1. Appellant has called in question the judgment dated 24-2-1993 passed by the III Senior Civil Judge/ASJ & R.C. Karachi (Central) to Rent Case No.355/1990, whereby the rent application of the appellant has been dismissed, hence this appeal.
2. The case of the appellant who is landlord is that she was residing in a rented house bearing D-248 Ist Floor Block 4 Federal ' B' Area Karachi with her large family members i.e. 6 sons and one daughter and after the death of her husband it became not conducive to pay higher rent as the applicant was passing depressed financial problems and she was constraint to shift in her above flat and for such she placed her wishes to the opponent in January, 1989 to get vacated the above flat but the opponent lingered on the said request on one pretext or the other up to April 1989.
3. Whereas she also allowed him to reside there in the said flat for six months i.e. Up to October. 1989 for which the opponent deposited money of Rs. 5,000 will also be adjusted. However, opponent did not vacate the premises in question even after lapse of promise of six months requesting therein that his daughter's marriage is to be held in the month of February, 1990. He also promised to pay all the due rent after marriage of his daughter besides vacate the flat in question the opponent tactfully remitted rent only for the month of May, 1990 which was acknowledged by the son of the applicant namely Ashiq Hussain in good faith and he was unaware that the opponent is in default as he was also residing separately with his family from the applicant. The case of the applicant is that she is residing as a tenant and she is being pressurized to get vacated the premises bearing No. D-248, First Floor, Block No.4 Federal 'B' Area Karachi by one Saleem consequently applicant vacated the said premises due to high pressure of the vendee Saleem and she shifted to another place and took shelter in 'the house of her relative. She also approached to the opponent on different dates and finally on 25-4-1990 she requested to the opponent for vacating the premises in question on sympathy ground but without success and she has further submitted that she requires the premises in question in good faith besides that the opponent has committed default in payment of monthly rent.
4. Opponent has filed his written statement in which he has denied the averments of the application and the allegations levelled against him by the applicant and further stated that there is no relationship of landlord and tenant between the parties and premises in question was rented out to the opponent by Abid Hussain deceased husband by virtue of tenancy agreement executed between the parties to which the copy of said rent agreement was not supplied to the opponent.
5. However states that he paid Rs.5,000 as fixed deposit to Abid Hussain and he has never entered into any deal with the applicant during the life time of Abid Hussain and after his death Ashiq Hussain has been receiving monthly rent from the opponent but no rent receipt was ever issued by him and he has paid the rent to Ashiq Hussain at the rate of Rs.900 per month up to April, 1990.
6. However he is unaware of the family of the applicant and denied that he ever promised or undertook to vacate the premises in question within a period alleged by the applicant as well as adjustment of Rs.5,000 towards the future rent of six months and stated that the said rent is still outstanding which is refundable at the time of handing cover the possession of the premises in question He has further pleaded that he has paid rent up to April, 1990 to Ashiq Hussain and thereafter Saddiq Hussain and Sajjad Hussain under the direction of the applicant visited the flat of the opponent ands gave threats for due consequences and the matter was reported to police. In support of case she has filed an affidavit in evidence as well as an affidavit in evidence of her witnesses namely Ashaq Hussain who is her son and Muhammad Abdul Hafeez and Wahid Hussain Siddiqui but later on only applicant and her son Ashiq Hussain were cross examined by the learned counsel for the opponent and thereafter the side was closed by way of statement dated 11-8-1991.
7. The opponent also filed his affidavit in evidence and was subjected to cross examination by the learned counsel for the applicant and thereafter the learned counsel for the opponent has also closed the side on 5-11-1992.
8. Learned Rent, Controller formulated the following points for determination: (1)Whether the opponent has committed wilful default in payment of monthly rent?
9. (2)Whether the applicant requires the premises in question in good faith for her personal use?
10. (3)What should the order be?
11. I have heard learned counsel for the parties and I have gone through the evidence available on record adduced before the learned Rent Controller Mr. Shaikh Abdul Majid, learned counsel for the appellant has contended that rent for the month of May, 1990 was sent by money order in the name of son of the applicant and the same was received by her son Ashiq Hussain. The contention of Mr. Shaikh Maajid learned counsel for the appellant is that the opponent has not paid the rent from May 1989 up to April 1990. As far as rent of May it is stated to have been received by the son of landlady namely Ashiq Hussain is concerned the same was received by him under misconception and he did not know with regard to default that the opponent is defaulter and the son of the landlady has stated that he was under the impression that the flat is going to be vacated and the amount has been received towards adjustment. According to Mr. Shaikh Abdul Maajid the landlady told her son that it is not the rent of May 1990 but it is the rent of April 1990 and Mr: Shaikh Abdul Maajid has further argued that the opponent had promised to vacate the same and was given time on the ground that after the marriage of his daughter the premises will be vacated by him but the applicant found him volte-face.
