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First Rent Appeal No. 104 of 1980, decided on 10th February, 1985.

(a) Sind Rented Premises Ordinance (XVII of 1979)--

--Ss. 14, 15 & 21--Ejectment on ground of default and personal requirement--Tenants admitting relationship of landlord and tenant in written statement--Denial of such relationship, held, could not be raised in appeal--Plea of landlord in compromise application filed in previous suit that in case tenant paid rupees five thousand by a specified date, he might become owner of property--Fact having not been proved before Rent Controller that tenant in fact paid requisite amount to landlord, and failure of tenant to enforce such right, such circumstances, held, would not nullifys admission of relationship of landlord and tenant in written statement.

(b) Sind Rented Premises Ordinance (XVII of 1979)--

---S. 14--Default--Tenant failed to prove payment of rent of default period--Finding of Rent Controller in accordance with law--Failure to prove that landlord got vacated some other premises for personal requirement and that landlord owned some other property, held, would not defeat plea of personal requirement.

Abut Khair Ansari for Appellant.

Rashid Yousuf Zai for Respondent.

Date of hearing: 10th February, 1985.

This appeal is directed against the order, dated 8-1-1980 passed by the learned VIIIth Senior Civil .judge and IIIrd Rent Controller, Karachi in Rent Case No. 130 of 1978.

2. The brief facts leading to the filing of the above appeal are that the respondent filed aforesaid rent case on two grounds, namely, default for the period commencing; from April 1977 upto the date of filing of the rent case (which was filed on 2-1-1978) and also on the ground of personal requirement. The above application was resisted.

The learned Rent Controller- un the basis of the pleadings of the parties framed the following four issues:--

(1)Whether rent application is not maintainable

(2) Whether the opponent is a wilful defaulter

(3) Whether the applicant requires the premises in question for his personal bona fide use

(4) What should the order be

3. In support of the above rent application the respondent examined himself, whereas the appellant examined himself. The learned Rent Controller after hearing the parties by his above order under appeal allowed the rent application on both the above grounds. The appellant being aggrieved by the above order has filed the present appeal.

4. (a) In support of the above appeal Mr. Abul Khair Ansari learned counsel for the appellant has urged as follows:--

(i) That the appellant is in possession of the suit premises as the purchaser by virtue of a compromise entered into between the parties in Rent Case No. 221 of 1979 filed by the appellant against the respondent and, therefore, the appellant is protection under section 53-A of the Transfer of Property Act.

(ii) That during the pendency of the rent case the respondent has obtained vacant possession of the other tenaments and, therefore, there was no bona fide personal requirement.

(b) On the other hand Mr. Rashid Yousuf Zai, learned counsel for the respondent has contended as follows:--

(i) That the appellant had not raised any plea before the Rent Controller denying the relationship.

(ii) That the default has been proved in as such as even in compliance with the order of this Court rent for the period commencing from 6-3-1982 till today has not been deposited.

(iii) That no question was put by the appellant to the respondent that he had received the possession of any other tenement.

5. Adverting to the first contention of Mr. Abul Khair Ansari, it may be pertinent to reproduce hereinbelow para. 1 of the rent application and para. 1 of the written statement containing its reply, which read as follows:--

"Para. 1 of Rent Application No. 130 of 1978. The applicant above-named begs to submit as under:--

1. That the applicant is the landlord and the opponent is the tenant of the applicant in respect of Shop/Hotel situated on plot No. K-13/B-43S-2 Rangiwara, Tinnery Road, Bihar Colony, Baghdadi, Karachi, at Rs. 100 P.M. payable on 1st of each calendar month."

"Para. 1 of the Written Statement.

1. That the contents of para. 1 of the application are admitted upto the extent of relationship of landlord and tenant at the rate of rent which was increased by the appellant in R. C. 321/70."

From the perusal of the above quoted paras. of the rent appllication and the written statement, it is evident that the appellant had admitted the relationship of landlord and tenant expressly and, therefore, it is not open to the appellant to raise this plea before me in this appeal. However, Mr. Abul Khair has referred to a, plain copy of the compromise application filed in Rent Case No. 221 of 970, dated 16-2-1972, which was a case filed by the appellant against the respondent for restoration of electricity. In para. 4 of the compromise application, inter alia it has been stated "if applicant pays Rs.8,000 to the opponent by 31-5-1972 the applicant shall become the owner of the premises in dispute." liven if I were to consider the above compromise which was made on 16-2-1972 as observed hereinabove, whereas the present rent case was filed in February 1980, the above compromise would not nullify the express admission on the part of the appellant of the relationship, of that landlord and tenant in para. 1 of his above written statement reproduced hereinabove. It has not been proved before the Rent Controller that factually the appellant had paid Rs.8,000 in terms of the above compromise nor any case was filed by the appellant to enforce the above alleged compromise of 1972.

6. As regards the question of personal requirement nothing has been brought on record to prove that factually the respondent No. 1 obtained possession of any other premises during the pendency of the above rent case. In the cross-examination of the respondent it was, suggested that he owned some other premises which suggestion was denied by the respondent.

7. Reverting to the question of default, it seems that the finding of the learned Rent Controller is in accordance with law. The appellant failed to prove the payment of the default period. It may be pertinent to point out that even in this appeal the appellant failed to deposit C rent since 16-3-1982, though according to Mr. Abul Khair, learned counsel for the appellant this was due to the fact that the appellant had gone to Punjab to attend some personal urgent work.

There is no merit in the above appeal and, therefore, it is dismissed with no order as to costs.

However, I allow six months time to the appellant from today on the condition that he shall deposit all the arrears of rent within one month from today and shall deposit rent for the above period month to month in terms of the Rent Controller's Order. In case of default of either of the above terms, the appellant shall be liable to be ejected before the expiry of the above period of six months, namely, either on non-deposing of the arrears within one month or committing default of the current rent. The learned counsel for the appellant shall forward a photostat copy of the deposit slip to the learned counsel for the respondent so that it may be known that first part of the order is complied with, failing which it will be presumed that the appellant has not complied with the above order and the respondent shall be at liberty to file an execution application.

A.A

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