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First Rent Appeal No. 573 of 1984, decided on 31st December, 1984.

---S. 15--Ejectment on ground of default in payment of rent--Parties were litigating even before application for ejectment was filed and appeal was pending in that matter which was dismissed--Tenant continuing to deposit rent in same matter-Tenant replying notice of landlord stating such facts--Tenant in order to show his bona fide remitting rent by money order which was accepted by landlord but subsequent money orders were refused--Tenant continued to deposit rent in Court in disposed of matter which may be a mistaken conduct on part of tenant- Landlord not producing any evidence to show that such deposits were made in bad faith or to harass him--Tenant, held, a wilful defaulter in circumstances.

---S. 15--Civil Procedure Code (V of 1908), O. VII, r. 1--Written statement, signing of--Tenant filing joint written statement under signatures of only one tenant--Held, a technical defect not debarring such other non-signing tenants, from defending their case.

---S. 15--Ejectment on ground of bona fide, personal requirement--Landlord nowhere giving in his evidence any particular of accommodation available to him in which he was residing nor stating that present accommodation in his possession was insufficient--Such lacuna in evidence, held, fatal--Order of rejection of ejectment petition maintained in circumstances.

Abu Sharaf Ziauddin Muhammad for Appellant.

Manzurul Haq for Respondents.

The appellant filed ejectment application against the respondent on the following grounds:-

(1) Default in payment of rent from July, 1977 till the filing of ejectment application.

(2) Subletting.

(3) Requirement for personal bona fide use and occupation.

(4) Damaging the building and imparing its value and utility.

The issue relating to the last ground was not pressed whereas on the other issues the finding of the learned Controller is against the appellant. Pre-admission notice was issued to the respondent and Mr. Manzurul Haq has appeared on their behalf.

Mr. Abu Sharaf Ziauddin Muhammad, the learned counsel for the appellant contended that the evidence on record has not properly been appreciated by the learned Controller. So far issue relating to, default is concerned, the main objection of the learned counsel is that in spite of notices served on 17-7-1977 no rent has been paid. The respondent had pleaded and proved that the parties were litigating even before the application for ejectment was filed, and an appeal was pending which was also dismissed. The respondent, however, continued to deposit the rent in the same matter which was pending in the Court and when notice, dated 17-7-1979 was served on him, he replied it on 25-7-1979 stating all these facts. In order to show his bona fides he remitted the rent by money order on 26-7-1979, which was accepted and the subsequent money orders sent in August and September, 1979 were refused. These facts clearly establish that the respondent is not a wilful defaulter, He continued to deposit the rent in Court in dispose of matter which may be a mistaken conduct on the part of the respondent. The appellant has not produced any evidence on record to show that such deposits were made in bad faith or to harass the appellant. I the absence of any evidence, to that effect, in the circumstances o the case the learned Controller was justified in not exercising hi discretion in favour of the appellant.

On the issue regarding subletting the main contention of the appellant was that the opponent has sublet the premises to the respondent No. 2 and the Pan Shop has been sublet to one Syed Ali. The respondent has taken a stand that he is running the business in partnership with the respondent No. 2 and that he has employed several persons to run his business. One of them is Syed Ali, who is running the Pan Shop. The appellant had tried to establish that the respondent No.1 had parted with the possession and is not available and known for the last so many years. This fact was denied by the respondent No.1 who appeared personally, filed his affidavit of evidence and was cross-examined. The' learned counsel for the appellant contended that in fact the respondent No.1 has not filed his written statement, but that a joint written statement was filed by the respondent No. 2 for and on behalf of the respondent No. 1 also. If the respondent No. 1 had not signed the written statement, it was merely a technical defect Which does not completely debar him from defending the case. The fact remains that the respondent No. 1 did appear and was cross-examined and he has filed his counter-affidavit in this Court also. The evidence produced on behalf of the appellant does not inspire confidence. They are either interested witnesses or they have been managed or tutored by the appellant. In these circumstances, the appellant has failed to establish subletting.

The learned counsel for the appellant pressed the plea for bona fide use and occupation. The premises is required for residential purposes by the appellant on the ground that after the premises was let out his family members have grown, and it is needed for their accommodation. The appellant has nowhere given in his evidence any particular of the accommodation available to him in which he is residing nor has he stated that the present accommodation in his occupation is insufficient. This lacuna in his evidence is fatal. Since such facts have not been brought on record, it is not possible to assess the need of the appellant. The appellant has further stated that he is a patient of T.B. and is the only earning member. At one hand he has pleaded his poverty and on the other hand wants to convert the premises into residential one and occupy it personally, and thereby deprive himself of its rent income. It is unbelievable that in such circumstances, a sick man would like 'to remove the tenant from the premises from which he is earning part of his livelihood. In the circumstance, alleged by the appellant, the intention cannot be to obtain the possession and then to live in such premises.

The other aspect of the case which has been dealt with by the learned Controller is that the premises was let out by the landlord for business purposes and, therefore, it cannot be required for residential purposes. The evidence on record clearly establishes that even before, this premises was let out a hotel was in existence there. The witness examined by the appellant testified that in that locality and around the hotel there are several shops. To begin with the area in which shops are situated would have been primarily a residential locality, but with the passage of time, it has developed into a commercial area. In view of these facts it is established that the premises was let out for commercial purposes and is now located in a commercial area. The learned counsel has referred to a notice which was issued to the appellant's father in 1967 by the Municipality calling upon him to remove the shops and action would be taken if the premises is converted into a commercial one. This notice was not allowed to be brought on record by the learned Controller, as it was produced at a late stage. However, even if this document is accepted on record, it is not likely to effect the merits of the case. This notice was issued in 1967 and the fact remains that upto date the Municipality has not taken any action, on the ground that the house has been converted into a commercial unit. In the result the appeal has no force, and is dismissed, in limine.

M.A.K. Appeal dismissed.

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