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First Rent Appeal No.573 of 1985, decided on 29th March, 1987.

--Ss.15(2)(vii) & 21(1)--Eviction of tenant--Personal bona fide requirement--Proof--Landlord claiming that he required disputed premises in good faith for his personal use and for use of his children, supported his version by adducing overwhelming, consistent And irresistible evidence, deposing that at present he was residing with his large family in quite insufficient and unsuitable accommodation provided to him temporarily by Government--Personal bona fide requirement of landlord in respect of premises in question having been undisputedly proved, Rent Controller, held, rightly allowed landlord's application for eviction of tenant---Finds of Rent Controller based on proper appreciation of evidence on record, could not justifiably be interfered with by Appellate Court in circumstances.

S.M.W. Hazratji for Appellant.

Muhammad Jamil for Respondent.

Date of hearing: 9th February, 1987.

This appeal is directed against the order of the learned IV, Senior Civil Judge/ASJ/R.C. Karachi, (West), dated 3rd October, 1985, whereby he has allowed the respondent's application for ejectment under section 15(2) of the Sind Rented Premises Ordinance, 1979 (hereinafter called "the Ordinance) with a direction to the appellant to handover the vacant possession of the premises in question within sixty days from the date of the order.

2. The respondent is the owner/landlord of Bunglow No.202, Block A, North Nazimabad, Karachi of which the appellant is his tenant since Feb.1974 through a lease agreement executed on 1-2-1974 for a period of two years. Upon the expiry of the agreed period of lease on 31-1-1976 the respondent called upon him to vacate the demised premises. He promised to do .so but later on failed to vacate the premises on one or the other pretext. The respondent then filed an application on 25-3-1980 under section 15 of the Ordinance stating the above facts as 'well as claiming that the premises were required by him for his own use and occupation and his family including his married son with his wife and two children. It was also stated therein that the appellant had materially impaired the value and utility of the premises and that he had committed wilful default in payment of monthly rent since April 1976.

3. In the written statement filed by the appellant he denied all the allegations made in the application including the claim of bona fide requirement of the disputed premises by the respondent. He further stated that agreement of tenant which was executed for two years was riot registered. He' also stated that the respondent accepted rent till March 1976 but when the rent for the month of April 1976 was tendered he accepted it but did not issue the rent receipt and also demanded the enhancement of rent by Rs.75/- per month stating that the rent receipt will be issued upon payment of the additional amount of rent. The appellant further stated that he tendered he rent for the month of April 1976 through money order on 21st April 1976 but the respondent refused to accept the same. Thereupon, the appellant filed Misc. Application No-234/76 and deposited the rent regularly in advance until Dec.1984 with the Nazir of the District Court. The appellant also alleged that the respondent being an official of State Bank of Pakistan tried to dispossess him forcibly from the tenement through his staff whereupon he (the appellant) lodged a report with Illaqa Police. He also pleaded that the respondent had filed rent application within the jurisdiction of P.S. North Nazimabad mala fidely in as much as the North Nazimabad where the premises in question is situated, lies in the jurisdiction of North Nazimabad police-station.

4. On the pleadings of the parties the learned Rent Controller framed the following points for decision:-

"1. Whether the applicant requires the premises in good faith for his personal bona fide use

2. Whether the opponent had impaired the value and utility of the premises in question

3. Whether the opponent is defaulter in payment of rent with effect from April 1976

4. What should the order be ''

The Rent Controller decided above-noted point No.1 in the affirmative by holding that the premises in question were required by the respondent in good faith for the personal use and for the use of his children. The point No.2 was disposed of as not pressed; whereas point No.3 was decided in favour of the appellant. The learned Rent Controller, therefore, allowed the application only on the ground of personal bona fide need of the respondent as stated above.

5. The learned counsel for the appellant raised the following contentions:

1. That the application was motivated by ill-will and vengeance on account of appellant's refusal to agree to the enhancement of rent and then to pay the monthly rent regularly by depositing the same in Court.

