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First Rent Appeal No.497 of 1985, decided on 2nd October, 1986.
---Ss. 15 & 21--Ejectment of tenant--Personal bona fide requirement of landlord and son--Proof--Neither landlord nor his son stating in evidence or even in application for ejectment as to nature of requirement--Landlord failing to state what area was required for installation of factory or that area already in his possession was not fit for such business- Landlord' already getting some area out of possession of tenant and raising construction thereon--Fact admitted by landlord in cross-examination that his three other shops were on rent--Landlord, held, being already in possession of some area and there being no evidence that such area was not fit or sufficient for his need, plea of personal bona fide requirement of landlord was not established.
1985 C L C 2094; 1983 C L C 2657 and P L D 1983 Lah. 425 ref.
---S.15--Ejectment of tenant--Personal bona fide requirement of landlord- -Proof--Ejectment on ground of personal requirement, held, could be granted only, when Rent Controller was satisfied, that requirement of landlord was bona fide--Where Rent Controller was not satisfied that demised premises was bona fide required by landlord for his personal use or that of his son, eviction could not be granted.
---Ss. 15 & 21--Appeal against dismissal of eviction application--Rate of rent of demised premises proved to be Rs. 1,100 and not Rs.800 as alleged by tenant--Appeal to extent of rate of rent accepted by High Court while in respect of personal requirement was dismissed.
Akhlaq Hussain Qureshi for Appellant.
Muhammad Akram Zuberi for Respondent.
(2-10-1986]: Heard arguments of counsel for the parties.
For the reasons to be recorded later the appeal of the appellant is partly allowed to the extent that the rate of rent of the premises in question is held to be Rs.1,100 p.m.
It is, however, rejected with respect to other prayers.
[21-10-1986): This first rent appeal is directed against the order in the Rent Case No. 745/83 passed by the learned First Senior Civil Judge and Rent Controller Karachi (West) on 10-19-1985.
The brief facts leading to this appeal are, that the respondent is the tenant of the appellant with regard to the demised premises on the monthly rent of Rs. 1,100 since 1979. The respondent paid the rent regularly up to December 1982. For the month of January 1983 he paid only Rs.800 and promised to pay the balance of Rs.300 with the rent of February 1983. As the appellant required the premises for his bona fide use and that of son, he asked the respondent to vacate the premises where upon the respondent refused to vacate the premises and also refused to pay balance of Rs. 300 or the future rent. Hence the appellant filed rent case. The respondent resisted the rent case, on the grounds, that he had not made any default in payment of rent as the appellant had refused to accept rent from February 1983 and, therefore, he started depositing the same with the Rent Controller. He contends, that the appellant had obtained a portion of the area of the plot in possession of the respondent, and, therefore, had reduced the rent from Rs.1,100 to as.800 per month from January 1983. He also denied, that the appellant required the premises for his bona fide use or that of his son.
On the proceedings of the parties the learned Rent Controller framed the following issues:-
"(1) What is the agreed rate of rent
(2) Whether the opponent has committed default in payment of rent
(3) Whether the applicant requires the premises in 'case for his use and for the use of his son in good faith and occupation
(4) What should the order be
The decision of the learned Rent Controller on issue No.l is that the rate of the rent was reduced to Rs.800 per month. Finding the other two issues also against the appellant, he dismissed the rent case of the appellant. Hence, this appeal.
I have heard the learned counsel for the parties and have also gone through record and proceedings of the case.
The ground of default in payment of rent is not pressed by the learned counsel for the appellant and, therefore, it need not be discussed.
With regard to the quantum of the rent, it may be pointed, there are two written agreements of tenancy between the parties. One is dated 20-11-1979 produced by the appellant and other is dated 25-1-1981 produced by the respondent. In both these agreements, the rate of rent is admittedly shown as Rs. 1,100 per month. It is also admitted fact, that the respondent had been paying this rent up till December 1982. It is also admitted that for the month of January 1983 the respondent paid Rs.800 only. According to the appellant, the respondent promised to pay the balance of Rs.300 alongwith rent for the month of February, but he refused to pay this balance or future rent, when he asked the respondent to vacate the premises which he required for his bona fide use. The respondent however alleged that the rate of rent was reduced to Rs.800 when he surrendered about 300 sq. ft. of area of the plot in his possession.
It is admitted by the appellant in cross-examination, that he had obtained some portion of the area in possession of the respondent and raised construction thereupon, but it was long before.
