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First Rent Appeal No. 338 of 1981, decided on 5th May, 1985.

---Ss. 15 & 21--Ejectment--Shop--Default in payment of rent--Tenant paying rent through money order--Rent Controller failing to take into consideration document relating thereto while holding tenant as defaulter--Finding of Rent Controller, arrived at on question of default against tenant, reversed.

--Ss. 15 & 21--Ejectment--Shop--Personal and bona fide requirement--Landlord, carrying on his business in a rented premises stating that he had been evicted therefrom and that a portion of disputed premises was in possession of his servant--Landlord nowhere stating in his examination-in-chief before Rent Controller that he needed disputed shop for his personal and bona fide use or that portion of disputed premises, held, by his servant was not sufficient for his need--Servant of landlord deposing before Court that he held possession of portion of said premises as employee of landlord--In absence of any evidence that premises occupied by landlord through his servant being insufficient, no case. of personal and bona fide requirement, held, was made--Finding of Rent Controller that landlord required shop for bona fide use reversed in circumstances and his appeal against order of ejectment passed by Rent Controller dismissed.

Mazhar Ali Chowan for Appellants.

Matloob Hussain Siddiqui for Respondent.

Date of hearing: 5th May, 1985.

This appeal under section 21 of the Sind Rented Premises Ordinance, 1979 is filed by the appellants/tenants against the order of eviction passed by the Rent Controller, Shandadpur, against them directing their eviction from a shop premises bearing C.S. No. 784 Ward "B" Sarafa Bazar, Shandadpur, on the application of the respondent filed on the grounds of default and personal and bona fide requirement.

2. The default in the application is alleged by the respondents from December, 1976 to July, 1978 and the rent claimed in the application is at the rate of 100 per month. The respondents also alleged in the application that he required the shop occupied by the apellants for his personal use as he is himself running business in a rented shop and is paying rent at the rate of Rs.125 per month and that the landlord of the respondent has asked him to vacate the shop. The application was resisted by the appellants predecessor-in-interest and on the basis of the pleadings of the parties the Rent Controller framed the following issues in the case:

"(1) What is rate of rent of shop

(2) Whether the opponent is not wilful defaulter from December, 1976

(3) Whether till today the applicant does not require the shop for his personal bona fide use

(4) Whether the opponent is not liable for ejectment

(5) What should the order be "

On issue No. 1 the Rent Controller held that the rent of the shop is Rs.30 per month and not Rs.100 as claimed by the respondent but on issue No. 2 the Rent Controller held appellants wilful defaulter in payment of rent from January, 1978 to April, 1978 and on issue No. 3 the Rent Controller found that the respondent had succeeded in establishing his personal and bona fide requirement with regard to shop in occupation of the appellants and accordingly under issue No. 5 he directed eviction of the appellants from the shop in dispute.

3. Learned counsel for the appellant has challenged the above order of the Rent Controller and has urged that there is a complete misreading of evidence on the part of the Rent Controller in holding the appellants as defaulter in payment of rent from January, 1978. It is also contebded that in so far the ground of personal and bona fide requirement is concerned the Rent Controller failed to notice that there was no evidence at all led by the respondent in support of his claim for personal and bona fide requirement in respect .of the shop in dispute. In holding the appellants as wilful defaulter in payment of rent from January, 1978 to April, 1978 the learned Rent Controller held that the rent for the months of January, February and March, 1978 was remitted in the month of April, 1978. This finding of the Rent Controller is clearly based on a misreading of evidence. The money. order Exh. 9/E which is produced in evidence is for Rs.60 only and was sent on 8-3-1976. The Rent Controller did not consider this exhibit at all but referred to another money order which is not exhibited but is produced in evidence and is, dated 8-4-1978 under which the appellants sent rent for 3 months amounting to Rs.90. In view of the fact that the appellants had sent rent through money order on 8-3-1976 amounting to Rs.60 which was the rent for the month of January and February, 1978 there was no default at all on the part of the appellants and the Rent Controller fell into error in ignoring this document and relying on a subsequent money order only which was sent on 9-4-1984 covering 3 months rent. I accordingly reverse the finding of the Rent Controller on the issue of default.

4. On the issue of personal and bona fide requirement the respondent alleged in his application that he was carrying on business in the rented shop and that his landlord has asked him to' vacate the same. In his evidence before the Rent Controller the landlord though stated that he has been evicted from the shop where he was carrying on the business but he also stated in his examination-in-chief that a portion of the disputed shop is in possession of his servant. He nowhere stated in his examination-in-chief before the Rent Controller that he either needed the shop for his personal and bona fide requirement nor he stated that the portion of the shop occupied by his servant was not sufficient for his need. The respondent examined his servant Abdul Jabbar Exh.17 in the case and he stated in his evidence before the Court that he is only employee of the respondent and is in possession of the shop as an employee of the respondent. In the absence of any evidence on the point that the shop occupied by the respondent through his servant was not sufficient for his needs and requirements of the respondent, no case of personal and bona fide requirement was made out. It is an admitted position in the case that the other portion of the shop was in occupation of a tenant Ashraf at the time of institution of ejectment case which was got vacated by the respondent and at the time he was examined in Court he was in possession of that portion of the shop; but he offered no evidence before the Rent Controller to show that the shop in his occupation was not sufficient for his requirement. In these circumstances there, was no occasion for the Rent Controller to have granted the application on the ground of personal and bona fide requirement. I accordingly reverse the finding of the Rent Controller on this issue also. As a result of above findings the order of the Rent Controller is set aside and ejectment application is dismissed but the parties are left to bear their respective costs.

M.Y.H. Appeal accepted.