1. ARSHAD NOOR KHAN J.- This petition is fixed today for Katcha Peshi. Both the learned counsel for the parties state that it is very old petition of the year 2002, as such it may be admitted and heard today By consent of learned counsel for the parties, petition is admitted.
2. By this Constitutional Petition under Article 199 of Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has challenged the legality and validity of the judgment dated 20-5-2002 passed by learned IInd Additional District Judge, Karachi-South whereby First Rent Appeal No. 1466/01 Faiz-ur-Rehman v. Qamar Zaman has been allowed and the order passed by the VIth Senior Civil Judge and Rent Controller, Karachi-South dated 31-8-2001 in Rent Case No. 2142/2000 Qamar Zaman v. Faiz-ur-Rahman has been reversed.
3. The facts leading rise to the present petition in brief are that the petitioner claimed to be the landlord in respect of Shop No. 1, Faizco Medical, and General Store, situated at plot No. 1922/1, Survey No. AK-6-5S-12/A, Baghdadi, Lyari Quarters, Karachi, which was purchased by him through one Moula Bux son of Abdul Rahim. It was further stated in the petition that the respondent No. 2 was the tenant in respect of the aforesaid property at a monthly rent of Rs. 120/- since 1977. It is further stated in the ejectment application that said Moula Bux sold out the said premises and building constructed thereon to the petitioner and one Muhammad Iqbal through sale agreement dated 31-5-1999 and the names of the petitioner and Muhammad Iqbal were mutated in the Excise and Taxation record and they also applied for lease to KMC and KMC executed registered lease deed in their favour. Thereafter the said Muhammad Iqbal also executed registered deed in favour of the petitioner on 8-10- 1999 and the name of the petitioner was also mutated in the Excise and Taxation Department against the name of Muhammad Iqbal as such he became owner of the whole property. It is further stated in the petition that after acquiring title in respect of the aforesaid property a notice under Section 18 of the Sindh Rented Premises Ordinance 1979, hereinafter shall be referred to as the "Ordinance 1979", was served on the respondent thereby informing him change of ownership and asked him to pay arrears of rent as well rent from May 1999. The respondent received the said notice but did not tender the rent to him. It is further stated in the petition that the premises required by the petitioner in good faith for his personal bona fide as he has no other commercial property to run the business.
4. Respondent No. 2 was served with the notice of the rent application who filed written statement, inter alia denying the relationship of landlord and tenant for want of proper notice. He further stated that he was inducted in the premises by one Moula Bux son of Abdul Rahim in the year 1977 and is carrying business in the name and style of. Faizco and General Store and is paying rent regularly and to Moula Bux at the rate of Rs. 120/- per month till the month of April, 1999. It is further stated in the written statement by the respondent that the said Moula Bux avoided to receive the rent when tendered personally, as such be remitted the rent through money order for the months of May and June, 1999 and thereafter the rent has been deposited in MRC No. 887/1999 till the month of April, 2001. He further stated that in the month of January, 2000 a legal notice was received by him stating therein the purchase of the property by that petitioner from previous owner Muhammad Iqbal son of Mir Alam and also demanded rent at the rate of Rs. 3,000/- per month arbitrarily and has asked for execution of tenancy agreement and he informed the petitioner that he was tenant of Moula Bux at the rate of rent of Rs. 120/- per month since 1977 and was paying rent regularly to him and on his avoidance to receive the rent from May, 1999, the same had been deposited in Misc. Rent Application. He further stated that the requirement of the premises by the applicant was not bona fide and he possess other building and is running business in that building.
5. According to him the rent application was filed mala fidely by the petitioner. During the pendency of the rent application before the learned Rent Controller, respondent No. 2 filed application under Section 10(3) of Ordinance, 1979 praying therein to deposit the rent in Court which was not pressed.
