' The above mentioned two petitions assail the orders passed by Vth Rent Controller (E) and Additional District Judge, Karachi (E) on 30-9-2002 and 17-11-2003 respectively directing the eviction of petitioner-Pakistan State Oil. Company Ltd. From the plot measuring 1222 Sq. Yds. Survey No,H-205 Tariq Road, Karachi (hereinafter referred to as "the Plot").
2. The facts in brief, are that the plot was leased out by its owner Begum Shamim Niaz to Dawood Petroleum Ltd. Under agreement of lease dated 17-3-1971. It was agreed that the tenant shall use the plot for installation of filling/service/petrol station thereon by raising or erecting the essential constructions. The tenant was also authorized to sub-let the plot.
3. Under the decision of Federal Government of Pakistan in 1976, Dawood Petroleum Limited merged into PSO and the landlord accepted it as the tenant in respect of the plot.
4. Experiencing difficulty in payment and acceptance of the rent according to the mode in practice, the tenant started depositing the rent in the Court under MRC No,2910/1988. They claim to have deposited the rent in the name of previous owner upto September, 1988. In June, 1988 the owner/landlord sold the plot to Sikandar A. Karim, the respondent No,
1. The new owner then served PSO (hereinafter referred to as "the tenant") with notice dated 13-8-1988 under section 18 of the Sindh Rented Premises Ordinance, 1979 and demanded the rent from July, 1988.
5. In December, 2000 Sikandar A. Karim the landlord filed the Rent Case No,952 of 2000 for eviction of the tenant on the ground that it . Had committed default in payment of rent from July, 1988 and also the demised property was required by him for personal use.
6. The tenant resisted the case and filed written statement denying therein the commission of default. It also controverted the ground of personal requirement alleging it not to be bona fide.
7. The Vth Rent Controller, Karachi (E) by order, 30-9-2002 directed the eviction of the tenant accepting the ground of default and repelling the plea of personal requirement. In appeal the Vlth Additional District Judge, Karachi (E) maintained the findings relating to the default and reversed the conclusion of the trial Court on the issue of personal requirement. He accepted that ground too and directed the eviction of the tenant, on 17-11-2003. Both of the orders have been assailed through present petition.
8. It deserves to be mentioned here that during the pendency of the appeal Mansoor Rafi sub- lessee of the tenant, applied for joining him as the respondent but his request was turned down through the same order i,e, order dated 17-11-2003. Mansoor Rafi has also filed Constitutional Petition No,877 of 2003 against the order dated 17-11-2003.
9. As both the petitions are related to same subject-matter they were heard together.
10. First Mr. Agha Faqir Muhammad argued his petition contending that his client Mansoor Rafi being sub-lessee was running the business and as such was vitally interested in protecting the possession and his business and as such necessary party to the proceedings. According to the learned Advocate, the sub-lease was also in accordance with the terms of the lease agreement, therefore, the sub-lessee should have been made party to the ejectment proceedings keeping in view his interest also.
11. Mr. Shaukat Hayat, the learned Advocate for the tenant conceded to the submissions made by Mr. Agha Faqir Muhammad. Mr. Sajjad Ali Shah, the learned Advocate, for the landlord defended the dismissal of an application filed by the sub-lessee for becoming party to the proceedings. He contended that the settled proposition of law is that sub-lessee even in the cases like present one has to sail or sink with the tenant and he has no independent or separate right in the tenancy so far the landlord is concerned.
12. The contention of Syed Sajjad Ali Shah has much force in it. No doubt, the lease agreement did permit the tenant to sublet the demised property yet there was no privy in between the landlord and the sub-lessee. The sub-lessee got the lease from the lessee/the tenant, therefore, he could not be acknowledged as co-tenant. It was rightly argued that the sub-lessee has to sail or sink with the tenant. Thus, the C.P. No,S-877 of 2003 filed by Mansoor Rafi, the sub-lessee, is meritless, the same is dismissed in limine.
13. While starting his arguments on the C.P. No,901 of 2003, Mr. Shaukat Hayat, the learned Advocate for the tenant/PSO wanted to place on record some documents for consideration while deciding the petition. As the decision impugned through present petition was recorded on the basis of material placed before the Rent Controller and the question of legality thereof was to be examined, the documents were not accepted.
