1. ' MUHAMMAD SHAFI SIDDIQUI, J.---The petitioner being landlord of the premises has filed this constitution petition wherein he has challenged the concurrent findings of the two courts below.
2. The ejectment application was preferred on two grounds i,e, default and personal requirement.
3. ' Learned counsel for petitioner has argued that in terms of the rent agreement dated 14th October, 2003 the rent of the premises was required to be enhanced at the rate of 10% per annum which amount, in terms of the enhanced rate has not been tendered by the tenant w,e,f, November 2004 onwards. He further submitted that the landlord/ petitioner also fired the subject application on the ground of personal bona fide need for his two sons i,e, petitioners Nos. 5 and 6 as they have planned for their marriage but on account of non-availability of the accommodation they could not. The learned counsel for petitioner has relied upon the following case-laws:--
(1) Dr. Surayya Matin and others v. Mst. Akhtarunnisa (1995 MLD 456)
(2) Miss Akhtar Qureshi v. Nisar Ahmad (2000 SCMR 1292)
(3) MRs, ZarinaKhawaja v. Agha Mahboob Shah (PLD 1988 SC 190)
(4) Laus Deo Enterprises through its Partner, Karachi v. MRs, Suraya Jameel and another (PLD 1991 Karachi 309)
(5) Syed Asghar Ali Imam v. Muhammad Ali (PLD 1988 SC 228)
(6) Shaikh Muhammad Sadiq v. Mst. Sain Islam (PLD 2008 Karachi 20)
4. ' The written statement in this regard was filed by the respondents before the trial Court wherein respondent denied that any default was committed by the respondent/tenant as the terms of the agreement, after its expiry were not operative.
5. ' Per learned counsel for respondent, after the expiry of the rent agreement, its terms and conditions seized to operate. Learned counsel further submits that as far as the case of the personal requirement is concerned, the petitioner has not proved his case of personal requirement as the claim of bona fide need was shattered in the cross examination when he admittedly not filed a medical certificate with regard to his health and also on the ground that the petitioner had been climbing the stairs of the trial courts below which he has admitted in the cross examination.
6. ' Learned counsel for respondent in support of his contention has relied upon:--
(1) Mst. Mobin Fatima v. Muhammad Yamin and 2 others (PLD 2006 SC 214)
(2) Muhammad Rafique v. Messrs Habib Bank Limited (1994 SCMR 1012)
(3) Muhammad Arif v. MRs, Anwar Jehan (2000 SCMR 1960)
(4) Allies Book Corporation through L.Rs v. Sultan Ahmad and others (2006 SCMR 152)
(5) Tariq Hussain and another v. Additional District Judge and 2 others (2010 MLD 1498)
7. I have heard the learned counsel for the parties and perused the record.
8. ' The first issue ice, issue of default as raised by the learned counsel for petitioner pertains to the amount that is required to be Enhanced in terms of clause (6) of the rent agreement dated 14th October 2003. Clause 6 of the agreement is reproduced as under:-- "That the rent of the said premises shall be enhanced at the rate of 10% every "One" year."
9. ' It appears that the parties have entered into rent agreement with the understanding that after a year the rent- would be enhanced by 10% per annum. This rent enhancement was agreed on account of mutual understanding reached between the parties.
10. ' The lower Courts while dealing with such issue appears to have not applied its mind. The trial Court at one stage claimed that period, of default was not shown and on the same breath says that applicant/ petitioner claimed that opponent had not paid the enhanced rent with effect from November 2004 Pursuant to above clause of rent agreement he further says that petitioner has not produced any document to establish such enhancement.
11. ' The perusal of rent agreement reveals that in terms of clause (6) of the agreement, the parties agreed to enhance the rent by 10% per annum. Now the question arises as to whether such term is or is not in violation of sections 8 and 9 of Sindh Rented Premises Ordinance and secondly whether such term lived its life only uphill the expiry of agreement or continued as being not inconsistent with general law and Sindh Rented Premises Ordinance, 1979.
12. ' In order to dilate upon such question, I may reproduce first sections 8 and 9 of Sindh Rented Premises Ordinance.
