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First Rent Appeal No.85 of 1983, decided on 20th March, 1986.

--S.15--Default--Landlord filing ejectment application on 23-12-1978 for alleged default since June. 1976--Tenant contending that on landlord's refusal to accept rent he deposited same from March, 1978 when ejectment application had not yet been filed--Delay for filing ejectment application not explained--Landlord not issuing any rent receipt and tenant not taking advantage of it--Fact that tenant started depositing rent from March, 1978 clearly showed that it was from that month landlord refused to accept rent--Tenant was, held, not defaulter in payment of rent in circumstances.

---S.15--Bona fide, personal need--Tenant and his witnesses admitting that landlord had no other shop--Pleading their ignorance, if disputed shop was needed by landlord for his personal use or his son indirectly admitting need of shop by landlord --Need of landlord for disputed shop, held, was bona fide.

Rafique Khanzada for Appellant.

S.M.A. Mahmood for Respondent.

Date of hearing: 19th March, 1986.

This appeal has arisen from the order of Xth Senior Civil Judge and Rent Controller, Karachi, dated 12-12-1982 whereby the ejectment application filed by the appellant Shafique Ahmad seeking ejectment of respondent Abdur Rahman, was dismissed.

The facts giving rise to this case are that respondent is in possession of the disputed shop situated on plot No.5-S/80-653, Fatima Jinnah Colony, Karachi, as tenant. The said shop is claimed by the appellant to be his property. On 23-12-1978 the appellant filed ejectment application against the respondent on the grounds of default in payment of rent and personal requirement. The application was vehemently opposed by the respondent who refuted both the allegations of default and personal requirement. The learned Rent Controller after considering the evidence produce: by both the parties dismissed the application by the impugned order as mentioned above.

After hearing the arguments of the learned counsel for the parties the appeal was allowed with no order as to costs by short order dated 19-3-1986. By the said order the respondent was directed to deliver the vacant possession of the disputed shop to the appellant within three months of the order. Following are the reasons in support of the said short order.

The appellant's case on the point of default, as disclosed in the ejectment application, is that the respondent is habitual defaulter in payment of rent and has not paid rent from June, 1976 to February, 1978 at the rate of Rs.100 per month. This has been denied by the respondent in his written statement wherein he has taken the plea that it was only from March, 1978 that the appellant refused to accept the rent and, therefore, the respondent was constrained to deposit it in the Court of Rent Controller under Misc. Rent Application No.1649/1978. Moreover he has stated that the rate of rent was Rs.60 and not Rs.100 as stated by the appellant.

The appellant has produced only his own affidavit in support of his case. All that he has stated in the affidavit in connection with the default is that the respondent stopped paying monthly rent since June, 1976. He admits that there was no rent agreement in writing. He also admits that the initial rate of rent was fixed Rs.60 which was later on enhanced to Rs.100. It is not disputed that the appellant never issued receipt acknowledging the payment of rent to him. As such the question of proving the payment of rent by producing the receipt does not arise. However, the respondent has stated that he has cleared the rent upto February, 1978 and it was only the rent for the month of March, 1978 which was not accepted by the appellant and on his refusal he started depositing the rent in the Court from that month. The depositing of the rent from March, 1978 goes unchallenged. Accordingly the dispute is narrowed down to only the period from June 1976 to February, 1978.

There is word against word as to payment of rent for this period. The question is whose word is nearer the truth. In this connection it may be noted that although as per appellant's own case the first default was made by the respondent in respect of June, 1976 yet he filed ejectment application on 23-12-1978, nearly 11 years after the alleged default. He has furnished no explanation for this delay. Secondly, it is an admitted position that after the appellant refused to accept the rent for March 1978 the respondent started depositing the same in Court. By that time the ejectment application' had not been filed. If the respondent wanted to take advantage of non-issuance of receipts, he would not have bothered to deposit the rent in Court. The fact that he started depositing the rent from March, 1978 clearly shows that it was from that month that the appellant refused to accept the rent from him. Accordingly I am of the view that the respondent is not defaulter in payment of rent and as such he could not be ejected on that ground.

However, the case of the appellant /landlord on the issue of personal requirement stands on different footing. The learned Rent Controller has not properly appreciated the material on record on this issue. Starting with the ejectment application it appears that the appellant has raised the plea of personal requirement in the following words:----

"That the opponent has his own shop and a residential house and the applicant is in need of bona fide use of the shop in his house to establish his son."

In other words the appellant has expressed the need of the disputed shop with a view to establish his son. In support of this plea he has deposed in his affidavit as follows:

"That my son Shamim Ahmad who has become the fitter and denter was allowed to sit in the said shop to carry out his business and my own son had seen carrying out his business in the said shop for about a year, but the opponent ousted him from the said shop since June 1976.

That I require the said shop for my bona fide use for establishing my son in the said shop as fitter and denter."

On the question of personal requirement the appellant was subjected to cross- examination, but nothing has been elicited from him which may adversely affect his plea of personal requirement. On the contrary from the questions put to him in the cross-examination it is clear that appellant's son was actually working with the respondent in the disputed shop. In this connection following replies made by him in cross-examination may be noted: "It is incorrect to suggest that my son was under training of the opponent. It is incorrect to say that my son was earning for his livelihood while working with the opponent." From these replies no doubt is left in my mind that the appellant's son was actually working in the disputed shop for sometime and perhaps after the dispute arose between the parties, he was ousted from there. Obviously after his ouster from the disputed shop he had no other place to work at. No doubt it is admitted by the appellant that his elder son is a bus driver and his another son is working with him on bus while other two sons are aged 3 and 12 years. But as per his statement in his affidavit, he needs the disputed shop for his son Shamim Ahmad who was earlier working in the disputed shop as fitter and denter. It seems that pending the availability of the disputed shop for him, the appellant has made that son work with him on the bus. It is admitted not only by the respondent himself but also by his witnesses namely, Muhammad Yaseen and Faboo Khan that appellant has no other shop excepting the disputed shop. They have pleaded their ignorance if the disputed shop is needed by the appellant for personal use of his son and himself, indirectly admitting thereby the need of the shop by the appellant.

In view of above discussion, I am convinced that the need of the appellant for the disputed shop is bona fide and therefore he is entitled to get back the possession of the said shop. Accordingly, as stated above, his appeal was allowed and the respondent was directed to deliver the vacant possession of the disputed shop to him within three months.

M.A.K./S-78/K Appeal allowed.

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