1. Appellant Fakhrun Nisa has called in question the order dated 30-11-1998 passed by learned VIth Senior Civil Judge and Rent Controller, Karachi, Central, by dismissing the rent application of the appellant, who is the Landlady.
2. The appellant/landlady has sought ejectment of the respondent, namely, Bashir Ahmed, who is the tenant on the two grounds viz (1) personal bona fide use for appellant/landlady and her family members and (2) default. The appellant/landlady filed ejectment proceedings against the respondent that the respondent is the tenant of the ground floor of the premises bearing No. 36/1, Muslim League Quarters, Nazimabad, Karachi and has stated therein that the respondent is the tenant of the appellant/landlady since 15-7-1983 on monthly rent of Rs.900 and according to her, the respondent became defaulter in payment of rent from February, 1996 to October, 1996 and thus, the respondent is undesirable tenant. The appellant/landlady has further stated that she needs the premises in question for her personal bona fide use as she is also a heart patient and being old lady cannot climb the staircase, as she is putting up in 2nd floor of the premises in question. She wants the ground floor being occupied by the respondent/opponent on the ground of her ailment. The respondent/opponent was served with notice, who filed his written statement and denied the default. The respondent submitted that the appellant/landlady never issued receipt to him and he always paid the rent to her promptly and within time. He has submitted that no doubt she is an old lady but she has other tenement in the same building: he has also mentioned therein that on 1st Floor the other tenants are put up, on 2nd floor the landlady is residing whereas on the ground floor the respondent/opponent is residing as tenant, Kausar Fatima wife of Irfanuddin Badar, who is daughter of the appellant/landlady and his attorney has filed her affidavit-in-evidence and has been subjected to cross--examination. Affidavit-in- evidence has been filed by the grand daughter of the appellant/landlady, who has also beep subjected to cross--examination.
3. The respondent/opponent has filed his affidavit-in-evidence and has been subjected to cross- examination. Affidavits of Mst. Mehmooda Bano wife of late Ajaz Anwar and Tufail A. Khan son of Fazal A. Khan have been filed who have supported the case of the respondent/opponent and they have also been subjected to cross-examination by the learned counsel for the appellant/landlady.
4. The trial Court after taking into consideration the pleadings of the parties has framed the following issues:-- (1)Whether the monthly rent has increased from Rs.900 to Rs.2,200 till 1996?
5. (2)Whether the rented premises is required to the applicant for herself as well as for her family members for bona fide use?
6. (3)Whether the opponent has failed to pay the monthly rent from February, 1996 to October, 1996?
7. (4)What should the order be?
8. The learned Rent Controller gave his findings on the above issues in negative and dismissed the application of the appellant/landlady and, therefore, the appellant/landlady has preferred this appeal.
9. During the pendency of this appeal, both the parties had arrived at an amicable settlement and had submitted an application to the effect that respondent/opponent will vacate the demised premises forthwith but not later than 15th June, 2000 and the appellant/landlady will provide with accommodation of 3rd Floor of the building mentioned in the application: Accordingly the impugned order dated 30-11-1998 was set aside and was substituted by decree in the above terms.
10. The contention of the respondent/opponent is that soon after such compromise, the appellant/landlady backed out the amicable settlement and started construction over the 3rd Floor of the Building and, therefore, the dispute was not resolved and on 21-6-2000 the order dated 29-5-2000 was recalled by this Court and the Appeal was fixed for hearing on merits after vacation.
11. I have heard Mr. Muhammad Farooq, learned counsel for the appellant/landlady and respondent Bashir Ahmed in person. I have gone through the averments made by the appellant/landlady in the rent application: affidavit-in- evidence of her, attorney, who is the daughter of landlady. I have gone through the written statement filed by respondent/opponent and have also gone through the affidavits filed on his behalf by Mst. Mehmooda Bano and Tufail A. Khan and have also examined cross-examination very carefully. I have also gone through the impugned order dated 30-11-1998 carefully.
