KHADIM HUSSAIN SOOMRO, J. Through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has impugned the judgment dated 29.01.2024, passed by learned Additional District. Judge-VI, Hyderabad, in First Rent Appeal No. 43/2023, whereby the appeal filed by respondent No. 1 has been allowed, and the judgment dated 05.09.2023 passed by learned Rent Controller-VIII Hyderabad has been set-aside while remanding back the matter to learned trial court for decision afresh.
2. Brief facts of the case are that the petitioner filed an application under Section 15 of Sindh Rented Premises Ordinance 1979 ("SRPO"), whereby he sought ejectment of respondent No.1 from the house, i.e. Bungalow No.B/115 Gulistan-e-Sajjad Hyderabad on the ground of default in payment of rent and personal bona fide need. After the admission of application, the notice was issued to respondent No. 1 through Bailiff, registered A.D., and courier and lastly, notice was published in the daily "Ibbrat" Newspaper, Hyderabad and lieu of both ordinary as well as substitute modes of service against respondent No. 1, the service was held good against him and due to his non- appearance, he was debarred from filing written statement/objections vide order dated 17.03.2023.
After an order of debar, respondent No. 1, through his Counsel, made an appearance and filed an application for recalling an order dated 17.03.2023, but the same was dismissed. The petitioner led his evidence and filed an affidavit in ex-parte proof: During his examination in chief, he produced relevant documents. In support of his claim, the petitioner also examined one witness, Salma Hussain, at Ex.
26. After hearing the Counsel for the petitioner, the learned trial court allowed the application and directed respondent No. 1 to vacate the premises, i.e., Bungalow within 90 days.
Respondent, being aggrieved and dissatisfied, filed First Rent Appeal No.43/2023, which through the impugned. judgment has been allowed, and the matter has been remanded to the learned trial court, hence, this petition.
3. Learned Counsel for the petitioner has argued that the judgment passed by the learned appellate Court is not on the sound principles as laid down in the Sindh Rented Premises Ordinance, 1979; that the petitioner filed ejectment application on the ground of default as well as personal bona fide use; that both the grounds are specifically pleaded in paragraphs Nos.10 and 11 of the memo. of application; that apart from default the respondent No.1 did not deposit the electricity as well as gas bills; that against respondent No.1 left outstanding Rs. 350,666/- of electricity, and Rs.40,460/- of sui gas; that respondent No. 1 committed default and did not deposit the rent of nine months; that the judgment of appellate Court is outcome of misreading, non- reading of evidence 'and misapplication of law, hence, the impugned judgment is liable to be set aside.
4. Learned Counsel for respondent No. 1 has argued that the lower appellate Court commits no illegality or irregularity; that the petitioner has not come before this Court with clean hands; that there is no direction of Rent Controller for deposit of rent as per Section 16 of the Sindh Rent Premises Ordinance, 1979; that the petitioner has denied the relationship of landlord and tenant and he has filed Suit No. 343/2024 for specific performance and permanent injunction; that the petitioner is not the owner of rented premises; that the judgment of the learned trial court is ex- parte and respondent No. 1 was not provided opportunity of being heard; that right of fair trial was severely infringed, therefore, the appellate Court has rightly passed the impugned judgment which is based on correct appreciation of law.
5. I have heard the learned Counsel for the parties and perused the material available on record.
6. The perusal of the record shows that after admission to the subject application, the notices/summons were issued against respondent No. 1 through a bailiff, registered A.D., and courier service. Besides, the summons were pasted at the address of respondent No. 1 through Bailiff in the presence of two witnesses. Thereafter, the learned Counsel for the petitioner submitted an application for issuance of notice through publication. The same was allowed (Exh.16). While adopting the alternative modes of service, the notice was published in the daily "IBBRAT NEWSPAPER", Hyderabad, dated 01.03.2023 (Exh. 19). In lieu of adopting both ordinary as well as substitute modes, the service against the respondent No. 1 was held good on 02.03.20223.
Therefore, respondent No.1 was debarred from filing written statements/objections on 17.03.2023 (Exh. 20), and the case was ordered to have proceeded ex-Parte against him. Consequently, the petitioner was directed to file an Affidavit in Ex-parte Proof. Consequent to notice through publication, Mr. Zahid Mallah advocate filed vakalatnama on behalf of respondent No.1 (Exh. 21) and an application for recalling the order dated 17.03.2023 at (Exh. 22). Since respondent No.1 was already debarred from filing written statement/objections on the rent application and the trial Court dismissed his application vide order dated 04.07.2023, against which respondent No.1 did not file an appeal; hence, the order attained finality. Therefore, the case proceeded ex-parte; however, the learned trial provided an opportunity for respondent No.1 to conduct a cross-examination of the petitioner, but he did not avail the chance, and the evidence of the petitioner went unrebutted.
