MEHTAB HUSSAIN Versus ABDUL AZIZ KHAN

The facts which constitute the background of this appeal are that the appellant is the landlord of the building situated on Plot No.4/2, Commercial Area, Liaquatabad, Karachi. The respondent is the tenant in respect of lst floor of the said building at a monthly rent of Rs.250. The said premises was initially rented out to the respondent by father of the appellant, who had gifted the said property to the appellant intimating the respondent about the change of ownership, who on receipt of this intimation, started paying rent to the appellant. As a result of an understanding arrived at between the parties, since the time of ownership of the father of appellant, the respondent was to maintain an account book in which the monthly payment of rent was entered, as an when paid, and in acknowledgement t thereof the landord, the father of appellant and thereafter the appellant himself used to put his signature. This arrangement was made by the respondent himself, as the appellant and his father were not literate enough so as to pass or issue the rent receipt to the respondent. It is the case of the appellant that the respondent failed to pay rent from June, 1980 to February, 1981, at the aforesaid rate of rent. In addition to the ground of default in payment of rent for the above period, the appellant required the said premises for his own occupation as he was residing with his father and the said accommodation was too small for a large family of about 13 members. On 19‑3‑1981, the appellant filed an application for ejectment against the respondent on the above grounds in the Court of IXth Senior Civil Judge and Rent Controller, Karachi.

2. The respondent has controverted the allegations based on facts. He questioned the quantum of rent by stating that it was fixed at Rs.200 p.m. He has also disputed the arrears of rent by stating that rent up to February, 1981, was paid by him, but no receipt was issued by the appellant. The personal bona fide need of the appellant was also resisted.

3. The appellant has examined himself (P.W.1), while the respondent has examined himself (D.W.1), Ghazanfar Ali (D.W.2) and Javed Mustafa (D.W.3).

4. On the basis of evidence, both oral as well as documentary, the learned Rent Controller decided all the issues against the appellant and thereby dismissed the application for ejectment vide order dated 11‑5‑1985. This order is the subject‑matter of the present appeal.

5. Admittedly there is no written agreement of tenancy between the parties. According to the appellant, he being an illiterate person, the account of payment of monthly rent was being maintained by the respondent in a note‑book in which he simply used to put his signature. The appellant has testified that the rate of rent was Rs.250 p.m. and the respondent was in arrears from 1‑6‑1980 to 28‑2‑1981. Both these assertions were contested very seriously by the respondent, who besides himself (D.W.1), examined Ghazanfar Ali (D.W.2) and Javed Mustafa (D.W.3). The onus to prove default lay on the appellant, who stated on oath the circumstances leading to the default committed by the respondent. The only reason for which the learned Rent Controller decided the issue of default against the appellant, is that he had made contradictory statement by deposing that he was issuing receipts to the respondent in the following words:‑

"It is not a fact that I did not issue the rent receipt to the opponent and other tenants. I used to issue the receipt. It is not a fact that I have not mentioned in plaint and the affidavit in‑evidence about the issuance of rent receipt to the opponent. At the time of receiving the rent I used to make such entry in a note‑book maintained for the receipt of rent. I do not know Urdu."

(6) From the perusal of the evidence available on record I have not discovered the result which apparently a critical examination by the learned Rent Controller had produced, who has failed to consider that the agreed arrangement of the respondent maintaining the rent account and the acknowledgment thereon by the appellant in respect of the amount of rent, as and when paid, did amount to receipt although not in any formal shape. Again an isolated sentence or phrase in cross‑examination, torn out of or divorced from their context, cannot give the real intention of the maker thereof. In fact it cane happen that an isolated sentence may give an impression totally' different from the true intention of the person making such statement.,

(7) The burden of proof plays an important part in the discussion of evidence and arriving at of a conclusion on the basis thereof though in a case of this nature, where the entire evidence has been produced, the question of onus ceases to have any importance. The respondent has examined himself and two witnesses namely Ghazanfar Ali (D.W.2) and Javed Mustafa (D.W.3) in rebuttal. All of them speak that the rate of rent was Rs.200 p.m. Ghazanfar Ali (D.W.2) has further testified that a sum of Rs.400 being the rent of January and February, 1981, was paid by the respondent to appellant in his presence. Ghazanfar Ali (D.W.2) is a resident of Samanabad which is about four miles away from the disputed. premises. He is thus a chance witness. His presence at the relevant time when the alleged payment was made to the appellant is a pretext which is easy to invent and is always found in the mouth of witnesses, who are set up by the parties. The respondent had filed an affidavit‑in‑evidence of one Syed Afaq Hussain, who is tenant of the same building and would have been a natural witness in respect of quantum of rent and payment of rent. He was, however, given up giving rise to an adverse inference. In this view of the matter the admission of the respondent that he was not in possession of rent receipts for the period commencing from June, 1980 to February, 1981, and that he did not tender rent C through money order during this period leads to the conclusion that the rate of rent was Rs.250 p.m., and the respondent was defaulter in payment of rent for the aforesaid period. The finding of the learned Rent Controller on issues Nos.l and 2 is reversed.

8. The record as it stands shows that the appellant owns no other house except the building where the disputed premises is situated. Admittedly the house where the appellant is presently residing belongs to his father. The appellant claims that the same is occupied by 13 members of the family and, therefore, is not suitable for his need. It will not be out of place to mention here that the appellant was unmarried when the application for ejectment was filed, but he married during the course of proceedings of this case and wants to have an independent living. As observed in Rajib Ali v. Darius B. Kandawala and another, reported in PLD 1984 Kar. 14, the desire of the landlord to live in his own house is quite natural and once a D landlord has elected to live in his own house, his demand for eviction of his tenant would be presumed to be bona fide and based on good faith, unless mala fides is alleged and proved by the tenant. The assertion of landlord on oath as to requirement of premises for his personal use is to be accepted as bona fide if consistent with his averments in the application for ejectment and not shaken in cross examination or disproved in rebuttal. Reference may be had to Hassan Khan v. Mrs. Munawwar Begum, reported in PLD 1976 Kar. 832, Mst. Tauheed Khanum v. Muhammad Shamshad, reported in 1980 SCMR 593 and M/s Everready Pictures. Ltd. v. Chaman Begum PLD 1982 Kar. 770.

9. It is again a matter, of prerogative and discretion of landlord to determine and decide where. he should live. The appellant wants to occupy his 'own house. According to him, the present accommodation where he is admittedly residing with his father, is not suitable for him. The fact that one of his brothers is residing in Federal 'B' Area, Karachi, further strengthens the case of the appellant when he states. that the present accommodation is not sufficient. It may be noted that the evidence of appellant on oath in regard to his requirement is consistent with the averments contained in his application or ejectment. The learned Rent Controller ought to have accepted the requirement of the appellant, particularly when he is now a married person and father of a daughter. This issue is, therefore, decided in favour of the appellant.

10. In the result the appeal is allowed with no costs. The impugned order is set aside and the ejectment of the respondent is ordered. The respondent is, however, allowed two months time to vacate the demised premises.

H. B. T./M‑681/K appeal allowed