Present: HAMTO ALI MffiZA, J.
Mst. IQBAL BEGUM through her LEGAL HEIRS and 5 others
First Rent Appeal No. 418 of 1993, decided on 2.12.1998.
(i) Sindh Rented Premises Ordinance, 1979 (XVII of 1979)
—S. 15-Tenant-Ejectment of-Default~Ground of~Mere fact that suggestion was made by counsel of tenant that rent was remitted to landlady in July, 1991 for four months, would not disprove statement of landlady on oath that rent was not paid to her from January, 1991 to July, 1991~No evidence ocular or documentary was available to rebut testimony of landlady with regard to non-payment of rent for specified period-Tenant had committed wilful default in payment of rent. [Pp.724&725]A&B
(ii) Sindh Rented Premises Ordinance, 1979 (XVII of 1979)–
—-S. 15-Tenant~Ejectment of-Personal bona fide need-Ground of-Family of landlady consisted of fifteen members and portion in her possession consisted of two rooms, one latrine, one bathroom and small courtyard and, as such, same was not sufficient for her family-Portion in occupation of landlady was in dilapidated condition and said fact was not challenged by tenant—Landlady had proved her requirement of premises in good faith. [P. 726] C
(iii) Sindh Rented Premises Ordinance, 1979 (XVII of 1979)-
—S. 15–Tenant–Ejectment of–Personal bona fide need for children—Death of landlady pending proceedings-Effect-Bona fide personal need of landlady ended/abated with death, but where eviction was sought for requirement of children death would not affect children’s requirement. [P. 726] D
(iv) Sindh Rented Premises Ordinance, 1979 (XVII of 1979)-
—-S. 21–Appeal–No-filing of heirship certificate by legal heirs of landlady-¬Maintainability-Nothing was available on record to show that appellants were not real legal heirs of deceased landlady-Tenant was not permitted to raise such plea and appeal was maintainable in circumstances. [P. 727] E
Mrs. KausarAmin, Advocate for Appellants. S. Fariduddin, Advocate for Respondent. Date of hearing: 2.12.1998.
This is an appeal under Section 21 of Sindh Rented Premises Ordinance, 1979, (hereinafter called Rent Ordinance) directed against an order, dated 17.8.1993 passed in Rent Case No. 164 of 1991 (Mst. Iqbal Begum v. Sultan Ahmad) by learned 1st Senior Civil Judge and Rent Controller, Karachi-West, whereby an application under Section 15 of Rent Ordinance was dismissed hence this appeal.
Brief facts of this case are that the appellant filed eviction application against the respondent/tenant on the grounds (i) that the respondent/tenant has committed default in the payment of rent from January, 1991 till July 1, 1991 and (ii) that she required the disputed premises for personal use of her son namely Abdul Malik. The respondent filed written statement stating therein that he was not defaulter in the payment of rent from January, 1991 till July, 1991 and further that as the appellant refused to issue receipt of advance amount of Rs. 10,000, therefore, he sent money order to the appellant which was refused thereafter, he filed Miscellaneous Rent Case No. 119 of 1991 under Section 10(3) of Rent Ordinance for deposit of rent where he has been depositing rent regularly. So far the personal requirement, the respondent stated that the appellant was in possession of whole ground floor of Plots Nos. 101 and 201 of Zubairi Colony, Karachi, and the family of respondent consisted of four members only as the remaining members were living separately and the said premises was not required to accommodate Abdul Malik, the son of deceased appellant, consequently eviction application was mala fide.
The appellant filed her affidavit in evidence and produced one copy of summons. Respondent filed his affidavit in evidence and produced photo copy of summons issued by Chairman Punchayat Committee, photo copy of application for supply of copy of complainant, photo copy of plaint of Suit No. 423 of 1991 (Sultan Ahmad v. Mst. Iqbal Begum), photo copy of application under Order 39, Rules 1 and 2, C.P.C. in the same suit and order passed on the said application, photo copy of statement of undertaking in the said suit, photo copy of application in M.R.C. No. 190 of 1991 (Sultan Ahmad v. Mst. Iqbal Begum), two photo copies of rent receipts deposited in the National Bank of Pakistan, photo copy of money order postal receipt, dated 24th July, 1991 and Postal Money Order No. 0797, dated 18th August, 1991, photo copy of money order coupon in respect of Postal Money Order No. 0797, photo copy of letter to the appellant, photo copy of Form PT-1 and filed affidavit in evidence of Muhammad Nawaz.
