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Rent Appeal No. 737 of 19.83, decided on 4th December, 1986.

---S.13(2)(ii), (iii), (iv) & (vi)--Default in payment of rent--Personal bona fide requirement--Landlord issued no receipt to tenant for rent he received and there was word against word between members of his family on the issue--Landlord leaving for Haj and appointing no one to collect rent--Default not established in circumstances.

---S.13--Ejectment sought on ground of personal requirement--Landlord rented out his other shop to somebody else--Personal requirement of landlord for the shop with the tenant, who was an old tenant, vanished in circumstances--Order of Rent Controller rejecting ejectment application and exercising his discretion in favour of tenant, therefore, was unexceptionable.

P L D 1977 Lah. 82; P L D 1981 Lah. 326; 1984 C L C 755 and P L D 1983 Lah. 425 ref.

A. Wajid Wyne for Appellant.

Muhammad Waseem for Respondent.

Date of hearing : 18th November, 1986.

The Rent Case No. 913/79 was filed by Haji Muhammad Faiyaz Khan landlord under section 13, subsection (2) clause (ii)(b) clause (iii)(iv) and (vi) of the West Pakistan Urban Rent Restriction Ordinance 1959 (hereinafter to be referred as 'Ordinance') on 21-2-1979. The Rent Application was dismissed by IXth Senior Civil Judge and Rent Controller Karachi by an order dated 25-8-1983.

The appellant is landlord of building constructed on plot bearing No. 707, Block No-10, situated in Liaquatabad, Karachi. Respondent Abdul Wahab Khan is tenant in respect of one shop on the ground floor at the monthly rent of Rs. 300. It is stated in the rent application that from June, 1978 till filing of the rent case respondent committed wilful default in payment of rent for 9 months amounting to Rs. 2,700. It is alleged that respondent committed breach of agreement and the encroachment had blocked the entrance of the appellant with the result appellant has no access to the W.C. and the Water tank. The ground for personal bona fide use has also been taken in the rent application. The respondent in his written statement denied the allegations and stated that he paid the monthly rent to the appellant up to November, 1978 and thereafter on his refusal to accept the rent, sent the same by money order which appellant also refused; thereafter he is depositing in the Miscellaneous Rent Application No. 135/79.

On the pleadings of the parties, the Rent Controller framed the following 5 issues.

(1) Whether the respondent has committed wilful default in payment of rent

(2) Whether the respondent used the premises for the purpose other than for which it was let out to him

(3) Whether the tenant /respondent has committed such acts as are likely to impair the material value and utility of the premises

(4) Whether the landlord requires the premises in good faith for his own business

(5) What should the order be

The appellant has filed his own affidavit in evidence and examined his wife Mst. Surriya Begum and witnesses Mukhtar and Abdul Hafiz in support of his case. However, Abdul Hafeez was not produced for cross-examination, the appellant closed his side.

On the other hand, respondent Abdul Wahab Khan has filed his own affidavit and examined Abdul Ghafoor, Mst. Zaibun Nissa and Muhammad Sardar in his support.

The findings of the Rent Controller on all the issues are against the appellant.

Haji Muhammad Faiyaz in his statement has stated that respondent has not paid the rent since June, 1978 till January, 1980 and that in the year 1978 he had gone to perform Haj and on his return found that respondent converted the premises and was carrying out the business of cement and iron and he stored steel bars in the shop and encroached upon the underground water tank which blocked the entrance to the laterine on the ground floor. He has stated that he is an old man and has no other shop or place to do business therefore, the shop is required for his personal bona fide use. He has stated that respondent is his nephew and the tenancy agreement was executed between them in writing. When he went to perform Haj in the year 1978 he did not ask any person to collect the runt from the respondent nor his wife received the rent from the respondent. He has admitted in cross-examination that he deals in chicken and egg business in the shop No. 232 Empress Market, Karachi which he has taken on rent. He also produced electricity bills. Mst. Surriya Begum Ex.6 is wife of appellant. She has stated that respondent has not paid any rent to her. She has admitted that respondent visited his house while appellant had gone at Haj, and appellant never asked her to collect the rent from respondent. She has admitted that respondent used to reside used to reside in the gallary alongwith his wife. The evidence of Mukhtiar is that he is tenant in the portion of the demised premises and stated that respondent has encroached upon the underground tank and other open space of the ground floor by storing iron and steel bars whereby depriving the appellant from using W.C. on the ground floor. He stated that he is tenant of the appellant since last 10 months. Abdul Hafeez Exh. 8 filed affidavit in evidence which cannot be considered as he was not produced for the purpose of cross-examination.