6. The petitioner filed application under Section 16(1) of the Ordinance, 1979, notice of which was given to the respondent who filed objections to that application wherein relationship of landlord and tenant was not disputed as such the learned Rent Controller vide order dated 31-3-2001 allowed the said application and directed to deposit the rent from January, 2001 to March, 2001 in Court as well as future monthly rent on or before 10th of each calendar month. However, it was observed that the rent from May, 1999 to December 2000 at the rate of Rs. 120/- per month amounting to Rs.
7. 2,400/= was deposited by the respondent No. 2 in Court.
8. After filing of the written statement, the petitioner filed his affidavit-in-evidence wherein he reiterated the contents of his rent application and filed copies of title documents as well as notice served on the respondents. He was cross- examined at great length and has not examined any other witness. The respondent filed his affidavit-in-evidence who also refuted the claim of the petitioner on both the counts Viz. Default in payment of rent and requirement of the premises for his personal bona fide use as has been contended in his written statement. The learned Rent Controller after hearing of the learned counsel for the parties allowed the rent application on both the counts Vide judgment dated 31-8-2001. The respondent being aggrieved against the aforesaid order preferred first rent appeal which has been allowed and the findings of the Rent Controller have been reversed by the Appellate Court and dismissed the rent application, hence the present petition.
9. I have heard Mr. Neel Keshav, Advocate for the petitioner and Mr. S.M. Haider, Advocate for the respondent No. 2.
10. The learned counsel for the petitioner vehemently contended that notice dated 28-1-2000 served on the respondent under Section 18 of the Ordinance, 1979 has not been denied as such respondent No. 2 was under obligation to tender the rent to the petitioner and he did not pay the rent to the petitioner since April, 1999 as such he wilfully committed default in payment of rent.
11. According to him respondent No. 2 also challenged the title of the petitioner by filing a suit bearing No. 467/2002 before the High Court which was dismissed and thereafter he started depositing rent before the learned lower Court. According to him payment of rent in MRC in the account of previous landlord is not a valid tender of rent after receipt of notice under Section 18, ibid, as such the Rent Controller rightly held respondent No. 2 guilty of non-payment of monthly rent and the Appellate Court wrongly observed that default was technical in nature which is against the observation of the Superior Courts. He further contended that the petitioner required the premises bona fidely in good faith for his personal use as he possesses no other property and the learned Appellate Court has wrongly reversed the finding of the learned Rent Controller on this aspect of the matter on insufficient evidence available on record as such the findings of the learned Appellate Court was illegal, inoperative and against the evidence available on record. In support of his contention he has relied upon the case of Muhammad Hayat v. Sh. Bashir Ahmed and others, reported in 1988 SCM R 193, the case of Muhammad Lehrasab Khan v. Mst. Aqeel- un-Nisa, reported in PLJ 2000 SC 1886; the case of Nisar Ahmed Khan v. Noor Muhammad Khan, reported in 1990 SCM R 544 and the Case of Reckitt & Colman of Pakistan Ltd. v. Saifuddin, reported in 2001 UC 308.
12. Mr. S.M. Haider, Advocate for respondent No. 2 vehemently contended that the notice dated 28-1- 2000 served on the respondent was defective wherein it is stated that respondent was the tenant of one Muhammad Iqbal whereas the respondent was the tenant of Moula Bux and that in the notice the rent has been claimed from April, 1999 and in rent application the rent has been claimed from June, 1999 which is self-contradictory and adversely reflected on the claim of the petitioner.
13. He further contended that the respondent required the petitioner to send copies of title documents which was not sent, therefore, the rent was not paid to him till the filing of MRC before the learned lower Court. He further contended that the personal requirement of the premises by, the petitioner was also a mala fide attempt and was just an attempt to enhance the rate of rent from Rs. 120/- per month to Rs. 3,000/- per month and that the petitioner has himself admitted in his cross- examination that he is running a business in some other shop as such all the premises in possession of the landlord have not been disclosed by him for seeking ejectment of the respondent on the ground of personal bona fide use as such the learned Appellate Court rightly analysed the said evidence while reversing the finding of the learned lower Court on this point. In support of his contention he has relied upon the case of Allies Book Corporation through L.Rs. v.
