' SALMAN ANSARI, J.---This appeal has been filed under section 24 of the Cantonment Rent Restriction Act 1963, by the appellant above named who being aggrieved and dissatisfied by the order dated 29-1-2008 passed by the learned Additional Rent Controller, Clifton Cantonment Karachi in Rent Application No,02/2007, (Syeda Zubaida Khatoon and others v. Mehmood Lakhani).
2. The brief facts of the case being that by an agreement entered into by the husband of the petitioner (late) Major (R.) Syed Mohtasim Hussain, a Shop No,48-C, Commercial Area, Defence Officers Housing Society, Korangi Road, Karachi, as per agreement "consisting of two independent portions i.e, 48-C/A and 48-C/B, measuring 91 sq. Yards on the ground floor" were let out to the appellant on payment of monthly rent of Rs,225 and a total sum of Rs,450 payable before the 5th of each calendar month in advance. This agreement is dated 1-11-1974. Since then the rent has been increased to Rs,5000 per month for the demised premises for both the portions. The appellant finding the respondents to have stopped receiving payment of rent from the month of April, 2006 filed MRC No,514/2006 before the VIth Senior Civil Judge and Rent Controller Karachi South, where he started depositing the rent for the premises after refusal of the same by the respondents. The respondents further requiring the premises for their personal bona fide use and that the rent agreement had expired long ago, the appellant was occupying the premises without the consent of the respondents paying absolutely insignificant rent compared to the market value, filed an application under section 17(2)(i), 17(4)(b)(i, ii, iii) of the Cantonment Rent Restriction Act, 1963, in which matter the learned Rent Controller framed the following issues:--
(1) Whether the respondent is wilful defaulter in the payment of rent since March, 2006 and deposit the rent before the Court after filing the Ejectment Petition?
(2) Whether the petitioners are in need of the demised premises for personal need in order to set- up their own business and have viable business proposal?
(3) Whether the Rent Agreement has expired long ago and the respondent is still occupying the premises without the consent of the petitioners and paying absolutely insignificant rent as compared to the market value?
(4) What should the order be?
3. On Issue No,1, the Rent Controller arrived at the conclusion that though the appellant/opponent had deposited the rent but in a Court which had no jurisdiction and only started depositing before the Court of the Additional Controller of Rent, Cantonment Karachi in MRC No, 30/2007 rent for the period from April, 2006 to June 2007. The deposit before the Senior Civil Judge and Rent Controller Karachi South being null and void was found to be default of almost 11 months as the rent for April, 2006 to March, 2007 was deposited on 16-3-2007 before the proper Court.
4. Issue No,2, was decided in favour of the respondents/applicants that the lady had been requesting the opponent/ appellant to vacate the premises and being woman did not want to pursue the matter before the Courts of law. The appellant dragged on his tenancy without considering the personal bona fide use of the premises by the petitioner who had no other source of income and decided in the impugned judgment that to make their ends meet by establishing their own business for that purpose the respondents needed the demised shop. The respondents had also no other commercial premises in their possession in the area or its vicinity and they wanted to start their own business and on the other hand they also intended to demolish old structure and construct a new building for which they were making arrangements to raise funds hence coming to the conclusion that the requirements of personal need of the applicants/respondents was bona fide and genuine the issue was decided accordingly in favour of the respondents/ applicants.
5. On issue No,3, that the appellant/ opponent was occupying the demised premises long after expiry of the lease agreement dated 1-11-1974 with the husband of the respondent No,1 and father of respondents Nos.2 and 3, there was no legal right in favour of the appellant to occupy the premises and rent for such premises. In the locality the rent was more than 20,000 for one shop.
Hence finding the tenancy to have become abandoned as there was no mutual consent between the parties hence, Issue No,3 was also decided in favour of the respondents/applicants pointing out that after service of legal notice dated 25-2-2006 occupation of the shop by the appellant/opponent was without any legal authority hence allowing the application of the respondents/applicants, the appellant/opponent was directed to handover peaceful vacant possession to the respondents/applicants within 30 days.