8. Fair Rent:---(1) The Controller shall, on application by the tenant or landlord determine fair rent of the premises after taking into consideration the following factors:
(a) the rent of similar premises situated in the similar circumstances, in the same or adjoining locality;
(b) the rise in cost of construction and repair charges;
(c) the imposition of new taxes, if any, after commencement of the tenancy; and
(d) the annual value of the premises, if any, on which property tax is levied.
(2) Where any addition to, or improvement in, any premises has been made or any tax, or other public charge has been levied, enhanced, reduced or withdrawn in respect thereof, or any fixtures such as lifts or electric or other fittings have been provided thereon subsequent to the determination of the fair rent of such premises, the fair rent shall, notwithstanding the provisions of section 9, to be determined or, as the case may be, revised after taking such changes into consideration.
9. Limit of fair rent:---(1) Where the fair rent of any premises has been fixed no further increase thereof shall be effected unless a period of three years has elapsed from the date of such fixation or commencement of this Ordinance whichever is later.
(2) The increase in rent shall not, in any case, exceed ten percent per annum on the existing rent.
13. It shows that restriction imposed on enhancement of rent in section 9 of Sindh Rented Premises Ordinance, 1979 by not more than 10%. Per annum and that too after 03 years was on "Fair rent" which is to be determined by Rent Controller under section 8 of Sindh Rented Premises Ordinance 1979.
14. ' No such fair rent has been determined by Rent Controller in this case hence the conditions of section 9 of Sindh Rented Premises Ordinance, 1979 are not applicable and it cannot be termed as agreement not in consonance with principal statute, i,e, Sindh Rented Premises Ordinance 1979.
15. ' Now the other question would be whether such term lived its life until the main agreement was surviving. My response in view of following deliberation and reasoning is "No" for the reason that the terms of an agreement not inconsistent 'with law shall continue to operate. This view of mine is supported by the following judgments. Relevant portions of which are reproduced as under:-- PLD 1991 Karachi 309:-- I am of the humble view that the freedom of contract has not been completely taken away by section 10. What section 9 stipulates is that in case of fair rent is fixed, the landlord will not be permitted to charge increased rent except as provided by in the Act and in case the landlord enters into an agreement with the tenant to get an increased rent over and above the fixed rent, it follows that such a contract is not enforceable. But as long as the fair rent is not fixed, the parties are likely to enter into a contract.
16. ' As there is no prohibition for the increase of rent by a contract between the parties in case where fair rent is not fixed, it cannot said that the contract incorporated in tenancy agreement violated in any manner the provisions of section 10. The contrac therefore, is not illegal and void.
17. The Controller, in my opinion was correct in directing the appellant to deposit rent at the rate of Rs,3,600. '
18. PLD 1988 SC 190:-- We have carefully considered the implication of various judgments of the Supreme Court which deal with the question of continuance of the terms of agreement of tenancy, after its termination. Leaving aside the theoretical possibilities all of them can be interpreted consistently on the following lines: ' ONE: notwithstanding the enactment of the rent laws the relationship of landlord and tenant would continue to be determined and regulated in accordance with:
(a) the general law; and,
(b) the terms of tenancy between the parties, But, subject to a very important condition that in case of repugnancy of either of these two elements to any of the provisions of the rent law the latter shall prevail; meaning thereby that the provisions of the general law and/or the covenants, in the agreement to the contrary, shall have no effect.