In light of the above facts and circumstances, I hold that no right to a fair trial was infringed, but the respondent could not avail himself of opportunities for cross-examinations despite repeated chances. Therefore, the learned rent controller rightly closed the respondent side of the cross- examination.
7. Another crucial facet of the case is that the petitioners filed an ejectment application on two grounds: one, the respondent committed willful default in the payment of rent, and second, the rented premises are required to the petitioners for their personal bona fide use. The petitioner has specifically pleaded these grounds in the pleadings in paragraphs No.10 and 11 of the memo. of application that apart from the default of nine months in the payment of rent, respondent No.1 did not deposit the electricity as well as gas bills, of Rs.350,666/- of electricity, and Rs.40,460/- of sui gas; which is left outstanding by him. Further, until today, the outstanding rent has not been deposited before the rent controller or this Court. As per Sub-clause (2) of subsection (2) of Section 15 of the Sindh Rented Premises Ordinance, 1979, it is a statutory duty imposed upon every tenant to remit rent to the landlord. Non -compliance with this obligation renders the tenant liable to eviction from the tenement, as prescribed under clause (2) of subsection (2) of Section 15 of the Sindh Rented Premises Ordinance, 1979. In instances where a stipulated time period is defined in the agreement, it becomes a statutory obligation for the tenant to remit rent to the landlord initially on the agreed-upon date mutually determined between both parties. Failure to tender such rent within 15 days from the due date constitutes a default by the tenant in fulfilling the obligation to pay rent, rendering the tenant liable to eviction from the tenement. In the absence of a mutually agreed-upon date for rent payment, the tenant is obligated to remit the rent to the landlord within 60 days from the inception of the obligation to pay rent, but in the instant case, the respondent committed a default of nine months rent. Failure to adhere to this timeframe categorizes the tenant as having defaulted on the obligation to pay rent, consequently making the tenant susceptible to eviction from the tenement.
8. This Court has held in various judgments that the primary duty of the landlord is to assert the tenant's default and pinpoint the said default, thereby fulfilling the initial burden. The petitioners discharged their burden of proof by producing evidence, which shifted the burden upon the respondents to demonstrate that the tenant did not default in meeting its obligation to remit rent to them. However, on the one hand, the petitioner's evidence went un-rebutted; on the other hand, the respondent has failed to discharge its burden of proof. The reliance can be placed in the case of Muhammad Riaz Shaikh v. Iftikhar ud din (2014 CLC 1695). Any rent paid after that due date must be constituted as default. The reliastce can be placed in the case of Mumtaz Sultana v.
Ishrat Jehan (1989 CLC 639). The issue at hand relates to the allocation of the burden of proving that the tenant defaulted on rent payment, thereby justifying the landlord's entitlement to evict the tenant under Clause 1(2) of Section 15 of the Sindh Rented Premises Ordinance, 1979. The apex has decisively, addressed this question in the case of Allah dino v. Habib (PLD 1982 SC 465). The relevant portion of the judgment is reproduced as follows:- "It is no doubt correct to say that the initial burden of proof lies upon the landlord to establish that the tenant has not paid or tendered rent due by him as required by section 13 (2) (i) of the Sindh Urban Rent Restriction Ordinance, 1959, but it must be appreciated that non-payment of rent is a negative fact, therefore, if the landlord appears in Court and states on oath that he has not received the rent for a certain period, it would be sufficient to discharge the burden that lies under the law upon him and the onus will then shift to the tenant to prove affirmatively that he had paid or tendered the rent for the period in question".