6. It is argued on behalf of the appellant/opponent that no default has been committed, when the respondents/applicants refused to accept the rent for the month of April, 2006 sent by money order the appellant/opponent filed MRC 514/2006 before VIth Senior Civil Judge/Rent Controller, Karachi South and started depositing his rent Rs, 5,000 per month for the demised premises up to June 2007 when it came to his knowledge that proceedings were initiated before the Additional Rent Controller, Clifton Cantonment Karachi he deposited the amount of rent from April, 2006 up to June, 2007 in MRC No,30/2007, inadvertently with bona fide mistake rent was deposited before the Rent Controller and Senior Civil Judge Karachi South which was immediately rectified and on coming to know that the right forum was the. Cantonment Rent Controller, hence no wilful default was committed as can be seen from the challans produced before the Additional Rent Controller, Clifton Cantonment Karachi. In support of his contention learned counsel has relied upon case of Mujeebur Rehman v. Zafar Ali Khan (2004 CLC 189), Ghulam Nabi v. Nazir Ahmed (1993 MLD 2083), Muhammad Yamin v. Mashroofullah Khan (1980 CLC 848), Zohra Begum v. Pakistan Burmah Shell Ltd. (1984 CLC 2769) and Habib Bank Ltd. v. Amanullah (1986 CLC 2917).
' Learned counsel for respondent has argued that even if it is accepted that the rent at the rate of Rs,5000 was deposited from the April, 2006 to June, 2007 before the VIth Senior Civil Judge and Rent Controller South Karachi in MRC No,514/2006 yet it proved to deprive the respondent of the benefit of the rent for the premises and thus amounted to default as ignorance of law or ignorance of right procedure could not be a defence. The respondent had no knowledge of depositing of rent before learned VIth Senior Civil Judge and Rent Controller Karachi South by the appellant. No notice was received and merely deposit of rent before the wrong forum by itself had become default considering that the landlady has been deprived of the benefit of the said deposit and keeping in dark of deposition the said rent shows mala fide of tenant to accumulate his own money which can be withdrawn at the later stage whenever tenant deemed fit and proper depending upon the outcome of legal proceedings tenant/appellant apprehended to the initiated by the respondent, hence admittedly the tenant/appellant deposited rent of April 2006 to June 2007 in MRC No,30/2007 on 16-3-2007, the finding of the Additional Rent Controller, Clifton Karachi that default had been committed and 'the deposit was null and void being before a Court having no jurisdiction.
7. It is argued by the learned counsel for the appellant on the Issue No,2 decided. In favour of the respondent that premises were required for bona fide personal use is based on assumptions not supported by evidence as respondents have shown several grounds for requirement of the premises, one being that they intend to start their own business and without having any experience of business this is a false ground. Further that they would demolish present structure and raise 4 storey building this would require previous sanctions from the authority and no such sanction was produced before the Rent Controller to prove this ground for personal use. The respondent in fact want to get rid of the appellant and sell the property they having no intentions of using premises for their personal bona fide use. Learned counsel in support of his contention has relied upon the case of Muhammad Hafeez and another v. District Judge, Karachi East and another (2008 SCMR 398), Haji Ibrahim and others v. Habib Bank Ltd. And others (PLD 2008 Kar. 361), Pakistan State Oil Company Limited v. Sikandar A. Karim and others (2005 CLC 3), Ch. Akbar Hussain v. Mrs. Zehra Bai (2002 SCMR 789) and Raja Shahbaz Khan v. Muhammad Fazal Kiani (1988 CLC 811).
' It is argued on behalf of the respondents regarding ejectment of the appellant on the point of personal bona fide use. That the learned Rent Controller had accepted the plea of the landlady/ respondent being widow having two young unmarried daughters to support and the premises being two shops which had been let out on rental to the tenant/appellant who had converted the same into one shop and subsequently was claiming that he had paid Pugri and money on change of receipt for the premises shows mala fide on the part of the tenant and the respondents were entitled to enjoy the benefit of their property under the circumstances of case, whether they wanted to start their own business or to demolish the premises for further construction which would be more profitable as the said premises being the only source of income for the respondents. Even if after expiry of the period of tenancy agreed upon merely accepting the rent after expiry of the agreement would not prove willingness of the landlady to continue the tenancy, rent was accepted only due to forced conditions the respondents were put into and to save the premises from the malicious and mala fide intentions of the tenant. In support of contention the learned counsel for respondents relied upon the cases of Mst. Saira Bai v. Syed Anisur Rahman (1989 SCMR 1366), Sher Ahmed Jan v. Mst. Zubeda Nasreen (1989 CLC 1113), Muhammad Haleem Siddiqui and another v. Dr. Huma Khusro (1997 CLC 905), S. Tariq Saud v. Maroof Ali Shah (1990 YLR 394), Sardar Muhammad Yaqoob v. Muhammad Saleem (2000 CLC 274), Gohar Rashid v. Fazal Hasan Mazhar (PLD 1995 Lahore 469), Bashir Ahmed and others v. Mukhtar Begum (NLR 1990 Civil 297(sic)), Ashiq Hussain v. Niaz Muhammad (2000 CLC 376), Lt. Col. (Retd.). Muhammad Hassan Safdar v. Malik Shabbir Ahmed and another (1994 CLC 286) and Haji Mohibullah and Co. And others v. Khawaja Bahauddin (1990 SCMR 1070).
