' SADIQ HUSSAIN BHATTI, J.---The petitioner is aggrieved by the order dated 4-10-2012 passed by V Additional District Judge, Karachi East in FRA No, 140 of 2011, whereby the judgment of the Rent Controller in Rent Case No, 288 of 2010, ordering eviction of the respondent No,1 from the demised premises, was set aside and the Rent Case was dismissed.
2. Facts of the case are that petitioner purchased property bearing No, 106-C, Block 2, PECHS, Karachi from its previous owner. Thereafter he came to know that respondent No,1, who was a tenant of the previous owner in respect of Shop No,4 in the said property and has handed over the said shop to the previous owner pursuant to some litigation between him and the previous owner, was still occupying some portion of the property in respect whereof he also filed suit, bearing No,1306 of 2006 which was subsequently withdrawn. Thereafter, when the petitioner served legal notice upon the respondent No,1 asking him to vacate the said premises/shop the respondent No,1 filed another suit, bearing No, 910 of 2008 which was dismissed. The petitioner then filed Rent Case No, 288 of 2010 seeking eviction of the petitioner No,1 on three grounds: viz. (i) personal requirement
(ii) default in payment of rent and (iii) diminishing the value of the property by raising illegal constructions/ alternation. The Rent Controller, vide judgment dated 21-5-2011, allowed the Rent Case on the ground of default and personal requirement. The respondent No,1 challenged the said judgment in FRA" No, 140 of 2011, which was allowed vide the impugned order; whereby the judgment of the Rent Controller was set aside and the Rent Case was dismissed. Hence, this petition.
3. Learned counsel for the petitioner submitted that the appellate Court has only given findings on the question of default in payment of rent but the impugned order is silent as to the ground of personal requirement of the demised premises by the petitioner for his sons. Thus, the appellate Court has committed illegality by not deciding the issue of personal bona fide requirement, which was decided by the Rent Controller in favour of the petitioner. On the ground of default, the learned counsel stated that the appellate Court failed to consider the fact that without first offering the rent to the landlord and on his refusal to tender the rent through money order, the respondent No,1 started depositing rent in MRC No, 110 of 2007. The learned counsel contended that the impugned order is result of misreading and non-reading of evidence and, therefore, it may be set aside and the judgment of the Rent Controller may be maintained. In support of his contentions, the learned counsel relied on the following cases:--
(1) Mst. Yasmeen Khan v. Abdul Qadir and another (2006 SCMR 1501),
(2) Muhammad Aslant v. Hail Muhammad Zahoor (2000 CLC 1961)
(3) Abdul Ghani v. Hafiz Jalaluddin (1995 CLC 348), and
(4) Muhammad Islam v. Saeed Ahmed Butt and others (2013 CLC 280):
4. On the other hand, learned counsel for the respondent No,1 submitted that the petition is liable to be dismissed on account of failure of the petitioner to join the Rent Controller as a party. On the question of default, the learned counsel submitted that on refusal/avoidance of the landlord to receive the rent, the tenant is at liberty to deposit the rent in MRC directly without tendering the same through money order. He stated that the respondent No,1 started depositing rent in MRC only when the new landlord refused to receive rent. Learned counsel also submitted that though the rent case was filed in respect of Shop No,4 by the petitioner but the respondent No,1 is not occupying Shop No,4, in fact, he is tenant in respect of Shop No,1 . He also argued that the appellate Court can reframe the issue if the issues framed by the trial Court were insufficient or not properly worded. On the point of requirement of the demised premises for personal requirement of the petitioner, the learned counsel submitted that one shop is already in possession of the petitioner, therefore, the element of good faith was missing as mere wish or desire of the landlord is not sufficient to justify ejectment of a tenant. In support of his contentions, learned counsel relied on the following cases:--
(1) Hashwani Hotels Ltd. v. Federation of Pakistan and others (1987 CLC 341),
(2) PLD 1981 Kar. 349),
(3) Akhtar All Khan and another v. Settlement Commissioner and others (1989 SCMR 506),
(4) Raja Ghulam Nyder v. Major (Rtd.) Jamshed Alain Khan (1991 MLD 1284),
