SANJEEDA BEGUM Versus MUHAMMAD AFSAR
The appellant has called in question the order passed by the learned IVth Senior Civil Judge, Assistant Sessions Judge and Rent Controller, Karachi (West), dated 10‑2‑1987.
2. The appellants, who are legal representatives of one Bashir Mirza, the original landlord of the premises situated in Nazimabad, Karachi, had let out a shop in the said premises to the respondent on payment of monthly rent of Rs.150. There was no written agreement between the parties. In 1984 the appellant filed ejectment proceedings against the respondent on three grounds: firstly, according to the appellants, the premises were required by appellant No.1, Mst. Sanjeeda Begum wife of late Bashir Mirza, for starting a business with a view to settle her minor son who had then come of age. Secondly, the respondent, had also committed default in payment of rent as since October, 1983 he had failed to pay rent to the appellants. Thirdly, the respondent had altered the nature of his business for which the premises had been originally let out to him.
3. The application was, however, resisted by the respondent.
4. The learned Controller after recording evidence of the parties in the case was, however, not impressed by any of the grounds urged on behalf of the appellants in the pleadings, he, therefore, dismissed the application by the said impugned order.
5. I have heard Mr. Pervez A. Ahmad, learned counsel for the appellants and Mr. Khalilur Rahman, learned counsel for the respondent.
6. So far as the case of the appellant vis‑a‑vis her personal need is concerned, the learned Controller appears to have rightly declined to accept the same. Admittedly, no details were supplied by the appellants in this regard. to establish their bona fides . Neither the nature of business proposed to be; started by her son in the said shop was stated, nor the name of appellant was A specifically mentioned for whose benefit the shop in question was required by the appellants. No doubt, during the cross‑examination of appellant Atiq Mirza, it transpired that the shop was required by appellant Zaheer Mirza who was doing business of affixing stones on jewellery in his own house, but the same was not the case of the appellants either in the eviction application or the affidavit‑in‑evidence filed on their behalf. Consequently, the learned Controller found that the appellants had failed to establish their n fides as required under the law. Reliance was placed by him on various judgments of this Court which, however, need not be referred to in this judgment. Suffice it to say that the conclusions arrived at by the learned Controller on the point appear to be reasonable and not open to question.
7. The alleged default in payment of rent also could not be proved by the appellants before the learned Controller. According to the appellant, the respondent had failed to pay rent from October, 1983. The case of respondent, however, was that the rent for the months of September and October, 1983 had been paid to the appellants but no receipt was passed on to him by the former. The respondent thereafter tendered rent for November, 1983 which was declined by the appellants. The same rent was then sent through money order, dated 8‑12‑1983, which was once again declined. Therefore, the respondent deposited the rent of four months amounting to Rs.600 due from September to December, 1983 in tire Court of the Rent Controller on 13‑2‑1984 through Misc. Rent Case No.550/1984. Appellants Mst. Sanjeeda Begunm and Muhammad Atiq Mirza were cross‑examined on the point and during their cross‑examination, the fact that the rent for the months of September and October had been received by them from the respondent was not denied by them. However, they gave evasive replies, as they did not remember, whether the rent for the said months had been paid by the respondent to them. The learned Controller was, therefore, convinced that the appellant had received the rent for the months of September and October, 1983 as claimed by the respondent. So far as rent due thereafter was concerned, since it had become clear from the evidence adduced before the learned Controller that the appellants had avoided to receive such rent from the respondent, he came to a conclusion that no wilful default had been committed by the respondent. After perusal of the evidence on the point, I find that the findings of the learned Controller on this issue are also not open to exception.
8. The third ground urged by the appellants before the learned Rent Controller was that respondent had changed the use of the premises, from ration shop to a cloth shop. Admittedly, the premises had been let out to the respondent by the appellants for commercial purpose. There was no written agreement. between the parties from which it can be spelled out that the premises could only be used for a ration shop. Since the onus to‑ establish the change was on the appellants and no substantial evidence could be produced by p them in this regard, the Rent Controller was also not convinced by the said ground. Again, the learned Counsel for the appellants was unable to advance` any convincing argument to show that the findings of the learned Controller cannot be sustained on the point on the basis of evidence before him.
9. In the result, I find no force in this appeal and the same is dismissed.
The parties are left to bear their own costs.
H.B.T./S‑857/K Appeal dismissed.