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First Rent Appeal No.353 of 1981, decided on 30th September, 1984.

---S. 13-Ejeetment--Landlord seeking ejectment of tenant on grounds of default in payment of rent, personal requirement and unauthorised alterations and additions materially impairing value and utility of premises--No agreement of tenancy existing between parties and rent was payable within sixty days--Landlord failing to prove default in payment of rent--Landlord vacating and letting out two rooms in his possession during pendency of suit but failed to give explanation as to why, he let out two rooms when he was himself in, need of accommodation--Landlord as such failed to establish his bona fides-Stand taken by landlord with regard to alterations and additions to building materially impairing its value and utility, also not proved- Landlord failed to establish damages through independent evidence- Alterations/additions made by tenant not of such type as to impair value and utility of building--Eviction application not allowed in circumstances.

1983 C L C 308 and Nooruddin and others v Asghar Ali 1968 S C M R 1087 ref.

--S. 13--Bona fide personal requirement--Letting out of property during pendency of ejectment application--Rule that where landlord let out premises before or during pendency of ejectment case, filed on ground of personal requirement,, it would defeat his bona fides is not a rule of universal application--Personal requirement and bona fide need were question of fact which might differ from one case to another--When during pendency of case or before case was filed a landlord obtained possession of a premises and let it out then it was his duty to explain that disputed premises was more suitable for his requirement than the premises which had been let out by him--Tenant was not bound to show that disputed premises was not more suitable to landlord's requirement--Personal requirement involved such facts which were within knowledge of landlord and therefore explanation should come from him rather than tenant--Where a landlord was in occupation of a premises and wanted to occupy another premises for his own bona fide requirement, then he had to specifically state and explain that premises in his occupation was not sufficient to satisfy his requirement--Unless it was proved, it would be difficult to establish that he bona fide required disputed premises.

Muhammad Siddiq Nizamani for Applicant.

Hussairi Adil Khatri for Respondent.

Date of, hearing: 30th September, 1984.

The appellant filed an ejectment application against the respondent in respect of flat on the second floor of the building bearing No.LY.7/13 Khadda Market, Lyari Quarters, Karachi. The grounds for ejectment were that the respondent has defaulted in payment of rent, has made unauthorised alterations an additions which have materially impaired the value and utility of the premises and that the premises is required bona ,fide for the use of the appellant and his family members. The learned Rent Controller by the impugned order dismissed the ejectment application.

Mr. Siddiq Nizamani contended that the respondent has not established that he has paid the rent. The respondent's plea throughout has been that he has regularly paid the rent upto July 1978 but when the appellant refused to accept the rent for August 1978 he remitted money order on 20-9-1978 which was also refused by him and thereafter he deposited the rent in Court on 10-10-1978. The respondent produced money order remittance receipt and money order coupon to show that the money order was remitted but there is no endorsement on the coupon that it has been refused by the appellant who in his evidence has also denied having refused to accept it. In these circumstances the learned counsel for the appellant relying on 1983 C L C 308 contended that as refusal to accept money order has not been established it cannot be taken into consideration. Even for argument sake if this contention is accepted the default has not been established. The appellant claims default for August, September and October, There is no agreement of tenancy whereby a date for payment of rent has been fixed therefore the respondent was entitled to pay the rent within 60 days from the period for which the -rent was A payable. As the rent for the months of August, September and October was deposited on 10-10-1978 there can be no default. Mr. Siddiq Nizamani concedes to this legal position and does not press the issue relating to default.