8. It is argued by the learned counsel for the appellant regarding decision of the learned Additional Rent Controller, Clifton Cantonment on Issue No,3 given finding that there is no agreement existing between the parties and rent agreement executed between deceased landlord and the appellant dated 1-11-1974 was renewable after every tenancy period hence now at present being statutory tenant the appellant has been paying rent but not at the rate as being normally paid of similar properties of the locality, is based on erroneous appreciation of evidence. The respondents have been willing to accept the rent upto April 2006 and the learned Additional Rent Controller, Clifton Cantonment has arrived at the wrong conclusion that in absence of written rent agreement after service of the legal notice dated 25-2-2006 there was no jurisdiction for the tenant/appellant to extend the tenancy which had been abandoned as there was no element of mutual consent, hence the impugned judgment is liable to be set aside and the appeal to be allowed. Learned counsel of the respondents has controverted these arguments and stated that the findings given by the learned Rent Controller are in accordance with the evidence produced would require no interference, the appeal is liable to dismissed.
9. Having heard the arguments of the learned counsel for the appellant and the learned counsel for the respondents in this matter the tenancy was created on the basis of an agreement between late Major (Retd.) Syed Mohtasim Hussain, who was the husband of the applicant/respondent No,1 and father of respondents Nos. 2 and 3, and the appellant. This agreement was entered into on 1- 11-1974 wherein it is mentioned that shop bearing No,48-C, "consisting of two independent portions i.e, 48-C/A and 48-C/B, situated at Commercial Area, Defence Officer Housing Society, Korangi Road, Karachi, measuring 91 square yards and the rent of the demised premises was settled and agreed upon between the parties at Rs,225 only, for each portion per month a total sum of Rs,450, hence the tenant had to pay rent for both the independent portions of the premises in his possession as has been shown in the lease agreement and it is further mentioned in the said agreement at para-19 "the partition wall between the two portions of the shop, if removed, will be erected and constructed before vacating both the portions of the shop", hence the subsequent denial of the appellant/opponent that there are no two independent portions as mentioned above is incorrect and shows his mala fides as he has denied the same in the written statement and also that "in fact when opponent had taken possession of the said shop the portion was already removed by the previous tenant", this is contradictory to the contents of the agreement, further he in his affidavit-inevidence at para-4 states that "the applicant also tried to misguide this Honourable Court, in her application under reply, otherwise it is in the very knowledge of the applicant that I am tenant in respect of one Shop bearing No,48-C consisting of two portions i.e, 48-C/A and 48-C/B". This if seen in the light of his cross-examination where the applicant states, "Number of shop is 48-C don't know what 48-C/A and 48-C/B," hence he denies the very basis of the premises which he had taken possession of as per agreement. Further in his cross-examination also he states "voluntarily that I paid pugri to tenant from whom I took over the possession of the shop as well as I paid for transfer of rental receipt on my name to Major (Retd.) Syed Mohtasim Hussain. I did not take the shop from Major Mohtasim on pugri I took it from him on rent." This is also mentioned in the reply to the legal notice dated 7th March, 2006. This shows that the appellant has been shifting his position trying to out wit the other side considering that in the rent agreement he was paying rent fixed at Rs,225 per month for two premises and a total Rs,450 and the wall in between was intact and not demolished at the time of the agreement but subsequently. The appellant has also taken up the defence that pugri was paid to the landlord and money for change of receipt, but denies in his cross-examination, this element of pugri shows the mala fide of the applicant/tenant towards his agreement with the party. Regarding committing default, according to the appellant was due to bona fide mistake of the forum before which the rent was to be deposited otherwise there is no wilful default as the same was deposited after the landlady hid refused to accept the money order sent for the rent for the month of April, 2006, it is a fact that according to the challans of the rent deposited before the VIth Senior Civil Judge/Rent Controller, Karachi-South Exh.0/8, 0/9, 0/10 and 0/11 rent of Rs,5000 from 21st April, 2006 onwards was deposited vide challans for the amount of 10,000 on 25th April, 2006, Rs,30,000 on 15th July, 2006 and Rs,30,000 from January, 2007. But on notice of rent proceedings initiated before the Rent Controller of Clifton Cantonment the appellant/tenant immediately deposited