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First Rent Appeal No. 975 of 1983, decided on 7th August, 1985.

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

---Ss. 15(2)(11) & 21(1)--Ejectment of tenant--Default in payment of rent--Proof--Default in payment of rent against tenants was alleged ire ejectment petition from February, 1980--Statements of tenant that he continued to pay rent to landlady up to February, 1981 without obtaining any receipt--Tenants admittedly was served with notice for ejectment on 15-9-1980--Statements of tenant, that he had been paying rent from February, 1980, held, could not be believed in circumstances--Default against tenants for period alleged in application was, therefore fully proved.

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

---S. 21(1)--Tenant--Person staying with tenant--Status--Such person even if brother of tenant of premises could not be accepted as tenant of premises--Mere staying of such person with tenant, held, could not confer on him status of tenant.

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

---S. 21(1)--Ejectment of tenant--Personal bona fide requirement- Proof--Landlady at time of filing of rent application in respect of disputed premises was in possession of another adjoining house devolved exclusively on her after death of her husband--Landlady being exclusive owner of said house had let same after death of her husband and before filing of ejectment application--Rent Controller, held, rightly refused plea of personal bona fide requirement urged by landlady.

S.M. Amir Naqvi for Appellant.

Muhammad Zia Karim for Respondents.

Date of hearing; 7th August, 1985.

This appeal under section 21 of the Sind Rented Premises Ordinance, 1979 is filed by the appellant /landlady against the order of Rent Controller, dated 26-10-1983 whereby the ejectment application instituted by the appellant against the respondents on the grounds of default, subletting and personal requirement was dismissed.

The appellant in her application alleged default against the respondents from February, 1980, until the filing of the ejectment case which was instituted on 31st August, 1980. Besides default it was alleged that the main tenant Mazhar Ali Siddiqui has sublet the premises to respondent No. 2 Maqsood Ali Siddiqui without her consent and knowledge. She also claimed the premises on the ground of personal and bona fide need. The application was resisted by respondent No. 2 who filed written statement for himself as well as on behalf of the respondent No. 1 as his attorney. However, in his evidence before the Rent Controller he admitted that he does not hold any power-of-attorney from respondent No. 1 and respondent No. 1 who was also examined in the case was witness did not claim that he ever appointed respondent No. 2 as his attorney in the case. The effect of the above admission by the two respondents is that the written statement filed in the case was only on behalf of respondent No. 2. The Rent Controller after hearing the parties decided all the three issues against the appellant and consequently dismissed the application of the appellant. I have heard the learned counsel for the parties at length.

The learned counsel for the appellant contends that the default alleged in the application from February, 1980 was clearly established against the respondent No. 1 who did not file any written statement to contest the averment made in the application. It is alternatively contended by the learned counsel that in any case the evidence on record did not establish payment of rent by respondents from February, 1980 except sending of one money order which was sent to the appellant in the month of March, 1981. The rent application was instituted on 31-8-1980 and the notice of the rent application was served on respondent No. 1 on 15-9-1980. Although it is alleged by the respondent in their evidence before the Rent Controller that they have paid rent upto February, 1981 but this statement could not be believed in the absence of rent receipts, specially when the respondent No. 1 was served with the notice of rent application on 15-9-1980 and it was specifically alleged in the rent application that the respondents have not paid rent to the appellant from February, 1980. The statements of the respondents that they continued to pay rent to the appellant upto February, 1981 without obtaining any receipt although they were served with notice of ejectment case on 15-9-1980 could not be believed in the circumstances of the case. It has come on the record that only one money order was sent to the appellant during all this period in March, 1981 and the rent was deposited only after tentative rent order was passed in the case on 9-11-1981. In these circumstances the default against the respondent No. 1 was fully established for the period alleged in the application.

The next ground urged in the application related to subletting of the premises. It is an admitted position on record that the premises were let out by the previous owner under a written agreement of tenancy to respondent No.1. The plea of respondent No. 2 before the Rent Controller was that he being the younger brother of respondent No. 1 was living with him for the last over 18 years and, therefore, he was also the tenant of the appellant. Mere staying of respondent No. 2 with respondent No. 1 who was admittedly the tenant of the premises could not confer on him the status of tenant. There is nothing on record to show that respondent No. 2 was ever accepted as tenant of the premises by the appellant. There is admission both by respondents Nos. 1 and 2 that respondent No. 1 is no more in occupation of the premises and that he left the premises after he was allotted official accommodation by the Government in the year 1975-76. It has also come in evidence that the respondent No. 1 is presently serving at Jeddah. In these circumstances the allegation of the appellant that Opponent No. 1 has parted with the possession of the house to opponent No. 2 is fully established. The fact that Opponent No. 2 is brother of Opponent No. 1 does not make any difference in the circumstances of the case.

The last ground urged by the appellant in the rent application relates to the personal and bona fide requirement. The Rent Controller, however, rightly refused to accept the plea of personal and bona fide requirement urged by the appellant as it has come in the evidence that at the time of filing of the rent application the appellant was in possession of another adjoining house which belonged to her husband and which after the death of husband of the appellant has devolved on her exclusively. The appellant in her evidence before the Rent Controller clearly stated that she is the exclusive owner of House No. 861/8 and she also admitted that this house was let out by her after the death of her husband which took place on 28-5-1980 while she instituted the present ejectment case on 31-8-1980. In these circumstances the Rent Controller rightly held that the personal and bona fide need urged by the appellant could not be proved.

As a result of the above discussion the appeal is allowed. The ejectment application is granted on grounds of default and subletting. The respondents are however, allowed four months time to vacate the premises subject to the condition that they shall continue to deposit rent for this period with the Rent Controller as directed by the Rent Controller. There will, however, be no order as to costs.

H. B. T.

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