MUHAMMAD FAROOQ Versus KHAIRUN NISA

This appeal is directed against the judgment dated 21‑9‑1992 whereby the eviction application of the respondent/landlady has been allowed.

2. Eviction of the appellant was sought on the ground of default in the payment of rent for the period June 1989 to November 1989 and on the ground of personal requirements of the landlady and was allowed on both the grounds. The case of the appellant/tenant is that rent of the disputed period was paid in advance and there was no default in the payment of rent and on the personal requirements of the respondent/landlady, it was stated that her claim was not bona fide. A further grievance of the appellant is that the counsel of the appellant had gone on professional duty to Sukkur on the date when the case was fixed for the cross‑examination of the witnesses of the respondent/landlady but the learned Rent Controller did not grant adjournment and closed the cross‑examination which has resulted in mis carriage of justice.

3. As for the closing of the cross‑examination of the appellant, 10‑10‑1991 was the date of cross‑examination of the witnesses of the respondent/landlady but on this date counsel of the appellant was absent and, therefore, the evidence of the respondent/landlady was closed without her witnesses having been cross‑examined by the appellant. However, vide order dated 4‑12‑1991, the order dated 10‑10‑1991 was set aside and the appellant/tenant was permitted to cross‑examine the witnesses of the respondent/landlady on payment of Rs.200 costs and on the stipulation that no further adjournment would be granted. The appellant did pay the costs but when the case came up before the Court on 20‑1‑1992 for the cross examination of the witnesses of the respondent/landlady, learned counsel of the appellant was again absent. An adjournment application was made by the learned counsel for the appellant stating that he was going to Sukkur in connection with some professional work. This application was rejected by the Rent Controller vide order passed thereon and the cross‑examination of the witnesses of the respondent/landlady was again closed. Application dated 28‑1‑1992 for again reopening the side of the respondent/landlady and to permit the counsel of the appellant/tenant to cross‑examine the witnesses of the respondent/landlady was dismissed vide order dated 23‑2‑1992. So the position is that the witnesses of the respondent/landlady have not been cross examined. However, the appellant/tenant has led his evidence. The above narration of the facts clearly shows that the appellant/tenant and his counsel were negligent and the learned Rent Controller was justified in closing the cross‑examination of the witnesses of the respondent/landlady. When the order dated 10‑10‑1991 was set aside vide order dated 4‑12‑1991 with the clear stipulation that no further adjournment would be granted, it was the duty of the appellant to attend the Court on the next date or dates and cross‑examine the witnesses of the respondent/landlady, either by himself or through his counsel. Learned counsel for the appellant was not justified in abandoning this rent case and rushing to Sukkur to attend to some case there. He was bound to show preference to the rent case, even though it was pending before subordinate Court, over the case fixed at Sukkur. Secondly, if at all the case fixed at Sukkur was of such importance that it should have been given preference, it was incumbent upon the learned counsel to approach the Rent Controller in advance and seek his approval (but still the Rent Controller would have been justified in refusing to grant adjournment). Thirdly, the adjournment application moved by the learned counsel for the appellant on 20‑1‑1992 is very vague. It does not even mention the number and name of the case pending at the Sukkur Bench of this Court to attend which learned counsel had gone there nor it was disclosed as to what was the urgency in that matter. Under these circumstances, learned Rent Controller rightly dismissed the adjournment application and I see no reason why this Court should interfere with the order passed by the learned Rent Controller on this application.

4. The second objection raised by learned counsel for the appellant was in respect of under‑stamping the special power‑of‑attorney. The rent case itself was filed by the landlady herself and the special power‑of‑attorney was executed by her in favour of her son on 28‑3‑1991, more than a year after the filing of the ejectment application. As its heading shows, it is special power‑of attorney meant to be used exclusively in respect of the rent case only. However, learned counsel for the appellant is of the view that it stipulates so many functions and, therefore, for all intent and purposes, it is a general power‑of attorney and, therefore, it should have been stamped accordingly. I do not agree with the learned counsel. It is, in my view, not a general power‑of attorney but only a special power‑of‑attorney and, seen from that angle, it has been properly stamped. This objection is also rejected.

