1. These two F.R.As. Arise out of judgment dated 18-9-1997 passed by Ahe learned IVth Senior Civil Judge and Rent Controller, Karachi, South, whereby Rent Case No.9 of 1992 was allowed only on the ground of default, while the ground of personal requirement was not considered favourably F.R.A.
2. No.279 of 1997 has been filed by the landlord challenging the finding of the Rent Controller on the issue of personal bona fide requirement, while F.R.A. No.268 of 1997 has been filed by the tenant as issue of default in payment of rent was decided against him. I, therefore, propose to dispose of both these appeals by this common judgment.
3. Mst. Zubaida Bai and others sought ejectment of Mst. Koonch Amna from the ground floor of the building situate on Plot No.45/1. S.R.7, opposite Al-Yousuf Chamber, New Challi, Shahrah-e-Liaquat, Karachi (hereinafter referred to as the demised premises) on two grounds namely default in payment of rent from July, 1990 at the rate of Rs.1,000 per month and personal bona fide requirement as the landlady wants to start business therein by opening a restaurant.
4. The tenant contested the matter and filed written statement. She denied having committed any default in payment of rent and that she was tenant in respect of a portion on the ground floor on agreed rent of Rs.190 per month. In para. 3 she disclosed as follows:-- "It is further submitted that the applicants Nos. l to 4 and the predecessor of applicant No.5 filed ejectment proceedings being Rent Case No. 1 of 1970 on the ground of default and succeeded in obtaining order for ejectment. The applicants Nos. l to 4 and the said Fakhruddin granted fresh tenancy to the opponent on receipt of a sum of Rs.2,50,000 towards pugree and goodwill and the rent was increased from Rs.190 to Rs.1,000 per month., The rent of the said premises used to be received by deceased Fakhruddin who had been issuing receipt of rent to the opponent. The deceased Fakhruddin issued receipts up to March. 1990. Thereafter, the receipt of rent were issued under the signature of some other applicant. In fact opponent has paid rent upto July, 1990. But applicants in order to create false ground of default withheld the receipt of rent for the month of July, 1990. The opponent was paying rent through her son who was assured by the applicants that the receipt for July, will be issued alongwith rent receipt of August, 1990. Opponent sent rent for August, 1990 through her son, who demanded receipt for July, 1990 but applicants avoided to issue receipt, hence opponent sent two months' rent vide money order, dated 30th August, 1990 but the same was also refused by the applicants. Thereafter, opponent sent one month's rent vide money order dated 19-9-1990 but that too was avoided/refused. Later on opponent sent a sum of Rs.3,000 being rent for three months vide money order dated 29-9-1990 but the same was also avoided/refused. As such opponent deposited rent under Misc. Rent Case No. 1533 of 1990 and has deposited up to date rent. It is also submitted that opponent has been depositing rent continuously in the said rent case. "
5. Regarding personal bona fide requirement, she averred that the applicants 'demanded exorbitant rent which she refused to pay, and therefore, proceedings were initiated against her with mala fide intention to seek her ejectment in order to let out the demised premises to someone else on enhanced rent.
6. On pleadings of the parties the learned Rent Controller settled the following issues:-- "(1)Whether the opponent has failed to pay monthly rent with effect from July, 1990 to the applicant and thereby committed wilful default in payment of rent?
7. (2)Whether the demised premises is required by the applicant No.2 for his personal bona fide need?
8. (3)What should the order be?
9. Both the parties led evidence. From the side of landlady; Aun Muhammad applicant No.2 filed his affidavit-in-evidence, while from the side of tenant four persons namely Abdul Aziz, Muhammad Hashim, Abdul Majeed and Younus Khan filed their affidavits-in-evidence. All the witnesses were cross-examined by the respective counsel for the parties.
10. The learned Rent Controller after hearing the parties allowed the ejectment application as stated above.
11. I heard learned counsel for the parties and perused the record.
12. Learned counsel for the tenant submitted that the impugned order is bad due to misreading and misappreciation of evidence, as the learned Rent Controller erroneously come to the conclusion that the tenant had not paid rent for July, 1990 and there is no positive oral or documentary supporting evidence on record. He further submitted that initially Fakhurddin had accepted the rent upto March, 1990 and issued receipts. Thereafter, the respondent/landlord No.2 started receiving rent but the receipts were not issued by the respondent/landlord No.3 and on the basis of this fact it cannot be effected or assumed that the receipts were issued at the same time as and when the rent was paid. He also submitted that the rent receipts were not issued for the month of April, May and June, 1990 although the rent was paid. Lastly he submitted that the tenant's witness produced money order coupons but no objections were raised against this by the learned Rent Controller or by the landlady. Therefore, these documents should have been accepted as valid pieces of evidence. The rent was also tendered through money orders on the address given in the rent application but the same was returned as the landlord/landlady refused to accept the same.
13. Regarding bona fide requirement of the landlady which is the subject-matter of F.R.A. No. 279 of 1997, learned counsel submitted that the evidence led by the landlady on his issue is vague and unsatisfactory. In' support of his submissions he cited 1997 SCMR 2051, 1996 SCMR 1233, 1992 SCMR 1296 and 1300. Lastly he submitted that the entire case is based on mala fides.
