1. This appeal under section 21 of the Sindh Rented Premises Ordinance (hereinafter referred to as the Ordinance) is directed against the judgment dated 29-1-1987 passed by learned Controller, Karachi-East directing eviction of appellant Mushtaque Ahmed (since dead) now represented by his legal heirs from ground floor flat situated on Plot No.550-C, Central Commercial Area, P. E. C. H.
2. S., Karachi.
3. Appellant is the tenant of respondent No. l in respect of the demised premises since 25-9-1979.
4. According to respondent No. l the agreed rate of rent was Rs.800 per month whereas appellant claimed that the rate of rent was Rs.350 per month which was-the rent being paid by the previous tenant, namely Zahid Shah from whom he obtained possession of the demised premises on 10-7- 1979.
5. Ejectment of the appellant was sought on the ground firstly, default in payment of rent w. e. f. 1-10- 1979; secondly, subletting a portion of the premises to respondent No.2 and thirdly, bona fide need and requirement of the premises for the use of respondent-landlady and her son.
6. On assessm ent of relevant evidence on record and hearing learned counsel for the parties, learned Controller decided issues relating to default and personal requirement against the appellant. On the issue of subletting he held that subletting in favour of respondent No.2 was not proved. It may however, be observed that respondent No.2 though served with the notice of ejectment proceedings did not contest the eviction proceedings as well as this appeal.
7. Learned counsel appearing for the appellants mainly contended that the rate of rent being mutually agreed at Rs.350 per month, on the refusal of the landlady the same had been sent to her by money order and subsequently deposited in Miscellaneous Rent Case 'thus there was no default in payment of rent as alleged. On the other hand, it is the case of the respondent that in fact premises were let out to the appellant at monthly rent of Rs.800 per month which obviously appellant failed to pay and thereby he committed a willful default. It is admitted position that the previous tenant Zahid Shah used to pay Rs.350 as rent per month. The case of the deceased appellant is that since he had paid a sum of Rs.50,000 to said Zahid Shah and Rs.15,000 to the attorney of respondent No. l for change of tenancy, landlady had agreed to receive rent at the rate of Rs.350 per month. There is however, no reliable evidence to believe that the deceased appellant had paid a sum of Rs.50,000 to Zahid Shah for parting with possession of the demised premises but assuming that he had paid the said amount to him landlady derived the least benefit from the said payment. As to the payment of Rs.15,000 to the attorney of the landlady a valid receipt was issued in favour of the deceased appellant acknowledging receipt of this amount by way of fixed security deposit in respect of the tenancy. This payment being in the nature of fixed security deposit and not by wax of consideration for change of tenancy and duly acknowledged by the attorney of the landlady is refundable. In these circumstances, it is difficult to accept the version of the appellant that landlady had agreed to receive rent at the rate of,Rs.350 per month. After vacation of the premises by the previous tenant it would be quite unusual and uncommon that a landlady would induct a new tenant on payment of same amount of rent in the commercial area of P.E.C.H. Society where the rates of rent are raised from time to time. Appellant examined Estate Broker Ghulam A.I to prove the tenancy in his favour at the rate of Rs.350 per month on payment of Pugree of Rs.50,000 to Zahid Shah but his evidence was not accepted by learned Controller. In the facts and circumstances of the case, I am also not impressed by the oral and interested version of this witness which does not inspire much confidence. Position emerging in the above circumstances is that the appellant had deposited rent at Rs.350 per month muchless than the agreed rate of rent and thereby committed a wilful default in payment of rent.
8. With regard to the personal need and requirement of the premises by the landlady for herself and her son Mehboob Ahmed Agha there is enough reliable and convincing evidence on record to support the view that the need of the landlady and her son is bona fide and in good faith. In his evidence, Mehboob Ahmed Agha stated that his mother being an Officer in the Federal Government and serving at Islamabad has no other property or accommodation at Karachi. He stated that the demised premises are needed for the use and occupation of his mother as well as his sister Mrs. Zarina Agha, his brother Saleem Agha and for himself. At the time of his evidence in October, 1982 he clarified that all the sons/daughter are major and studying in different Colleges.
9. He further asserted that the need of the respondent for the premises is genuine and without any element of fraud. During his cross-examination he frankly conceded that his mother being, a Central Government employee was posted at Islamabad since 1964. He also conceded that his other brother and sister were living at Islamabad but he himself was studying in Dow Medical College, Karachi. This material statement of fact was not controverted but strangely appellant led the evidence of one Muhammad Ayub to substantiate his new plea that one tenement each on first floor as well as second floor of the building lying vacant and locked for the last about three years were in possession of the landlady. I am afraid, this additional evidence is far beyond the pleas of fact raised in the written statement spread over six pages which cannot be legally considered. It may be pertinent to observe that no such question was put to the attorney of the respondent No. l who cannot be taken by surprise and condemned unheard. In case, the appellant intended to lead this evidence, in rebuttal of the case founded by respondent No. 1, he was legally required to amend his pleadings with the permission of the Controller and in any case not to introduce entirely new case without notice to the landlady.
10. Learned counsel for appellant relied upon Walumal v. Muhammad Moosa 1986 CLC 1831 in support of his argument that the landlady could not press personal requirement as she had not mentioned necessary particulars with regard to personal bona fide need in her ejectment application. It would seem that ejectmtnt application mentions broad facts tending to indicate personal need and requirement of the respondent and her son attorney for demised premises which has been very clearly established in the evidence produced before the Controller. The reported case is thus of no assistance to the appellant. Similarly reliance on Hafeezullah v. Allah Din 1987 CLC 1722 is completely misconceived in view of distinguishable facts. Learned counsel also relied upon 1984 CLC 755, 1986 CIC 448, 1986 CLC 696, 1986 CLC 1751, 1987 CLC 333, 1987 CLC 1988, 1987 M LD 262, 1987 M LD 2110 and 1988 CLC 793 in order to demolish personal requirement of the landlady but in my view all these cases are distinguishable on facts and of no avail.
11. For the foregoing reasons, there is no merit in this appeal which is dismissed. Appellant is allowed 60 days' period to hand over vacant possession to respondent No. 1.