(5) Muslim Raza v Mst. Saghira Bano (1987 MLD 3269),
(6) Ziarat Gul v. XEN, WAPDA and another (PLD 1994 Pesh. 16),
(7) Bux Ellahi v. Saadat Ali Bain through L.Rs, (1998 MLD 43),
(8) Messrs Gulf Air v. Shakir Express (Pvt.) Ltd. (PLD 2003 Kar. 156),
(9) Mehboob Alam v. Miss Tehseen Shafqat Khan and others (PLD 2001 Kar. 238),
(10) A.H. Alvi v. Muhammad Tariq (PLD 2001 Kar. 389),
(11) Muhammad Abdul Karim v. Muhammad Saleem (PLD 1996 SC 252),
(12) Javed Khalique v. Muhammad Irfan (2008 SCMR 28),
(13) Mst. Begum Jan v. Abdul Rasool (1984 CLC 755),
(14) Muhammad Ismail v. Mst. Bushra Fayyaz (1993 MLD 702),
(15) Muhammad Atique v. Muhammad Hanif Khan (1996 SCMR 1260),
(16) Abdul Majeed Karim v. Orient Pakistan Ltd. And others (1994 MLD 1026),
(17) Muhammad Shoaib Naji and others v. Muhammad Yasin and others (2011 SCMR 1306),
(18) Muhammad Asghar v. Abdul Rehman and others (2010 MLD 665),
(19) Abdul Fayyaz Khan v. III ADJ, Karachi South and others (2012 CLC 793),
(20) Malik Din v. Manzoor All (KLR 1985 Civil Cases 670),
(21) Sultan Press Ltd. v. Muhammad Hasan (PLD 1985 Kar. 624),
(22) Rehana Jamal and others v. Muhammad Asim (1999 CLC 781),
(23) Mohsin All v. Saifee Wool House (2000 CLC 1821) and
(24) Azeemuddin v. Mst. Attiqa Begum through LRs, (2008 CLC 1499).
5. The parties are at variance as to the shop number which is in occupation of the respondent No, 1 . While the petitioner claims that respondent No,1 is occupying Shop No,4, the said respondent denies the same and states that he is tenant in respect of Shop No,l. However, it is an admitted position that the respondent No,1 is in occupation of a shop in the property purchased by the petitioner and is depositing rent in respect thereof in the MRC. The respondent No,1, who was in occupation of a shop in the property before the same was purchased by the petitioner, has not produced any tenancy agreement to ascertain whether he was tenant in respect of shop No,1 or shop No,4. Even otherwise, this dispute is not of a nature which would render the rent case non- maintainable as admittedly the respondent No,1 is in occupation of a shop in the said property and is depositing rent in respect thereof in MRC in the name of the appellant. Therefore, there is relationship of landlord and tenant between the parties.
6. The Rent Controller, while deciding the rent case, formulated the following points for determination:--
(1) Whether the opponent has impaired the value and utility of the tenement in his occupation?
(2) Whether opponent has committed willful default in payment of rent since April, 2008?
(3) Whether applicant requires the tenement in question i,e, backside portion/shop No,4 situated on Plot No, 106-C, Mock 2, PECHS, Karachi, for personal bona fide need in good faith?
(4) What should the order be?
7. After recording evidence of the parties, the. Rent Controller decided Point No,1 in favour of the respondent No,1 but decided Points Nos. 2 and 3 in favour of the petitioner and under Point No,4, directed to vacate the demised premises within 30 days.
8. Although the Rent Controller decided the point of default in favour of the petitioner/applicant but the appellate Court relied on the deposition of the attorney of the applicant and held that there was no default in payment of rent. The following excerpts were quoted from the evidence of the attorney of the applicant/petitioner:-- "It is correct to suggest that my father had purchased the property in question in the year 2006. It is correct to suggest that applicant had not served any notice to the opponent in the year 2006 after purchasing the property. It is correct to suggest that shop number is not mentioned in the notice dated 21-7-2008.---It is correct to suggest that the opponent had mentioned in reply notice that the rent was being deposited in MRC No, 110/2007 before V Rent Controller, East...It is correct to suggest that in notice dated 7-7-2008 the opponent was shown as tenant in respect of shop No, 4 and also mentioned that the opponent was depositing rent in court. It is correct to suggest that in the notice dated 8-8-2008 opponent was shown as the tenant in respect of shop No,1.. Vol. Says it was inadvertently shown as tenant of shop No,1 otherwise opponent is tenant in respect of shop No,4. It is correct to suggest that a shop is adjacent to my shop is vacant and in my occupation. It is correct to suggest that my father's name is not Dad Muhammad. It is correct to suggest that the ejectment case is filed by applicant through attorney Abdul Khalique son of Dad Muhammad."