Respondent Abdul Wahab Khan in his evidence has stated that he used to live in gallery with his family from the very beginning but in the year 1977 the gallery was taken by the appellant .pith a clear understanding that the rent shall be reduced from Rs. 000 p.m. to Rs. 200 per month. But after taking over the possession, he insisted to charge Rs. 300 per month. Appellant being his real uncle, he, therefore, continued paying Rs. 300 for which receipts were riot issued though demanded. He has stated that underground tank and W.C. were provided from very beginning which were being used by the respondent without causing any interference to the appellant. He has stated that from the very beginning he has been doing the business of Iron Steel and cement in the shop. Shop was not rented out for any specific business. With regards to the default he stated that rent was paid to appellant up to November, 1978 anti thereafter on his refusal to accept money order he deposited the rent with the Nazir of this Court. He has stated that he paid advance rent for December, 1978 and January, 1979 to his wife Mst. Surriya Begum in presence of the witnesses therefore, he has not committed any default in payment of rent. In pare 9 of his affidavit-in-evidence, tie has stated that his uncle is running business of live chickens in Empress Market, Saddar Karachi and in another shop at Shahabuddin Market and he is also partner in business of Shoe making with Mukhtiar. It is stated by him that dispute was placed before the Punchayat and the same was decided by which respondent agreed to pay increased rent from Rs.300 to 500 p.m. but appellant insisted for Rs. 1,50,000 as advance fixed deposit, to which he did not agree there fore, the matter could not be settled. He has given the names of the members of the Punchayat in his evidence. The evidence of Abdul Ghafoor Exh. 10 is that respondent is doing business of iron, steel and cement from very beginning. Mst. Zaibun Nissa Ex.11 has stated that she Is related to both the parties and in the year 1978 when appellant had gone to perform Haj, she met his wife Mst. Surreys and that in her presence appellant paid money to Mst. Surreys being the rent which she accented but no receipt was demanded by Abdul Wahab. She in her cross-examination stated that Abdul Wahab is her son-in-law. Muhammad Sardar Exh. 12 has stated that respondent Abdul Wahab is doing business of cement, iron and steel in the demised premises. In the year 1978 when appellant went to perform Haj, he asked the respondent to take care of his aunt and to pay rent of the shop to her even after his death. He has further stated that Punchayat decided dispute between the appellant and respondent when appellant agreed to pay Rs. 500 monthly rent instead of Rs. 300 and an amount of Rs. 1,50000 as fixed deposit.

Mr. Abdul Wajid Wyne appearing for the appellant at the outset stated that he does not press issues No.2 and 3. But he has argued the case on the issues of default and personal bona fide requirement. He has cited the cases reported in P L D 1977 Lah. 82, P L D 1981 Lah. 326.

Mr. Ahmed Wasim the respondent submitted that bona fide requirement has not been proved and appellant has not come with clean hands. He has referred to the cases reported in 1984 C L C 755 and P L D 1983 Lah. 425.

It is an admitted position that appellant and respondent -are uncle and nephew and there is no written agreement between the parties. The default in payment of rent for 9 months is alleged from June 1978 till January, 1979. The money order amounting to Rs. 600 being the rent for the months of December, 1978 and January, 1979 was remitted on 15-2-1979 when the rent case was filed on 21st February, 1979, i.e. six days after the sending" of money order. As the statutory tenant the rent of December, 1978 was due in March while the rent of January, to be paid in April therefore, there is no default in respect of the rent for the months of December 1978 and January, 1979. Now the question remains whether the respondent paid rent from June, 1978 to November, 1978. It is an admitted position that respondent has never issued rent receipt. There is word against the word between the two members of the family. In the circumstances the Rent Controller has come to the conclusion that default if at all is not wilful. Moreover it is also on the record that in the year 1978 appellant had gone to perform Haj and there was no Rent Collector to collect the rent from the respondent. With regard to the personal bona fide requirement, it is admitted that appellant is carrying on business in the Empress Market in the name of M/s. Faiyaz and Co. and one of his witnesses Mukhtiar who is his tenant who was given shop ten months before date on which he was examined. He has stated that he is tenant of appellant since last 10 months. He was examined on 9-4-1980. Had the appellant been in need of a shop he should have not rented out the shop to Mukhtiar. Respondent is an old tenant and doing his business and earning his livelihood since long. I am of the view the Rent Controller has rightly exercised his discretion in favour of respondent. His order calls for no interference. Appeal is dismissed.

M.Y.H./M-191/K Appeal dismissed.

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