel for the respondent has argued that Rs,12,000 were arrears of rent. At the time when rent of two months was offered to the respondent rent due to the appellant was five months amounting to Rs,20,000 which respondent demanded. He further argued that rent was first time deposited on 15-3-1989 no effort was made to pay the rent to respondent before 15-3-1989.
He has further argued that inspection report by the Commission appointed by the Court clearly shows that premises has been damaged by neglect non-maintenance and also due to the fact that only servant is residing there and not the appellant. He has further argued that according to the tenancy agreement appellant was to properly maintain the premises.
6. An admitted fact is Rs,12,000 has been paid to the respondent, but it has to be determined whether it was arrears of rent or advance rent. According to the respondent there were arrears of rent prior to July 1988, and according to the appellant this was advance rent from month of July. If it is advance rent this advance will cover the rents for month of July, August and September. If so then at the time rent was offered in the month of October, there would be arrears of rent of only one month i,e, October 1988 and not of two months September and October as stated by the appellant. If Rs,12,000 were arrears of rent for the months prior to July 1988, then there would be rent of five months due to appellant at the time he offered rent, which amounts to Rs,20,000. This is a figure that respondent was demanding. In comparing both the proposition it appears that those Rs,12,000 were arrears of the rent and not advance rent. The burden of proof lies on the tenant to prove the payment of rent. Even otherwise the rent has been deposited in the Court on 15-3-1989.
The appellant has not deposed in evidence before the trial Court that he made any attempt to tender rent to the respondent before depositing the same on the order of the Court, except once in the month of October when respondent had refused to accept Rs,8,000 and demanded Rs,20,000.
Even if the version of the appellant is to be believed at the time he deposited the rent, he was in arrears of rent for the month of September, 1988 to February, 1989 thus this is default of six months which clearly shows him defaulter.
7. As regards issue of impairing the value and utility of the premises is concerned, appellant examined himself and the respondent examined herself and they have given their own version.
Apart from this the premises in question were examined by Mrs. Navin S. Merchant, Advocate who was appointed as a Commissioner by the Court to inspect the premises in question.
8. Below are findings of the inspection report:
(i) The physical condition of the premises was bad and it seems that the house though very spacious but not maintained at all.
(ii) There were three bed rooms out of which one was locked, one bed room with only one bed, with attached bathroom and the remaining bed room was without bed or any other furniture and the bathroom of which seemed to have not been used since long as there was a thick layer of dust on the sanitary fittings.
(iii) Several glasses and nets of the windows were broken.
(iv) The wall near entrance of the outside gate as well as inside the gate was cracked due to long- needed maintenance.
(v) There was railing before the main entrance to the house that too was broken and in a bad shape.
(vi) One main hole of the sewerage line was without cover.
(vii) The house badly needs maintenance and repairs as it seems that damage is due to carelessness and has been neglected since long. The drawing dining hall consists only one sofa set without dining table.
(viii) There was a guest room on the terrace which was occupied by Chowkidar and his family which too looked in a bad shape due to cracks in wall and broken window glass and net."
9. This clearly shows that the premises is not properly maintained, and is grossly neglected.
According to rent agreement vide para. 9, the lessee shall make all repairs in the course of normal use and those incidental to damage arising from negligence or misuse on the part of the lessee. It was the duty of the tenant to properly maintain the house which he has failed. The learned Rent Controller has rightly upheld that the premises was damaged which were materially impaired the value and utility due to the negligence by the appellant.
10. In view of the above discussion I am not inclined to interfere with the judgment of the lower Court. The appeal is dismissed with no order as to costs.
' These are the reasons of my short order already passed.