1. Impugned in this appeal is the order, dated 14-9-1999, passed by II-Rent Controller Karachi South, in Rent Case No,366 of 1995, whereby the ejectment application filed by respondent was allowed and the appellant was ordered to hand over the vacant possession of premises to him within 30 days from the date of order.
2. The respondent is owner of Flat No,B-7, 2nd Floor Haider Center, Block "G", North Nazimabad, Karachi. The said premises was rented out to appellant at a monthly rent of Rs,1,700 and fixed deposit of Rs,15,000 to be refunded to appellant/tenant at the time of vacating the premises. The respondent asserted that appellant was a habitual defaulter and used to pay rent in irregular manners. The next ground urged in the ejectment application was personal bona fide need as the premises in occupation of landlord was not suitable for their accommodation. He stated that his children are grown up and he need the premises for their accommodation.
3. The appellant stated in his written reply that he has committed no default in payment of rent and that he was not irregular in payment of monthly rent. He further urged that the respondent had tried to eject the appellant by force, therefore, he filed Civil Suit No,638 of 1994 for permanent injunction on 23-10-1994 in Civil Court. It is stated that in the said suit respondent submitted his statement that appellant shall not be ejected by any method other than due course of law. It is stated by appellant that in September, 1994 the respondent did not come for collection of monthly rent and the appellant tendered monthly rent through money order but he refused to accept the same and thereafter he started depositing the rent in Court of Ilnd Rent Controller, Karachi Central in M.R.C. No,705 of 1994. The appellant stated that respondent was occupying a double storey building and he has only two minor children and wife and the said premises is sufficient for their accommodation.
4. The parties led their evidence and learned Rent Controller ultimately came to the conclusion that appellant is defaulter and irregular in payment of rent and premises in question was required to respondent for his personal bona fide use.
5. It is contended by Mr. Rasheeduddin, learned counsel for appellant, that learned Rent Controller had no jurisdiction in the matter as according to him the respondent is not owner of the property.
He argued that respondent had failed to file documents of his ownership pertaining to premises in question. The learned counsel stated that tenancy agreement is not in accordance with law. The learned counsel has contended that rent for the month of August 1994 was paid and thereafter respondent did not come to collect the rent for the month of September 1994 and as such the rent of September and October 1994 was sent by him to respondent through money order. Learned counsel pleaded that respondent had failed to prove the personal requirement as premises which is occupied by him is more suitable than the premises in question. It is contended that the aforesaid points have not been considered by the learned Rent Controller. The learned counsel further states that the appellant was not allowed to cross-examine the respondent. The reliance is placed on Muhammad Naseeruddin v. Mst. Hashmat Bibi PLD 1993 Kar. 300, Mst. Mariam v. Mst.
Zubaida Bai 1998 M LD 1031, Ulfat Ali v. Abdul Shakoor 1992 CLC 744. Mrs. Shahnoor Fazal v. Ghulam Akbar Mangi 1987 SCM R 2051, Abdul Rehman etc. v. Pakistan State Oil Company Ltd. Etc. 1997 CLC 1085 and Muhammad Yasin v. Shabbir Ahmad 1985 CLC 2111.
6. Mr. Saad Qureshi, Advocate for the respondent, has contended that neither the plea of relationship of landlord and tenant was taken in written statement nor such issue was framed. The learned counsel urged that the appellant was defaulter and irregular in payment of rent and that the respondent had proved his case for his personal bona fide use. It is stated that the affidavit filed by respondent remained unrebutted as the same was filed on 12-11-1995 but the counsel for appellant failed to cross-examine him. Although, 29 chances were given to them. Ultimately on 8- 10-1997 the side for cross-examination of respondent was closed. The reference is made to the cases of Hajiani Zaina Bai v. Messrs Allied Bank of Pakistan Ltd. 1989 CLC 729, Dr. Juzar Ali v. Mrs. Mani Bai PLD 1987 Kar. 462 and Haji Muhammad Ibrahim v. Hamzoo Khan PLD 1987 Kar.
520.
7. Perusal of record reveal that in para. 2 of the ejectment application respondent has stated as under:- "(2) That the opponent is a tenant in respect of the above said premises at the rate of Rs,1,700 per month with a fixed deposit of Rs,15,000 refundable at the time of vacation of the premises by the opponent. Copy of the Tenancy Agreement is attached herewith and marked as Annexure 'A' ."
' This para is replied in written statement by the appellant as under-- ' The contents of para 2 of the application is not denied':
8. Since the relationship between the parties, and the ownership was admitted by the appellant, therefore, at this stage it does not fit in the mouth of respondent to state that there is no relationship of landlord and tenant between the parties and that the respondent is not the owner of the property. The affidavit in evidence of respondent has remained unrebutted which was filed on 12-11-1995 and the case diary shows that dozens of adjournments were sought by appellant but he failed to cross-examine him. However, the averments made in affidavit filed in evidence, reveal that appellant was irregular in payment of rent but no period of default has been shown in the affidavit filed by the respondent.. He has not stated as to in what period the appellant paid rent to him in irregular way. No question in cross has been suggested to appellant that he was defaulter or that at any time he was irregular in paying rent. The impugned order indicates that appellant was irregular in payment of rent but no specific default of payment in rent has been stated in the impugned order, therefore, this issue of default cannot be decided in favour of respondent in absence of tangible evidence in this regard.
9. The next point to be resolved is the personal bona fide use of respondent. The respondent in his affidavit has stated that he has grown up children and the present accommodation is not suitable for their occupation. He is not cross-examined and his testimony remained unshattered. I have perused the affidavit in evidence filed by the appellant and his cross-examination. The appellant has stated that he has not stated in his affidavit that applicant owned another flat in North Nazimabad. He has further stated that he cannot say about the exact area of the house occupied by the applicant/respondent and that he does not know the number of members of his family. He has further replied in cross-examination that he does not know as to whether the applicant/respondent was the owner of house in which he was residing at present. Under such situation, it cannot be held that the premises in question was not required to the landlord for his personal bona fide use. The reference is made to Abdul Aziz and another v. Muhammad Ibrahim PLD 1977 SC 442, Mumtaz Hussain v. Muhammad Iqbal 1984 SCM R 576 and Dr. Major Abdul Ahad Khan v. Soofi Muhammad Yasin & Bros. PLD 1984 SC 200.
10. From the evidence discussed above, the factum of personal need is proved and the judgment of Rent Controller in this regard is based on logical reasoning and correct appreciation of evidence which does not call for interference on issue No,2. The rent appeal was dismissed in limine alongwith listed application by short order, dated 24-4-2000. These are the reasons for the same.
The appellant is directed to vacate the premises within 60 days from the passing of the short order, subject to condition that he will continue to deposit the rent and in case he fails to deposit the same, he is to be ejected straightaway, without issuing any notice.