The next issue relates to the bona fide personal use and occupation of the appellant. In the application he has stated that on the top floor he is in occupation of two rooms which are not sufficient for his family members. In his evidence he has stated that there are 14 members of family; having 8 sons out of whom three sons are adult and one of them is married and has two small children. He also stated that he has one adult daughter and two sons have been engaged but their marriage is held up. The learned Controller however doubted the bona fide of the appellant because for the year 1976 onwards till the filing of the ejectment case in the year 1978 he had been letting out flats in the same building which had fallen vacant. The appellant to whom specific questions relating to the letting of the flats were put in cross-examination were denied by him. In his statement the respondent has given the name of persons together with the number of flats to whom the flats were let out from time to time. The appellant produced counter-foils of the receipts from which the names of the tenants who were in occupation of the flat from time to time, could be ascertained. The appellant in spite of the fact that he stated in his cross-examination that he would be able to produce the counter-foils of the receipts issued in the year 1976 and for which time was also given to him, did not produce them on the plea that due to heavy rains they have been destroyed. The learned Controller rightly observed that the appellant is living in a flat of R.C.C. construction and it is not possible that the rain would have damaged them, particularly as in respect of the same counter-foils, few days earlier, he had stated that he would be able to produce them. If these counter-foil books had been damaged then he could have stated so on the first day of the cross-examination. The appellant has produced counter-foil books for the years 1977 arid 1978. He would have surely searched these counter-foil books before the statement was recorded and would have found out which counter-foil books had been destroyed. In these circumstances non-production of counter-foils for the year 1976 adversely reflect upon the testimony of the appellant and it seems that he has tried to conceal evidence which was relevant to the specific allegation made by the respondent.

The respondent has produced through the appellant receipts for the years 1976, 1977 and 1978 as Ex.5/C/1 to 5/C/14. The counter-foil books-produced by the appellant namely Exs.5/C and 5/B 5/D and 5/E relate to the years 1976 to 1978. From a comparison of the receipts with their counter-foils produced by the appellant it is clear that both of them relating to the year 1977 are printed on paper of different quality and thickness. Even their width, is-also different. The counter-foil book Ex.5/A on its cover is entitled as 'Book No.ONE (1)'. The first three receipts were issued in the name of Ebrahim Hani Noor Muhammad on 5-1-1977, 5-5-1977 and 5'-9-19,77 '.n respect of rent from January to April 1977, May 1977 to August 1977 and September to December 1977 respectively. The fourth receipt is dated 23-5-1977 and thereafter receipts Nos.5 to 100 relate to the period 3-6-1977 to 5-2-1978. One is at a loss to understand how receipt No.3 dated 5-9-1977 could have been issued before the receipts which were issued in May, June, ,July and August. This clearly shows that the counter-foil book cannot be relied upon as an authentic evidence. Again, as stated earlier, the admitted receipts issued during the years 1977 do not tally with their counter-foils produced by the appellant. Their quality of paper thickness surface and width are different from the counter-foils. If the receipts were issued from the same receipt book then counter-foils and the receipts should be on the same quality of paper and of the same width. From these facts it is clear that the appellant has tried to withhold material evidence with a view to conceal the name of the tenants during the years 1976 and 1977. The concealment of material evidence and production of false documents lead to the inference that if the documents would have been produced they would have gone against the appellant.

Mr. Siddiq Nizamani the learned counsel contended that the respondent did not ask any question from the appellant that the flats which had fallen vacant waste sufficient for the appellant's requirement as according to the learned counsel it was for the respondent to have established that flats which had fallen vacant were sufficient for the need of the appellant. The learned counsel referred to Nooruddin and others v. Asghar Ali 1968 S C M R 1087 but on facts this case is completely distinguishable. There the landlord was residing in portion of a building in a flat on the second floor. The application for ejectment on ground of his bona fide need was allowed by the Controller but was set aside by the 1st appellate Court. In II appeal the High Court maintained the order of the Rent Controller. Before the Supreme Court it was contended that the landlord's bona fide is not established as another flat had fallen vacant earlier which was let out and not utilised by him. It was observed:

'The question, however, as to which portion of the building would suit the landlords better, must be left to their discretion and there is nothing unreasonable in the landlord's insisting that a particular portion of the building should be made available to them. We do not consider that the circumstance pointed out by the learned counsel affects the good faith of the landlord's demand.'

