Miss ZAFFAR FATIMA RIZVI vs Syed SALEEM RAZA

1. ' Briefly the facts leading to this appeal are that the present appellant is landlady of the premises situate on Plot No,17-A, Block-2 Gulshan-e-Iqbal, Karachi while the respondent is the tenant in the said premises at present monthly rent of Rs,1,250. Since a year before the filing of the rent case on 22-14989, the landlady had been asking the respondent to vacate the premises as she required the same for her personal use. The appellant landlady had been residing with her brother and that has now retired from service of school teaching and has her own temperament and way of living.

2. According to her, after retirement she now cannot live with her brother's family as she has to be in the house all the time where a number of things happen which breed contempt amongst them and raise hatred and aversion. According to the landlady the respondent did not only heed to her request but also stopped payment of rent since June 1988. The appellant then filed the said rent case. The respondent filed his written statement wherein he contested the case of the appellant and stated that the appellant did not require the premises for her personal use but that she wanted to enhance the rent. As regards default in payment of rent the respondent had taken the stand that the rent was admittedly being paid every month through the cheque sent to her Bandurabad address as was the previous practice and that there was no default in payment of rent. The Rent Controller, on these pleadings of the parties settled the following points for determination:--

(1) Whether opponent is wilful defaulter in payment of rent as alleged by applicant?

(2) Whether applicant requies the demised premises in good faith for her personal bona fide use?

(3) What should the order be?

3. ' The applicant filed her affidavit-in-evidence and that of one Syed Haider Hussain. As against this the respondent filed his affidavit-in-evidence. The Rent Controller after hearing the Advocate for the parties was pleased to dismiss the rent case. Being aggrieved the present appellant has preferred this appeal.

4. ' I have heard the submissions of the learned counsel. MRs, Ismat Mehdi, learned counsel for the appellant has submitted that there is nothing on the record to show that the respondent had tendered the rent for the period of June to December, 1988. As against this Mr. Muhammad Sadiq, Advocate for the respondent has referred to the counterfoils of cheques produced by him as Exh.O/1, 0/4, 0/5, 0/8, 0/11 and 0/14. He has submitted that these cheques were sent on the Bandurabad address of the appellant through registered post A.D. He has also produced A.D. Slip which shows the receipt of cheque at the same address. Explaining this the appellant landlady has stated in her evidence that unsigned letters were being sent by the respondent through registered A.D. And not the cheques as alleged by him. This is the word against the word of both the parties.

5. The contention of the respondent is supported by the postal A.D. Slips whereas the appellant has not produced the said unsigned letters to support her contention. In this view of the matter I am inclined to agree with the Rent Controller that no default in payment of rent was committed by the respondent. However, there is another aspect of the case. The present rent case was filed on 21-1- 1989 and in the rent case an application under section 16(1) of Sindh Rented Premises Ordinance, 1979, hereinafter referred to as the Ordinance, was made on 8-4-1989 and the Rent Controller was pleased to pass an order on this application on 8-6-1989, directing the respondent to deposit the rent in Court. During this period of five months no effort was made by the respondent to pay the rent to the appellant. MRs, Ismat Mehdi, learned counsel for the appellant has referred to the case of Tariq Niaz v. Masooda Begum (1991 CLC 1733). It was held:-- "In the instant case there is no explanation as to why rent for the period from December, 1984 onwards till passing of the order under section 16(1) of the Ordinance, was not paid or offered to the respondent by money order and no rent was deposited in Court before passing of the order under section 16(1) on 30-11-1985. Consequently in light of the case-law discussed above, the appellant is proved to have committed default in payment of rent in terms of section 15(2)(ii) of the Ordinance."

6. ' Mr. Muhammad Sadiq, learned counsel for the respondent has submitted that the default in payment of rent after institution of the rent case would afford a fresh cause of action and, therefore, no penal order can be passed in the present rent case. I am afraid that I cannot agree with the learned counsel in view of the above-cited case. Accordingly the finding of the Rent Controller on issue No,1 is set aside and the issue is answered in favour of the appellant inasmuch as I hold present respondent having committed default in payment of rent.

7. ' Coming to the second point involved in the case i,e, whether the appellant requires the premises in question for her personal use in good faith, it may be observed that she has pleaded that she is a retired person who had-been living with her brother and now because of passage of age and development of her habits as a teacher he cannot continue to live with her brother and his wife and children as some petty things do take place in duly course of life which tend-to breed aversion, contempt and strained relations between the parties. It is for these reasons that she now desires to live separately in her own house and that she does not own any other property of her own. She has been cross-examined at length by the learned counsel for the respondent but not a single question in cross-examination has been put to her with regard to above fact which she has stated in paragraphs 8 and 9 of her affidavit-in-evidence. The consequence of non-cross- examination of the appellant on this point would amount to that her statement is accepted. It appears that the whole thrust in cross-examination was only in respect of default. MRs, Ismat Mthdi, Advocate for the appellant has referred to the case-law on this point. It is settled law that suitability and sufficiency of accommodation required by the landlord is his prerogative and it is not within the power of the Rent Controller to interfere with the landlord's such prerogative. The choice to select the premises sutiable for personal use lies with the landlord. In the present case the landlady had stated on oath that she had required the premises in dispute for her personal use for which she has also assigned the reasons and that her such statement is very much consistent with the averments made in the application for ejectment and also that she has not been cross- examined on this point. In this view of the matter the landlady has proved her case and even the Rent Controller could not pass any other order.

8. ' In view of the above discussion I am inclined to answer the second point also in favour of the landlady.

9. ' The upshot of the above discussion is that the present appeal is accepted, the under of the Rent Controller is set aside and the application moved by the appellant for ejectment of the respondent is allowed. The respondent is directed to hand over the vacant possession of the premises in dispute to the appellant within sixty (60) days from the date of this order. However, there will be no order as to costs.