12. Learned counsel for the appellant/landlady has submitted that the appellant/landlady has sought ejectment of the respondent/opponent on the two-fold grounds viz. (1) personal bona fide use for herself and for her family members and (2) default. He has contended that the respondent/opponent is residing on the ground floor of the demised premises since' 15-7-1983 and has committed default in payment of rent w.e.f. February, 1996 to October, 1996. He has further contended that the 1 Floor of the said premises is occupied by other tenant; 2nd Floor is occupied by appellant/landlady, while the ground floor is in occupation of the respondent/opponent. He has finally submitted that appellant/landlady is old one and is a heart patient and needs ground floor on account of her heart ailment.
13. On the other hand, the respondent/opponent has submitted that he has not committed any default and has been paying rent promptly to the appellant/landlady but the fact of the matter is that she never issued any receipt in this regard and he has further contended that no question of personal bona fide use arises and has contended with vehemence that the appellant/landlady has failed to file any Medical Certificate or document with regard to her illness. However,st respondent/opponent agreed during the course of arguments that he is prepared to get shifted to 2nd Floor, which is occupied by the appellant/landlady and she may get shifted to ground floor which is being occupied by him. When asked, whether the compromise can be effected on such proposal put forward by respondent/opponent, the learned counsel for the appellant did not reply properly rather gave evasive reply. Admittedly, Issue No.1 framed by learned Rent Controller has not been proved by the appellant/landlady as she was under obligation to prove the same. It is also evident from the record and material that the appellant/landlady's attorney did not produce any single document in respect of ill-health of the appellant/landlady, there is only verbal version of the witnesses that the appellant/landlady is a heart patient. I have read very carefully the evidence adduced by witness Mansoora Irfan, the grand daughter of appellant/landlady on the point of personal use. In cross--examination, she has admitted that. It is correct to suggest that Farooq had also vacated the Flat which was occupied by appellant/landlady and attorney and grand daughter of the appellant/landlady and now it has been let out to another person on rent. It has also been admitted by her that Manzoor Malik had also vacated the Flat in the months of February, 1998, which was occupied by appellant/landlady and others and now it has been let out to another person on rent. On such admission of the witness of appellant/landlady, it can be said that the premises is not required to the appellant/landlady or for her personal bona fide use for her family members.
14. As far as the default is concerned, it has 'been submitted in the written statement by the respondent/opponent that he has not committed any default in making payment of monthly rent w.e.f. February, 1996 to October, 1996. Respondent/opponent has further submitted that he has also stated in his affidavit-in-evidence that he has paid the rent of March, 1996 in presence of one' Tufail A, Khan on 1-3-1996: Similarly, the rent for the month October 1996 was paid on 3-10-1996 in presence of one Mst. Mehmooda Bano. These witnesses have also filed their affidavits. Both the witnesses, in their affidavit-in-evidence have disclosed the similar facts as disclosed by respondent/opponent. I have also perused the cross-examination of these witnesses and the learned counsel for the appellant/landlady did not rebut the contentions of respondent/opponent, what he has stated in paragraph No. 12 of his affidavit-in-evidence. Learned counsel for the appellant/landlady did not deny any facts of this paragraph. On the same point.
15. Respondent/opponent's witness Mst. Mehmooda Bano in paragraph 3 of her affidavit-in-evidence disclosed that respondent/opponent gave Rs.900 on 3-10-1996 to the appellant/landlady in her presence. During cross-examination learned counsel for the appellant/landlady did not put any question in this respect.
16. Respondent/Opponent's witness Tufail A. Khan was also cross-examined, but strange enough that the learned counsel for the appellant/landlady did not put any specific question in respect of paragraph 3 of the affidavit-in-evidence. It is also very clear from the evidence that respondent/opponent has proved that he I has paid the rent from February, 1996 to October, 1996 and thereafter, admittedly, he is depositing the rent in the Court and thus, the default has not been proved.
17. The grounds agitated by the learned counsel for the appellant/landlady during the course of arguments have no substance and I am of the considered view that the appeal has no merit and is accordingly dismissed with no order as to costs.
18. The above are the reasons of my short order passed on 16-1-2000.
19. 2001 MLD 1152