AKBER ALI Versus ABDUL MAJID

1. This First Rent Appeal is directed against the order dated 24‑8‑1985, passed by VIIIth Senior Civil .fudge/Rent Controller, Karachi directing eviction of the appellant from shop premises in building known as Hajyani Sharifa Manzil, Kalyanji Street, Ranchore Lines, Karachi and directed the appellant to hand over the vacant possession of the disputed shop within two months of the order.

2. The facts which give rise to the above appeal are that the respondent is owner/landlord of the above building and the appellant is the tenant of the respondent in respect of shop premises at ground floor of the said building at a monthly rent of Rs.50. The respondent filed eviction application No.442 of 1980 against the appellant on the ground that the respondent required in good faith the said shop for his own use for the business purpose. The respondent averred in the eviction application that the respondent has no shop premises in his possession and he has not vacated any shop premises before the filing of the eviction application. The respondent also averred that the appellant failed and neglected to pay rent in spite of repeated requests and demands. As such the appellant was in arrears upto the date of the filing of the eviction application. The appellant resisted the eviction application.

3. The respondent bled his own affidavit‑in‑evidence in support of the eviction application and the appellant filed his own affidavit‑in‑evidence in rebuts. They were cross‑examined by the learned counsel for the respective parties.

4. The learned Rent Controller allowed the eviction application as stated earlier and the appellant being aggrieved has filed this First Rent Appeal.,

5. Syed Abbas Zia learned counsel for the appellant has contended that the learned Rent Controller has misread the evidence and the order of eviction is not sustainable in law, On the other hand MrAmir Ahmed Khan learned counsel for the respondent has submitted that the impugned order is in accord with the evidence on record.

6. It is an admitted position that the respondent averred in his eviction application that he required in good faith the said shop premises for his own use for business purpose. It is pertinent to note that the details of the business are not disclosed in para 2 of the eviction application. The respondent in his evidence stated that he required in good faith the demised shop premises for doing plumbering business. The respondent further stated "I am doing work of plumbering and I intend to start plumbering workshop and sale of plumbering goods in the demised shop premises and I need the demised shop premises for the said purpose. I have asked the opponent several times to vacate the demised shop premises as I require the same in good faith for starting plumbering workshop and selling of plumbering goods therein, but the opponent all along kept me on false hopes and he failed to vacate the same". The respondent admitted in his cross‑examination that he is doing the business of plumbering since last 25 years without shop. The appellant in his written statement stated that the respondent is also in possession of one shop on the ground floor of the said building. The respondent denied the suggestion in his cross‑examination that he was doing any business in this shop. The respondent also denied the suggestion that the shop was in his possession. The appellant produced PT‑1 Form (Ex.6/11). I have perused the same. It shows that the respondent is occupying one of the shops in the said building.

7. I have gone through the deposition of the witnesses and the pleadings. It is an admitted position that the respondent is carrying on work of plumbering since last 25 years. He has not given the reasons why he did not approach the appellant or his late father for the shop in dispute. The respondent has not even disclosed where he was doing plumbering work and why he required the shop in dispute. The respondent even asserted in his eviction application that he intended to do plumbering work. I am of the view that a mere desire for doing a business is not the requirement of law. The landlord has to prove that he required the premises in good faith and mere wish, convenience, whim or fancy of landlord would not be enough to show that the landlord required the premises in good faith. The mere ipse dixit of the landlord that he required the premises for his personal occupation or use was not enough.

8. The learned counsel for the respondent has frankly conceded that the respondent has not given any reason as to why he approached the Controller after lapse of 25 years and has stated that in these circumstances he does not press the eviction application on the ground of personal requirement of the respondent. In this view of the matter, in my opinion, the learned counsel for the appellant was right that the learned Controller has failed to carry out his duty, and therefore, his order be set aside. I accordingly set aside his order.