19. ' TWO: during the continuance and subsistence of the agreement of tenancy, the question of relationship of landlord and tenant, the regulation of that relationship particularly visa-vis the determination and payment of rent; as also the eviction, shall be governed by the covenants contained in the agreement; provided that those covenants do not come in conflict with the provisions of the rent law and in case of conflict the provisions of that law will prevail notwithstanding any term of agreement to the contrary; ' THREE: after the expiry of the agreement of tenancy the general law of holding over by the tenant has not been repealed or modified by the rent laws except to the extent that it comes in conflict with the provisions of the Rent Restriction Law. On the contrary, it was specifically provided in the definition of a 'tenant' in section 2 of the West Pakistan Urban Rent Restriction Ordinance, 1959, that a tenant would include "a tenant continuing in possession after the termination of the tenancy in his favour". The definition of tenant in the present Sindh Law also provides that a tenant would include "any person who continues to be in possession or occupation of the premises after the termination of his tenancy". Not only this, the present Sindh Law made it more clear when the provisions contained in sections 6 and 15 of the Sindh Rented Premises Ordinance, 1979, providing that no tenancy would remain valid beyond the mutually agreed period and that a tenant would be liable to be evicted on termination of such period, were repealed. The obvious reason was that the pre-existing law before the reenactment was kept intact; namely, that the previous tenancy arrangements between the, parties will continue to operate notwithstanding the termination of the period and will govern the continuance of tenancy as visualized in the definition of the - tenant holding over. However, notwithstanding the continued operation of the terms of the agreement after the termination of the agreement; by process of law as aforesaid, its provisions wherever they are in conflict with the rent law, shall not be operative. For example, if a special method of eviction of the tenant is provided in the terms of the agreement which are repugnant to the provision contained in the relevant Rent Restriction Law, the latter shall prevail to the extent of repugnancy. Section 15 of the Sindh Law is explicit on this point. Same was the position in the repealed Law. Similar would be the case relating to some other situations, for example, the determination of the fair rent.
20. Similarly the vice versa position would also be correct. The terms of the so-called expired agreement which are not repugnant to the rent law shall continue to operate. For example, the rate of rent, the mode of payment thereof including its advance payment or, deposit, provision for agreed increase in rent provided it is not after the determination of fair rent, provision for re- entry of a tenant after he vacates the premises for re-construction, all covenants which support the conditions in section 15 of the Sindh Law and section 13 of the Law repealed by it, and similar other conditions and comments. There is useful discussion on this aspect in the case of Muhammad Yunus Mali, v. Mst.. Zahid Irshad 1980 SCMR 184. We accordingly answer the 4th question in the negative and hold that the terms of an expired agreement as such, continue in operation, to the extent they are not repugnant to the Rent Law. Indeed same would be the position with an unexpired agreement also.
21. ' It needs to be .Clarified that the favour judgments of this court reported in 1980 Law Journals and one in 1985, though seemingly containing some elements requiring further explanation, are not mutually exclusive. They are in the' cases of Muhammad Yousuf PLD 1980 SC 298; Muhammad Yunus Malik 1980 SCMR 184; Alf Din 1980 SCMR 767; Mirza Abdul Aziz Beg 1980 SCMR 834 and Sheikh' Abdus Sattar PLD 1985 SC 148.
22. One case of 1981 viz., Muhammad Baqar Qureshi v. Mst. Razia Begum 1981 SCMR 18 may also be included. In the first case the concept of holding over in the general law of Transfer of Property Act (No,IV of 1882) was accepted, as lawful vehicle of keeping the terms of an expired agreement alive subject of course to repugnancy with any provision of the rent law to the contrary. In particular, the covenants as to advance rent and date of payment in the expired agreement were enforced and thus, the agreement was continued. Same is the position in the third case. In both of them, Muhammad Ashraf v. Muhammad Sharif PLD 1971 ,Lah. 610, a case of Lahore High Court, was approved. In the second case though the tenancy, after expiry of the agreement, was termed as 'statutory' and holding over concept was kept excluded but the terms of tenancy as to rate of rent were nevertheless taken from the so-called expired agreement. Its naming as "statutory rent" was not meant to obliterate its source being the same agreement. And, it is important to emphasise, that at page 306 the possibility of expired agreements having terms not inconsistent with the rent law, has been visualized, though stated to be exceptional. Thus, such terms, would continue to operate. We may add that in the ultimate analysis such tenancies which are controlled by rent law are in any case composite; having both statutory and mutually agreed terms; and, when an expired agreement is kept alive, this composite nature does not change, though law of holding over is added to the rent law and the agreement. The fourth case recognizes advance rent and security deposit as possible subjects of an agreement enforced by the rent law. The fifth case goes in line with the third case ad not beyond it but in a different context. The remaining cases also do not change the position.
23. ' Thus, it can safely be said that the rent laws permit all covenants in agreement, alive or expired; which, are permissible under the general law and not inconsistent with or repugnant to that special law; and enforces the same accordingly whenever it is so required under that law.
24. In addition, they also remain operative for other purposes permitted by the general law. The fourth question is answered in the negative.
