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First Rent Appeal No. 792 of 1982, decided on 18th November, 1984.

---Ss. 13, 21(1), 2(f) & 15 (2)(iv)--Ejectment application--Competency- Rent agreement between landlady and tenant executed and signed by attorney on behalf of landlady--'tenant had been paying rent to attorney of landlady--Such attorney, held, was duly constituted and ejectment application filed through such attorney was competent.

---Ss. 13, 21(1) & 15(2)(iv)--Addition and alteration made on property- Impairing in value or utility of property--Not every addition or alteration, held, could entitle landlord to ejectment--Acts which were likely to it material value or utility of premises alone could entitle landlord to ask for ejectment.

---Ss. 13 & 15 (2) (vii)--Personal bona fide need--Proof--Landlady had been living in his father's house with her three children for a good deal of time--Landlady not shown to have another house--Personal need of landlady, held, established in circumstances.

P L D 1980 S C 298 rel.

Hatif Khudai for Appellant.

Zia Qureshi for Respondent.

Date of hearing: 11th November, 1984.

This appeal is directed against the orders of IXth Senior Civil Judge and Rent Controller, Karachi, dated 25-4-1982 whereby the appellant was directed to be ejected from House No. A-434, Block-D, North Nazimabad, Karachi.

It is an admitted position that the appellant was a tenant in respect of the disputed premises at the rate of Rs.450 per month the tenancy hall marled in 1977 under an agreement which was for a period of eleven months and a sum of Rs.3,000 had been deposited by the appellant with the respondent as security deposit which was refundable at the time of vacant possession.

2. The ejectment has been granted on three accounts, namely, default in payment of rent of August, 1979, carrying out additions and alterations without the consent of the applicant and personal need of the respondent.

3. Mr. Hatif Khudai Ansari had submitted that the ejectment application was incompetent because the respondent Wakil Ahmed Qidwai who had filed the application was not duly constituted attorney of his daughter Mst. Fatima Qidwai. The short answer to the same is that the premises in question were admittedly rented out to the appellant on 28-5-1977 by an agreement executed between the appellant and Mst. Fatima Qidwai through her father and attorney Wakeel Ahmad Qidwa' and the same was signed by Wakeel Ahmed Qidwai on behalf of Mst. Fatima Qidwai as lessor. Moreover it is again admitted position by the appellant that he had been paying rent to Wakeel Ahmed Qidwai The definition of landlord in section 2(f) means the owner of the premise and includes a person who is for the time being authorised or entitled to receive rent in respect of such premises. Evidently Wakeel Ahmad Qidwai was entitled to receive rent in respect of the premises as he had signed the lease agreement and. had also been dealing with the appellant has also stated that he has dealt with Wakeel Ahmed Qidwai all along and that he made the additions and alterations with the consent of the attorney of the respondent. This objection, therefore, fails.

4. I have heard the learned counsel for the two sides and perused the record. Mr. Hatif Khudai Ansari had submitted that in view of PLD 1980 S C 298. The deposit of Rs.3,000 should have been treated as a debt due from the respondent to the appellant and the same could have been used for adjustment in respect of the rent of August, 1979. This submission appears to be correct because the agreement of 1977 under which the said deposit had been made had died at the expiry of 11 months and therefore in 1979 the said deposit of Rs.3,000 was lying with the respondent and it could had been utilized towards the rent of August, 1979. In any case it is an admitted position that on 6-10-1979 rent for one month "of course for September, 1979" had been sent by the appellant by money order to the respondent but the same was refused. This tender of rent by money order was within two months of the date when the rent for August, 1979 was due viz. 1-8-79 and therefore the appellant had tendered the rent of one month in October, 1979 and the same should have been treated as a tender of rent for the month of August, 1979 and hence there should have been a finding of no default in this case. Consequently the finding in respect of default in payment of rent of August, 1979 is hereby negatived.