From the report it is not clear that the flat which was let out was on the-first floor or second floor. Because in that situation it was entirely within the discretion of the landlord to choose any flat he likes. In the present case the appellant is residing on the 5th floor and the respondent is- residing on the 2nd floor. Many flats on other floors more convenient to the appellant seems to have fallen vacant but were not utilised by him. In my humble view it cannot be rule of universal application that in all cases where the landlord lets out the premises before or during the pendency of the ejectment case filed on the ground of personal requirement it will defeat his bona fides. The personal requirement and bona fide are questions of fact which may differ from one case to another. If during the pendency of the case or before the case is filed a landlord obtains possessions of a premises and lets it out then it is his duty to explain that the disputed premises is more suitable for his requirement than the premises which has been let out by him. It is not for the tenant to B show that the disputed premises is more suitable to the landlord's requirement. The personal requirement involves such fact which are within the knowledge of the landlord and therefore explanation should come from him rather than the tenant. It is pertinent to note that if the landlord is in occupation of a premises and wants to occupy another premises for his own bona fide requirement then he has to specifically state and explain that the premises in his occupation is not sufficeint to satisfy his requirement: Unless it proved, it will be difficult to establish that he bona fide requires the disputed premises. In the present case the respondent's statement relating to the letting out the flats by the appellant has remained unchallenged. The respondent is on the second floor whereas the appellant is residing on the 5th floor and therefore unless sufficient reasons have been shown by the appellant that the flats on the 3rd floor or 4th floor which had fallen vacant were not convenient and suitable for the residence of the appellant and his family members his bona fides cannot be established.

The appellant has throughout stated that he is in occupation of two rooms whereas from P.T.I issued by the Excise and Taxation Department for the year 1973 it is established that he was in occupation of four rooms on the 5th floor. This shows that during 1973 and 1978 either he has rented out two rooms on the 5th floor or the same are occupied by him and he has not disclosed it. If he has rented it out then unless upto the filing of the ejectment application his need has multiplied excessively he cannot establish his bona fides. The appellant has not given the age of his children but from his statement it can be adduced that in 1973 his family members would have consisted of sufficiently grown up children. During 1973 and 1979 except that number of children may have increased or they may have grown up in age no fact has been stated to justify the requirement particularly so as two rooms which were in his possession are no longer in his occupation due to his own voluntary acts during this period. If the appellant was in need of accommodation why did he vacate two rooms on the 5th floor and let out the flats which fell vacant during 1976-1978. As the appellant has failed to give any explanation his bona fide is C not established. As the appellant has failed to establish his bona fide the finding of the learned Controller on this issue is unexceptionable.

The last ground for ejectment is that the respondent has damaged the premises and has materially affected its value and utility. The offending acts are that the ventilator above the door has been closed cemented 'Jally' has been fixed in the gallery and a W.C. has been constructed in the living room. The respondent's stand is that hoe has done nothing and the premises is in the same condition in which it was rented out to him. The learned counsel for the appellant has contended that the statement of the appellant has remained unchallenged and therefore the damage has been established. In the cross-examination the appellant was asked to produce the, approved plan and he admitted that except for the first and second floor he does not have any approved plan for the remaining floors. Mr. Nizamani the learned counsel for the appellant contended that the first and second floors means the ground and the first floor however Mr. Khatri, the learned counsel for the respondent contended that the first floor and the second floor are exclusive of the ground floor. Whatsoever may have been the intention of the appellant, the fact remains that in spite of- statement of the respondent that the premises are in the same manner in which they were let out, the appellant has not produced the approved plan which according to the appellant exists. If the approved plan of the second floor would have been produced. It would have become clear whether W.C. existed or not when the flat was constructed. As the approved plan has not been produced the appellant has failed to establish the damage. If we D proceed on the assumption that there is no approved plan then the appellant should have produced independent evidence through the contractor and engineer who had constructed the building to prove, that W. C . was not constructed or that it is of recent occurrence. So far the construction of the 'Jally' is concerned even if it has been made by the respondent it is not such a construction which has materially impaired the value and utility of the building. In the absence of any cogent independent and reliable evidence mere words of the appellant cannot be accepted. The appeal is therefore dismissed.

M.Y.H/A-122/K

Appeal dismissed.

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