MRS. SYEDA TAHIRA SAFDAR, J. --- The appellant Liaquat feeling aggrieved of the judgment dated 26th June, 2009 of Rent Controller/Civil Judge-IV, Quetta, whereby the application filed by the respondent Haji Alla-ud-Din seeking eviction of the appellant from the premises-in-question was allowed, preferred instant appeal. The appellant challenged the judgment on the grounds that the Trial Court failed to decide the objections, as no proper findings were given thereon. Further, the issue pertaining to default in payment of rent was also not rightly concluded, because there was failure on the part of the respondent to establish the wilful default committed by him (appellant).
As far as issue pertaining to bona fide personal use is concerned, the mala fide on the part of the respondent, which was apparent from the record was not given due consideration. The appellant contended that the Trial Court failed to decide the matter on the basis of the evidence and the material available on record, rather the available evidence was misappreciated. Furthermore, the fact that at the time of inception of tenancy, he (appellant) paid an amount of Rs. 1,40,000/- (Rupees one lac forty thousand only) as good will ( ) to Haider A.I son of Sultan A.I, the previous occupier. With the consent of the respondent in the year 1988, whereafter, the possession of shop in question was handed over to him. And the fact that a shop in the same building was rented on higher rates by the respondent after getting its vacant possession from the previous tenant. But the Trial Court failed to give due consideration to these facts and arrived to the findings, which are contrary to the material on record. It has been prayed that the impugned judgment be set aside and the application filed by the respondent be dismissed.
2. Brief facts of the case are that the respondent Alla-ud-Din filed an application seeking eviction of the appellant on grounds of default in payment of rent since 1 September, 2004 till date and personal bona fide use of shop in question for his son Rahim- ud-Din. In reply the respondent though admitted existence of relationship of landlord and tenant between him and the respondent: but strongly denied the commission of default in payment of rent and requirement of shop by the respondent. It was his contention that the amount of rent was sent through money order, which was refused by the respondent, whereafter. Due rent was deposited in the Court in the name of the respondent. Therefore, in the circumstances there is no default in the payment of rent. He further contested the requirement of premises in question for the son of the respondent, with contention that initially the shop in question was rented out to one Haider A.I son of Sultan A.I and with the consent of the respondent/landlord and on payment of an amount of Rs. 1,40,000/- said Haider A.I in the year 1988, as good-will ( ), the possession of shop in question was handed over to him and the tenancy beings. He prayed for dismissal of the application.
3. Issues were framed on 8th August, 2006 by, the Trial Court as under :-- Whether the eviction application is not maintainable in view of preliminary legal objections A, B and C of written statement raised by respondent?
(2) Whether applicant rented out the shop in question to the respondent?
(3) Whether the respondent is bad paymaster and trouble some tenant and Rs. 13,300/- are outstanding?
(4) Whether the applicant is entitled for possession of house (-) in question?
(5) Relief.
An additional issue was framed to the effect
(i) Whether the shop in question is required by applicant in good faith for his son namely Rahim- ud-Din, because he wants to start his business of spare parts in the shop in question?
4. To prove his respective contention the respondent produced two witnesses and got recorded his statement through his attorney. While in rebuttal the, appellant recorded his own statement in addition to two witnesses produced by him. The Trial Court through judgment dated 27th June, 2009, allowed the application, whereby the appellant was directed to hand over vacant possession of the premises in question to the respondent. Feeling aggrieved of the order, the instant appeal has been filed on the grounds, as mentioned herein above.
5. The learned counsel for the appellant while arguing the matter contended that the Trial Court failed to consider all the legal as well as factual aspects of the case and arrived to the conclusion, which is not supported by the material on record. It was further his argument that there was no instance of wilful default in payment of rent, rather the due rent was already deposited in the Court, but this fact was not duly considered. Furthermore, the admission made by the applicant's witnesses and the documents placed on record were not properly considered and contrary findings- were given. It was also argument of the learned counsel that the fact of payment of good will though admitted by the applicant'. Witness No 1 (AW-1) but the Court below failed to consider this material aspect of the case. The learned counsel concluded that the respondent completely failed to establish his personal bona fide use, despite the same a favourable order was made by the Trial Court, which is in contravention of law, thus liable to be set aside. The learned counsel for the appellant placed reliance on the judgment titled as "Syed Israr Alam Vs. S.M. Hussain", reported in 1983 CLC 468.
