' In this appeal, the appellant has called in question the order dated 15-2-1997 of Rent Controller, Clifton Cantonment, Karachi, whereby he allowed the ejectment application of the respondent and ordered the appellant to vacate the premises within 30 days.
2. Briefly the facts are that respondent, the owner and landlord, filed application for ejectment against the appellant under section 17 of the Cantonment Rent Restriction Act, 1963, (hereinafter referred to as the Act), stating therein that he rented out a portion on the ground floor of his Property bearing No,60-C, 13th Commercial Street, Phase-II, Extension, Defence Housing Authority, Karachi to appellant at the rate of Rs,2,000 per month i,e, Rs,1,000 as rent and Rs,1,000 as hire charges excluding water, conservancy, electricity, telephone charges etc. Vide a written tenancy agreement dated 12-3-1987 to be payable on or before 15th of each month. It is further said that appellant proved herself a chronic and habitual defaulter, always irregular and irresponsible towards payment of monthly rent and conservancy charges and lastly paid the rent in May 1994, whereafter no rent was paid, tendered or offered in any manner whatsoever. The respondent being a well-qualified person and having served Pakistan Air Force for 20 years and retired as Wing Commander on 31-1-1988 and was also in the field of teaching since 1957 and after retirement also served as Assistant Professor in Defence Housing Authority, Degree College from where he retired on 31-8-1994. His case further is that since last two years he has been requesting verbally as well as in writing to the appellant to vacate the premises as he requires the same genuinely, bona fide and in good faith for his own use for running a Coaching Centre therein on the basis of his long life experience in the field of education. With regard to the default, the respondent mentioned in the rent case that appellant not only failed to pay the rent after May 1994 but has also failed to pay the water and conservancy charges for last four years at the rate of Rs,750 per year and it was on 4- 12-1994 when he received a notice of Miscellaneous Rent Application No,92 of 1994, from the Office of Controller of Rents where he had deposited the rent of the premises from July, 1994 to December, 1994. As such he has committed a wilful default in the payment of rent. It was further mentioned that the appellant has kept the rented premises locked since last more than two years and is not carrying on any business therein but is using the same as a godown for storing certain goods and articles and as such she is liable to vacate the said premises by virtue of section. 17(2)(ii)(v), besides subsection (2) (1) and subsection 3, 4(b)(i)(ii)(iii) of section 17 of the Act.
3. The appellant in his written statement denied the case of the respondent and stated that the plea of personal need agitated by the respondent is not correct; and that she has not committed any default in payment of monthly rent as well water and conservancy charges as alleged. In fact she was regular in payment of monthly rent and other charges since inception of tenancy and sometimes the monthly rent was received by the respondent himself and at other times by his brother Sultan Mohiuddin through whom the tenancy agreement was executed. She always trusted upon them and they usually never issued receipt in time on one or the other pretext and always issued the same late usually after 2/3 months. So far as the rent for the month of July, 1994 is concerned, it is said that the said rent was paid to the brother of the respondent who did not issue receipt and promised to deliver the same later on but with bad intention and ulterior motives withheld the said receipt thereafter she tendered the rent of July and August, 1994 through cross Cheque vide No,25697777 dated 4-9-1994 amounting to Rs,4,000 and issued another Cheque in favour of respondent for the months of September and October, 1994 vide Cheque No,25697780 on 12-9-1994 of Rs,4,000. Her case further is that she tried to contact the respondent and his brother in November, 1994 but failed as they avoided meeting and receiving the rent. On 1st December, 1994 she succeeded to meet with the respondent and tendered the rent for the month of November, 1994 but he refused to accept the same and then she enquired from the bank concerned and found that respondent did not encash the said cheques and thereafter there was no alternate but to deposit the rent in Court. It is further stated by her that she has paid the rent upto 1993 with an excess amount of Rs,250 for which she was not supplied bills hence she has not committed default in the payment of monthly rent as well as water and conservancy charges. Regarding personal use she contended that it does not appear to be bona fide as Coaching Centre is an illegal business.
She has also averred in her written statement that respondent, the owner of the three other portions of the building has rented out the same on higher rates to different persons including one leather garment factory, hence he has not come with clean hands. She has lastly alleged that the respondent in fact had, demanded the enhanced rent of Rs,6,000 per month excluding the other charges which she refused. She has also incurred a sum of Rs,16,000 in order to make the premises in good condition, hence he filed the above rent case.