14. Sultan Ahmed and others, reported in 2006 SCM R. 152, and the case reported in 1991 SCM R 1029.
15. I have considered the arguments advanced on behalf of the parties and have gone through the material available before me.
16. The respondent has initially disputed the relationship of landlord and tenant on the ground of non- service of proper notice by the petitioner under Section 18 of the Ordinance, 1979. The respondent in his written statement has not controverted the receipt of the said notice dated 28-1-2000 sent by the counsel for the petitioner but bas disputed that he was not inducted as a tenant by the said Muhammad Iqbal but he was inducted as a tenant by Moula Bux. He has also pleaded the said fact in his written statement. In para II- C of his written statement he has stated that on avoidance of the said Moula Bux to receive the rent, when tendered personally, he remitted through money- order for the months of May and June, 1999, and thereafter rent has been deposited in MRC No. 887/1999 till the month of April, 2001. The said assertion contained in the written statement very clear shows that the said Moula Bux had refused to accept the receipt of rent for the reason that by that time he ceased to be the owner of the property in question for which notice was served by the petitioner on and even on avoidance of the said Moula Box, he did not pay the rent to the present petitioner and started depositing rent in MRC No. 887/99 in the name of the previous owner. The notice' served by the petitioner may be defective because of mentioning of the name of Muhammad Iqbal as previous owner or the landlord of the respondent but the fact which could not be ignored, is that the respondent had received a notice from the petitioner which contained the change of ownership and in such state of affair, it was incumbent upon him to acknowledge him as landlord of the premises in question or had to deposit the rent in Court. The learned counsel for the respondent in his argument before this Court that emphasised that the notice served on the respondent was defective which shows that the notice was, in fact, served on the respondent and in case, it was defective, the respondent could had sought clarification from the petitioner regarding his ownership but it was not incumbent upon him to deposit the rent in the name of the pervious owner who according to his own assertion was avoiding to receive rent. Even the filing of application under Section 10(3) of the Ordinance, 1979 by the respondent before the learned lower Court acknowledges the petitioner as his landlord and even then the rent was not voluntarily tendered in the name of the petitioner being landlord. The petitioner in his affidavit-in-evidence has stated about non-payment of rent by the respondent which fact has not been disproved in his lengthy cross-examination conducted by the learned counsel for the respondent. The learned Appellate Court has observed that the default in payment of rent was technical in nature and condoned the said default whereas he failed to consider that after receipt of the notice, the respondent was duty bound to tender rent in the name of the petitioner and further that Moula Bux to whom the respondent was acknowledging as landlord himself avoided to receive the rent from May, 1999. The default in these circumstances, in any way could be treated as technical in nature for the reason that the respondent without any sufficient reason did not pay the rent to the petitioner in spite of receipt of notice regarding change of ownership. The findings of the learned lower Court were, therefore, wrongly reversed by the learned Appellate Court.
17. The petitioner has also required the premises bona fidely for his personal use which he has stated in para 9 of the rent application. The respondent has denied the requirement of the premises on the ground that it was an attempt to raise the rent from Rs. 120/- per month to Rs. 3,000/- per month which is evident from the notice dated 28-1-2000 and stated that the petitioner owns other properties which he concealed before the learned Rent Controller, therefore, the Appellate Court was justified in reversing the findings on this point also. The said assertion of the respondent, in my humble opinion, is devoid of any force for the reason that it is whim, wish and choice of the landlord to seek eviction of the tenant on the ground of personal bona fide use of the premises which is suitable to run his business and no restriction can be imposed on his whim, wish and choice to select the property which is suitable for running of his business.
