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First Rent Appeal No. 279 of 1980, decided on 13th October, 1983.

---‑ S. 13‑Ejectment on grounds of default and personal requirement --Landlord applying under S. 13(6) for striking off defence for non compliance of tentative rent order passed by Rent Controller‑‑Record ing of evidence by parties‑‑Rent Controller dismissing petition after hearing arguments‑‑Landlord seeking review on ground that decision on his application under S. 13(,6) was not given‑Rent Controller dismissing same on ground of his having become funclus officio since after passing final order‑Held : Since landlord did not pursue his application under S. 13(6) nor pressed for decision in same, Rent Controller committed no illegality in passing final order without deciding application under S. 13(6) in circumstances.

Ishaque Ahmad for Appellant.

Nemo for Respondent.

Date of hearing : 13th October, 1983.

Rent Case No. 1352/78 was instituted by the appellant on 20‑3‑1978 before the Rent Controller, Karachi seeking ejectment of the respondent from the premises in question on the ground of default in payment of rent from March 1977 and on the ground that "the said premises is now required by the appellant in good faith for his own bona flue use and occupation". The ejectment application was resisted by the respondent who filed a written statement. The rent was claimed by the appellant at the rate of Rs. 105 per month. The respondent denied the rate of arrears of rent. According to the respondent the rate of rent was Rs. 20 per month and it was denied that any default had been committed. The application of the appellant regarding his personal requirement of the premises was also denied. A tentative rent order dated 5‑10‑1978 was passed by the Rent Controller. On 19‑5‑1979 an application under section 13(6) was filed by the appellant for striking off the defence of the respondent on the ground of non‑compliance of the tentative rent order. On this application notice was ordered to be issued and Nazir was directed to report. Nazir made his report dated 3‑7‑1979. On behalf of the appellant, only the appellant gave evidence and his evidence was recorded on 21‑10‑1979. On 10‑2‑1980 three witnesses including the respondent gave evidence on behalf of the respondent. The case was then put up on 20‑2‑1980 for arguments. Arguments were apparently heard on 20‑2‑1980 and by an order dated 28‑2‑1980 the ejectment application of the appellant was dismissed by the Rent Controller. Thereafter an application was filed on 5‑3‑1980 by the appellant before the Rent Controller for review of the order dated 28‑2‑1980 in which it was prayed that the application under section 13(6) filed by the appellant had not been decided apparently on the ground that it escaped the attention of the Rent Controller. Notice was ordered of this review application and by order dated 18‑3‑1990 the application was dismissed by the Rent Controller holding that he had become functus officio and he was therefore not competent to pass any orders. The appellant has filed the present First Rent Appeal impugning the order dated 28‑2‑1980 of the Rent Controller dismissing the ejectment application of the appellant and it is further prayed that the applica tion under section 13(6) of the appellant be decided on merits and the defence of the respondent may be struck off and the appellant may be put into possession of the rented premises. I have heard Mr. Ishaque Ahmad, learned counsel for the appellant. No one has appeared on behalf of the respondent.

2. It was first contended by the learned counsel that the impugned order dated 28‑2‑1980 was passed without jurisdiction as first tile Rent Controller was required to decide the application under section 13(6) of the 1959 Rent Ordinance for striking off the defence of the respondent. It was argued that under the law it was mandatory upon the Rent Controller to decide the application for striking off the defence of the respondent and as this was not done the impugned order is a nullity. In the facts of the present case I am not inclined to accept the contention raised on behalf of the appellant that the im pugned order dated 28‑2‑4980 dismissing the ejectment application of the appel lant has been passed without jurisdiction. It appears from the record of the Rent Controller that since making the application dated 19‑5‑1979, no effort was made on the part of the appellant to request the Rent Controller to decide his application under section 13(6) of the 1959 Rent Ordinance. As observed earlier appellant's evidence was recorded on 21‑ 0‑1979 and then the witnesses on behalf of the respondent were examined on 10‑2‑1980. During this period no application or requests were made by or on behalf of the appellant to the Rent Controller to decide the application under section 13(6). When the Rent Controller asked the appellant to give evidence an application could have been moved on behalf of the appellant asking the Rent Controller to decide first the application under section 13(6) but this was not done. Similarly no applica tion or request was made when further proceedings were taken and when evidence on behalf of the respondent was recorded on 10‑2‑1980. The arguments were heard on 20‑2‑1980. Even at that stage on behalf of the appellant a request could have been made that the application under section 13(6) should be decided first or arguments under section 13(6) could have been addressed on behalf of the appellant. The record of the Rent Controller shows that no application or request was made on behalf of the appellant for deciding the application under section 13(6) till after the final order had been passed on 215‑2‑1980. From the conduct of the appellant, on the other side it appears that the appellant wanted a decision on merits and as such he gave evidence, cross-examination of the witnesses of the respondent was done on behalf of the appellant and arguments were also addressed on the merits of the case. In these circumstances, I am of the view that no illegality was committed by the learned Rent Controller in passing the final order on 28‑2‑1980 without deciding the application under section 13(6) of the 1959 Rent Ordinance and once the final order had been passed and the ejectment application had been dismissed, there remained no question of striking off the defence of the respondent/ tenant.

3. On merits also I do not find any substance in this appeal. On the question of personal requirement, as observed earlier, in the ejectment applica tion it was stated by the appellant that he required the premises, which is one room on the first floor of the building, in good faith for his own bona fide use and occupation. In his evidence before the learned Rent Controller all that he states in his examination‑in‑chief is as follows :‑

"I require the premises in case for use of my son. There are 13 members in my family and all members of my family are major."

The appellant has not stated about the accommodation in his occupation. He did not state how many rooms were in the house which was occupied by him and his family. He did not state whether the house in his occupation belonged to him or had been taken on rent by him. He did not give the name of his son for whom the premises in question was required. The son also did not come in the witness‑box to give evidence. On the basis of the evidence on record, in my view, a correct finding has been given by the Rent Controller that the case for personal requirement had not been established by the appellant.

4. As regards the question of default it is an admitted position that the respondent has been a tenant in the premises in question since 1964 and that no rent receipts have been issued by the appellant and that he also did not maintain any account about the rent. There was only the word of the appellant that the rent was Rs. 105 per month. On the other hand, it was claimed by the respondent that rent was Rs. 20 per month and that he had sent a money order at the rate of Rs. 20 per month but the same had been refused by the appellant after which he started depositing the rent in a Miscellaneous Rent Case. On the basis of this evidence on record, the Rent Controller came to the conclusion that it had not been established that the rate of rent was Rs. 105 per month and that respondent was a defaulter. The finding of the learned Rent Controller on the question of default is supported by evidence and does not call for interference.

5. F. R. A. No. 279/80 is dismissed. As no one is present on behalf of the appellant, there will be no order as to costs.

M. B A. Appeal dismissed.

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