25. 1995 MLD 456 After considering the facts and cited law, I do not agree with the learned counsel for the tenant that the acceptance of rent on the aforesaid occasions constitutes a practice, so as to change the terms of agreement or the law, but I do agree with him that it amounts condo nation; with the result that term of agreement of tenancy as to the payment of rent in advance, as agreed between The parties, remains binding on the parties. Since the landlady had knowledge of delay in payments, but failed to take action under clause 10 of the agreement, the tenant is not liable to be ejected on the ground of the said alleged default.
26. ' PLD 2008 Karachi 20:- As to the second question of the enhancement of rent at the rate of 10% after the expiry of every 11 months, the same has been clearly spelt out in the agreement between the parties although the aforesaid agreement was only for a period of 11 months yet the intention of the parties is manifest after expiry of every successive period of 11 months, the rate of rent is to be increased at the rate of 10%. This clause does not operate within the initial period of tenancy. It comes into operation only on expiry of the terms of period of 11 months. There is no illegality in entry into contract so as to protect the future rights by the landlord with respect to his property when the agreement is entered into with free consent of the contracting parties.
27. ' PLD 1988 Supreme Court 228: It is so notwithstanding the fact that the law applicable in .This case is the repealed Rent Restriction Ordinance of 1959. Our judgment in the case of Mst. Zarina Khawaja deals with and applies to the situation under both laws-that of 1979 and 1959. Thus, the agreement as to the security in this case would continue to operate notwithstanding its expiry.
28. ' Thus it can be safely said that general law permits parties to execute such agreement and the special law does not prohibit parties from entering into such agreement such as the one which is the subject matter of this case where clause (6) mentioned in the agreement was being attacked. If the view of respondent's counsel is adopted then the entire relationship of landlord and tenant would come to a halt. The respondent cannot be allowed to pick and choose the covenants of his/her choice. The tenant all the time was at liberty to move application under section 8 of Sindh Rented Premises Ordinance, 1979 for fixation of fair rent had he felt that fair rent was not the one that was being claimed and liable to be paid by him. Thus in my view Clause 6 of the agreement being not inconsistent is operative and hence the respondent has defaulted while not tendering rent pursuant of clause (6) of rent agreement dated 14-10-2003.
29. ' Now as far as the other point of personal requirement is concerned, the application filed under section 15 of Sindh Rented Premises Ordinance shows that in paras 6, 7 and 8 such contention was pleaded. The cumulative effect of these three paragraphs prescribes that the petitioner requires the premises for the personal bona fide need of his two sons which are petitioners Nos.
30. 5 and 6 here. The petitioners in consonance with this application under section 15, has filed affidavit in evidence whereby in paras 8 and 9 such contentions were repeated. Few ambiguities as per learned counsel for respondent that have cropped up in the cross examination of petitioner is the non-filing of the medical certificate on record and that admission of petitioner regarding climbing the stairs of the courts below and thirdly in the notice issued by landlord dated 1-4-2006, the plea of personal bona fide need was not mentioned.
31. ' The trial Court on these grounds was pleased to dismiss the ejectment application for personal bona fide need. The trial court has framed point No,2 which deals with the personal bona fide need of the petitioner.
32. ' It appears from the bare reading of the cross examination of petitioner that apparently there is no categorical denial by the respondent that such premises is not required for personal bona fide need of the sons of the petitioner. In fact the respondents have tried to make out a case that since medical certificate has not been filed and since he had been climbing the stairs of the court and that the notice issued prior to filing of ejectment application also misses the subject point therefore, the plea of personal bona fide need is not established.
33. ' The learned trial Court as well as Appellate Court appeared to have misread the evidence. The bare statement on oath that the landlord requires the premises for personal bona fide need for his sons is not shaken in the cross examination nor it was suggested by the tenant that the petitioner does not require the premises in good faith. It was also not suggested that petitioner had no intention to marry his children. No denial that petitioners Nos. 5 and 6 who are sons of petitioner No,1, are of marriageable age. Thus in the entire cross-examination no such suggestions were given. Climbing the stairs of the court below and non-filing of medical certificate does not lead to presumption that the petitioner does not require the premises in good faith as he was climbing stairs occasionally and that too under coercion as he had no choice. In addition the premises was also required for his sons and hence it is apparently clear that it is a case of misreading of evidence. Needless to mention that it is the sole prerogative of landlord to pick and choose the premises of his choice and for the personal need of his sons which cannot be 'questioned under any circumstances unless it is mala fide, which is not the case here.