18. In the present case, the learned counsel for the respondent has taken me from the cross- examination of the petitioner wherein he stated that their shop is situated at Shedi Village Road, Baghdadi where they used the run the business under the name and style of Shama Tea Company. He further admitted that he was running the shipping business under the name and style of M/s. Pozeidon Shipping Agencies Pvt. Ltd. And that he was one of the director of shipping company. He further denied the suggestion that the said shipping company is still in existence and he is one of the directors of the company. By the said admission of the petitioner, in his cross- examination, the learned counsel for the petitioner laid great stress that the said premises has been concealed by the petitioner to be his own premises, which reflects on his bona fide requirement of the premises in dispute. A perusal of the said evidence in cross-examination of the petitioner shows that nowhere it been brought on record that he is the owner of the premises in which Shama Tea Company is being running or that he concealed the said premises to be his own premises. In absence of such suggestion in his cross- examination, it could not be said that the said shop in which petitioner is running the business under the name and style of Shama Tea Company, is the property owned by him. Whereas the present property has been owned by him and the respondent has not disputed that the petitioner is not owner of the premises in dispute.
19. The learned counsel for the respondent has heavily relied upon the case of Allies Book Corporation v. Sultan Ahmed (supra) and contended that the petitioner has suppressed the shop in which Shama Tea Company is being run. The dictum laid down by the Hon'ble Supreme Court in the case of Allies Book Corporation (supra) is different from the circumstances of the present case, as in that case it was observed that the concealment by the landlord of one or more premises having fallen vacant during the pendency of the ejectment proceeding, would reflect adversely on the bona fide personal need of the landlord and good faith. The relevant dictum in the case of Allies Book Collaboration is usefully quoted hereinbelow for the sake of convenience:- "This Court in the case of Mst. Saira Bai v. Syed Anisur Rehman (1989 SCM R 1366) and Ghulam Haider v. Abdul Ghaffar and another (1992 SCM R 1303) categorically pronounced, that concealment by the landlord of one or more premises having fallen vacant during pendency of the ejectment proceedings would reflect adversely on the bona fide personal need and good faith of the landlord and would be detrimental to his case."
20. The observation of the Hon'ble Supreme Court, therefore, shows that the landlord, in case, obtains possession of some other properties during the pendency of the ejectment proceeding and conceal it from the Court, it would adversely reflect on his bona fide which is not in the case in hand, as no where in the cross-examination of the landlord it has come on record that during the pendency of the ejectment proceeding he obtained vacant possession of any property owned by him or even at the time of filing of the ejectment petition any premises was lying vacant wherein he could have conveniently establish his business. The learned counsel for the respondent has vehemently contended that the premises were not required bona fidely by the petitioner and it was an attempt for enhancement of rent at the rate of Rs. 120/- to Rs. 3,000/- per month which is manifest from the notice dated 28-1-2000 served on the respondent. In his notice, the petitioner has claimed the rent at the rate of Rs. 3,000/- per month being the market value of the locality but the said demand for enhancement of rent by the landlord does not reflect on his personal bona fide use of the premises. In the case of Nisar Ahmed (supra) the Hon'ble Supreme Court was pleased to observe that the demand for enhancement of rent could neither be a basis of mala fides nor such like alleged mala fides could be the basis for eviction, in every case. The Appellate Court, therefore, illegally reversed the findings of the learned Rent Controller on the point of personal bona fide need of the petitioner use of the property in good faith as such the evidence available on record has not been appraised correctly by the learned lower Court to upset the finding of the Rent Controller.
21. For the foregoing reasons, I am of the view that the finding of the Earned Appellate Court suffers from misreading of evidence available on record and it could not be sustained. The petition is, therefore, allowed. The judgment dated 20-5-2002 passed by the learned Appellate Court is set aside and the order passed by the learned Rent Controller dated 31-8-2001 is restored. Since the time allowed by the Rent Controller to the respondent to vacate the premises has expired, as such, respondent No. 2 is allowed four months' time to vacate the premises in question, subject, however, to the condition that he will continue to deposit rent before the Rent Controller in pursuance of the tentative rent order failing which Rent Controller will be at liberty to issue writ of possession without notice to him.