9. It is an admitted position that the respondent never issued any rent receipt to the appellant. In para 3 of the eviction application the respondent averred that the appellant failed and neglected to pay or tender the rent due from March, 1979. The eviction application was filed on 20.1.1980. The appellant filed his written statement and dented the contents of para 3 of the application. It is stated therein that the appellant was paying rent to the respondent regularly and had never committed any default in payment of rent but the respondent never issued any receipt from the very beginning. The appellant also stated in the written statement that the appellant paid the rent upto September, 1979 and thereafter the respondent refused to accept the rent for the month of October, 1979, due to ulterior motive and mala fide intention, as such, the appellant sent the rent by cheque and postal money‑order but the respondent refused to accept the same. The appellant produced the photostat copy of letter dated 11‑12‑1979 and also produced money‑order coupons dated 31‑10‑1979, 20‑1‑1980 and 13‑2‑1980. Thereafter he started depositing rent in Miscellaneous Rent Case No.2299 of 1980. The respondent reiterated the same facts in his affidavit‑in- evidence and stated therein that the appellant had never paid to him the rent upto inclusive of the month of September, 1979. He denied the suggestion that he did not receive any cheque alongwith letter of Advocate. The respondent to a question in cross‑examination stated "It is incorrect to suggest that I refused to accept the rent for October, 1979 and threatened the appellant to eject him by force". The respondent was confronted with acknowledgment due who admitted that the acknowledgment due card bears his correct address. The respondent to a suggestion in cross‑examination stated that he used to issue rent receipts regularly. The respondent also admitted that he used to issue printed rent receipts. The respondent also admitted that he used to issue printed rent receipts. The respondent also admitted that "I have never issued rent receipts to the opponent. It is correct that opponent has paid the rent upto September, 1979 and I have not issued the rent receipts." The learned Controller observed that from perusal of evidence it appears there is omission in recording the sentence and the cross‑examination is very clear and the. applicant has specifically denied to have received rent after March, 1979. This sentence cannot be read in isolation with the other relevant answers in the cross‑examination. It is pertinent to note that the certified copies of the cross‑examination were obtained by the parties but none of the parties moved any application for correction of this omission. In these circumstances, the above observations are uncalled for more than one reason; the respondent stated in his affidavit‑in‑evidence that "the opponent has paid me rent upto and including the month of February, 1979. Whenever the opponent paid me the rent, he took my signature on receipt written by him in his Note book." This is the case set up by the respondent in his affidavit‑in‑evidence. The respondent in his cross‑examination admitted that he used to issue rent receipts regularly. The respondent also admitted in his cross‑examination that he used to issue printed rent receipts. The respondent also admitted that he never issued rent receipts to the appellant.

10. It seems that the stand of the respondent changed from time to time. He took plea in the affidavit‑in‑evidence that the appellant used to obtain the receipt on the Note‑book at the time of payment of rent. It is pertinent to note that when the appellant appeared in the witness‑box, no suggestion was made to him that the appellant used to bring his own Note‑book and used to obtain the signature of the respondent. The second stand of the respondent was that he used to issue rent receipts regularly and that also on the printed receipt books. The respondent did not bring any counter‑foil of the rent receipts and the case as set out in the cross‑examination is contrary to the version set out in the affidavit‑in‑evidence.

11. The learned counsel for the respondent when confronted with the above situation frankly stated at the bar that in such circumstances it cannot be said that the appellant had committed default in payment of rent for the disputed period.

12. For the above reasons the F.RA. No511 of 1985 is allowed and the eviction application filed by ‑ the respondent on the ground of personal requirement and default is dismissed.

13. The learned counsel for the respondent has submitted that the respondent is interested to file an application for the personal requirement of his son. The respondent is at liberty to do so provided it is in accordance with law and the learned Controller will decide the same on its own merits. In the circumstances of the ease the parties will bear their own costs. The above are the reasons of the short order dated 26‑10‑1986.

14. H.B.T./5125/K Appeal allowed.