34. ' The case of Muhammad Arif v. MRs, Anwar Jehan reported in 2000 SCMR 1960 (supra) relied upon by the counsel for respondents is distinguishable since it was observed therein that the Rent Controller as well as High Court had elaborately discussed the issues in the judgment and gave proper findings on the same.
35. ' In the case of Mst. Mobin Fatima v. Muhammad Yamin reported in 2006 SCMR 214 (supra), the honourable Supreme Court has observed that the High Court in exercise of its jurisdiction under Article 199 of the Constitution can, interfere if wrong or illegal conclusions are drawn by the courts, which are not based on facts found, because each of such act amounts to error of law.
36. Thus the ratio of this judgment prescribes the ways and means when this court could interfere in the conclusion drawn. By the Appellate and trial Court and this is not the, case where different conclusions were possible.
37. ' The case of Tariq Hussain v. Additional District Judge reported in 2010 MLD 1498 (supra), is also distinguishable since it is established that it is a case of misreading and non-reading of evidence and not the one which prescribes that another view is possible and hence it is a jurisdictional error.
38. ' In the case of Allies Book Corporation v. Sultan Ahmad reported 2006 SCMR 152 (supra), the scope of this court under its constitutional jurisdiction to interfere in the findings of special forum was highlighted. This judgment prescribes that if concurrent findings suffered from illegality, infirmity, misreading and non-reading of evidence and based on extraneous material then this court would be justified in setting aside concurrent findings hence the referred judgments favours the petitioner rather than respondents.
39. ' The last case that was relied upon by the counsel for respondents is the case of Muhammad Rafique v. Messrs Habib Bank Limited reported in 1994 SCMR 1012 (supra). In this case the questions which have been raised here have not been discussed and as such this case is also distinguishable. In the referred judgment the right of parties regarding personal requirement were highlighted while the agreement was for 5 years with mutual extensions. It was on this score that Honorable Supreme Court held that terms of expired agreement, whereby the right of personal requirement were bartered against 05 years lease, were held as not operative after expiry of rent -agreement as perhaps the same was in conflict with Sindh Rented Premises Ordinance, 1979, after the agreement expired as the right of personal requirement cannot be taken away after the expiry of agreement at least.
40. ' The Rent Controller or Tribunals formed under special statute are under the obligation to decide the case rightly and in accordance with law and no arbitrary or fanciful discretion could be exercised. This Court is empowered under constitutional jurisdiction to cure the illegalities, infirmity misreading and non-reading of evidence, misconstruing or decisions based on extraneous material. Reliance is placed on the case of Allies Book Corporation v. Sultan Ahmad reported in 2006 SCMR 152.
41. The landlord is not required to give fullest possible descriptions of his personal use of property.
42. More importantly when it has been established that in pursuance of family expansion, the accommodation is required correspondingly. The definition of good faith is a matter which relates to attending circumstances of a landlord and should ordinarily be accepted without imputing bad faith unless strong circumstances to the contrary are brought on record. The non- mentioning of personal requirement in the notice could not prima facie be. Enough to militate against the personal requirement which is otherwise proved. Reliance is placed on the following case-laws:-- ' 1993 SCMR 67 Landlord was not required to give fullest possible description of personal use of property in ejectment application, where he had clearly mentioned that he needed premises in question, for his personal use as he had no such place which could be used by him in his work as Building Contractor.
43. ' 2000 SCMR 1292
(6) The statement of appellant-landlady on oath was thus quite consistent with her averments made in the ejectment application. Neither her statement was shaken nor anything was brought in evidence to contradict the said statement. The Rent Controller was, therefore, fully justified in accepting the evidence of the appellant-landlady and ordering the eviction of the tenant. Reference in this context, may be made to a recent case of Juma Sher v. Sabz Ali (1997 SCMR 1062).
