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First Rent Appeal No. 763 of 1980, decided on 4th September, 1983.

---S. 13‑Landlord and tenant, relationship of ‑ Father of owner dealing with affairs relating to disputed premises as her attorney and collecting rent from tenant in such capacity‑Fact remains that respondent is owner of disputed premises and appellant occupying same as tenant--Relationship of landlord and tenant, held, established, in circumstances.

‑ S. 13--‑Default‑Letter of postal authorities clearly showing that money order was returned with endorsement "refused"‑--As to who actually refused to accept amount of money order left unexplained‑---In view of landlord's denial, burden lay on tenant to examine postman concerned to prove his contention that landlord had refused to accept money order‑In absence of such evidence, held, difficult to, hold that, landlord declined to accept money order.

(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑---

‑‑ S. l3‑Eviction proceedings‑Default‑--Tenant contending that after O.I refusal of money order he started depositing rent in Court after seeking permission‑Even if rent deposited adjusted, default in respect of three months remaining unexplained‑Default, held, proved, in circumstances.

(d) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)--

----S. 13‑Eviction proceedings‑Filing of cross‑objection‑Contention that since issue of personal requirement decided by Rent Controller against landlord, for which he did net file appeal or cross‑objections, he cannot be permitted to agitate that issue in appeal filed by tenant against issues decided by Rent Controller against him‑ geld, in absence of filing of cross appeal or cross‑objections, landlord can criticise findings on such issue.

Shaikh Muhammad Ashraf v. Shaikh Muhammad Almas P L D 1980 Lah. 52 fol.

‑‑S. 13--‑Eviction proceedings‑Personal requirement‑Contention of tenant that landlady would not live in separate house, held, had no force‑.Living of married lady in her separate house not against custom‑Bona fide personal requirement established in circumstances.

M. Abdul Kasim Siddiqi for Appellant.

Ahsanali T. Khawaja for Respondent.

Dates of hearing: 25th and 29th August, 1983.

This appeal has been filed against the order of XVth Civil Judge and Rent Controller, Karachi, dated 17‑9‑1980 whereby the ejectment application instituted by Miss Gohar Fatima, respondent, has been allowed and the appellant Syed Khadim Abbas Rizvi has been directed to hand over the possession of the premises in dispute to the respondent within 30 days of the order.

2. The facts leading to this appeal may briefly be narrated as follows. The respondent is the owner and landlady of the House No. 3, S. No. 640, Jaffar Tayyar Housing Society, Malir, Karachi and the appellant is occupying the said house as tenant on monthly rent of Rs.100. The case of the respondent/landlady is that the appellant h‑.‑s made default in payment of rent from August, 1979 to January, 1980, and further that she requires the house for her bona fide personal need. Accordingly the respondent has sought ejectment of the appellant on above two grounds.

3. The appellant has opposed his ejectment denying the allegations of default and personal need. He has also disputed the relationship of landlord and tenant between the parties. According to him the respondent's father Muhammad Ansar had put him in possession of the disputed house and it was he who had been receiving rent from him on his own account. It is averred by the appellant that Muhammad Ansar, pressed him for enhance ment of the rent from May, 1978, but he refused to accede to his illegal demand. There upon Muhammad Ansar refused to receive the rent, which was, therefore, sent to him by money order but that too was not acceptable to him. In this way Muhammad Ansar declined to accept the rent from June, 1978 to March, 1979, sent to him by money orders Being hard pressed by the need of money, he accepted the rent for 11 months from June, 1978 to April, 1979, in lump sum and for the first time issued receipt, dated 28‑5‑1978, for the said amount.

4. The learned Rent Controller struck four issues. The issues relating to relationship between the parties and default in payment of 'rent were decided by him in favour of the respondent where as the issue on the point of personal requirement was found against the respondent. Thus as stated above the ejectment application was allowed and the appellant was ordered to be ejected from the disputed premises within 30 days of the order.

5. Mr. Abdul Karim Siddiqui submitted his arguments on behalf of the appellant and Mr. Ahsan Ali T. Khawaja made his submissions on behalf of the respondent. The learned counsel for the appellant contended that the appellant was put in possession of the disputed premises by Muhammad Ansar father of the respondent and therefore he paid the rent to him for which he gave him receipts. He further submitted that when the appellant did not accede to his unreasonable demand for enhancement of the rent, Muhammad Ansar refused to accept the rent which was however sent to him by money order but the same was declined by Muhammad Ansar. According to the learned counsel, after having failed in his efforts to persuade Muhammad Ansar to accept the rent, the appellant started depositing it in the Court.

