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First Rent Appeal No. 490 of 1982, decided op 28th November. 1982

---S. 13‑Eviction proceedings‑Bona fide personal requirement -Factum that landlord demanded more rent than agreed upon, held, relevant factor in ascertaining his bona fade, but it cannot be con sidered conclusive factor for holding that he failed to prove his personal bona fide requirement and in case Court is satisfied from evidence on record that ground of personal requirement has been made out, it will grant an application for ejectment notwithstanding fact of his demanding more than agreed rent.

‑‑‑S. 13‑Eviction proceedings‑Bona fide personal requirement -Landlady widow having three married sons, with two children and two unmarried daughters of marriageable age, in possession of two bed rooms on ground floor and one bed room on first floor of disputed premises‑Accommodation, held, insufficient to Cater to her needs‑Eviction of tenant ordered.

A. Aziz Shaikh for Appellant.

Imran Ahmad for Respondent.

Date of hearing : 28th November, 1982.

This is a first appeal against the order dated 14th March, 1982 passed by the learned Xth Senior Civil Judge and Rent Controller, Karachi, in Rent Case No. 4279/77. The relevant facts leading to the filing of the above appeal are that the respondent filed the above rent case on two grounds, namely, default for the period commencing from January, 1976 to October, 1977 and personal requirement.

The application was resisted by the appellant. On the basis of the pleadings of the parties, the learned Trent Controller framed the following issues :‑

(1) "Whether the opponent has committed default in the payment of rent

(2) What is rate of monthly rent

(3) Whether the premises in dispute is required by the applicant in good faith and genuinely as contended by her

(4) What should the order be "

2. On the conclusion of the proceedings, the learned Rent Controller decided the above Issues Nos, 1, 3 and 4 in favour of the respondent, whereas Issue No: 2 was decided in favour of the appellant and it was held that the rent was Rs. 450 p.m. and not Rs. 950 p.m. In consequence the above findings on Issues Nos. 1, 3 and 4, the learned Rent Controller granted the ejectment application. The appellant being aggrieved by the above order has filed the present appeal.

3. In support of the above appeal, Mr. A. Aziz Shaikh, learned counsel for the appellant has made the following submissions:‑

(i) That since the finding of the learned Controller was that the rent was Rs. 450 p. m. and not Rs. 950 p. m. no ejectment order could have been passed on the ground of default, particularly when the counterfoils of the rent receipts' produced by the respondent were not relied upon by the learned Rent Controller.

(ii) That the ground of personal requirement was raised for mala fide reason, and, therefore, no ejectment could have been granted on the above ground.

4. As regards the first contention, it may be observed that it is true that the rent claimed by the respondent was Rs. 950 p. m. and not Rs. 450 p.m. and that the learned Rent Controller held that the rent was Rs. 450 p.m. in view of the gross annual value reflected in P. T. I. of the Excise and Taxation Department: In this view of the matter a lot can be said about the above ground of default. However, even I was to disagree with the finding of the learned Rent Controller on the above ground on the question of default, it will not affect the result of the above appeal, as I am inclined to hold that the ground of personal requirement has been made out.

5. As regards the second contention, of the learned counsel for the appellant, that the ground of default was pressed into service for mala fide reason, it may be observed that he has relied upon the following facts in support of his above submissions :‑

(i) That the respondent demanded rent at Rs. 950 p.m. instead of the agreed rent Rs. 450 p.m.

(ii) That there was criminal proceeding pending between the parties.

(iii) That the appellant had served a legal notice upon the respondent pointing out that she had refused to accept rent.

(iv) Counterfoils of rent receipts produced by the respondent were rejected by the learned Rent Controller.

6. In my view the factum that a landlord had demanded more rent than the agreed rent from the tenant may be a relevant factor in ascer taining the bona fide of the landlord, but it cannot be a conclusive facto for holding that the landlord has failed to prove his personal bona fide requirement. If the Court on the perusal of the evidence on record is satisfied that a ground of personal requirement has been made out, it will grant an application for ejectment on the above ground notwithstanding the fact that the landlord had demanded more than the agreed rent.

7. It may be observed that in the instant case the following facts stand proved :‑

(i) That the respondent's (who is a widow) three married sons and two unmarried daughters of marriageable age have been putting up with her in the same building.

(ii) That the Rent Controller appointed an Advocate as Com missioner to visit the site and to submit his report as to the accommodation in the building. The Rent Controller also visited the site himself. The above Commissioner's report and the inspection note indicate that the respondent is in possession of the two bed room, dining, drawing room, kitchen, bath room etc. on the ground floor and one bed room on the first floor wit dining and drawing room etc. the remaining portion of the first floor is in possession of the appellant. The ground floor is occupied by the respondent, her two married sons and two unmarried daughters and the aforesaid portion of the first flood is in possession of the respondent's remaining married son, who is putting up with his wife and two children.

I am, therefore, inclined to agree with the conclusion of the learned Rent Controller that the accommodations in possession of the respondent, are insufficient to cater for the need of the respondent. However, I grant 4 months time to the appellant to hand over the tenement in question t the respondent on the condition that the appellant shall contiune to deposit rent with the Rent Controller at the rate of Rs. 450 per month, in case of default the respondent shall be at liberly to file an execution application before the expiry of the above period of 4 months. Further more, if the appellant fails to' hand over the vacant possession of the tenement on the expiry of 4 months period, the Rent Controller shall issue a writ of ejectment without further notice to the appellant.

The appeal is dismissed with no order as to costs.

M.Y.M. Appeal dismissed.

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