Find a Lawyer

First Rent Appeal No.373 of 1984, decided on 7th May, 1987.

---Ss.15(2)(vii). & 21(1)--Ejectment of tenant--Personal bona fide requirement-- Proof--Landlord by adducing unrebutted evidence on record successfully established that accommodation presently in his occupation was quite insufficient to accommodate his large family consisting of eight members--Nothing having been brought out in cross-examination which could show that landlord's claim of personal bona fide requirement in respect of premises in dispute was false or was based on wrong statements, Rent Controller, held, rightly allowed eviction application of landlord on ground of personal bona- fide requirement.

---Ss.15(2)(ii) & 21(1)--Ejectment of tenant--Default in payment of rent- -Proof-- Landlord in his affidavit-in-evidence and in cross- examination 'clearly denied that tenant had paid him rent of disputed premises--Onus to prove such payment shifted to tenant on denial of landlord--Tenant badly failed to discharge onus to prove factum of payment of rent--Default having been unrebuttedly proved, tenant, held, was rightly evicted by Rent Controller on ground of default in payment of rent.

---Ss.15(2)(ii) & 21(1)--Ejectment of tenant on ground of default in payment of rent--Adjustment of fixed deposit amount against arrears of rent--Fixed deposit amount lying with landlord would be refundable to tenant at time of handing over vacant possession of premises to landlord after deducting other charges if any--Plea of tenant for adjustment of fixed deposit amount against arrears of rent, held, could not be accepted, because in case of adjustment of such amount against arrears of rent, no amount would be left to adjust other charges, if any, found due against tenant at time of vacation of premises.

K.B. Bhutto for Appellant.

Salim Karamally for Respondent.

Date of hearing: 1st March, 1987.

This First Rent Appeal is directed against the order dated 28-2-1984 passed by the VII Senior Civil Judge/Rent Controller, Karachi whereby he allowed the eviction application filed by the respondent and directed the appellant to hand over the vacant possession of the premises in dispute to the respondent within sixty days from the date of the order.

The facts leading to the filing of the above appeal are that the respondent is the owner and landlord of Quarter No.611, PIB Colony, Karachi and the appellant is tenant in respect thereof at the monthly rent of Rs .600/- The respondent filed eviction application No.1852/81 against the appellant on the grounds of default, in payment of rent and personal requirement. The appellant denied both the grounds in written statement and resisted the eviction application. The respondent filed his own affidavit in evidence besides affidavits in evidence of his sons Muhammad Iftikharuddin Siddiqui and Syed Shaukat Ali in support of the eviction application. The appellant filed his own affidavit-in-evidence in rebuttal. They were cross- examined by the learned counsel for the respective parties.

The Controller on the basis of the evidence adduced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties decided both the issues in the affirmative and allowed the eviction application vide order dated 28-2-1984.

The appellant being aggrieved against the order dated 28-2-1984 of the VII the Senior Civil Judge/Rent Controller, Karachi has preferred this appeal on the grounds mentioned in the Memo of Appeal.

I have taken into consideration the arguments advanced by the learned counsel of both the parties and have also gone through the impugned order. I have also perused the R & P with the assistance of the learned counsel of both the parties.

The respondent averred in para.3 of the eviction application that "the applicant requires the case premises in good faith for the occupation and use of his family members who consist of six sons three of whom are of marriageable age and one daughter. Four sons and daughters are major and are grown up. The eldest two sons of the applicant were unable tea get married on account .of want of accommodation as such the case premises are acutely required by the applicant for his sons personal and bona fide use and need". The appellant denied the personal requirement on two counts in his written statement, that is, the respondent is not the owner and secondly the respondent has his own, double storeyed house in which he is residing. The respondent repeated the same facts in his affidavit-in-evidence. The respondent stated that the place where he is residing consists of a single storeyed and not double storeyed as alleged by the appellant. The respondent admitted in his cross-examination that the house in his occupation consists of a ground floor and upper floor. The respondent admitted in his cross-examination that there are four rooms on ground floor and four rooms on upper floor. The respondent also- admitted that the premises in dispute is, in the name of Mst.Mariam Bai and by family arrangement the got the same.

The respondent's son Muhammad Iftikharuddin Siddiqui stated in his affidavit in evidence that he has 30 years of age and a bachelor, his second brother Muhammad Feruzuddin Siddiqui aged 28 years, third brother Muhammad Riazuddin Siddiqui aged 26 years and all are bachelor: He also stated that his parents wanted to get them married and live separately but because of lack of accommodation the marriages could not take place. Muhammad Iftikharuddin Siddiqui replied to question in cross-examination that "I am eldest son of the applicant". I am yet to marry. My brother has also to marry. No betrothal has taken place. I am doing the business".

Syed Shaukat Ali supported the respondent. This witness to a question in cross-examination replied that "I cannot say whether the applicant is living comfortably with his -family in a house in Nazimabad".