6. While replying to the arguments of the, learned counsel for the appellant, the learned counsel for the respondent was of the view that in case of personal bona fide use it is the choice' of the landlord for the premises, which is suitable for his needs. It was further his argument that the appeal is premature and no grounds are available to the appellant, to challenge the judgment of the Trial Court; therefore, the appeal is liable to be dismissed and order of the Trial Court is to be upheld. The learned counsel for the respondent relied on:-- Khurshid Ahmed v. Nadeem lqbal (1985 SCM R 40)
Dildar Hussain Nayyar v. Niaz Muhammad Dar (1985 SCM R 1769) Juma Sher v. Sabz A.I (1997 SCM R 1062)
7. In instant case the existence of relationship of landlord and tenant between the parties and the agreed rate of rent are not the disputed facts. Rather the landlord/present respondent sought eviction of the tenant/present appellant from the premises in question on grounds of default in payment of rent since 1st September, 2009 and personal bona fide requirement of the shop for his son Rahim-ud-Din. The appellant though have not denied his. Tenancy, but strongly contested the grounds raised for his eviction from the shop in question. In reply of plea of default in payment of rent, it was contended that the rent was tendered through money order, which was refused by the respondent, whereafter, the rent was deposited in the Court in the name of the landlord. As far as ground of personal bona fide use is concerned, the appellant asserted that the son of the respondent namely Rahim-ud-Din, for whom personal requirement is urged, is already carrying on business in a shop situated at Sirki Road, Kabari Galli,' Quetta in the name of Madina Autos. In addition the appellant contended that he paid an amount of Rs. 1,40,000/- as goodwill to the previous tenant, with the consent of the respondent/landlord. At this stage, it is noted that in his re- joinder the appellant raised three preliminary objections. But in fact these objections do not pertain to any law, rather based on factual aspect of the case; therefore, framing of issues to the effect was not required. The Trial Court while deciding the issue No. 1, rightly arrived to the conclusion that the objections pertained to the merits of the case, therefore, they will be discussed and decided with the issues on merits. As far as the issue No. 2 is concerned, it is also of no legal effect, because there is no denial of tenancy on the part of the appellant. Therefore, in the circumstances, only issue No. 3 pertaining to default in payment of rent and the 'additional issue No. 1 about requirement of the landlord in good faith for his son Rahim-ud-Din, are the issues in hand. As far as C.L.R. the plea about payment of an amount of Rs. 1,40,000/- as good will ( ) at start of tenancy is concerned, it is of limited effect. It can establish mala fides on the part of the landlord in receiving such money. In case of default it will be helpful to the tenant, if it is established that the amount so paid was agreed to be adjusted towards rent due or was agreed to be treated as advance, thereby required to be adjusted towards rent at end of tenancy. Therefore, in the circumstances only payment of the amount, if proved, is not enough, rather the tenant/appellant has to prove something more, to get benefit of the same.
8. The first ground on which the eviction of the appellant is sought by the landlord is default of payment of rent from Ist September, 2004 till date. The initial burden was on the landlord to establish that there is a wilful default on the part of the tenant. It is admitted position that the rent was paid against the receipt issued by the landlord. Though certain rent receipts are available in the case file, but none of the parties tried to bring them on record. The landlord/present respondent remained contended while producing oral evidence. He, and his witnesses deposed on oath that there is default in payment of rent on part of the appellant/tenant. Therefore, on this assertion on oath the burden shifted to the tenant/appellant to prove the contrary. It is the appellant/tenant who has to establish that not only he tendered the rent in time, but also paid it to the landlord. The appellant in his re-joinder while replying the allegation asserted that he paid the rent regularly at the rate of Rs. 700/- per month. Further, he sent the rent due through money order, which was refused by the respondent/landlord, whereafter the rent was deposited in the Court in the name of the respondent. To establish his contention, he produced two witnesses. Respondent's witness No. 1 (RW-1) Muhammad Zakaria and RW-2 Abdul Malik, stated that the appellant regularly paid the rent to the landlord through his sons and nephews and also paid the rent in lump-sum, while the respondent/landlord intentionally refused to receive the rent for making ground for filing of an eviction application. But the witnesses are silent to the effect that whether any rent was send through money order or otherwise and there was refusal of the respondent for receiving the same.
