AJMAL MIAN, J.---This is an appeal with the leave of this Court against the judgment dated 20-11- 1991 passed by a learned Single Judge of the High Court of Sindh in FRA No,870 of 1987, filed by the respondent reversing the order of dismissal of Rent Case No,1227 of 1986 dated 31-8-1987 passed by the learned VIth Senior Civil Judge and Rent Controller, Karachi (South), and granting ejectment in respect of the suit flat on the ground of personal requirement of the respondent's son and default. Leave to appeal was granted to consider the questions, whether the appellant had defaulted in payment of rent, and whether the claim for personal requirement was bona fide.
2. The brief facts are that the respondent filed the above rent case on the ground of default for the period commencing from 1-2-1984 till the filing of ejectment application on 20-9-1984 and personal requirement of his son Ali Muhammad. The above application was resisted by the appellant inasmuch as written statement was filed, in which it was averred that the appellant had tendered rent personally and thereafter by Money Order which was refused and after that in Rent Miscellaneous Application No,359 of 1985, rent was deposited. The ground of personal requirement was also denied. It was averred that the respondent had shifted to Hyderabad where he was living along with his family and that there was no bona fide need. The learned Rent Controller, after framing issues, recording evidence and hearing of the parties, by his aforesaid order, dismissed the above rent case on both the grounds. Thereupon, the respondent filed aforementioned FRA which was allowed by the learned Judge-in-Chamber through the judgment under appeal. After that, a petition for leave to appeal was filed, which was granted to consider the above questions.
3. In support of the above appeal, Mr. Suleman Kassam, learned ASC appearing for the appellant, has urged that the learned Rent Controller was justified in exercising discretion in favor of the appellant by declining to grant ejectment on the ground of default keeping in view the peculiar facts of the present case inasmuch as the respondent had shifted to Hyderabad without providing address to the appellant and that the respondent himself was instrumental in bringing about the alleged default. He has further submitted that factually there was no default as the appellant had paid a sum of Rs,500 to the respondent's son Imtiaz and thereafter on 1-12-1984 sent a Money Order, which was refused and after that the appellant started depositing rent in the above miscellaneous rent case. In furtherance of his above submissions, he has relied upon the case of Inayat Ullah v. Zahoor-ud-din and another (1987 SCM R 1313) and an unreported order of this Court dated 9-1-1990 refusing leave in Civil Petition for Leave to Appeal No,97-K-1989 (Karimjee through his Legal Heirs v. M/s. Lakani Steel Corporation and others).
4. In the above reported case, this Court dismissed the landlord's appeal inter alia by observing that the record showed 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. Whereas in the unreported Order, this Court, while declining leave to appeal against the judgment of the High Court, observed that "the Rent Controller should decide the question of default with reference to the facts of each case. If a landlord himself has been instrumental in creating the ground for default, the tenant cannot be penalized".
5. There cannot be any cavil with the above propositions of law enunciated in the above judgment and order of this Court. However, the question is, as to whether the above principles can be pressed into service in the present case. It may be observed that the appellant in his written statement did not raise any plea to the effect that he had allegedly paid Rs,500 to the respondent's son Imtiaz 411 February, 1984. However, at the evidence stage he came out with the above plea. If we were to disbelieve the above plea, the default stands proved as the appellant sent Money Order in December, 1984. Mr. Suleman Kassam has submitted that the above plea of the appellant was not an afterthought as this plea was raised by the appellant in his above Miscellaneous Rent Application No,359 of 1985. It is true that in Para. 2 of the above application which was filed in 1985, the appellant had made the following averment:- "2. That for collecting the rent from February, 1984 the opponent did not come to the applicant as he usually comes. The applicant went to his residence at Karachi but no trace could be found. After great effort his son was found whom the applicant paid Rs,500 towards rent tentatively in February, 1984."
6. It is significant to note that in the above Para. The name of the respondent's son has not been mentioned. It is also not explained as to how this important fact of having paid Rs,500 to the respondent's son Imtiaz was not pleaded in the written statement which was filed in October, 1986.
On the contrary in Para. 3 of the written statement, the following assertions were made:-- "3. That the contents of Para 2 of the application are denied. The opponent has paid all rent and the allegations that rent has not been paid since 1-2-1984 is false. The opponent tendered rent personally and thereafter by money order which was refused. The rent was deposited in Court up to date in Rent Miscellaneous Application No,3590 of 1985 which has been drawn by the applicant from this Court." February, 1984, does riot seem to be plausible as the rent of the suit flat is Rs,105 per month and, therefore, the appellant would have paid either Rs,525 being the rent for five months or Rs,420 as the rent for four months. Additionally, the appellant has not stated as to where he met the respondent's son. The above averment belies the appellant's plea that he was not aware of the respondent's address after he left for Hyderabad.
7. In our view, the learned Judge-in-Chamber on the basis of the material on record could conclude that the learned Rent Controller was not justified in declining the ejectment on the ground of default. There is no reliable material on record to prove that the respondent was instrumental in creating the above default. We would, therefore, maintain the finding of the High Court on the question of default.
8. As regards the personal requirement keeping in view the material brought on record by the appellant in the form of certified copies of the applications bearing Nos.1282 of 1986, 1283 of 1983 and Rent Case No,1285 of 1986 and the order passed therein, and the fact that neither the respondent nor his son Ali Muhammad has specifically stated that the flat was required for Ali Muhammad. The High Court was not justified in reversing the finding of the learned Rem Controller on the above ground. We would, therefore, set aside the finding of the High Court on the above question an would restore the finding of the learned Rent Controller.
9. Since we have maintained the finding of the High Court on the question of default, the ejectment order is sustained. The appeal is dismissed with no order as to costs. However, we grant six months' time at the request of learned counsel for the appellant on the condition that the appellant shall continue to pay rent regularly and further subject to the condition that the appellant shall hand over the vacant possession of the suit flat without waiting for the issuance of notice by the Rent Controller and in case he fails to hand over the vacant possession of the suit flat on the expiry of the above period, the Rent Controller shall issue a writ of ejectment without any further notice to the appellant.