the whole amount of rent at the rate of Rs,5000 per month of April, 2006 to June, 2007 in lump sum. But in my opinion considering that the rent had been deposited before wrong forum where the said deposit have been found to be `null and void' and `without jurisdiction' hence default was found to have been committed by the appellant/tenant. In my opinion rent is for the benefit of the landlady and where this benefit is refused or denied then taking the circumstances into consideration where no notice of the application for depositing of rent before the VIth Senior Civil Judge/Rent Controller, Karachi- South was received or given to the landlady and she states in the cross-examination, "It is not in my knowledge that the respondent has deposited the rent in MRC No,514 of 2006 in the Court of VIth Senior Civil Judge/Rent Controller Karachi-South from April 2006 to June 2007", hence this ignorance of deposit of rent in my opinion A on the part of the applicant/respondent should be considered mala fide on the part of the tenant to deprive and force the respondent/landlady to give in to his demands and not press for ejectment and also to save his money in case the proceedings before the Court of law were initiated and decided against the tenant. I find that by depositing of rent before the wrong forum under the circumstances would not absolve tenant/appellant of committing default in the payment of rent for the premises which in my opinion was wilful.
' This is with due respect to the cases cited on the point of default by the learned counsel for the appellant where in 2004 CLC 989 it was held that the Courts/ Tribunals should apply their mind properly and see the nature of the default as to "Whether the tenant is chronic and wilful defaulter and whether he is a cause of constant nuisance and mental torture". Under the circumstances I find that the tenant/appellant had become a cause of constant nuisance and mental torture for the respondents. In 1983 MLD 2083, it was held "Only wilful default in payment of rent renders the tenant liable to ejectment". As discussed above in my opinion the payment before the wrong forum has been admitted to have been wilful and in my opinion in view of the above discussion the said act amounts to commission of default. In 1986 CLC 2917 (Quetta) it was held, "Default" imports an element of gross negligence, dishonest withholding of rent and.... Something more than mere non compliance which certainly would imply greater responsibility for satisfactorily establishing wilful or `deliberate' avoidance or 'intentional' nonperformance of obligation regarding deposits of rent by tenant." In my opinion the appellant has by deposit of rent before a Court not having jurisdiction with the respondent having no notice of the deposit was under the circumstances was wilful, deliberate and dishonest withholding of rent.
10. That on the ground of personal bona fide use in the application before the Rent Controller two reasons have been given one being that they/landladies intended to set up their own business to make their ends meet and the other, after proper funds were arranged for they had plans to demolish the old structure of the said shops and build a new basement, ground plus four floors to cater to the needs of all and till such time the applicants/respondents were in dire need of a place to start their own business and want their shops back. The appellant/tenant had controverted by taking the stance as given in his written statement and affidavit that the respondents had not disclosed the nature of business they intended to undertake, no necessary permission along with approved building plan had been submitted before the Court along with the ejectment application which shows that their ground for re-construction was false it was the applicant/tenant's contention that the landlady required the property to sell it of. Learned counsel for the appellant had relied upon Muhammad Hafeez and another v. District Judge, Karachi-East (supra) in which, "Landlord, in order to demonstrate good faith and bona fide on his part, must disclose broad facts with a view to provide an opportunity to opposite party to controvert same and also satisfy conscience of Rent Controller called upon to exercise discretion in his favour while uprooting an old tenant". In 2005 CLC-3 (Karachi) it was held that "Without express and clear plea showing the purpose of which demised premises was required by landlord, Court could neither consider nor decide question of requirement and its reasonableness". In PLD 2008 Kar. 361 it was held, "burden to prove personal need was upon the landlord". In 2002 SCMR 789, "Complete restriction had been imposed by the Cantonments Rent Restriction Act, 1963, on ejectment of tenant from commercial premises and the same could only be made where personal bona fide requirement of landlord or landlady for his or her occupation was proved"