14. Learned counsel for the landlady on issue No.1 submitted that the version of the landlady has gone unchallenged in her cross-examination on the question of personal bona fide need. A plain reading of the entire evidence would prove the bona fide requirement of the landlady. In support of his submissions he cited PLD 1963 Karachi 465; PLD 1967 Karachi 233 (237), PLD 1981 Karchi 537, 1985 CLC 2111, 1982 SCMR 834/836, 1990 MLD 792/795, 1991 MLD 2141, 1993 CLC 270 and 1993 MLD 1823.
15. On the question of default, learned counsel -for the landlady submitted that the evidence led by the tenant is inconsistent and contradictory, and therefore, no reliance could be placed on such evidence.
16. Now I propose to take up the first issue in the light of evidence brought on record as well as the respective submissions and the cited case--law.
17. The initial burden to prove the default was on the landlady. In para. 2 of the ejectment application, the landlady stated that the tenant paid rent upto June, 1997 and thereafter, she failed to pay rent, therefore, she committed wilful default. The tenant in paras. 2 and 3 of the written statement regarding payment of rent stated as follows:-- "(2) That the contents of para. 2 as alleged are not correct except that the opponent is the tenant in respect of a portion of ground floor on an agreed rent of Rs.1,000 per month. It is submitted that the said premises alongwith shop presently occupied by applicant No.2 was under-the tenancy of applicant's husband on an agreed rent of Rs.190 per month, who was running a hotel under the name and style of Islamia Hotel. It is specifically denied that opponent failed to pay rent after June, 1990 or that opponent committed default in the payment of rent. Applicants have levelled all these false allegations with ulterior motive.
(3) It is further submitted that the applicants Nos. 1 to 4 and the predecessor of applicant No.5 filed ejectment proceedings being Rent Case No.1 of 1970 on the ground of default and succeeded in obtaining order for ejectment. The applicants Nos.1 to 4 and the said Fakhruddin granted fresh tenancy to the opponent on receipt of a sum of Rs.2 50.000 towards pugree and goodwill and the rent was increased from Rs.190 to Rs.1,000 per month. The rent of the said premises used to be received by the deceased Fakhruddin who had been issuing receipt of rent to the opponent. The deceased Fakhruddin issued receipts up to March, 1990. Thereafter, the receipts of rent were issued under the signature of some other applicant. In fact opponent has paid rent up to July, 1990. But' applicants in order to create false ground of default withheld the receipt of rent for the month of July, 1990. The opponent was payed rent through her son who was assured by the applicants that the receipt for July, will be issued alongwith rent receipt of August, 1990. Opponent sent rent for August, 1990 through her son, who demanded receipt for July, 1990 but applicants avoided to issue receipt, hence opponent sent two months' rent vide money order, dated 30th August, 1990 but the same was also refused by the applicants. Thereafter, opponent sent one month's rent vide money order dated 19-9-1990 but that was avoided/refused. Later on opponent sent a sum of Rs.3,000 being rent for three months vide money order dated 29-9-1990 but the same was also avodied/refused. As such opponent deposited rent under Miscellaneous Rent Case No. 15B of 1990 and has deposited up to date rent. It is also submitted that opponent has been depositing rent continoususly in the said rent case. "
18. Another aspect to be considered is that in M.R.C. No. 1533 of 1990, the tenant made Fakhruddin and others as parties and the case as set up therein was that the tenant tendered rent of Fakhruddin but he avoided to issue receipt for July, 1990, while the plea in this case is that it was Mst. Waheeda, who did not issue receipt. The. Other witness Muhammad Hashim stated that rent was paid upto June, 1990 and not upto July, 1990. Thus A according to the evidence led by the tenant rent was paid upto June, 1990 and in this way she committed wilful default for the month of July, 1990. In view of the above it is established that the tenant committed default in payment of rent, hence I do not find any justification in reversing the findings on this Issue.
19. I now come to the issue of personal bona fide need, which is the subject-matter of F.R.A. No. 279 of 1997. It was stated in the application for ejectment and also in the affidavit-in-evidence submitted by the applicant No.2 Aun A.I that the demised premises is required by him in good faith to start his business of restaurant. The tenant in para.5 of his written statement admitted that the subject premises is being used as hotel which at least proves the suitability of the place for being used for hotel. In cross-examination the witness Aun A.I, who is also one of the appellants stated that he was never in hotelling business but that by itself does not militate against his bona fide need when he denied the suggestion that he did not intend to re-let the premises on goodwill. The observation of the learned Rent Controller that Aun A.I did not lead any positive evidence to prove his bona fide need is not correct. On the contrary the evidence of the appellant No.2, which was seriously challenged in cross-examination establishes the bona fide personal need for the demised premises.
20. The upshot of the above discussion is that F.R.A. No. 268 of 1997 is dismissed and F.R.A. No. 279 of 1997 is allowed but in the circumstances) of the case there will be no order as to costs.