MUHAMMAD NISA Versus ANWAR ALI

1. The respondent filed application for ejectment against the appellant on the grounds of default and personal bona fide requirement. The respondent had purchased the property on 6‑3‑1978 and alleged to have served 4 notice under section 13-A of the West Pakistan Urban Rent Restriction Ordinance on the appellant but rent was not paid. The appellant showed ignorance about the sale of the property to the respondent and also denied that any notice was served. Plea was taken that she had paid the rent to the previous landlord and thereafter from March, 1978 she has been depositing the rent in Court. This application for deposit of rent was made on 16‑8‑1978. It was stated that the rent was paid to the previous landlord of money order which was also refused. The claim for bona fide requirement was also denied. The learned Controller held that default has been committed and the premises is required bona fide by the respondent.

2. Mr. Ishtiaq Ali Kanhorvi the learned counsel for the appellant has contended that the notice under section 13‑A was sent by the respondent four months after the purchase of the property and the same was not served. There are two notices on record which were sent by the respondent and had returned unserved. In cross‑examination the appellant has stated that notice was served four months after the purchase of the property, but the photocopy of the sale‑deed was delivered 15 days after the sale‑deed was registered. There seems to be some mistake or misconception on the part of the respondent as the envelope which has been produced in Court, and the copy of notice which was returned unserved is dated 29‑3‑1978 and the postal' receipt shows that it was dispatched in the end of March, 1978 and had been returned in the early dates of April, 1978. The admitted position is that appellant and respondent are related to each other. The respondent's son is married with the maternal‑granddaughter of the appellant and perhaps some divorce proceedings were pending which is clear from the cross‑examination of the respondent. Therefore, the parties are next door neighbours and the appellant is residing in a portion of the house in which the A respondent is residing. The portion which is in disputed and occupied by the appellant was purchased by the respondent. In these circumstances it can be inferred that the appellant was aware of the purchase of the property. Her attorney has stated that the property was purchased by the respondent with mala fide intention to harass the appellant. In this background the plea of the appellant that she has been depositing the rent bona fide in Court in the name of the previous landlord cannot be accepted. If the appellant would not have been aware of the sale and had been depositing the rent in Court then it could have been termed as a bona fide mistake on her part. In any event after the notice of ejectment application had been served she continued to deposit the rent in the name of the previous landlord. Such mistake could have been termed as a technical default provided the intention of the appellant was bona fide in depositing the rent in the name of the previous landlord. In my view she had full knowledge of the sale of this property to the respondent and she deposited rent in the name of the previous landlord merely to harass the respondent. In these circumstances the finding of the learned Controller with regard to default in payment of rent cannot be questioned.

3. The other ground is that the premises is required bona fide for the use of the respondent and his family members. For the purposes of ejectment on the ground of personal bona fide requirement notice under section 13‑A is not necessary. In the ejectment application the respondent has stated that the present accommodation which is admittedly of two rooms is insufficient for himself and his family members which consist of his wife, and six grown up children.

4. According to the respondent one of his sons has been married and tile other son has been engaged. The respondent was cross‑examined on this aspect of the case, but he has not been shaken. The appellant has alleged that he is residing somewhere in North Karachi, but no particulars of such residence have been given, nor respondent's statement that he is occupying the adjacent half portion with two rooms has been falsified. Even if for argument's sake he is residing some where in North Karachi and now needs the premises for his family members who are large in number, the bona fides of the claim cannot be questioned.

5. In the result the appeal is dismissed. Four months' time is granted to the appellant to vacate the disputed premises.

6. H.B.T./M‑535/K Appeal dismissed.