RAHIMUDDIN Versus MUNNY KHAN

This appeal is directed against the judgment of the learned XIIth Senior Civil Judge/ASS/Rent Controller, Karachi, dated 25‑5‑1984 passed in Rent Case No.326 of 1979 whereby the application for eviction made by the respondent on the grounds of default in payment of rent and personal bona fide need has been allowed and the appellant has been directed to hand over the vacant possession of the premises in case to the respondent within sixty days from the date of order.

2. The relevant facts giving rise to this appeal at the instance of the tenant are these. The business premises bearing Shop No.9‑A, Main Bazar, Drigh Colony, Karachi‑25, is owned by the respondent. It was let out to the appellant about 20 years back. The respondent stated in the application that the appellant had failed to pay rent at the rate of Rs.150 per month for the period commencing from August 1978 to December 1978. He also pleaded that the shop was required by him for his own use and that he had sufficient money to set up and establish his own business of Kiryana in the said shop. He further stated that he is carrying on the same business in his own small quarter which is away from Main Bazar and does not give sufficient income to make both ends meet.

3. The appellant contested the application by filing written statement admitting therein the relationship of landlord and tenant but denied that the rent of premises was Rs.150 per month. According to him, it was Rs.60 per month only. He also denied the alleged personal need of the respondent in respect of the demised premises. He pleaded that the application was made with mala fide intention inasmuch as the respondent was anxious to enhance the rent which was not acceptable to the appellant. He also pleaded that the rent was always promptly and diligently paid. The rent upto December, 1988 was, when offered, stated to have been refused by the respondent and hence it was sent by money order which too was refused. The rent for the subsequent months was also tendered by money order but it was not accepted by the respondent.

4. The respondent besides examining himself in support of his case also produced two witnesses, namely, A.W. Sharif and A.W. Barkat Hussain, whereas the appellant also examined himself in support of his case and further produced two witnesses, namely O.W. Muhammad Aslam and O.W. Hakim Nazir. The learned Rent Controller by his impugned order has allowed the application as stated above. He formulated the following issues and answered the issues Nos.l, 2 and 3 in the affirmative.

(1) Whether this application is maintainable ?

(2) What is the rate of rent ?

(3) Whether the opponent has committed default in payment of rent ?

(4) Whether the applicant requires the premises in case for his personal use ?

(5) What should the order be ?

5. I have heard Mr. M.A. Qadri, learned counsel for the appellant and Mr. S. Zaman Shah, Advocate for the respondent and have with their assistance perused the deposition of the parties as well as their witnesses abovenamed.

6. Before proceeding further I would like to state that while admitting the appeal on 20‑8‑1984 the following order was passed:‑---

"20‑8‑1984. Mr. M.A. Qadri, Advocate.

(1) The learned counsel contends that the finding of the Controller that default has been committed is not based on proper appreciation of evidence. Admit. Notice.

(2) The impugned order is stayed. The appellant shall continue to deposit rent in terms of the order passed by the Controller. Notice. "

From the admission order as reproduced above it is evidently clear that the appeal has been admitted only on the ground of default whereas perhaps the ground for personal bona fide need of the respondent was not urged at the time of admission or that if it was urged it did not prevail upon the Court. At any rate the scope of the appeal as per above admission order is confined to the issue of default. Mr. M.A. Qadri, learned counsel for the appellant, however, stated that the finding of personal need was also assailed but unfortunately it was not incorporated in the admission order. However, there is an authority available on the point that if appeal is admitted on a particular point then the presumption is that the other points urged in the memorandum of appeal or pressed on behalf of the appellant are rejected. At any rate I have heard the counsel for the parties on the ground of personal need as well.

7. The learned counsel for the appellant submitted that it is an admitted fact that the respondent never issued rent receipts to the appellant. He also urged with vehemence that on refusal of the respondent to accept the rent for the month of December, 1977, the appellant remitted the same immediately by money order on 4‑1‑1978. Since the rent of the shop was Rs.60 per month only hence the appellant remitted the said amount. The money order was refused by the respondent without assigning any reason. The rent for the subsequent months was also remitted but that too was refused by the respondent. Having refused to accept the rent tendered personally as well as through money order the respondent filed the application maliciously on 15‑1‑1979. I find that the money order receipt and coupons are prevalent on the lower Court record which go to prove the above‑noted contention of the learned counsel for the appellant. It is further pertinent to note here that when the three months' rent amounting to Rs.180 was remitted by the appellant it was refused by the respondent with the following endorsement:‑---