14. On merits of the petition Mr. Shaukat Hayat contended that the evidence does not prove the commission of willful default in payment of rent alleged by the landlord yet the learned two Courts below recorded the finding against the tenant. That even otherwise the alleged default in payment of rent pertained to the year 1988/89, therefore, the rent case filed ten years thereafter was not maintainable on the ground of that default. According to the learned counsel the rent allegedly not paid had become time-barred and the landlord could not get it under the law, therefore, it could only be treated as technical default and no ejectment could be ordered on the basis of such default.-
15. It was next contended by the petitioner's counsel that the landlord/respondent had boldly contended that he wants the demised property for personal use without saying expressly and clearly as how he wants to use the property, therefore, his that plea was rightly rejected by the original Court. According to the learned Advocate the Appellate. Court arbitrarily and illegally accepted that ground without appreciating the material on record.
16. Mr. S. Sajjad Ali Shah appearing .For the respondent No,1 defended the decision of the Rent Controller only on the issue of default. He, however, defended the appellate judgment fully. He argued that although the default in payment of rent was committed more than ten years before the filing of rent case and that rent could not be recovered through legal process yet the tenant's liability for eviction on account of that default remained intact as no limitation for filing the ejectment case has been provided by the concerned law. He argued further that even the waiver of the default was also not pleaded by the tenant, therefore, that plea cannot be considered by this Court in exercise of Constitutional jurisdiction.
17. On the issue of personal requirement Mr. Shah contended that the respondent/landlord had specifically pleaded that he being builder needs the demised premises for personal use, therefore, his that plea has to be accepted specially when no mala fides behind that plea have been established by the petitioner. In support of his contention he referred to the case of Messrs Mustafa Oil Mills v. Muhammad Asif 1997 CLC 339 and Muhammad Bashir v. Sakhawat Hussain 1991 SCM R 846.
18. First I want to deal with the ground of personal use. As mentioned above the Rent Controller rejected it but the Appellate Court reversed that finding and accepted that ground also. For proper appreciation of the plea the contents of the rent case relating to personal need are reproduced below:-- "(7) That the applicant is a leading Builder/Town Planner of the city and have experience in construction some very well-known projects in Karachi, particularly Rabi Centre, Rabi Arcade and Rabi Square, which are all in the same vicinity of the demised premises. The applicant is presently supervising the construction of one of the most prestigious projects of the city namely Silver Sand Beach View.
(8) In the aforesaid circumstances the demised property is required by the applicant for his personal bona fide use and occupation in good faith as such the opponent is liable to be ejected from the demised property on this ground also."
19. After a look at the above mentioned two paragraphs one gets that first the landlord highlighted his experience as a builder having constructed big and prestigious projects and then, in the following para, he simply stated that being an experienced builder he wanted the demised property, for his personal bona fide use. It was surely inappropriate and vague plea about the personal requirement wherein the landlord did not speak expressly as to what for he required the demised property which is a huge plot. Without express and clear plea the Court can neither consider nor decide the question of the requirement and its reasonableness.
20. It was only in the evidence where the attorney of the landlord deposed that the landlord wants to raise commercial construction upon the plot and use some parts thereof himself and give other parts to some third party. The evidence deserves to be excluded of the consideration for being beyond the pleadings.
21. Although law does not permit it but even if, for the sake of academic point of .View, the evidence is considered then also it does not satisfy the requirement of law for eviction of a tenant on the ground of re-construction. Firstly, it is a simple word that the landlord shall use part of the new construction himself without any further explanation or details. The plan of proposed construction shows big number of shops etc., therefore, the landlord was required to say expressly as to how he wants to use them. A simple and bold word that the landlord shall use some shops himself does not discharge the responsibility of proving personal requirement reasonably and in convincing manner to the satisfaction of the Court. Secondly, when the landlord also intends to give a part of the new construction to third party he is legally required first to accommodate the tenant for carrying on his business at same level but in the plan of proposed construction no such provision is available.
22. Although clause (vi) of subsection (2) of section 15 S.R.P.O. Does not speak of the re- accommodation of the tenant but the provision cannot be applied in isolation. It is linked with subsections (3) and (4) of same section i,e,
15. No doubt, the subsections speak of the arrangement after the ejectment of tenant for re-construction and after completion of the construction but in the construction plan the presence of the provision for accommodating the tenant .After reconstruction is essential. If the plan is such where the tenant cannot be accommodated, the ejectment is not to be ordered.
23. In present case the plan for proposed construction does not show any provision for accommodating the tenant for running the business at the same scale. In absence of any such satisfactory provision, the ground of reconstruction for commercial performance cannot be accepted.
24. In view of the above it is clear that the Appellate Court accepted the ground of personal requirement wrongly ignoring all the legal I requirements and the same is not sustainable. The decisions referred to by Syed Sajjad Ali Shah are not applicable to the present case as in the same of Messrs Mustafa Oil Mills (supra)` the landlord had expressly pleaded that the premises were required by him for starting his business of sale of iron rods/bars. In the case of Muhammad Bashir (supra), the landlord had clearly pleaded that the shop was required by him for opening a medical store therein.