' Learned counsel for the respondents on the other hand has relied upon 1989 SCMR 1366 in which, Landlord was not required to state the nature of business which he intended to carry on as same was neither essential nor formed part of cause of action and "demand of higher rent by itself would not cast any doubt on the personal bona fide requirement where the factum of bona fide requirement was independently proved". In 1997 CLC 905 (Karachi), "Assertion or claim of the landlord on oath that he required premises in question for his personal use, should be accepted by Rent Controller as bona fide". In 1999 YLR 394 (Karachi), "Once landlord had duly acquitted himself by stating on oath that his requirement was in good faith, landlord should be deemed to have discharged his burden." In 2000 CLC 274 (Peshawar) it was held, "Non mentioning of details of requirement in application for eviction by landlord. Such details need not be mentioned in the ejection petition". In PLD 1995 Lahore-469. "Landlord need not spell out the details of his requirement in the ejectment application ". NLR 1990 Civil 297 "Statement of landlord in support of his plea of bona fide need which is on oath and remains unshaken in cross-examination would be sufficient to establish bona fide need of landlord". In 1994 CLC 286 (Lahore) "Landlord's statement on oath which was in consonance with averments made in ejectment application would establish beyond doubt that landlord required premises in question, for his personal use and occupation in order to do his own business". In 1990 SCMR 1070, it was held that "For landlord seeking ejectment of tenant on ground of his personal bona fide need, it was not a legal requirement to disclose in his ejectment petition nature of business for which he required premises in dispute".
' I, therefore, finding that in the application for ejectment before the Rent Controller of Clifton Cantonment and in the affidavit in evidence and in the cross-examination the respondents/application had throughout maintained that they required the premises for their own personal bona fide use so that they could set up their own business at the said premises and this was the only property owned by them which had now become valuable property and the rent of the premises had relatively increased considering the rent of other premises of the locality and the opponent had been requested since 2002 continuously to vacate the premises, but he had been lingering on to the utter dis-concert of the landlady who is a widow having two daughters to support and no other source of income and also considering that the tenancy had expired long time back and was being continued as a statutory tenancy only because the rent was being accepted it should not be considered that the respondent was a willing party to the said tenancy.
In view of the case law cited by the learned counsel for the respondents where it has been held that it was not mandatory to disclose the nature of business yet the respondents have been able to prove the bona fide requirement and need for personal use of the demised premises, it is the prerogative of the landlady to enjoy the fruits of her property and to use the commercial premises to set up her business if she so intends and the tenant cannot be permitted to extend the tenancy to become a file time tenant to the utter loss financially of the respondents. I find the appellant to have become cause of constant nuisance and mental torture for the respondents, therefore, in my opinion the need of the respondents has been proved bona fide for their personal use of the premises. Regarding issue No,3 the notice served upon the tenant/appellant for ejectment dated 25-2-2006 was considered by the learned Rent Controller of Clifton Cantonment to be sufficient for ejectment of the tenant as "In this case although no written renewal of the Lease Agreement took place however the parties by the conduct extending the tenancy period till the death of the landlord and thereafter by his legal heirs till the date of legal notice dated 25-2-2006. As such in the said legal notice the petitioners demanded the vacant possession of the demised shops from the applicant therefore they have clearly conveyed their intention that they are no more interested to extend the tenancy and from that date for all practical purpose the tenancy has become abandoned as the element of mutual consent was no more there. I therefore partly allow the issue to the extent that the respondent after the legal notice dated 25-2-2006 is occupying the shops without any legal authority". I go step further by referring to (2000 CLC 376 (Lahore) wherein it was held, "Whereas notice was required, the ejectment petition itself could have been treated as a notice" under section 17 of the Cantonment Rent Restriction Act 1963. That legal notice in fact was served upon the applicant/ tenant by the counsel for the landlady on 25-2-2006 which had been replied to by the tenant which reply is on record.
In view of the above discussion I find that the order of the Additional Rent Controller, Clifton Cantonment Karachi dated 29th January, 2008 passed in Rent Case No,2/2007 requires no interference and accordingly I dismiss the appeal with no orders as to costs.