1. ' This first rent appeal has been filed against the order of the VIII Rent Controller, Karachi (East), dated 27-2-1999 in Rent Case No,118 of 1997, whereby the rent case filed by the appellant was dismissed.
2. ' The matter was fixed today for Kactha Peshi and both the learned counsel agreed that the matter may be heard and disposed of finally at the stage of Katcha Peshi.
3. ' The brief facts leading to the filing of the above appeal are that the appellant, who is owner/landlord of premises bearing No,25-E, Block 6, P.E.C.H.S., Karachi, had rented out the same to the respondents vide tenancy agreement, dated 1-4-1995 on a monthly rent of Rs,30,000, which was subsequently, increased to Rs,50,000 per month by the respondent. The appellant filed Rent Case No,118 of 1997 for ejectment of the respondents as the premises in dispute was required by him for his personal bona fide use inasmuch as his son Khawaja Ali Hassan, presently residing in U.S.A. But desirous to settle down in Pakistan with his grown up daughters, would reside in the premises in dispute with his family. Before filing of the ejectment application, a legal notice was sent to the respondents who refused to vacate the premises in dispute which resulted in filing of the aforesaid rent case by the appellant. The respondents filed the written statement in which the respondents questioned the maintainability of the rent case on the ground that after filing of the rent case, the respondents had raised the rent from Rs,30,000 to Rs,50,000 and had sent a cheque relating to 12 months rent in advance, which was accepted by the appellant and thereby agreed to the continuation of the tenancy for a period of 12 months. It was submitted that as the period of tenancy had not expired, the appellant could not file ejectment application/rent case for eviction of the respondents on personal ground. On facts, the respondents denied that the son of the appellant had any intention of coming to Pakistan. They submitted that his son Khawaja Ali Hassan had gone to America in 1975 and both, he and his wife are working there as doctors and there is no possibility of their returning to Pakistan. It was further submitted that the appellant failed to bring on record any evidence to show in the slightest possible manner that the appellant's son intended to return to Pakistan for taking up permanent residence here and a mere statement to this effect by the appellant would not be sufficient to hold reasonably and in good faith that the premises in dispute was required the appellant for his personal use.
4. ' On the pleading of the parties, the Rent Controller framed the following issues:-- "(1) Whether the premises is required by the applicant for personal bona fide need use and occupation of his son Khawaja Ali Hassan?
(2) What should the order be?"
5. ' The Rent Controller, in view of the evidence adduced before it by the aforesaid parties decided the issues as under:-- "Issue No,1 In the negative Issue No,2 Application dismissed."
6. ' Feeling aggrieved and dissatisfied with the aforesaid order of the VIII Rent Controller, Karachi (East), the appellant has preferred this appeal.
7. ' I have heard the arguments of the learned counsel for the parties and have also perused the material on record.
8. ' Mr. Ghulam Abbas Pishori, learned counsel for the respondents, raised a preliminary objection with regard to the maintainability of the rent case and submitted that the Rent Controller ought to have dismissed the same on the ground that after filing of the ejectment application the appellant had accepted the cheque which represented the rent for 12 months in advance in respect of the premises in dispute at the enhanced rate of Rs,50,000 as submitted that it is well-established principle that during the subsistence of tenancy agreement/agreement of lease, the appellant/landlord cannot seek eviction of tenant from the premises in dispute on the ground of personal requirement.
9. ' The acceptance of the cheque after filing of the ejectment application represented the rent for 12 months at the rate of Rs,50,000 has not been denied by the appellant/landlord which amounted to creation of a fresh tenancy for a period of 12 months from the date of receipt of the cheque. The Supreme Court in the case of Habib Bank Limited v. Dr. Munawar Ali Siddiqui 1991 SCM R 1185 has considered the issue whether the landlord would be legally entitled to file an ejectment application on the ground of his personal requirement during the subsistence of a lease agreement or that the same could only be filed after the expiry of the period fixed in the rent agreement/lease agreement. The Supreme Court was pleased to observe that though no such reservation could be found from the language used in section 15 relating to the right of the landlord to seek eviction of the tenant on the ground of personal requirement, but observed that during the subsistence of a lease for a specified period may be enforced and the tenant should not be evicted from the premises in dispute for the unexpired period of tenancy agreement or for the period for which the rent had been paid by the tenant to the landlord in making the above observation, the Supreme Court had referred and considered the proviso (1) to section 13(1)(a)(ii) of the West Pakistan Urban Rent Restriction Ordinance, wherein the landlord has been precluded from applying for ejectment of his tenant under the provisions of the West Pakistan Urban Rent Restriction Ordinance before the expiry of the specified period reference may also' be made to the cases of Mrs. Zehra Begum v.
10. Messrs Pakistan Burmah Shell Ltd. PLD 1984 SC 38 and Mst. Zarina Khawaja v. Agha Mahboob Shah PLD 1988 SC 190, wherein the Supreme Court was pleased to hold that by entering into an agreement of rent/lease for a specified period, the landlord barters away his privilege/right to evict the tenant and to obtain the vacant possession of the premises/tenement on the ground of personal requirement for the period during which the lease/tenancy would subsist.
11. ' Mr. Nadeem Azhar Siddiqui, learned counsel for the appellant, did not controvert the above legal position but submitted that the principle discussed above would not be applicable to the present case inasmuch as the ejectment application/rent case was filed by the appellant/landlord after the expiry of period of lease and it was after filing of the rent case that the respondents/tenant forwarded the cheque representing rent of the premises in dispute for a period of 12 months at the rate of Rs,50,000. He further submitted that the appellant/landlord did not communicate his acceptance or confirmation of continuation of the tenancy/lease of the premises in dispute for further period of 12 months and, therefore, it cannot be said that the period of tenancy/lease was extended and was in existence during the course of the proceedings of the rent case. This contention is without any force and merits no consideration. The appellant/landlord did not return the cheque to the respondents/tenant and got it encashed which unequivocally represented his intention to accept the respondents as the tenant of the premises in dispute for a further period of 12 months and in view of the principle laid down by the Supreme Court in the aforesaid cases, the ejectment applicant/rent case filed by the appellant/landlord against the respondents/tenant had ceased to be maintainable after extension of the period of lease and ought to have been dismissed as such.
12. Upon the above discussion and in the light of the facts stated above, I am satisfied beyond any doubt that the rent case/ejectment application filed by the appellant/landlord had ceased to be maintainable after he accepted the rent for 12 months for the premises in dispute and his rent case ought to have been dismissed on this sole ground. Accordingly, I find that this appeal is without any substance and merits no consideration. It stands dismissed.