1. This First Rent Appeal has been filed by the appellant/tenant against judgment dated 18-11-1997 passed in Rent Case No,644 of 1995, whereby the learned Rent Controller allowed the eviction application filed by the respondent/landlord and directed the appellant/tenant to vacate the rented premises within sixty days and put the respondent in vacant peaceful possession.
2. The brief facts leading to the filing of this appeal are that the respondent is the owner/landlord of House bearing No,152, Block 13, F.B. Area, Karachi, while the appellant is his tenant, occupying the front portion of the said house on a monthly rent of Rs,2,000 since 1990 who has also deposited a sum of Rs,12,000 as security deposit with the respondent. According to the respondent, he requested the appellant/tenant to vacate the rented premises as the same were required by him for his personal bona fide use and the tenant promised to vacate the same and kept him on false hopes. On 8-10-1995, the respondent served a legal notice by registered post A.D. on the appellant and requested him to vacate the premises on the ground of personal bona fide need but he flatly refused to do so. Thereafter, the respondent filed Rent Case No,641 of 1995 on the ground of personal bona fide requirement of the premises and default in payment of rent by the appellant from April, 1996 onward.
3. Notices were issued to the appellant/tenant in response to which he filed his Written Statement wherein he raised objection to, the maintainability of the application, as being frivolous. He also denied that the premises in his possession are required by the respondent for his personal bona fide need or that he has committed default in payment of rent. He further denied that he has violated the terms and conditions of the Tenancy Agreement.
4. In order to prove their respective cases, the respondent and the appellant filed their respective affidavits-in-evidence and they were cross-examined.
5. On the basis of the pleadings the learned Rent Controller framed the following issues:-- "(1) Whether the application is not maintainable?
(2) Whether the opponent has failed to pay rent to the applicant w,e,f, April, 1995?
(3) Whether the rented premises is required by the applicant for his personal bona fide need in good faith?
(4) What should the order be."
6. After hearing the learned counsel for the parties, the learned Rent Controller, vide his order, dated 18-11-1997 allowed the eviction application filed by the respondent, by answering Issue No,1 in negative and Issues Nos.2 and 3 in affirmative.
7. The contention of the learned counsel for the appellant is that in spite of the fact that the respondent had obtained possession of the entire first floor from one Zameer Ahmad Siddiqui and he admittedly failed to occupy the said floor and shifted to another flat situated in Defence/Clifton but the learned Rent Controller gave the finding in affirmative and as such the order is arbitrary, illegal and against the evidence on record. On the other hand the learned counsel for the respondant/landlord argued that he sufficiently established that he is in need of the entire accommodation and as such could not occupy the space vacated by the tenant Zameer Ahmed Siddiqui. According to him, the landlord has established his personal need of the accommodation and the same remained unsheltered and as such the learned Rent Controller was correct in passing the judgment which has been impugned herein.
8. I have heard both the counsel and have perused the record.
9. As regards to issue No,1 that the application was not maintainable, the learned Rent Controller has taken a correct view that once the tenancy agreement is admitted by the parties and acted upon, they were estopped from raising objections as to its legality. The learned Rent Controller further held that since there is no penalty provided in case of violation of the law in regard to the agreement to be countersigned by the respective Rent Controller or the Area Magistrate the same at the most can be called irregular but not illegal.
10. Under the circumstances, the finding on the said issue is correct and does not call for any interference by this Court.
11. The respondent/landlord in para.4 of the affidavit-in-evidence has stated that the premises in question is required by him for his personal bona fide use. According to him, he served the appellant/tenant with a legal notice to vacate the premises as the same was needed by him and his family for personal need. He admitted that he had let out the first floor to Zameer Ahmed Siddiqui and that he had filed rent case. Against him on the ground of personal use but the same was compromised in June, 1996 but subsequently the said floor was vacated by the said tenant which is lying vacant. He also admitted that previously he had run a coaching centre in the said premises which comprised of two temporary rooms covered with asbestos sheets. However, he denied that there are three rooms on the second floor but only incomplete kitchen and bath rooms. However, he reiterated his need, as, according to him, he has a large family of four daughters one of them a physically handicapped girl wife and father. He also admitted that his wife had taken loan from the house Building Finance Corporation to construct the house on plot situated in Gulshan-e-Iqbal but the same was subsequently sold. He denied the suggestion that he owns any other property. Although he admitted that he advertised for the sale of the property and the negotiations are still going on with different brokers for the said purpose. However, he stated that there was no complaint regarding the payment of monthly rent from the tenant and also admitted that he had collected rent on 24-4-95 for the month of March, 1995 and there were no outstanding dues against the tenant. He also denied that the tenant had ever promised to vacate the premises. However, he denied the suggestion that the case has been filed on false ground of personal requirement as well as default in payment of rent. As against the said statement the appellant/tenant in his cross-examination stated that he was not aware if the applicant has four daughters who are school/college going. He also showed his ignorance, if the premises are needed by the respondent landlord for his personal bona fide requirement. In his cross-examination he admitted that he started depositing rent since April 1995 and has sent notice of the same to the respondent/landlord and denied the suggestion that any default was committed by him. He maintained his statement that the respondent/landlord has other properties apart from the one under dispute but he could not give any detail of the same. After going through the said evidence the learned Rent Controller has given his finding in affirmative on issues Nos.2 and 3. The reason given by the learned Rent Controller is that the appellant/tenant failed to give any details of the property allegedly owned by the respondent/landlord as stated by him in his written statement as well as affidavit-in-evidence and in cross-examination. He has further relied on the facts that the rent was to be paid by the 5th of each calendar month in advance but the appellant/tenant admittedly deposited the rent for April in Court in M.R.C. No,296 of 1995 on 8-5-1996 and as such committed wilful default. It has further been held by the learned Rent Controller that since under section 10 of S.R.P.O. the rent should have been paid by the appellant/tenant to the landlord by tendering the same in person which was admittedly not done and tenant has failed to prove that the respondent/applicant had refused to receive the same, he committed wilful default in payment of rent. He further relied on judgment wherein it was held that it is prerogative of the landlord to decide in regard as to sufficiency or insufficiency of the accommodation and he has stated on oath that he needs the premises for his personal bona fide need. In my opinion, the learned Rent Controller after perusing the evidence on record and the law and case-law cited before him has correctly applied the same and merits no interference. accordingly, this appeal having no merits is dismissed in limine. However, the appellant is granted three months' time to hand over peaceful possession of the disputed premises to the respondent/landlord. The pending application also stands dismissed.