25. As regards the default in payment of rent, it is not disputed that the tenant/petitioner had been depositing the rent in the name of previous owner of the premises in the Court in MRC 2919 of 1981, and had deposited the same up to September, 1988. It is also admitted that after purchase of the demised property the new owner/respondent had served the tenant/petitioner with notice dated 13-8-1988 under section 18, Sindh Rented Premises Ordinance, 1979. Through the same letter the rent from July, 1988 was also demanded by the new owner.
26. The tenant claims to have sent Cheque No,PSO-H-11713 dated 17-9-1987 for Rs,16,500 (the rent from 1-7-1988 to 31-12-1988) under a covering letter, dated 15-9-1988 sent through registered post A.D. It has brought in evidence A.D. Receipt and copy of covering letter as Annexures 0-3 and 0-2. It further claims in evidence that another Cheque No,120762 dated 1-1-1989 for Rs,16,500 being rent for the period 1-1-1989 to 31-12-1989 was also sent under a covering letter through registered post under Registration Receipt No,43- dated 5-7-1989 as Annexure 0-4. It further claimed that the rent from 1-7-1989 to 31-12-1989 was sent by way of cheque under the registered receipt dated 5-7- 1989. The subsection (4) of section 10 S.R.P.O., 1979 recognizes the postal money orders receipts as proof of the payment of rent. This shows that the postal documents specially the registration and A.D. Receipts are an evidence of the dispatch and delivery of the envelopes containing the documents/cheques. In absence of any evidence from the landlord as to what else was sent to him under the postal registration and A.D. Receipts the evidence on the side of the tenant has to be accepted. The landlord has not disputed the correctness of the address mentioned on the postal receipts which confirm the dispatch of the envelopes/material to the addressee i,e, the landlord.
The covering letter contained the fact of sending the cheque under it. The settled proposition of law is that ordinary and common mode of communication between the citizen is the post and the registration receipts showing the correct address are the evidence of dispatch and delivery of the material. In presence of such postal receipts and the covering letters, the presumption would be that the landlord had received the envelopes containing the cheques, unless he proves to the contrary. Reference can be made to the Honourable Supreme Court in Rasheed Ahmed v. Messrs Friends Match Works reported in PLD 1989 SC 503 and Khuda Bux v. Muhammad Yakoob and others reported in 1981 SCM R 179.
27. The landlord did not come himself to deny the receipt of the letters/cheques sent under the postal receipts. The oral denial by his attorney does not rebut the presumption specially when he does not say as to what had been received by the landlord in the envelopes. Thus, the contention of the tenant that the cheque for the rent amount pertaining to July, 1988 and onwards were sent to the landlord is to be accepted. The two Courts below did not appreciate that evidence in accordance with law.
28. As regards the justification for depositing the rent in the Court, the fact that the landlord instead of getting the cheques encashed wrote a letter dated 11-11-1989 to the tenant alleging the non- payment of rent from July, 1988 and also asking it to vacate the demised property the tenant was fully justified in depositing the rent with the Rent Controller under MRC 1030 of 1989.
29. Since the tenant first deposited the rent up to September, 1988 in the name of previous owner in MRC 2919 of 1981 and then sent the rent again from July, 1988 and onwards through cheques to the landlord, he cannot be held responsible of wilful default in payment of rent nor he can be said to have deposited the rent with the Rent Controller without tendering it to the landlord and/or without any justification.
30. Even otherwise, if for the sake of arguments the tenant is considered to have committed default in payment of rent from July, 1988 or after September, 1988 to September, 1989 then also landlord's application for his ejectment having been filed more than 10 years after the so-called default cannot be accepted, for, gross laches on his part. Although the provisions of SRPO do not fix any limit within which the ejectment application is to be filed and waiver was also not pleaded by the tenant yet the principle of laches is very much applicable to this case. Where provisions of Limitation Act do not apply the principle of laches plays a role. Silence for a decade after the alleged default was sufficient for the tenant to believe that the landlord had no mind to come for their ejectment. They continued with their business under that belief. All of ,sudden after 10 years the landlord decided to seek their ejectment for the so-called default having occurred more than 10 years before. The rent case is, therefore, also hit by the principle of laches.
31. In view of above discussion, the orders of the two Courts below are not sustainable. They are, therefore, declared to be illegal. Consequently the relit case filed by the applicant/landlord is dismissed. Resultantly, C.P. No,S-901 of 2003 is accepted.