2. That on the basis of evidence on record the learned lower court has wrongly held that the respondent requires the premises in question for his bona fide requirement.

3. That having disbelieved the evidence of the respondent with regard .to the default in payment of rent the learned Rent Controller should have also disbelieved his evidence regarding bona fide personal requirement.

The learned counsel for the respondent, in his turn, supported the order appealed against by contending that the respondent's evidence with regard to his bona fide personal requirement of the question consistent It could in no way be shattered even in cross-examination. He also urged that the evidence available on record on the issue in hand could not be legally discarded simply on the ground that another plea taken by the respondent in the rent case had failed.

7. The respondent's case, as set up in the application, was that the demised premises were let out to the appellant on Ist Feb. 1974 for two years as per rent agreement executed on that date. He required the same for his own use and occupation to accommodate his large family inclusive of his married son with his wife and two children. The appellant promised to vacate it but failed to do so despite demands. In his affidavit-in-evidence he deposed that his family consists of his wife, old mother and four sons. He also deposed that his two sons, Rehmat Ali and Nisar Ali, are students and require separate rooms for their study purposes and that his eldest son Athar Ali is married and has three children who is living with his wife and his children with him and is depending upon him. One son of the appellant was to be married but due to shortage of accommodation his marriage was being postponed. Giving the details of accommodation in his deposition, he stated that it consists of two bed rooms, one drawing and one dining room with one small servant quarter. He deposed that the present accommodation in his occupation was provided to him by the State Bank of Pakistan and was as per directive of the Bank to be vacated by him. His son Athar Ali also filed his affidavit-in-evidence giving the number of his family members staying with respondent and supported his statement regarding his bona. fide requirement. Both the witnesses were cross-examined at sufficient length but their evidence could not be shattered in so far as their version pertaining to the issue in hand is concerned. It was suggested to the respondent in his cross-examination that he had illegally and through some force attempted to eject the appellant from the disputed premises but the respondent denied it as false. He was confronted with a police report dated 22-10-1971 made by the appellant but he deposed that it was a false report. The only admission which appears in the cross-examination of the respondent is to the effect that in reply to the appellant's notice made on his behalf on Ist November 1977, the appellant was not asked to vacate the premises in question on the ground of his (respondent's) personal bona fide use. The respondent's statement with regard to the members of his family was not disputed. Besides mentioning in his cross-examination voluntarily that the government accommodation in possession of the respondent consists of 7 rooms but the appellant then could not substantiate to any reliable evidence. During his cross-examination the appellant further stated that he did not know whether the family of the respondent consist of his mother, wife, four sons, who are married and three children and they were living with him.

8. It was on the basis of the above evidence that the learned Rent Controller held that the accommodation available with the respondent consisting of three bed rooms with drawing room, dining room and one servant quarter with other amenities was insufficient for his requirement as one of his sons, named, Athar Ali is married and one son named Muhammad Ali is engaged with Mst. Zarina and the marriage was not yet settled in view of short accommodation as deposed to by the respondent and his son Athar Ali in their respective affidavits-in-evidence. This fact, it may be noted, was not challenged by the appellant. The learned Rent Controller, in my opinion, has committed no error in appreciating the evidence available on record and, consequently, in holding that the premises in question are required by the respondent in good faith for his personal bona fide use and use of his children. The respondent's application for eviction of the appellant has, therefore, been allowed for good reasons and I see no justification to interfere with his findings.

9. In the result the appeal is held to be without merit and it is dismissed with no order as to costs. The appellant shall handover the vacant possession of the demised premises to the respondent within four months from the date hereof subject to the appellant's depositing the monthly rent regularly in Court in terms of the order of the Rent Controller. His failure to do so shall render him liable to be evicted forthwith without any further notice to him.

H. B. T./A-66/K Appeal dismissed.

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