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First Rent Appeal No. 937 and Civil Miscellaneous Application No. 1889 of 1982, decided on 13th October, 1982.

‑‑S. 13‑Eviction proceedings‑Tenant paying advance of Rs. 1,830 as rent and this fact admitted by landlord‑Rent Accounts filed by tenant before Rent Controller showing rent for months of Septem ber to January not paid but for period prior to that he tendered amount‑Even adjustment of rent to amount already advanced is made, still tenant found to be in default‑Eviction of tenant ordered.

M. Yaseen Azad for Appellant.

This appeal under section 21 of the Sind Rented Premises Ordinance, 1979, has been filed by Mushtaq Ahmad Malik, to challenge an order of eviction passed by Xlth Senior Civil Judge/Rent Controller, Karachi in a Rent Case No. 3699/79 on 1st August, 1982. The respondent had sought eviction of the appellant on ground of default in payment of rent and bona fide personal requirement.

I have heard Mr. Muhammad Yaseen Pizao and have perused' the record, with his assistance. Since I have come to the conclusion that this ‑case is not fit for admission, I have not thought it proper to issue any notice to the respondent as that would only cause inconvenience and undue expense.

The admitted facts of the case are that the respondent is the owner of a building bearing Survey No. 27/1‑G‑A situated in Nazimabad, Karachi. Two flats in that building bearing Nos. 3 and 4 were rented out to the appellant on a monthly rent of Its. 130 and Rs. 175, respec tively. It is alleged in the application for ejectment, which was tiled on 10th August, 1978 that rent for the months of March, 1978 to August, 1978 amounting to Rs. 1,830 had not been paid. In regard to the ground has three rooms in his house and his family consists of 8 grown up mem bers and children. .

The written statement was filed by the appellant in which, in res ponse to the case set up by the applicant on the basis of default, it was stated as follows

"It is submitted that the rent has already been tendered to the Land lord's son Mr. Shahabat Khan upto August, 1979 for both the flats. It is further submitted that the landlord never issued rent receipt to the opponent, although it was demanded several times but in vain."

In regard to personal need the case set up by the appellant was that he neither admitted nor denied the factual averments for want of know ledge. In short it would seem that the appellant did not set up a case that the accommodation of three rooms as stated by the landlord was incorrect, or that the size of the family as disclosed by the landlord was at incorrect.

Evidence was initially tendered by affidavits and while the deponents of the affidavits filed on behalf of the respondent/landlord appeared in the witness‑box, and subjected to cross‑examination, the present appellant refrained from entering the witness‑box and did not subject himself to cross‑examination. 1 have asked Mr. Azad whether, there was any justi fied abstention by the appellant, and all that he stated was, that the appellant was out of country. It would thus seem that the case of the appellant before the Controller has gone by default, and his averments in the affidavit cannot be taken into consideration. The first point that re quires consideration is whether, the appellant has committed default payment of rent. The fact is that when the appellant had taken flat No. 4 on rent, he had paid an advance of Rs. 1,830. First of all no receipt for this advance has been produced, although payment, of this advance is admitted by the respondent. Rent accounts were filed by the appellant, before the Controller on 15th February, 1979 wherein, he admitted that the rent for the months of September, 1978 to January, 1979 had not been paid. In regard to the earlier months i.e., from March, 1978 to August, 1978 in the written statement all that was stated by the appel lant was that this amount has been tendered. The meaning of the word tendered' is different from the words 'offered and accepted'. On the other hand there has been no cross‑examination of the witnesses of the respondent on this aspect of the case. It would thus, be seen that rent for the months of March, 1978 to January, 1979 has been paid. Even adjustment were to be given with regard to the amount, that was paid by the appellant to the respondent/landlord as advance rent, still he would be found to be in default. It would appear that the case of the respon dent has almost gone unrebutted.

The other ground of bona fide personal need has also been establish ed. It has come in the evidence that the respondent's family consists 12 members and there are only three rooms. Obviously this accommoda tion is not sufficient. The learned Advocate, has, however, invited my attention to a sentence appearing in the cross‑examination of Syed Shafarat Hussain to the effect that during the pendency of the case, but before the order of Controller, one other flat has fallen vacant. Perhaps be learned Advocate would deem to set up 4 can that this circumstance would by itself defeat the ejectment application. There is no means of knowing as to why this flat had fallen vacant, but by itself the circum stance would not show that the needs of the respondent have been satis fied. In any case there is nothing on the record to indicate as to how much accommodation was available in that flat, which had fallen vacant. It was however, open to the appellant to have made an application for amendment of his objections or for placing additional material on the record and even this was not done by the appellant. However, in any case, the appellant had been ordered to be evicted on the ground of de fault, and therefore, even if it is held that on account of new facts that have emerged, the landlord was not entitled to the ejectment on the ground of bona fide personal need, still the application his to succeed on the ground of default in payment of rent.

In these circumstances, I see no substance is this appeal which is dismissed.

M.Y. M. Appeal dismissed.

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