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First Rent Appeal No.331 of 1983, decided on 20th April 1986.

‑‑‑S.21(1)‑‑Premises constructed and used for residential purposes‑ Subsequent partition of premises‑‑Effect‑‑Premises originally constructed and used for residential purposes, held, would continue to remain residential, after its subsequent division‑into two portions even if tenant was permitted to carry on commercial activities in portion retained by him and particularly so when according to terms of agreement between parties, tenant was prohibited from getting premises commercialised after such division.

‑‑‑Ss.15(2)(vii) & 21(1)‑‑Personal bona fide requirement‑‑Proof‑‑Facts constituting personal bona fide requirement of landlord in respect of premises in dispute having not been controverted, Rent Controller, held, rightly concluded that personal bona fide requirement by landlord had been established.

‑‑‑Ss.15(2) (vii) & 21(1)‑‑Transfer of Property Act (IV of 1882), 5.108‑‑Covenant by landlord not to disturb peaceful enjoyment of premises by tenant till such time tenant would continue to pay monthly rent‑‑Terms being usual covenant under provisons of Transfer of Property Act (IV of 1882), landlord by such covenant, held, would not waive his right of eviction of tenant.

‑‑‑S.15(2)(vii) & 21(1)‑‑Right of landlord to eject tenant‑‑Mutual agreement between landlord and tenant that expenses for partitioning property in dipute would be borne out by tenant, held, would not, in any manner curtail or do away with right of landlord to seek eviction of tenant from premises on ground of personal bona fide requirement.

A.M. Khan for Appellant.

M.Rafiq Khanzada for Respondent.

Date of hearing: 20th April 1986.

This appeal under section 21 of the Sind Rented Premises Ordinance, 1979 is filed by the tenant /appellant against the order of eviction passed by the VIth Senior Civil Judge and Rent Controller, Karachi, in Rent Case No.4443 of 1981 instituted by the respondent on the ground of personal bona fide requirement.

The personal bona fide requirement of the respondent is pleaded in his application as follows:‑

"(6) That the applicant needs the remaining portion of the flat very badly, due to the lack of accommodation his old mother who is a widow is not residing with the applicant.

(7) That the applicant's marriage is also postponed as the opponent has refused to vacate the remaining portion of the flat in question.

(8) That the applicant is already engaged and as soon as the portion of the flat is vacated by the opponent 'Rukhsati' shall take place.

(9) That the applicant needs the house for his own personal, bona fide use and also very much desirous to keep his mother alongwith him as at the moment she is not living with his son, the applicant."

The Rent Controller, after recording evidence of the parties, came to the conclusion that personal bona fide requirement of the applicant has been established, and he accordingly granted the application. Mr. A.M. Khan, learned counsel for the appellant contends that the respondent was precluded from filing an application for eviction of the appellant, as the premises occupied by the appellant is a commercial one. It is also contended by the learned counsel that under the agreement dated 22nd of April, 1980, entered into between the parties, the respondent had undertaken not to disturb the peaceful enjoyment of the premises by the appellant till such time he pays the rent. It is accordingly urged that, as the appellant has been paying rent regularly, the respondent could not institute eviction application on any ground. It is lastly contended by the learned counsel that the appellant having partitioned the original premises into two at his own cost, has acquired a permanent right of tenancy in the premises and therefore the respondent /landlord was not entitled to institute the eviction application.

After hearing the learned counsel for the parties at length, I am of the view that the Rent Controller rightly granted the eviction of the appellant on the ground of personal bona fide requirement. It is an admitted position that the appellant was originally let out the entire flat in the year 1970‑71 on a monthly rent of Rs. 225, which was subsequently raised to Rs.300. However, in the year 1980, by mutual consent, the flat was divided in two portions, out of which the smaller portion was occupied by the respondent /landlord, while the bigger portion continued to be in possession of the tenant /appellant on a monthly rent of Rs.175. It is also clear from the agreement executed between the parties on 22‑4‑1980 that the expenses for partitioning the premises into two units was borne by the tenant /appellant. Although the premises was divided into two portions, out of which one was retained by the landlord and the other was let out to the appellant, and he was also permitted to carry on commercial activities, but it is quite clear from the terms of the agreement that he was prohibited from getting the premises commercialised. In these circumstances, in spite of the fact that the appellant was allowed to do commercial activities in the premises, it continued to be a part of residential flat, as it was originally constructed and used. From the evidence recorded before the Rent Controller, it is quite clear that the present premises occupied by the landlord/respondent is quite insufficient to meet his requirement. In fact, it has been stated by the respondent and his witness that the marriage of the respondent has been withheld on account of scarcity of accommodation. These facts have not been controverted, and therefore, the Rent Controller rightly concluded that the personal bona fide requirement pleaded by the respondent has been established. It is, however, contended by the learned counsel for the appellant that, as the landlord had undertaken not to disturb the peaceful enjoyment o the appellant over the premises till such time he pays the rent, it should be presumed that the landlord has waived his right of 'eviction,, while executing the agreement, dated 22nd of April, 1980. I am unable to accept this contention of the learned counsel as the covenant by the landlord not to disturb peaceful enjoyment of the premises by the tenant till such time he continues to pay monthly rent is a usual covenant under the provisions of the Transfer of Property Act. Similarly, the fact that, at the time of entering into the agreement, dated 22‑4‑1980, there was mutual agreement between the parties that the expenses for partitioning the property will be borne by the appellant, could not, in any manner, curtail or do away with the right of the landlord to seek eviction of the tenant from the premises on the ground of persona bona fide requirement. The Rent Controller was, therefore, justified in granting eviction of the appellant on the ground of personal bona fide requirement. It is, however, clarified that, if the appellant has any right under the law to recover the expenses incurred by him on the premises, he is at liberty to institute such proceedings' against the respondent, and the eviction order passed by the Rent Controller will not come in the way of such remedy, if it is available to him. No ground for interference is made out. The appeal is accordingly dismissed, but, keeping in view the fact, that the appellant is a tenant in the premises for over 15 years and is running business in the flat, I allow him time up to 31st of December, 1986, on the condition that he shall continue to deposit monthly rent in Court, as directed by the Rent Controller, and, if he fails to vacate the premises on, or, before 31st of December, 1986, he will be evicted without any further notice.

H.B.T. Appeal dismissed.

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