8. The learned counsel for the respondent, on the other hand, submitted that the non‑payment of rent from August, 1978 to December, 1978 has been duly proved by the respondent through two witnesses produced by him, namely, Sharif and Barkat Hussain, who have deposed that in the month of October, 1978 the appellant did not pay monthly rent to the respondent and this led to a dispute between the parties which was tried to be settled by A.W. Sharif, as per deposition of Barkat Hussain and Sharif. I have gone through the cross-examination of these two witnesses and I am firmly of the opinion that they were set‑up witnesses and their version cannot, therefore, be accepted. It may further be pointed out here that the respondent in the application for eviction did not make a mention of this fact that the said two gentlemen had intervened or that there was any attempt to amicably settle the dispute between the parties. The rent was obviously sent by the appellant first on 4‑1‑1978 whereas the application for eviction was filed by respondent, later on, on 15‑1‑1978. In none of the money order slips the respondent has stated that the rent was Rs.150 per month and since it was remitted at the rate of Rs.60 per month, hence it was not acceptable to him. The only remark was made on one of the money order slips as recorded above, there too the respondent did not mention the alleged rent of Rs.150 per month. In this view of the matter I am clearly of the opinion that the rent of the premises was Rs.60 per month and that the claim of the respondent of rent of Rs.150 was an afterthought and was not supported by any documentary evidence. The order of the learned trial Court in this behalf is, therefore, set aside and it is held that the rent of the shop in question is payable at the rate of Rs.60 per month.

9. In so far as the default is concerned here also I feel inclined to agree with the learned counsel for the appellant that no rent for the months of August to November, 1978 was payable and that the rent for the said period was claimed to be in arrears for making out a cause of action for filing the application for eviction of the appellant; on the ground of default. Admittedly no rent receipts were being issued by the respondent and hence the mere word of the respondent qua the words of the appellant cannot be given any more weight more particularly when the respondent did not make a mention of this fact of the alleged default of August to November, 1978 in any of the coupons of the money orders sent by the appellant to him. 1, therefore, hold that the respondent had no cause of action for filing the application on the ground of default in payment of rent inasmuch as his claim that the rent for the months of August to December 1978 was not paid was factually incorrect. The fact that he had refused to accept the rent remitted by the respondent for December, 1978 was also not mentioned in the application.

10. For the foregoing reasons the impugned order of the learned Rent Controller is set aside on this issue as well. Now there remains the only issue to be decided with regard to the alleged personal reed of the demised premises by respondent. In this behalf, as observed above, the appellant is out of Court for the reasons already stated above. At any rate, on the basis of the evidence that has come on record there is no escape from the conclusion that the respondent has established his personal need in respect of the demised premises.

11. The statement of the appellant with regard to his personal need was categorically stated in the application which was adhered to in the affidavit‑in‑evidence filed by him. The appellant cross‑examined him in this behalf but he could not shatter his version in any manner. The appellant has in his deposition admitted the fact that the respondent is doing Kiryana business in a portion of his building bearing No.1055/1, which is, according to him, a residential‑--cum- commercial area. The respondent's case on the other hand, is that the shop in question is situated in Main Bazar of Drig Colony and that he is interested to shift his business from that place to the disputed shop inasmuch as the income presently derived by him from his shop was not enough for his requirements. There can be no denying the fact that a shop in the main bazar would definitely yield better profits to the respondent than the one accruing to him from his present business premises located in a quarter, even though it may be a residential‑cum‑commercial area. No worthwhile material has been brought on record to establish the ulterior motive of the' respondent in claiming the said shop for his awn bona fide use. On the contrary, the facts that he is already engaged in business and has been running a shop in the same locality lend support to the case of the respondent. The learned Rent Controller, I think, was justified in holding that the applicant is running his business in the premises admittedly situated in a residential‑cum‑commercial area for the last 30 years. And if he wants to start his business in the main bazar in shop, I do not think it proper and justified in depriving him of enjoying his own property". I do not, therefore, find any justification to interfere with the order of the learned Rent Controller on this issue.

12. In the result, the appeal partially succeeds and is allowed in the manner indicated above.

13. At this stage Mr. M.A. Qadri, learned counsel for the appellant, prays that one year's time may be allowed to the appellant to vacate the premises as he is doing his business therein for the last 20 years and has no other place to shift immediately. The learned counsel for the respondent is agreeable to allow, on my suggestion, six months' time to the appellant to vacate the premises in question. I, therefore, direct that the appellant shall vacate and hand over the vacant possession of the above‑noted demised premises by or before 31st March, 1989 subject to his making the payment of rent regularly to the respondent at the rate of Rs.60 per month. It is further ordered that if the appellant fails to pay the rent of any future month or he fails to vacate the premises as stated above he would be liable to be evicted without notice.

A.A./R‑68/K Appeal partly accepted.