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First Rent Appeal No. 682 of 1981, decided on 20th November, 1983.

-----S. 13‑‑Ejectment proceedings‑Default in payment of rent‑Tenant depositing Rs. 2,000 as fixed deposit by way of security with landlord‑ Through Miscellaneous Rent Application depositing rent with Rent Controller for disputed period and thereafter regularly depositing rent -Rent of disputed premises Rs. 450 p. m. liable to be adjusted against rent of period in question and as such no default committed by tenant- Eviction order set aside in appeal, in circumstances.

Muhammad Yousuf v. Abdullah P L D 1980 S C 298 ; Haji Abdul Aziz v. Mansooruddih Hyder 1983 C L C 812 and Munawar Begum v. Alqab Begum 1983 C L C 1548 ref.

---‑‑ S. 13‑Ejectment proceedings‑Personal requirement ‑Landlords' family consisting of 12 members living in 3 bedroom house‑Case of additional accommodation, held, made out by landlord‑Eviction of tenant ordered.

‑‑ S. 13‑Ejectment proceedings‑Service of notice prior to filing of application‑Held, not requirement of law and such application cannot be dismissed on this sole ground.

‑‑ S. 13(3)(a)(i)(b)‑Ejectment proceedings‑Ejectment of tenant from another house‑Maintainability of application‑Contention that house in occupation of landlord an independent house and as such applica tion for ejectment of tenant from another house not maintainable, held, not correct as under law ejectment application can competently be maintained in respect of another house.

Hafiz Abdul Baqi for Appellant.

Wajihuddin Ahmad for Respondent.

Date of hearing : 20th November, 1983.

This first rent appeal has been filed by the appellant/tenant challenging the ejectment order, dated 21‑11‑1981 passed by the learner Rent Controller. The Rent Case No. 2578 of 1978 was filed on 25‑5‑1978 by the respondent/ landlady on the ground of default in payment of rent from October, 1977, personal requirement, use of the house in question by the tenant for commercial purposes while the house had been rented out for residential purposes and on the ground of making additions and alterations without the permission of the respondent. The application was resisted by the appellant. Respondent's husband and attorney Muhammad Jamil gave evidence and one Muhammad Yaqoob, neighbour/friend, also appeared in support of the respondent's case. Appellant Muhammad Younus and two other witnesses namely M. M. Siddiqi and Rats Hasan Rizvi gave evidence on behalf of the appellant. By the impugned order dated 21‑11‑1981 passed by the Rent Controller, ejectment of the appellant from the house in question was ordered on the ground of default in payment of rent and personal requirement. I have heard Mr. Hafiz Abdul Baqi, learned counsel for the appellant and Mr. Wajihuddin Ahmad, learned counsel for the respondent.

2. As observed earlier, the ejectment case was instituted on 25‑5‑1978, wherein default was claimed from October, 1977. There was an agreement of tenancy, dated 1‑3‑1975 valid for a period of eleven months. In clause (1) of the said agreement it is stated that the appellant has deposited a sum of Rs. 2,000 as fixed deposit by way of security with the respondent. In the evidence the respondent's husband and attorney admitted that a sum of Rs. 2,000 was lying with the respondent. It is an admitted position that on 4‑1‑1978, through a miscellaneous rent application, three months rent i.e., for November, December, 1977 and January, 1978 was deposited by the appellant with the Rent Controller and thereafter‑ rent is being deposited regularly in the miscellaneous rent case. The monthly rent is Rs. 450 and if the amount of Rs. 2,000 lying with the respondent is adjustable against the rent, there would be no default. Learned counsel relied upon a judgment of he Supreme Court in the case of Muhammad Yousuf v. Abdullah (PLD 1980SC298) and two other judgments of this Court in the cases of Haji Abdul Aziz v. Mansoor uddin Hyder (1983CLC812) and Munawar Begum v. Alqab Begum (1983 C L C 1548). These reported decisions support the contention of the learned counsel that the deposit lying with the respondent became liable for adjustment against the rent as the agreement of tenancy had expired in February, 1977. In this view of the matter there was no default and the appellant could not be held to be a defaulter.