It may be pointed, that the receipts. for the payment of rent of December 1982 and the rent of January 1983 are dated 7-2-1983. The rent case was filed on 23-2-1983 and the written statement was filed on 24-3-1983. If the respondent is to be believed then, the appellant would have obtained that area in January 1983. It does not appeal, to reason, that within such a short period, the appellant would have raised construction on this plot, and again filed eviction application on 23-2-1983 in spite of such good gesture on the part of the respondent, who voluntarily surrendered a portion of the plot. There is only oral evidence of the parties as to when this area was surrendered. It may be argued, that why the appellant should surrender a portion of plot without any reduction of rent. Such an act on the part of the respondent would not be improbable keeping in view the rising rent of the land in city of Karachi and if the relations between the parties were cordial considering all the circumstances in my opinion. The contention of the appellant looks more probable and convincing.
It is also admitted fact, that the respondent has no other document in his possession excepting the rent receipt for the month of January 1985, to show any agreement -of reduction of rent. In view of the two agreements in writing as pointed above, which admittedly show the rate of rent to be Rs. 1,100 even in 1979, it is not possible to believe, that the rate of rent was orally reduced to Rs. 800 in 1983, in spite of surrender of portion of the plot by the respondent. It is not possible to believe, that after accepting reduced rent on 7-2-1983, the appellant would go back on the oral agreement and within a fortnight's time file eviction application on 23-2-1983. Keeping all these facts in view in my opinion the rent of the demised premises continued to be Rs. 1,100 per month.
Next we come to the question of personal requirement of the appellant. The learned Rent Controller appears to have accepted the contentions of the respondent, that the appellant has agricultural land in N.W.F.P. and does not require the premises, in question for his personal use or that of his son.
The appellant and his son Shah Rehman have examined themselves and state, that they are jobless and want to install a Factory, in the demised premises. In paras. Nos.21-22 of the written statement, as well as of the affidavit in evidence filed by the respondent, he alleges, that appellant has constructed a shop in the area, which he surrendered to the appellant and which is in possession of appellant and that he also has in his possession another shop/godown which is lying vacant.
It may be pointed, that in the cross-examination of the respondent, his this averment is not specifically challenged. However, it is suggested to him in cross-examination, that the area in possession of appellant is not fit for installation of lace factory, which suggestion is denied by the respondent. This suggestion indicates that the area as averred by the respondent is in possession of appellant, but it is not fit for installation of lace factory.
It may also be pointed, that neither the appellant, nor his son have stated in their evidence or even in the application as to what factory, they want to install, or have they mentioned about lace factory. They have also not stated as to what area is required for installation of such factory and that the area in their possession is not fit for such installation. It has already been observed, that it is admitted fact that the appellant has raised some construction on the area surrendered by the respondent. His son has admitted in the cross-examination, that they have 3 other shops also which are on rent. Keeping these admissions in view, particularly the suggestion made to respondent in the cross-examination, it can safely be assumed, that the appellant is in possession of some area. There is no evidence, that this area is not fit or sufficient for his needs.
The learned counsel for the appellant has relied on some case law, which I will presently discuss.
In 1985 C L C 2094 it has been held by Single Judge of this Court that:-
"Assertions of landlord on oath as to requirement of premises for his personal use should be accepted provided same had not been disproved in rebuttal or through cross-examination.
In 1983 C L C 2657 another learned Single Judge of this Court had held, that statement of landlord, if it is consistent with his averment in his application, was a sufficient proof of his bona fide requirement. This case-law shows, that mere statement of landlord was not sufficient, but it should also be consistent with the averments in the application and should also not have been rebutted in the cross-examination. I have already pointed above that the averment of the appellant that he has no other area in his possession and that he bona fide requires the demised premises, stand rebutted and shaken by evidence on record. In P L D 1983 Lah. 425 it has been held.
"Landlord in eviction application as well as in evidence suppressing fact, that he was also in occupation of other business premises and not trying to establish, that such other premises were not suitable for his needs, conduct of landlord in not taking Court in confidence or approaching it with unclean hands, will reflect and recall on bona fide and good faith for establishing personal need or need of his son."
The eviction on the ground of personal requirement can be granted only, when Rent Controller is satisfied, that the requirement of the landlord is bona fide. The Rent Controller was not satisfied about the bona fide requirement of the appellant and for the reasons recorded, this Court is also not satisfied that the demised premises are bona fide required by the appellant for his personal use or that of his son.
The upshot of all this discussions is that appeal is partly allow to the extent that the rate of rent of demised premises per month is Rs.1,100 while it is dismissed with respect to other prayers. Appeal was decided by short order dated 2-10-1986. The above are the reasons in support of the said order.
A.A. /A-11/K Appeal partly allowed.
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