1. This First Rent appeal is directed against the impugned order passed by II--Senior Civil Judge and Rent Controller Karachi South on 24-12-1999 in Rent Case No,1760 of 1994, whereby the ejectment application filed by the respondent was allowed and the appellant was directed to vacate the shop in question within 60 days after the date of order.
2. The brief facts giving rise to this appeal are that respondent is owner of Shop No,2 in Ali Market, Khayaban-e-Hafiz, Karachi and the appellant is his tenant in the said premises at the rate of Rs,700 (Rupees seven hundred only) per month, which rent was subsequently increased upto Rs,1,050 (Rupees one thousand fifty only). The respondent stated in the application that the appellant was habitual defaulter and he failed to pay rent from July, 1994 and onwards upto October 1994. He further asserted that the demised shop was required for his personal use in good faith for his son.
Ali Raza for establishing business. The respondent urged in his application that appellant had acquired and occupied another shop in the vicinity and therefore he approached the appellant to vacate his shop as he required the same for his personal use, but he refused and filed a false application at police station so also a civil suit before 9th, Senior Civil Judge Karachi South, wherein he stated that the respondent intends to dispossess him forcibly which was subsequently disposed of on statement made by respondent that he is going to file a rent case against him.
3. The appellant in his written reply denied the allegations made against him. He admitted the relationship of landlord and tenant, between the parties so also the rate of rent. He further denied the default in payment of rent and stated that on 21-1-1994 when the tenancy agreement was executed, he paid Rs,50,000 (Rupees fifty thousand only) as a fixed security deposit which is refundable to him when the vacant and peaceful possession of premises is handed over to respondent. He has stated that rent is paid upto April, 1994 and further urged that he has paid the rent for the months of April and May in the Court and had obtained receipts for the same.
According to the appellant he has paid the rent for the month of April 1994 twice and he sent money order to Rent Controller for the months of June and July 1994. The appellant has sent the rent to the respondent through money order for the month of August, 1994 which he refused to receive. The appellant has stated in his written reply that respondent refused to receive the rent for the months of August and September, 1994 which he deposited in the Court in M.R.C. No,1805 of 1994. The appellant denied that the demised premises is required by the respondent for his son.
4. Upon the pleadings of the parties, the learned Rent Controller framed the following issues:-
(1) Whether the opponent has made deliberate and wilful default in payment of rent?
(2) Whether the demised premises is required by the applicant for his bona fide need to establish the business of his son in demised premises?
(3) What should the order be?
5 . The parties adduced their evidence and Rent Controller ultimately came to the conclusion that the appellant had committed no default in payment of rent. He, however, allowed the ejectment application on the ground of personal bona fide use.
6. It is contended by Mr. Shaikh Muhammad Mushtaq, learned counsel for appellant that the finding on issue No,2 by the Rent Controller is erroneous and is not based on sound judicial principles of appreciation of evidence. It is stated that the respondent owned some other shops but the learned Rent Controller has ignored to take into consideration the said fact. It is argued that the evidence adduced by the appellant has been misconceived and misread by the learned trial Court. The learned counsel has referred to case of Mst. Bismillah Begum v. Fazal Muhammad 1987 CLC 1113.
7. The learned counsel for the respondent Mr. Shamsuddin Khalid Ahmed has argued that the respondent had examined himself on oath and stated that he required the shop in question for his son for carrying on stationery business. It is stated that in support of his version, the respondent had examined his brother and son who have supported the case of respondent in respect of personal bona fide use of the shop in question. It is argued that P.W. Ali. Raza, son of the respondent, has been examined who has specifically stated on oath that he intends to establish a stationery shop as well as he wants to run a photostat machine business. The learned counsel has stated that the appellant has not been able to rebut the aforesaid evidence adduced by the respondent. The reference is made to cases M.K. Muhammad and another v. Muhammad Abu Bakar 1993 SCM R 200, Muhammad Iqbal v. Saeeda Bano 1993 SCM R 1559 and Mst. Saira Bai v. Syed Ansur Rahman 1989 SCM R 1366.
8. The perusal of record shows that the appellant was paying rent for each and every month and on refusal of respondent, he used to send money orders either to the Court or respondent himself.
The money order receipts and the record of the Court reveals that appellant has paid the rent regularly. The findings of Rent Controller on the point of default is, therefore, correct and he has rightly held that landlord has failed to prove default.
9. The respondent has, however, established his case for the personal need of demised premises for his son. The respondent had examined his son who had stated on oath that he needs the shop for his own use in good faith as he intends to establish the business of Stationery and photostat machine. The respondent has further examined his brother who also corroborated the testimony of respondent and his son. All of them have stated on oath that the shop in question is required to them in good faith for establishing the business for the son of respondent. The plea of appellant that the shop is not suitable for them has no force as it is for the respondent/landlord to set the things in their own way beneficial to them for setting the business in right directions. The appellant has failed to prove that the respondent owned other shop suitable for running the proposed business in vicinity. Reference can be made to a case of Dr. Major Abdul Ahad Khan v. Soofi Muhammad Yasin & Brothers PLD 1984 SC 200 and Mumtaz Hussain v. Muhammad Iqbal 1984 SCM R 576. The case law referred to by learned counsel for the appellant has no relevance to the facts and circumstances of the case in hand.
10. In this view of the matter I have dismissed this F.R.A. On 2-5-2000 by a short order. The above are the reasons for the same. The appellant was given 30 days time to vacate the premises from the date of the short order.