The deponents who filed the affidavits in evidence were cross-examined by the respective adversary counsel for the parties. After recording the above evidence and hearing the counsel for the parties, the impugned order was passed.
The contention of learned counsel for the appellant is that the learned Kent Controller has erred in holding that the respondent has not committed default in the payment of rent and that the appellant has not proved her requirement in good faith considering that there was sufficient evidence which proved that the respondent committed default and the premises was required by the learned appellant for her son Abdul Malik in good faith.
Learned counsel for the respondent has argued that the application moved by the appellant is not bona fide one considering that she has moved the Councillor of the area for getting possession from the respondent which act proved the mala fides of the appellant. He further submitted that the appellant has not proved the default in payment of rent and has also failed to prove her requirement in good faith. He further submitted that the original landlady Mst. Iqbal Begum expired, therefore, after her death the requirement could not be said to be in good faith. He also submitted that the appellants have failed to bring on record the heirship certificate after the death of landlady, that the present appellants were legal heirs of deceased appellant and were legal representatives of deceased Mst. Iqbal Begum.
The appellant in the eviction application has stated that the respondent has not paid rent for six months from January, 1991 till July, 1991. She has reiterated the said statement in para. 2 of her affidavit in evidence but her statement with regard to non-payment of rent from January, 1991 till July, 1991 by the respondent was not challenged in the cross-examination by the learned counsel for the respondent. It is true that the appellant admitted in the cross-examination that she had not been issuing any rent receipt to the tenants including the respondent but at least the respondent should have challenged the testimony which was on oath of the appellant in the cross-examination suggesting that either the rent was paid for the months from January, 1991 to July, 1991 or the same was , tendered in terms ot Section 10 of Rent Ordinance. Mere fact that suggestion was made by the respondent’s learned counsel that the respondent had remitted rent in July, 1991 for four months to the appellant would not , disprove the statement on oath of the appellant that rent was not paid to her from January, 1991 to July, 1991. The respondent should have brought reliable and satisfactory evidence to show that he paid or tendered rent for the period from January, 1991 to July, 1991 but no such reliable and satisfactory evidence has been produced to rebut the evidence of the appellant that the rent was not paid for the abovesaid period. It will not be out of place to state here that mere filing of postal money order receipt No. 4922, dated 24th July, 1991 for the sum of Rs. 400 and photo copy of postal money order receipt No. 0797, dated 18th August, 1991 for the sum of Rs. 400 would not prove the tender considering that the same were not tendered in evidence or exhibited without producing the original postal money order receipts. Even if it be assumed that the rent was tendered on 24th July, 1991 and 18th August, 1991, the rent for the month from January, 1991 to March, 1991 having not been tendered within sixty days within the meaning of Section 15(2)(ii) of Rent Ordinance, there would be default in the payment of rent for the said months. There is no evidence ocular or documentary to ( rebut the testimony of the appellant with regard to non-payment of rent for \ the said period. It will not be out of place to state here that the respondent Bj has not stated in the written statement that the eviction application was filed by the appellant because she has asked for the enhancement of rent but in the cross-examination former suggested that she had made a demand of enhancement of rent of Rs. 800 per month consequently said plea of the respondent would be no consequence. Besides, the evidence of appellant could not be shaken in respect of non-payment of rent by the respondent by his counsel, therefore, non-payment of rent for the said period stood proved but the learned Rent Controller has failed to appreciate the evidence on record considering that the statement of the appellant with regard to non¬payment of rent for the said period was not even challenged in the cross-examination. It may also be considered that appellant could have even alleged default for longer period in respect of non-payment of rent on the part of the respondent as she was admittedly not issuing rent receipts but she only stated non-payment of rent from January, 1991 to July, 1991 which proved her bona fides and straight forwardness. It will also not be out of place to point out here that in case the respondent had allegedly