9. After quoting the above portion of the deposition of the attorney of the landlord, the appellate Court held that "there is no default in payment of rent as the tenant deposited the rent in MRC and further shows that attorney of the applicant/ respondent admitted that a shop is adjacent to my shop is vacant and in his occupation. It is an admitted fact on record that respondent/applicant was not served legal notice under section 18 of SRPO 1979, upon the appellant/tenant."
10. So far as the question of default in payment of rent is concerned, there is nothing in the above quoted portion of the cross-examination of the attorney of the applicant/petitioner to infer that there was no default on the part of the respondent No,1 and that the rent was being regularly paid by the respondent No,1 to the landlord. All that the attorney of the applicant/petitioner stated was that notice was issued to the tenant/respondent No,1 in the year 2006 and that the opponent had mentioned in reply notice that the rent was being deposited in MRC No, 110 of 2007.
11. On the point of default in payment of rent, witness of respondent No,1 deposed as under:-- "It is incorrect to suggest that opponent did not offer rent to the applicant. It is incorrect to suggest that before depositing rent in Court applicant was not intimated. It is correct to suggest that the case against applicant was instituted in 2006. It is incorrect to suggest that it was in knowledge of opponent that the applicant has purchased the property in question. It is correct to suggest that the' opponent had made applicants as party in the case before Honourable High Court of Sindh."
12. A perusal of the above portion of the cross-examination of the witness of the respondent No,1 reveals that there is clear contradiction in the deposition of the respondent No, 1 's witness. At one place he says that the case against the applicant was instituted in the High Court in the year 2006 but he denies the suggestion that it was in the knowledge of the opponent that the petitioner/applicant has purchased the property in question. In case it was not in the knowledge of opponent/respondent No,1 that the petitioner/applicant had purchased the said property then how the petitioner was made a party to the suit filed by respondent No,1 in 2006. The witness further states that "It is incorrect to suggest that opponent did not offer rent to the applicant. It is incorrect to suggest that before depositing rent in Court applicant was not intimated. " However, no evidence has been produced in this regard. It is the duty of the tenant to prove that he offered the rent to the landlord but the landlord refused to accept the same. The only way to do this is either to produce a witness who has seen the act of refusal of the landlord or to send the rent through money order and if the same is reused, to produce the money order receipt with endorsement of the post office regarding refusal. Mere words of the witness are not enough to believe the version of the tenant.
13. In the case of Abdul Ghani v. Hafiz Jalaluddin (1995 CLC 348), it was also held that where tenant was fully aware that the demised property has been transferred to the applicant/landlord and had himself filed a suit against the landlord in respect of the premises in question, no notice was required to be issued to him under section 18 of the Sindh Rented Premises Ordinance, 1979. In this case the respondent No,1 was fully aware about the purchase of the property by the petitioner/ applicant as it has filed a suit against the petitioner/ applicant in the year 2006.
' In the case of Mst. Yasmeen Khan v. Abdul Qadir and another (2006 SCMR 1501), the Hon'ble Supreme Court has held that direct deposit of rent in Court without first tendering the same to the landlord and, on his refusal to accept the same or issue receipt, remitting the same through money order, would be a willful and deliberate default in payment of rent on the part of the tenant, which could not be termed to be technical default. Similarly, in the case of Ali Muzaffar through L.Rs, v.