(7) It would thus be noticed that none of the grounds mentioned in the impugned judgment of the learned Judge in Chambers" justifying interference with the well-reasoned order of the Rent Controller passed in the above case are sound. The assertion or claim on oath by the landlady/landlord that she/he required the premises for her/his personal use, should be accepted by the Rent Controller as bona fide, if such claim, or assertion although by itself may not be sufficient, yet is consistent with his/her averments made in the application and are.
44. Neither shaken in the cross-examination nor are disproved in rebuttal. The evidence in this case fully justified the claim of the landlady that she required the premises bona fide for her own use as she had no other accommodation of her own; that' due to her impending marriage she is entitled to settle in a separate accommodation of her own; that additionally her relations with her sister-in-law were so strained that there was no possibility of her residing together with the family of her brother and sisters after getting married. We, are, therefore, of the considered view that the findings on this issue by the learned Judge in Chambers are not in consonance with law laid down on this aspect by this Court.
45. ' 1992 ALD 176 ' Personal bona fide need of landlord---Assertion or claim on oath by landlord that he required.
46. Premises for his son's use, should be accepted by Rent Controller as bona fide if such claim or assertion, although by itself might be insufficient, yet was consistent with his averments in eviction application and was not shaken in cross-examination or disproved in rebuttal--- Landlord by producing sufficient evidence had fully justified his claim that he required premises bona fide for his son, his plea could not be dismissed merely because he had one vacant flat or eviction applications were pending against other tenant.
47. ' 1992 ALD 538 ' Personal bona fide need---Assertion of landlord made on oath as to requirement of premises for his own use, had to be accepted where there was consistency in application for ejectment and same was not shaken in cross-examination or disprove in rebuttal.
48. ' Personal bona fide need---Only condition to be satisfied by a landlord was that he required premises in good faith---Once good faith was established, Rent Controller was left with no other option, but to order eviction of tenant---Element of hardship to tenant could not be imported while deciding eviction application.
49. ' 1992 MLD 1601 ' From the record it is established that the appellant has expanding family and presently it consists of eight membeRs, With the growing number and age of his children, the need for bigger size of accommodation has also increased correspondingly. The fact that the appellant is living in one room, has been admitted by the respondent in his cross-examination. It is obvious that one room accommodation was too small for family of the appellant as it was at the time of filing of the rent case, when only two and his children had attained the school going age, and by now, more than five years have passed and his need also has increased proportionately, with the number and ages of his children.
50. ' 1994 CLC 927 (14)As a matter of fact the expression 'good faith' is a matter which relates to state of mind of a landlord which may be inferred from circumstances attending to each case and the Courts should ordinarily accept the requirement of landlord without imputing bad faith unless strong circumstances to the contrary are brought on record. The Courts should not start with any presumption of 'bad faith' against such landlord.
51. (15)This argument, however, is effectively answered by the Supreme Court in the case of Sabu Mal v. Kika Ram alias Heman Das, report in 1973 SCMR 185, wherein it was observed that the choice of the premises is a matter within the prerogative and discretion of the landlord. This view was followed by me in the case of Karimuddin Shad v. Mst. Fatima Mian Ahmed, reported in 1989 CLC 545, and Syed Nisar Haider v. Mst. Razia Sultana, reported in 1989 MLD 4417. It is an established position of law that a tenant cannot determine the suitability or sufficiency of ' accommodation for the landlord. It may be added that there is water pump installed in the demised premises and its maintenance is one of the considerations for respondent No to select this premises for his own use. This fact finds place in paragraph 4 of the affidavit-in-evidence of Merajuddin (P. W.1), the respondent No,5 in this case.
(16) In view of the above, I hold that the petitioner requires. The premises for his personal bona fide need for his sons.
52. ' I, therefore, in view of my findings on the above two issues, allow this petition and set aside the two orders/judgments viz. 30-4-2008 passed by Bird Senior Civil Judge/Rent Controller Hyderabad in Rent Application No, 47 of 2006 and judgment dated 28-5-2009 passed by Viet Additional District Judge Hyderabad in FRA No, 10 of 2008 and allow the ejectment application with directions to the tenant to handover physical vacant possession of demised premises within a period of 60 days from today subject to deposit of the differential amount of rent within 30 days from today and also up to date rent in advance; failing which write of possession with police aid shall be issued without notice with permission to break open the lock if required for compliance.