As against the above evidence, the appellant stated in the affidavit in evidence that the respondent suppressed facts in his application and affidavit in evidence. The appellant further stated that "the applicant has no genuine and bona fide need for the premises in my occupation". The applicant denied the suggestion in cross -examination that the house in occupation of the respondent was not sufficient and due to this the marriage' ceremony of the eldest son of the respondent was held up. The appellant also denied the suggestion in cross-examination and stated that "it is incorrect to suggest that if I will not vacate the house the marriage of the sons of the applicant will not be performed".

The position emerged from the evidence adduced by the parties is that the respondent is admittedly in occupation of a double storeyed building which consists of eight rooms, that is 'four on the ground floor and four on the upper floor.

The other fact which is not in dispute is that the respondent died during the pendency of the appeal leaving behind a widow, six sons and a daughter. The family of the respondent needs at least 'eight bedrooms while in their possession they only have eight rooms. Out of these eight rooms: two rooms they need for drawing and dining. In this view of the matter the premises in their possession is insufficient. The other aspect of this case is that the respondent wanted to get his sons married and settle them in the premises in dispute. This aspect was not considered by the Controller.

It is apparent that the averment in the eviction application about personal requirement of respondent's sons, has been fully supported in respondent's affidavit-in-evidence and his sons' affidavits-in-evidence and nothing has been brought out in their cross-examination which could show that claim of personal use is false or is based on wrong statements.

The assertion of the respondent on oath as to requirement of the premises in dispute for the occupation and use of his family members which consists of six sons three of them are of marriageable age, to be accepted if consistent with his averment in his application and to shaken in cross-examination or disproved in rebuttal.

The submission of the learned counsel for the appellant is that the respondent has suppressed facts in his application and affidavit-in-evidence. The respondent averred in his application that he required the premises in dispute in good faith for the occupation and use of his family members. The appellant stated in his written statement that the respondent had sufficient accommodation as he is residing in a double storeyed building which consists of eight rooms. The respondent denied in his affidavit-in-evidence but admitted in his cross-examination that he is residing in a double storeyed house which consists of eight rooms. This is not fatal to his case as admittedly there are eight family members and the accommodation in his possession is not sufficient. It is an admitted position that the premises in his occupation consists of 8 rooms. One bedroom for the widow, one bedroom for each son, one bedroom for a daughter and at least two rooms they required for drawing and dining. In view of this, it seems that the 'accommodation is not sufficient.

After going, through the record with the assistance of learned counsel for the parties, I am fully satisfied that the Controller rightly allowed the eviction application.

Reverting to the last contention of the learned counsel for the appellant that the appellant had not committed default in payment of rent. The respondent averred in the eviction application that the appellant had committed default in payment of, rent since January, 1980. The appellant states in his written statement that the respondent has a fixed deposit amount of Rs.10,000/- with him. The other plea he took that he paid rent upto March, 1981 at the rate of Rs.650/ per month and he was not a defaulter. The respondent repeated same facts in his affidavit-in-evidence. The respondent admitted in his cross-examination that the rent for the month of January, 1980 was paid at the rate of Rs.650/- The respondent denied in his cross -examination that the appellant paid him rent from February, 1980 upto March, 1981.

The appellant in his affidavit-in-evidence, stated that he paid the rent after January, 1980, to Iftikhar son of the respondent. Iftikhar son of the respondent stated in his affidavit-in-evidence that he used to collect rent from the appellant and demanded rent for the month of January, 1980 onwards at the rate of Rs.600/' per month but the. appellant on one false pretext or the other used to give him idle promises but never paid rent. The son of the respondent denied the suggestion in cross-examination that the appellant had paid him the rent from the month of February, 1980 upto March, 1981.

In the instant case the respondent asserted that the appellant had committed default in payment of rent for the period coming from 1-2-1980 to 31-3-1981. The appellant stated in the written statement that he paid the rent to the respondent. The respondent denied the suggestion that the rent from February, 1980 to March, 1981 was paid to him. Respondent's son filed affidavit-in-evidence wherein he stated that the appellant did not pay him the rent. The son of the respondent also denied the suggestion in his cross-examination that the appellant has paid rent to him. The appellant stated in his affidavit that he paid to Iftikhar son of the respondent. I am of the view that the respondent had successfully discharged the burden of proof and the onus thus shifted to the-appellant. The appellant had failed to discharge the onus to prove the factum of payment. The conclusion is that the respondent has successfully established that the appellant had committed default in the payment of rent and is liable to be evicted from the premises in dispute.

The last contention of the learned counsel, for the appellant is that the respondent has a fixed deposit amount of Rs.10,000/- with him and this amount can be adjusted against the arrears of rent. The amount was only refundable at the time of the handing over vacant possession of the premises in dispute. I am of the view that this amount is refundable to the appellant when he vacates the premises after deducting the dues on account of arrears of rent, charges, if any, the plea of the appellant's counsel for adjustment of arrears cannot be accepted as in the instant case there will be no fixed deposit left with the respondents to adjust the other charges, if any, found due against the appellant when he vacates the premises in dispute.

In the result, the appeal is dismissed. The parties will, however, bear their own costs. I allow the appellant to hand over vacant possession of the premises in dispute within four months from today on the condition that he will continue to deposit rent as ordered by the Controller.

H.B.T./M-222/K Appeal dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.