6. The respondent's ownership of the premises in question has not been disputed. It is established by the allotment letter Annexure "A" which has been issued by the Co‑operative Housing Society concerned in the name of the respondent. Even the appellant does not seriously question the respondent's ownership of the premises. He has only emphasized that there was no privity of contract between him and the landlady. No doubt Muhammad Ansar who is father of the respondent deals with the affairs) relating to the disputed premises as an attorney of the respondent. In that capacity he also used to collect rent from the appellant. But the fact remains that the respondent is the owner of the disputed premises and the appellant is occupying the same as tenant. Therefore, the learned Rent Controller has, rightly held that relationship of landlord and tenant exists between the' parties.

7. Coming to the question of the default in payment of rent, the respondent's case is that appellant has been defaulter since August. 1979. It is admitted by the appellant himself that Muhammad Ansar who used to collect rent from him stopped receiving the same from August, 1979. Muhammad Ansar when cross‑examined in this respect, categorically denied that he had ever refused to accept the rent or had ever demanded the rent at enhanced rate. Thus, excepting the appellant's own word there is no other evidence to prove that the appellant tendered or actually paid the rent for the disputed period either to the landlady or to her father Muhammad Ansar. There is also no evidence to the effect that the rent offered by the appellant was eve: refused by them.

8. It was further submitted by the appellant's counsel that on refusal of the respondent's father to accept the rent it was sent to him by money order. To prove his contention, he has referred to the letter written by the appellant to the postal authorities and the reply received from the said authorities. The letter written by the appellant, which is Exh. 0/2 in the lower Court's record shows that the rent for the month of .August had been sent in the name of Muhammad Ansar. But from the letter of the postal authorities, Exh. 0/3 it is clear that the money order was returned with the endorsement "refused". Who actually refused to accept the amount of the money order has been left unexplained, in view of Muhammad Ansar's denial, the burden lay on the appellant to examine the postman concerned to prove. his contention that Muhammad Ansar had refused to accept the, money order. But in absence of such evidence it is difficult to hold that Muhammad Ansar had declined to accept the money order.

9. According to the appellant after the money order was refused by Muhammad Ansar, he started depositing the rent in Court. In support of his statement he has produced a copy of the application seeking permission of the Court for depositing of the rent. He has also produced three receipts of Rs.100 each indicating that the amounts mentioned therein had actually been deposited in the Court. It is however not clear from these receipts to which‑ period they pertain. Even if it is assumed that the three receipts relied upon by the appellant pertain to the rent for the months of August, September rind October still the appellant has to explain the default in respect of the months of November, December and January, the ejectment application having been filed on 6‑2‑1980. In view of the evidence discussed above the conclusions reached by the learned Rent Controller that the appellant is defaulter in payment of rent is correct.

10. As for the issue relating to personal requirement as stated above, it has been decided against the respondent. The learned counsel for the appellant, therefore, argued that since no appeal has been filed nor any cross) objection has been made against the finding on that issue, the respondent cannot be permitted to agitate that issue. In reply to his arguments the learned counsel for the respondent has placed reliance on Shaikh Muhammad Ashraf v. Shaikh Muhammad Almas (P L D 1980 Lah. 52). The view taken in that case was that it was not necessary for the respondent to file cross appeal or cross objections and even in their absence be could criticise the finding on the said issue. On the question of personal requirement the learned counsel for the respondent argued that the learned Rent Controller has misappreciated the evidence and has erred in holding that the respondent has failed to establish that she requires the premises for her personal bona fide use. On perusal of the impugned order, it is found that the reasoning adopted by the learned Rent Controller in support of his finding on this issue is for from convincing. The learned Rent Controller was apparently influenced by the argument advanced by the appellant's Advocate that it is not customary in this country that after her marriage, the daughter lives in a separate house of her own because subsequent to her marriage she goes to her husband's house. The argument is patently fallacious. It is true that the married daughter invariably lives with her husband wherever he resides. But to say that it is against custom for the married daughter to live in a separate house is to shut eyes to the realities of life. Separate house does not mean separately from husband. On the contrary it is in consonance with the Custom that a married couple prefer to set up an independent house. In the instant case also the respondent needs the disputed house so as to live with her husband independently of her in‑laws. The appellant has also not succeeded in dislodging the respondent's specific plea that her marriage stands deferred for the reason of the disputed premises having not been vacated. Accordingly I am inclined to hold that in view of the material available on record it has been established that respondent needs the house , in dispute for her bona fide personal use.

11. For the above reasons the appeal is dismissed with no order as to costs. The appellant is allowed three months period from the date of this order for vacating the disputed premises and delivering its peaceful possession to the respondent. '

M. Y. M. Appeal dismissed.

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