2‑A. On the question of personal requirement it was pointed out by the learned counsel for the appellant that the house in question belonging to the respondent/landlady bears No. A/420, Block "D", North Nazimabad, Karachi, and it is constructed on a plot of 200 square yards, the accommoda tion being three bedrooms and a drawing‑cum‑dining room. According to the learned counsel, there are two other houses next to the house of the respondent and they bear Nos. 421 /D and 422/13 also constructed on 200 square yards plots. It is the case of the appellant that the house on Plot No. 421/13 belongs to Muhammad Jamil, respondent's husband and attorney, and the respondent's entire family resides in the house which has similar accommodation to that of the house in question. As regards House No. 422/1), it is the case of the appellant that it belonged to the father of the respondent and as the father had died, the respondent has a share in the property being a legal heir. According to the learned counsel, there was adequate accommodation available in the house of the respondent's husband and that accommodation was also available in the House No. 422/13, in which the respondent has a share and as such a case for additional accommodation was not proved by the respondent. In this case, according to the evidence of respondent's husband, respondent's family comprises of 12 members, which include apart from the respondent and her husband, a one elderly relative, who was living with the respondent since long evidence respondent husband stated that he has four sons and three daughters and two children of his deceased brother, whose wife had also died, also live with him. The House No. 421/D in which the respondent and he family resides belongs to the respondent's husband and it has three bedrooms. On the basis of the evidence on record to the effect that the respondent's family comprises of 12 persons, which evidence could not be controverted, the Rent Controller came to the conclusion that a case for additional accommodation had been made out by the respondent. I find no arbitrariness or perversity in the order of the Rent Controller. The order of the Rent Controller is based on evidence and I see no reason to interfere with this finding on merits.

It was, however, argued by the learned counsel for the appellant that the fact that House No. 421/13 belongs to the husband of the respondent was not mentioned in the ejectment application and as such the respondent bad suppressed pertinent information from the Rent Controller and had not come with clean hands. I find no merit in this contention. In the affidavit in evidence (examination‑in‑chief) of the respondent's husband/attorney it is stated that House No. 421/13 belongs to the husband of the respondent and not to the respondent. As regards House No. 422/13, it was stated in the affidavit in evidence of the respondent's husband that the said house belongs to the brother of the respondent, who is residing there with his own family. The ejectment application filed by the respondent was not liable to be dismissed on the sole ground that the fact that House No. 421/13 belongs to husband of the respondent was not specifically mentioned in the ejectment application. As regards the House No. 422/13, no evidence was brought on record to establish that the said house belongs to the respondent. On the other hand, the evidence on record shows that the said house belongs to the brother of the respondent; in which he is residing with his own family.

It was then contended that no notice had been given prior to the filing of the ejectment application. In law there is no such requirement and the ejectment application is not liable to be dismissed solely on the ground that prior notice had not been given.

Another contention raised on behalf of the appellant was that House No. 421/D was an independent house which was in occupation of the respondent and her family and as such an application for ejectment of the appellant from another house i.e. House No. 410/1) was not maintainable. Neither any provision of law nor any case‑law was cited by the learned counsel in support of this proposition. The relevant provision in the 1959 Rent Restriction Ordinance, is contained in section 13(3)(a)(i)(b) which provides that a landlord may apply to the Rent Controller for an order directing the tenant to put the landlord in possession in the case of a residential building if the landlord is not occupying another residential building suitable for his needs at the time in the same urban area in which such building is situated. According to the order of the Rent Controller, the three-room house in possession of the family of the respondent belonging to the respondent's husband was not sufficient for the needs of the respondent and her big family and as such under the law an ejectment application could be competently maintained seeking ejectment of the tenant in 'respect of another, house. I find no merit in the contention of the learned counsel.

3. As a result, First Rent Appeal No. 682 of 1981 is dismissed but with no order as to costs. With the consent of Mr. Wajihuddin Ahmed, learned counsel for the respondent, the appellant is granted time till 30‑4‑1984 to vacate the premises subject to payment/deposit of rent.

M. Y. M Appeal dismissed.

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