9. Reverting to the new plea taken by respondent No.1 before this Court that he purchased the rented premises from the wife of the petitioner through a sale agreement as she did- not execute the registered sale deed; therefore, he filed a F.C. Suit No.43/2024. After carefully examining the judgments of both lower courts, it appears that this particular argument was not raised. Moreover, the sale agreement was neither produced before the appellate Court nor, before this Court. It is a settled principle of law that in case respondent No.1 establishes his case and obtains a decree of specific performance, he can take possession back from the petitioner. In the case of Mst. Seema Begum v. Muhammad Ishaq and others (PLD 2009 SC 45), the apex court has observed that mere pendency of a civil suit in Court does not, at first glance, undermine an established title for the purpose of rent cases under the Rent Restriction Ordinance. The authenticity of the alleged agreement and its resulting impact will be impartially assessed by the civil Court. It is a well- established legal principle that as long as the tenant has not proven their claim for "specific performance" based on an alleged sale agreement, the landlord will still be considered the owner or landlord of the property. During this time, the relationship between the parties will be governed by the terms of the tenancy agreement. Therefore, the tenant cannot validly oppose the eviction proceedings against him on the grounds of the sale agreement. The relevant portion of the judgment is reproduced as under:- "4. ......The genuineness or otherwise of alleged agreement and its consequential effect would be independently determined by the civil Court. It is settled law that till the time tenant was able to establish his claim for "specific performance" on the basis of alleged sale agreement, the landlord would continue to enjoy the status of being owner or landlord of the premises and the relationship between the parties Jill' such time would be regulated by the terms of tenancy and the tenant cannot legitimately resist the maintainability of ejectment proceedings pending against him on the ground of sale agreement. This argument is strengthened by the dictum laid down in the cases of Haji Jumma Khan v. Haji Zarin Khan (PLD 1999 SC 1101), Iqbal and 6 others v. Mst. Rabia Bibi and another (PLD 1991 SC 242), Waheed Ullah v. Rehana Nasim (2004 SCMR 1568) and Muhammad Nazir v. Saeed Subhani (2002 SCMR 1540). So in the circumstances of the case, we find that claim of respondent is baseless. It is also settled proposition of law that once a person acknowledges himself to be a tenant of a landlord, the principle of estoppel as enunciated in Article 115 of Qanun-e-Shahadat Order would come into play, debarring such tenant to deny the title of his landlord. Reference can usefully be made to the cases of Habib Khan v. Haji Haroon-ur- Rashid (1989 CLC 783) and Nazir Ahmad v. Mst. Sardar Bibi and others (1989 SCMR 913), The impugned order shows that learned High Court has not adverted to this aspect of the case and decided the same arbitrarily. As such the impugned order being without backing of authority of law is liable to be set aside."
11. The respondent argues that respondent No.1 has come before this Court with a plea that the petitioner does not have ownership of the property, but the wife of the petitioner owns it; therefore, he is not eligible to receive rent from respondent No. 1. According to Section 2(g) of the Sindh Rented Premises Ordinance, 1979, personal use is when the owner or their family members occupy the premises. Additionally, Clause-vii of Subsection (2) of Section 15 of SRPO allows the Rent Controller to order the tenant to vacate the premises if the landlord truly needs it for their own occupation or for their spouse, or children. Upon thorough analysis of Section 2(g) and Section 15(2)(vii), it becomes clear that SRPO views the landlord, their spouse, or family member as a unified entity. Therefore, SRPO is willing to transfer possession to any of them under Section 15(2)
(vii). It is unnecessary to disturb the cohesion and tranquillity of this family by subjecting the landlord's wife, children, or other family members to questioning in Court, particularly given the landlord's dependence on the rented property. If the legislature had intended for this requirement, it would have been explicitly mentioned in the legislation. Nevertheless, that is not the case in this scenario. Thus, it is incumbent upon the landlord to demonstrate to the Rent Controller the genuine need for the property without subjecting their spouse or children to individual scrutiny or questioning in the witness box. Ensuring the preservation of family integration is of utmost importance, and tenants are not allowed to contest the internal arrangements made by the family in this matter. In the case of Mustafa Haji v. Umbichi [reported as 2004 (2) KLT 1110], the Court held that the absence of the landlord's son's testimony did not adversely affect the petition concerning the use and occupation of the rented property. In the case of Gulraj Singh v. Dr. Harbans Singh (reported as AIR 1993 (sic) 1574, 1993 SCR (1) 149), the Court held that the petition for eviction remained valid despite the son's non-examination.
11. Regarding the petitioner's personal bona fide need. It is well-established in legal practice that when the evidence presented by the landlord supports the claims made in the ejectment application, and their evidence is clear, logical, and remains unchallenged, there is no need for any additional evidence to dispute their statement, making it sufficient for the approval of the ejectment application. The landlord must show a genuine and reasonable personal need for the rental premises. In this particular case, the petitioner has successfully fulfilled their obligation by demonstrating the reasonableness, authenticity, and genuine nature of their personal needs. On the other hand, the respondent was unable to weaken or challenge their claim. It is well- established that landlords have the clear right to acquire, manage, and keep ownership of their property in a way that benefits them the most. Similarly, a tenant does not have the authority to deprive the landlord of their valuable right to own, control, and possess their property, which is further protected by Article 23 of the Constitution of the Islamic Republic of Pakistan 1973.
12. In view of the facts, circumstances and case law discussed above, the impugned judgment dated 29.01.2024, passed by learned Additional District Judge-VI, Hyderabad, in First Rent Appeal No.43/2023 is set aside, and the ejectment order dated 05.09.2023 passed by learned Rent Controller-VIII Hyderabad is hereby maintained. These are the reasons for my short order dated 09-04-2024.