12. Mr. Shaikh Abdul Maajid has further argued that the burden lies on the tenant that whether he has not committed default but the learned trial Court has shifted the entire burden on the shoulder of the landlord and the default is to be proved by way of additional evidence. Learned counsel further argued that the question was put to the opponent as to why he did not pay rent to the landlady who replied that he did not know the address of the landlady. According to the learned counsel it is the prerogative right of the landlord for pick and choose of the premises. He has further argued that at the moment the present appellant/landlady is put up in the bungalow of Abida Perveen and she has desired for her personal use of the flat being in possession of the respondent tenant.
13. On the other hand Mr. Asghar Hussain Akhtar, learned counsel for the respondent has submitted that flat was in fact rented out by the husband of the landlady and he has received the rent during the life time. He has further argued that after the death of the husband of the landlady; Ashiq Hussain the son of the landlady has received rent after the death of his father till April 1990. The son of the landlady has sent two persons to the house of the respondent opponent and caused harassm ent and the matter was reported to police and he states that rent of May has been received by Ashiq Hussain son of landlady. According to the learned counsel for the respondent no receipts have been issued by the landlady nor it has been objected by the opponent. He has further submitted in the examination that the applicant has admitted that the husband of the landlady used to collect the rent from the respondent and thereafter her son Ashiq Hussain.
14. I have considered the arguments rendered by the learned counsel for the parties and with their assistance I have gone through the evidence adduced by the parties before the trial Court. As far as the question of relationship between the parties are concerned Mr. Shaikh Maajid, has drawn my attention on the cross examination of the opponent which is reproduced as under:- "It is correct that I have not paid rent to the landlady as she was not available".
15. According to Mr. Shaikh Abdul Maajid it amounts to admission that the recognition has been accorded to appellant by the respondent with regard to the relationship of landlord and tenant and she has become landlady. So far as Issue No. 1 over the default is concerned, the applicant no doubt has expressed in her affidavit in evidence in detail about default and she has been subjected to cross-examination but no concrete and tangible word has been extracted to establish that no default has been committed by the opponent/respondent. As far as the Issue No.2 about the question of personal need is concerned it is an admitted position that at the moment she is residing with Abida Perveen and she has right to put herself in the house being possessed by the respondent opponent and according to Mr. Shaikh Abdul Maajid if default is not proved the question of personal need has been proved as firstly she was residing in a rented house and now she is put up in the house of one Abida Parveen and it is the desire of the landlady to get vacated the premises in question for her personal use. Mr. Asghar Hussain Akhtar during discussion has drawn my attention on the cross-examination of the landlady with regard to the issue of personal bona fide use that she has admitted in cross-examination which is reproduced as under:-- "It is correct to suggest that I am not as healthy and due to my age I can. Climb the 5th floor in a day and can come down in the same day."
16. According to Mr. Asghar Hussain Akhtar, learned counsel for the respondent when she is 60 to 65 years old how can she climb fifth floor being possessed by the respondent/opponent but from the admission it is very crystal clear that the landlady has stated in unequivocal terms that she is -not as healthy and due to her age she can climb fifth floor in a day and come down in the same day.
17. This amounts that she can climb fifth floor which is being possessed by the afore-named respondent/tenant. The upshot of the above discussion is that as far as Issue No.2 is concerned with regard to bona fide use admittedly the present landlady is the owner of the premises being possessed by the respondent/opponent and admittedly she is residing at the moment with Abida Parveen as a stranger in her house and this has not been controverted by Mr. Asghar Hussain Akhtar during the course of the arguments and it is therefore quite obvious that she is in need of the premises and Issue No.2 has not been elaborately discussed by the Rent Controller in the manner as the evidence deposed by the landlady before the trial Court P` and she has proved her personal bona-fide use and she has right to put up herself in the house being owned by- her.
18. Accordingly I set aside the impugned judgment dated 24-2-1993 and in the result the present appeal is allowed respondent/opponent/tenant is directed to vacate the said premises in question within a period of six months from today and hand over the peaceful and vacant possession of the suit premises in question to the appellant landlady.