The attorney for the respondent stated on oath that he paid the rent in lump-sum. To establish the method of paying rent in lump-sum he produced a rent receipt as Ex.R/2, which pertains to the period February, 2000 to January, 2001. He also produced a rent receipt for the month of September as Ex.R/3, which bears date 1st September, 2004. He further produced the receipts of money order as Ex.R/4. The perusal disclosed that an amount of Rs. 10,000/- and Rs. 4,000/- were tendered through money order bearing seal with date 7th April, 2006 with assertion that the landlord refused to receive them.
9. A plea of regular payment of rent was taken in the re-joinder, but through evidence the appellant tried to establish that there was some practice of receiving of monthly rent in lump-sum.
But, he (appellant) failed to establish C.L.R. the< same, as no such plea was taken in his reply, nor even he confronted the same to the respondent, or his witnesses during course of evidence. The rent receipts of such a nature were also not confronted to the respondent, while he was appearing before the Court for recording of his statement. As far as the tender of rent through money order is concerned, the appellant has produced the receipts as Ex.R/4, but he failed to produce the representative of Post Office, to establish his claim and to place on record the statement of the Postman, that there was refusal on the part of the respondent in receiving the money orders sent by the appellant. Furthermore, no suggestion to the effect was made to the respondent, while he was before the Court.
10. The landlord can seek eviction of his tenant from a rented premises on ground of default in payment of rent under provisions of Section 13(2)(i) of the Baluchistan Urban Rent Restriction Ordinance, 1959, which reads as under:-- Section 13(2)(i) the tenant has not paid or tendered rent due by him in respect of the building or rented land, within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord, or in the absence of any such agreement, [within sixty days from the period] for which the rent is payable; or (Explanation: -- For the purpose of this clause--
(i) where the water charges or electricity charges or both they are payable by the tenant to the landlord Which charges shall be deemed rent.
(ii) Rent remitted by money order to the landlord or deposited in the office of the Controller having jurisdiction in the area where the building or rented land is situated shall be deemed to have been duly tendered.
"Provided further that where the application made by the landlord is on the ground mentioned in clause (i) and the tenant on the first date of hearing admits his liability to pay the rent due from him, the Controller shall, if he is satisfied that the tenant has not made such default on any previous occasion, direct the tenant to deposit all the rent due from him on or before a date to be fixed for the purpose and upon such deposit being made he shall make an order rejecting the application."
C'.LR. after lapse of a full calendar month. Therefore, in present case the rent for the month of September, 2004 become due after lapse of full month, whereafter, he provided period Of sixty days will be counted. As such the rent paid or tendered within such sixty days will amount to be duly tendered and there will be no default. Therefore, the time is to be counted from the agreed date in first case, While in second case the time shall be computed from the period for which the rent is payable. In present case admittedly no agreement for tenancy exists between the parties, therefore, it will be covered by the second case. The appellant produced rent receipt pertaining to September 2004, which was not denied and contested by the landlord/respondent, therefore, it can safely be concluded that the rent of September, 2004 was duly received by the landlord/respondent. But as far as the payment of rent for onward period is concerned, it is the appellant, who has to establish that the rent was duly tendered by him within the provided time, but it was refused, thereby deposited in the Court by him. If the succeeded to establish the same, he can take benefit of the explanation attached to clause i(ii) of sub-section (2) of Section 13 of the Ordinance, whereby the rent remitted through money order or deposited in the officb of Controller are deemed to have been duly tendered. In addition Section 12-B also provides alternate mode for payment of rent: which reads as under:- "Section 12-B. -- If a landlord refuses to receive or grant a receipt for any rent when tendered to him by the tenant, the rent may be remitted to him by postal money order or deposited in the office of Controller and the Controller shall inform the landlord regarding the deposit of the rent in his office.-