4. On the basis of the pleadings of the parties the learned Controller framed the following issues:-- "(1) Whether the opponent has committed default in payment of monthly rent since June, 1994?
(2) Whether the premises in opponent's possession is genuinely and in good faith required by the applicant for his own personal bona fide need to run a coaching centre therein?
(3) Whether the opponent has ceased to occupy the rented premises for more than last two years and is using the same as godown, if so to what effect?
(4) What should the order be?"
5. Respondent filed his own affidavit in evidence alongwith affidavit of his brother Sultan Mohiuddin and produced original tenancy agreement and carbon copies of rent receipt dated 22-5-1994 certified copy of Miscellaneous Rent Case No,92 of 1994.
6. Appellant filed affidavit in evidence of her husband, namely, Mian Manzoor Ahmed said to be her attorney and his employee Shamsuddin. He alongwith affidavit produced original tenancy agreement, carbon copy of rent receipt dated 22-5-1994 issued to the opponent for May. 1994, certified copy of Miscellaneous Rent Case No,92 of 1994, certified copy of Court's ledger showing first deposit of rent by the opponent in December, 1994, photo copies of Degrees and certificates showing his qualification and retirement letter from P.A.F., retirement letter from Pakistan Defence Officer Housing Authority, commendation certificate and carbon copies of vacation notices/rent receipts.
7. The parties filed their written arguments and referred case law.
8. The learned Rent Controller decided Issues Nos.1 and 2 in affirmative, Issue No,3 was not pressed whereas vide Issue No,4 allowed the ejectment application.
9. I have heard the learned counsel for the appellant and learned counsel for the respondent at length. Mr. Muhammad Abdullah for the appellant mainly reiterated the arguments advanced in the rent case as well as taken in the written statement. He contended that respondent has failed to prove the genuine need of personal bona fide use of the disputed premises in the lower Court as such is not entitled to possession. He further argued that appellant has not committed any default in payment of rent and has been paying the same all along to the respondent or his brother Sultan Mohiuddin either by way of tendering the same in person or by sending the same through cheques. They used to issue the receipts after 2 or 3 months of tendering the rent and about the rent of the month of June, 1994 they did not issue receipt in spite of repeated demands. It is further submitted that the rent for the month of July, August, September and October 1994 was sent through cross cheques of Rs,4,000 by appellant's attorney thereafter, the rent was deposited in Miscellaneous Rent Case No,92 of 1994 which has been proved from his evidence and evidence of his witness produced by them in the Lower Court. In support of his contentions he has relied upon the following cases:-
(i) Bin Yameen and 3 others v. Chaudhry Hakim and another 1996 SCM R 336.
(ii) Messrs F.K. Irani & Co. v. Begum Feroze 1996 SCM R 1178.
10. Learned counsel for the respondent mainly relied upon the grounds agitated by him in his case in the Lower Court and stated that appellant has failed to refer any illegality or irregularity or misreading or non-reading of evidence of any sort from the order of the Rent Controller. He further argued that the Rent Controller has rightly termed appellant as defaulter and also correctly observed that the respondent is in personal bona fide need of the disputed premises. Learned counsel further contended that the rent for the month of June, 1994 was never paid and that the rent from July, 1994 onwards was also neither paid nor tendered by the -appellant till December, 1994 whereafter on 5-12-1994 the rent for last six months was deposited in Miscellaneous Rent Case No,92 of 1994 for the first time. According to him, appellant neither mentioned anything about counter-foil of the cheques in written statement nor in miscellaneous rent case, as such production of photo copies of counter-foils for the first time alongwith affidavit makes it absolutely unworthy, particularly when there are lot of manipulations over the same. On the personal bona fide use, learned counsel submitted that respondent in his affidavit fully proved that he is a retired person and is in utter need of opening a Coaching Centre for his livelihood. The appellant though fully cross-examined the respondent and his witness but could not shatter their evidence on both the grounds. In support of his above contentions he placed reliance on the case reported as 1996 M LD 1717, and 1996 SCM R 1178 (e) wherein it has been held as under:-- "(e) S. 15---Bona fide personal need of landlord---Merely because the husband of landlady had 62 shops in one area and 21 shops in another, would not disentitle her to apply for ejectment on the ground of personal requirement of her son as it is for a landlord/landlady to select as to which of the buildings he she/wishes to use personally or to provide the same to his/her children."