paid advance amount of Rs. 10,000 to the appellant and she had failed to issue receipt at the time of creation of tenancy, then in that case from the very beginning of the tenancy, the respondent could have tendered rent in terms of Section 10 of Rent Ordinance and why after having been under tenancy for such a long period, he sent money order in July, 1991 and August, 1991 which proved that the respondent did not pay or tender rent to the appellant for the said period but in order to cover up the default in payment of rent he sent rent through money orders in July, 1991 and August, 1991 that also each time rent was sent for one monthly only. The facts of the case Rahimuddin v. Munny Khan 1989 CLC 994 are quite different and distinguishable to the facts of instant case as in the cited case the landlord failed to make mention of default in any of coupons of money orders sent by the tenant to him which he had returned whereas in the instant case no such original money order coupon has been produced and exhibited on the record so as to consider the said fact. In view of aforesaid circumstances, the finding on issue of default is reversed and the respondent is held to be defaulter in the payment of rent for the months from January, 1991 to March, 1991.
So far the personal requirement of the deceased appellant she in the eviction application has stated that she required the said premises for her son Abdul Malik whose marriage was withheld for want of sufficient accommodation considering that there were fifteen family members living with the appellant in the portion of house in their occupation. This statement made in the eviction application has been reiterated by the deceased appellant in her affidavit in evidence and her testimony could not be shaken in the cross-examination. The learned counsel for the appellant has referred to the portion of cross wherein the appellant has stated that entire ground floor of 200 sq. yds. and portion of first floor about 120 yds. were in her occupation. The said admission of the appellant would not negate the personal requirement, considering the fact that the family of the deceased appellant consisted of fifteen members and the fact that the most of the portion in her occupation was not in a condition where one could live and the said statement was also not challenged that the portion in her occupation was not in dilapidated condition. On going through the evidence, it would appear that the appellant was, in fact, having two rooms, one latrine, one bath room and small courtyard in her occupation which evidently would not be sufficient for the family of deceased appellant. Besides the evidence of the appellant could not be shaken in the cross-examination and her statement with regard to the requirement of the premises in dispute in good faith for the use of her son could not be challenged. The appellant has proved the requirement in good faith. In the circumstances, I find that the learned Rent Controller has failed to appreciate the evidence on record properly and has arrived at wrong conclusion consequently the finding is reversed and it is held that the appellant has proved her requirement in good faith.
The last contention of learned counsel for the respondent is that because the original landlady has expired, therefore, personal requirement of the deceased appellant has ended/abated. I do not find substance in the said contention. Reference may be made to Mst. Jamila Latif v. Ghulam Yazdani Khan and others 1981 SCMR 637 wherein Supreme Court of Pakistan held that when the eviction was sought for the requirement of children of
deceased landlady who died during the pendency of eviction application, -death of the landlady would not affect the children’s requirement.
So far the contention of learned counsel for the respondent that heirship certificate should have been filed to prove the fact that the present appellants were the real Legal Representatives of deceased appellant consequently, the appeal was not maintainable. I do not find any substance in the said contention as well. The application for bringing the Legal Representatives of deceased appellant on record was moved by the learned counsel for the appellant and to which no objection was raised by learned counsel for the respondent consequently, the said application was allowed and the Legal Representatives of deceased appellant were brought on record as appellants, therefore, at this stage the learned counsel for the respondent cannot be permitted to agitate the said plea considering that fact that nothing has been brought on record to show that the present appellants were not the real legal heirs/legal representatives of deceased appellant.
In view of aforesaid reasonings I find merit and substance in the appeal consequently, the impugned order is set aside and the appeal is allowed directing the respondent to hand over the vacant possession of the premises in dispute to the appellant within a period of three months.
(T.A.F.) Appeal allowed.