11. Though the appellant asserted that there was refusal on the part of the landlord for receiving of the rent,. Which was duly tendered through money order and thereafter deposited in the Court. To, establish his assertion he produced receipts of money order and also placed on record the challans, whereby the rent was deposited in the Court. These two pieces of evidence are to be seen and considered in view of above-quoted provisions. It is an admitted position that there is no agreement of tenancy between the parties. The perusal of Ex.R/4 reveals that the money orders were sent on 7th June, 2006. While the rent for the months of October, 2004 to July, 2006 were deposited in the Court/Civil Court's Deposit on 19th July, 2006. This clearly shows that the money orders were sent and the deposit was made after filing of the instant eviction application, which was filed on 15th May, 2006. There is no explanation that why the appellant remained silent during all these years and did not try to tender the rent as provided under the relevant law. The burden was on the appellant to establish that the rent was timely tendered and deposited in the Court. But, there is complete failure on his part. The appellant being tenant was under obligation to pay the agreed rent due within the provided period to the landlord, but in present case the appellant has failed to discharge his part of obligation , that too without any reason. There may be some mala fide on the part of the landlord, but the tenant must be vigilant in payment of rent due and have to adopt the course provided in the law. There may be exception to this general principle, but in such case even the burden is on the tenant to establish the same. The appellant also not claim the benefit as provided in proviso attached to subsection (2) of Section 13 of the Ordinance. Therefore, in the circumstances, the default in payment of rent is established.
12. As far as the ground of personal bona fide use and occupation of landlord is concerned, the burden was on the respondent being the landlord. To substantiate this issue the respondent/landlord produced two witnesses, who in their affidavits stated that the shop in question is required by the respondent for use of his son Rahim-ud-Din, who wants to start a business of spare parts. The attorney for the respondent also made statement to the same effect.
In rebuttal the appellant took plea that the respondent is in habit of instituting eviction proceedings against his tenants and after succeeding, rented out the premises, so vacated, on higher rent. The appellant referred to four other eviction applications filed by the respondent against his tenants on grounds of wilful default and personal bona fide use of his sons. He produced copies of the judgments .As Ex.R/5, Ex.R/6 and Ex.R/7 and also copy of an application filed under Section 13(4) of the Ordinance by one Haji Muhammad Raza, seeking restoration of shop from where he was evicted. The fact of filing these eviction applications is not denied by the respondent and his witnesses during course of cross-examination. But it was their contention that the shops were required by the respondent for his three sons. The perusal of the judgments reveals that all the applications including instant application were filed on identical grounds, even the date of default i.e. 1st September, 2004 is the same in all the four applications. This fact showed the mala fide on the part of the respondent. In addition the son for whom the shop in question is required in present case, never appeared before the Trial Court to support the contents of the eviction application. The Trial Court has wrongly concluded the issue. Though it was rightly argued by the learned counsel for the respondent that it is the choice of the landlord to seek eviction of any premises suitable for his needs. But, in view of the facts as narrated hereinabove the mala fide on the part of the landlord is very much apparent. His own conduct disentitled him for vacant possession of shop in question on ground of personal need. The findings of the Trial Court on additional issue are contrary to facts and also in contravention of the relevant provision of law, therefore, cannot remain in field.
13. While going through the case file of the Trial Court, it is observed that despite the fact that there was no dispute of title between the parties, the Trial Court failed to make an order as required to be made under sub-section (6) of Section 13 of the Ordinance, which is mandatory in nature. The Trial Court was bound to make an order for depositing the rent before framing of issues and recording of evidence. But the Trial Court failed to fulfill this legal requirement, which is a serious error on the part of the Trial Court. It will be advisable for the learned Judge, to go through the relevant law before proceeding with the matter to avoid such legal flaws.
14. In view of the above discussion the findings of the Trial Court are upheld to the extent of default in payment of rent, therefore, the impugned judgment dated 26th June, 2009 of Rent Controller/Civil Judge-IV, Quetta is upheld to said extent. Resultantly, the appeal is dismissed without costs. .