Syed Muhammad Ali Abedi through LRs and others (2006 CLC 379), it was held that if a tenant without offering rent to the landlord in the first instance starts depositing rent with the Rent Controller, then it would be treated as default in payment of rent on the part of the tenant. Similar findings were given in the case of Arshad Khan v. Mrs. Fauzia Nasir and others (2005 CLC 787). In the case of Muhammad Aslam v. Mill Muhammad Zahoor (2000 CLC 1961) it was held that if landlord had refused to accept rent, it was incumbent upon the tenant first to remit rent to landlord through postal money order and on refusal of same tenant should have deposited rent with Rent Controller with notice to landlord. In the present case neither it has been shown that rent was first tendered to the landlord himself who refused the same and then rent was first sent though postal money order. Rather, the respondent No,1 started depositing rent in MRC directly in the year 2007.
Even no notice has been produced in the evidence to show that before depositing rent in MRC, notice was sent to the landlord.
14. In view of the above discussion, the respondent No,1 has miserably failed to prove that first rent was tendered to the applicant petitioner who refused to accept the same and then it was sent through money order which was also refused. It is an admitted position that in the year 2006 the respondent No,1 filed a suit inter alia against the petitioner and in 2007 he started depositing rent in MRC. The reply to legal notice dated 30-7-2008 clearly says that "they are depositing rent of the said shop in the name of your client in MRC No,110/2007." Since the respondent No,1 was in the knowledge that the property has been purchased by the petitioner, therefore, there was no need to send a notice under section 18 of the SRPO, 1979 to him. In view of the law laid down by the Hon'ble Supreme Court in this regard, the respondent No,1 has committed default in payment of rent by directly depositing the rent in MRC. The cases relied upon by the learned counsel for the respondent No,1 would be of no help to him as those cases are of the High Courts while the law laid down by the Hon'ble Supreme Court in the above case would be applicable.
16. So far as question of personal bona fide requirement of the demised premises by the landlord/petitioner is concerned, this issue was also decided by the Rent Control in favour of the landlord/petitioner. However, the appellate Court, relying on the statement of the attorney of the petitioner that one shop is in his possession, also decided this issue against the landlord/ petitioner and, accordingly, allowed the FRA and dismissed the rent case. However, the appellate Court completely ignored the fact that the petitioner has eight sons and wanted to settle two of his sons in the shop in question in respect whereof the ejectment case was filed. The case relied upon by the counsel for respondent No,1 is in respect of a rent case where the landlord after getting possession of two shops from previous tenants during pendency of the rent case rented out the same to new tenants. Thus, the same is not relevant for this case as it is noted contended that the shop was given to a new tenant in the instant case.
17. I am mindful of the law laid down by the superior Courts on the point of personal bona fide requirement of the landlord and there is no cavil that the word "require" would import something more than the mere desire or wish or whim of the landlord. In the facts and circumstances of this case, it is an admitted fact that the petitioner/applicant purchased the entire building and according to the attorney of the applicant, the landlord had eight sons and wanted to set up two of his sons in the shop in dispute. The applicant/petitioner must have spent a fortune in purchasing the entire property and thus the requirement of the landlord/petitioner cannot be said to be arbitrary and unbridled desire of the landlord. On the contrary the requirement of the landlord is reasonable and bona fide as he wants to establish his sons in the said property.
18. In view of the above, I am of the view that the petitioner/applicant was able to prove his bona fide personal requirement of the shop in dispute. Nothing was put to the attorney of the petitioner/applicant in the cross-examination regarding the need of the sons of the petitioner/applicant.
19. So far as objection with regal d to attorney is concerned, it has come on record that there was some typographical mistake otherwise it has been proved by production of card that the attorney of the applicant/petitioner was his own son. This fact is also proved by the power of attorney itself copy whereof is available on record. A perusal of the verification clause of the ejectment application of the power of attorney shows that it was verified by Abdul Khaliq son of Taj Muhammad i,e, son of the petitioner/landlord.
20. The learned counsel also argued that the petition is not maintainable due to non-joinder of the rent controller. Suffice it to observe that the judgment of the rent controller was in favour of the petitioner. Even otherwise, rent controller is not a necessary party and is only a proforma party. The cases relied by the learned counsel for the respondent No,1 are distinguishable on fact and are not relevant.
21. In view of the above discussion, I allow this petition, set aside the impugned order of the appellate Court and restore the order of the Rent Controller. Respondent No,1 is directed to vacate the disputed premises within 30 days, subject, to payment of rent regularly.