5. The second issue, in respect of unauthorised additions and alterations, has been decided by the learned Rent Controller without taking into consideration the question whether there has been any impairing in the value or utility of the premises. It is not every additions or alterations which could entitle a landlord to the ejectment. It is only those acts committed by the tenant which are likely to impair the material value or utility of the premises which alone entitle the landlord to ask for ejectment under section 15(2)(iv) of Sind Rented Premises Ordinance, 1979. While deciding this issue the learned Rent Controller has considered the evidence of Wakeel Ahmad Qidwai, Inspector Safdar Ali Khan, Sub-Inspector Roshan Khan and Syed Iqbal Janjani. And in this respect I find that the appellant had admitted in written statement that he had arranged for Sui Gas connection and that he had undertaken to do much of the work in the said house as the house was incomplete in many respects because it was not fitted with proper water and gutter lines and that the flooring of the house was not Pucca, there was no overhead tank and even the underground tank was badly damaged and he had carried out the same by spending Rs.12,650 Mr. Wakeel Ahmed Qidwai in his affidavit had stated that appellant had made alterations and additions in the premises in the kitchen and courtyard and had impaired the utility of the premises. He had not complained of any other addition or alteration. He had estimated the damage to his house at Rs.15,000 but he gave no details.. The supporting witnesses, namely, Safdar Ali Khan stated that they were not allowed to inspect the house. This statement is of no consequence. Roshan Khan was merely a Police Inspector and he had nothing to say in respect of the constructions. Iqbal stated that he had gone to the house in question in May, 1979 with the respondent in-order to request the appellant not to construct a Pucca floor in the compound. The respondent had again complained to him in October, 1979 that Pucca floor had been constructed in the compound of the house. They went together inside the house. He did not state whether the value of the house had been impaired in any manner or not.

6. It appears to me that no witness has supported the respondent in respect of impairing of- the utility or value of the house and in fact by making the flour Pucca the value of the house must have been bettered and its utility increased. Even the respondent has not given detail as to how the value or utility of the house has been impaired and, therefore, I am of the opinion that the respondent had failed to establish that the appellant had failed to impair the value or utility of the house.

7. Even if the written statement of the appellant in respect of additions and alterations is relied upon even then the additions and alterations so made by the appellant would not lead one to conclude that they had in any way impaired the value of the premises as all those additions and alterations were necessary for a convenient living and had not in any way damaged the building.

8. In respect of the question of personal need of the respondent and has that the respondent is the daughter of Wakeel Ahmed Qidwai has been living in his house for sometime. She has not been shown to be having another house and her father Wakeel Ahmed Qidwai had made a statement on her behalf that she required the premises for her personal bona fide use arid occupation. She has three children of six years, four years and one and half years of age and her husband is a Clerk. She is not shown to be having any other house of her own where she can stay. It is correct that she has been living in tire house of her father for a good deal of lime but the same is riot conclusive of the fact that she would never like to reside in her own house. There is nothing on record to suggest that her desire to live in her house is not bona fide or in good faith and therefore in respect of this issue of personal need the finding of the Rent Controller does not appear to be wrong in any manner. The appellant's counsel had submitted that the respondent was only interested in increasing the rent of the premises. However, there is nothing on record to support that submission. In any case section 15(a) of Sind Rented Premises Ordinance, 1979 has already taken care of the situation where the landlord obtains possession of building for personal occupation and puts it to some use other than personal use within one year of such possession, then he, or she can be punished with fine of one year's rent. This provision of law guarantees against misuse of the building, by the landlord, vacated for personal need. Therefore, I am of the view that the personal need of the landlady was established in the case and to this extent this appeal has to be dismissed. However, I would allow the appellant to a span of six months, subject to regular payment of rent, to vacate the premises in question. The writ of possession will be directly issued if the appellant does not pay the rent of any month and otherwise it would be issued at the end of six months from today.

H. B. T. Appeal dismissed.

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