5. Coming to the merits of the appeal, I would first take up the ground of default. The allegation of the respondent/landlady is that the appellant. had committed default in the payment of rent for the period June 1989 to November 1989 whereas the defence of the appellant is that he had paid rent r for this period in lump sum and m advance. However, he has not even given the date on which this payment had been made and there is no evidence to sustain this claim of advance payment except the affidavit‑in‑evidence of the appellant himself which, in my opinion, is not sufficient to discharge the onus of proving the payment. I, therefore, uphold the findings of the learned Rent Controller that the default of this period stands proved.

6. It was pointed out by the learned counsel for the respondent that apart from the default in the payment of rent for the period June 1989 to November 1989, which was made a ground for the eviction of the respondent as per para.2 of the ejectment application, the appellant had also committed default for the subsequent period commencing from December 1989 and up to May 1990. Learned counsel for the appellant had no answer to this assertion of the learned counsel for the respondent/landlady and conceded that the rent for this period had not been either paid or tendered to the respondent/landlady but he argued that rent for this period had been deposited in Court in furtherance of the order dated 14‑5‑1990 passed by the learned Rent Controller under section 16(1) of the Ordinance. In my view, deposit of rent in Court in furtherance of the order passed under section 16(1) of the Ordinance is no defence. The appellant/tenant was not supposed remain to idle and await the passing of the order under section 16(1) of the Ordinance. Notwithstanding the filing of the rent case, it was the duty of the appellant/tenant to tender rent in accordance with law, i.e., in terms of Section 15(2)(ii) of the Sindh Rented Premises Ordinance, 1979. The appellant is, therefore, liable to be evicted on the ground of default for this period as well.

7. As for the personal requirements of the respondent/landlady, she has appended to the affidavit‑in‑evidence of her attorney a list of her family members which shows that ‑ not only her grown‑up sons Shaukat Mirza, Sikandar Ali Mirza, Yousuf Ali Mirza and Haider Ali Mirza and her daughters Mst. Zaibunnisa and Mst. Najma Qureshi are living with her as a joint family but that they are living with their spouses and children, besides, another daughter Mst. Mariam Mirza who appears to be unmarried, giving a total of 29 personas. The attorney of the respondent/landlady states in para.5 of his affidavit‑in‑evidence that for all this large number of the joint family there are only six bedrooms which are insufficient for such a large family. Since the attorney of the respondent has not been cross‑examined, his above evidence goes unrebutted and on its basis learned Rent Controller rightly held that the respondent/landlady required the premises bona fidely for her personal use. Besides, the appellant has failed to rebut this evidence in his affidavit‑in- evidence. He does not deny the fact that the respondent has an extended joint family as per list appended to the affidavit‑in‑evidence of her attorney the details of which have been given above. The appellant has also not denied in his affidavit‑in‑evidence that the respondent is in possession of only six bed rooms. All that the appellant stated in para. 11 of his affidavit‑in‑evidence is that the respondent was residing in her own house which was more than sufficient for her use and the use of her family members. In other words the case of the appellant was that the six rooms in possession of the respondent/landlady were sufficient for the requirements of her 29‑member family. It is impossible to agree with the appellant in this regard I am, therefore, satisfied that the learned Rent Controller rightly held that the respondent/landlady bona fidely required the demised premises for her I personal use and requirements.

8. As a result of the above discussion the appeal fails and is dismissed. The impugned judgment of the learned Rent Controller is upheld. The appellant is, however, allowed further two months' time from today to vacate the premises. The parties are left to bear their own costs.

9. These are the reasons for the short order by which the appeal was dismissed after the conclusion of the hearing in the morning.

AA./M‑1882/K Appeal dismissed.