11. I have given anxious thought to the contentions advanced by the learned counsel for the parties and have gone through the evidence recorded by the learned Rent Controller. Apparently eviction was sought on the grounds of personal bona fide need and default in the payment of rent. The plea that respondent rented a portion on the ground floor of disputed premises at Rs,2,000 Rs,1,000 as rent and Rs,1,000 as hire charges (excluding water, conservancy, electricity and telephone charges) since 1987 as per tenancy agreement, is proved and is not disputed by the appellant.
About default respondent as well as his brother in their affidavits as well as in cross examination have specifically said that appellant has failed to tender rent from June 1994 till 5-12-1994 when for the first time he deposited the rent amounting to Rs,12,000 from July, 1994 to December, 1994 in Miscellaneous Rent Case No,92 of 1994. The rent for the month of June, 1994 was neither paid to the respondent or his brother nor was deposited by the appellant in the said miscellaneous rent case at any time. The appellant has not been able to break this contention of the respondent though he was sufficiently cross-examined. On the contrary the appellant Mian Manzoor Ahmed, Attorney of Mst. Farida Manzoor, the original appellant, in his cross-examination has admitted that he is not in possession of any rent receipt from June, 1994 till the date of his examination. He has also admitted that he deposited the rent from July, 1994 to December, 1994 in Miscellaneous Rent Case No,92 of 1994. He in cross-examination has stated that he issued cheques to Sultan Mohiuddin and obtained receipts and also admitted that in miscellaneous rent case as well as in written statement he has not so mentioned about the obtaining of the receipts of the cheques. About the counter-foil of cheques he denied the suggestion that the same are forged. On the face of it the counter-foils of the two referred cheques show cutting and interpolation tendering their sanctity entirely doubtful and unworthy. For the purpose of evidence these sorts of documents cannot even, be taken into consideration. From the evidence of both sides it becomes crystal clear that the rent for the month of June, 1994 has never been tendered or deposited by the appellant. So far depositing of rent in miscellaneous rent case on 5-12-1994 for the month of July to December, 1994, on the face of it shows that the said rent was deposited on 5th December, 1994, making appellant a clear defaulter. Once a tenant is proved to be a defaulter, even late payment of rent will not take him out of the category of defaulters. Since the plea of counter-foil of the cheques was not taken in the written-statement as well as in miscellaneous rent case by appellant, therefore, evidence recorded on the same if any cannot be relied upon. Honourable Supreme Court in the case of Bin Yamin and 3 others v. Ch. Hakim and 6 others, 1996 SCM R 336 (e) has held as under:-- "Practice and procedure---No evidence can be led or looked in support of a plea which had not been taken in pleadings."
12. In the case of Noman Ahmad v. Mst. Ghazala Iqbal 1996 M LD .1717, this Court dismissed first rent appeal on the ground of default as well as personal bona fide use exactly having the same facts as that of the case in hand.
13. On the ground of personal bona fide use, the respondent in his ejectment application as well as affidavit in evidence has categorically stated that he being highly qualified experienced teacher and having retired as Assistant Professor from Defence Housing Authority Degree College on 31st August, 1994 is jobless and wants to run his own Coaching Centre in the disputed premises. His educational experience and qualifications referred above has not been challenged by the appellant and simply saying that Coaching Centre is not a legal business will not take away his right of asking disputed premises for his personal bona fide use. The learned Controller has rightly observed that the rented premises in possession of the appellant is required by the respondent in bona fide good faith for his Own personal use for running a coaching centre for which he has ample experience. On personal bona fide need, Honourable Supreme Court in the case of M/s F.K.
Irani & Co. v. Begum Feroz 1996 SCM R 1178, has observed at plaeitum (d) and (e) as under:-- "(d) S. 15---Bona fide personal need of landlord---Suitability of opening a departmental store by landlord in any one of the available premises entirely depends upon the choice of the landlord--- Such need and choice, however, should be real, genuine . And not tainted with mala fides."
"(e) S. 15---Bona fide personal need of landlord---Merely because the husband of landlady had 62 shops in one area and 21 shops in another, would not disentitle her to apply for ejectment on the ground of personal requirement of her son as it is for a landlord/landlady to select as to which of the buildings he/she wishes to use personally or, to provide the same to his/her children."
14. For the above said reasons, I am of the opinion that learned Controller has rightly exercised the discretion in favour of the respondent/landlord and there is hardly any ground to interfere with his findings. Accordingly, the appeal is dismissed in limine. The appellant is ordered to vacate and hand over disputed premises to the respondent within 60 days.