' This appeal is directed against the order dated 31-5-1980, passed by the learned Rent Controller, Hyderabad, ordering eviction of the appellant-tenant from Bungalow No, 623, Unit No, 2, Latifabad, Hyderabad in favour of the respondent.
2. The facts leading up to the appeal briefly stated are that the premises Bungalow No, 623, Unit No, 2, Latifabad, Hyderabad were let out by the respondent-landlord to the appellant-tenant at the rate of Rs, 450 per month payable in advance up to 15th of each calendar month against valid receipt to be issued by the respondent-landlord and such rent deed was executed between the parties. By mutual consent rent was enhanced from time to time from Rs, 450 to Rs, 600. The appellant-tenant was paying the rent @ Rs, 600 per month w. e. f. February, 1977. As per terms electric, sui gas, water and conservancy charges were not included in the rent. They were however, to be paid by the tenant and were being paid by him at Rs, 50 per month when the rate of rent was Rs, 450 per month. It was increased to Rs, 100 when the rate of rent was enhanced to Rs, 500 by mutual consent. The appellant being troublesome tenant committed defaults in payment of rent.
He paid rent from January, 1978 to June, 1978 on 15-7-1978 and from July, 1978 to October, 1978 on 6-11-1978. The respondent-landlord accepted the rents under protest. The tenant-appellant also failed to pay rent w. e. f. November, 1978 @ Rs, 600 per month in spite of repeated demands. He failed to pay electric charges since February, 1977. However, there was a separate electric connection w. e. f. March 1979 and he was liable to pay the separate bill of electric from that month.
He also failed to pay water and sanitary charges since 1973 with the result that the respondent- landlord was compelled to pay the arrears. The result was that the appellant committed defaults in payment of rent as well as the electric, water, Sui gas and conservancy charges which was the liability of the tenant. The respondent-landlord also needed the premises for his bona fide personal use. He, therefore, filed an application for ejectment under section 13 of Sind Urban Rent Restriction Ordinance, 1959 against the appellant-tenant on grounds of default in payment of rent as well as electric, water, sui gas and conservancy charges and also on his bona fide need for personal use in the Court of learned Rent Controller, Hyderabad.
3. The appellant-tenant resisted the application on both the grounds. He contended that the rent of the premises was initially fixed @ Rs, 450 per month which was subsequently enhanced to Rs, 500 per month. He further contended that Rs, 50 per month was to be paid towards electric, sui gas, water and other charges exclusive of the rent of Rs, 450 in the beginning and they were increased to Rs, 100 per month when rent was increased to Rs, 500 per month. He has contended that w. e. f.
November, 1978 the respondent-landlord demanded further enhancement of rent. The appellant- tenant refused to pay as a result that the rent application was filed. He has further alleged that the prevailing practice between the parties was that the respondent-landlord used to collect the rent himself in lump sum for 3, 4 or 5 months as a result that the rent used to be accumulated and used to be collected by the respondent-landlord at his convenience. He has denied that the respondent-landlord at all required the premises for his bona fide personal use.
4. The learned Rent Controller decided both the issues of wilful default in payment of rent and bona fide requirement of the landlord-respondent for his personal use in favour of the respondent- landlord and allowed his application directing the appellant-tenant to hand over vacant possession of the premises in dispute to the respondent within 30 days from the date of the impugned judgment with the result that the appellant has come in this appeal.
5. I have heard Mr. Abdul Rehim Kazi, the learned counsel for the appellant and Mr. Naimatullah Soomro for the respondent at considerable length. The appellant-tenant has examined himself and has relied on receipts Exhs. 20, 21 and 22, whereas on behalf of the respondent-landlord his attorney Haji Shamsuddin has been examined and rueipts Exhs. 14 & 15 as well as letters Exhs. 16, 17 and 18 have been relied.
6. The contentions raised on behalf of the tenant-appellant by his learned counsel are that the rate of rent was increased ultimately by mutual consent to Rs, 500 per month excluding Rs, 100 which were to be paid towards, electric, Sui gas, water and conservancy charges and not Rs, 600 per month excluding electric, Sui gas, water and conservancy charges. The further contention raised on his behalf is that there was a practice between the parties that the landlord used to collect the rents in lump sum and since the appellant failed to pay rent at the rate of Rs, 600 per month excluding the charges as ultimately demanded by the respondent-landlord, he filed the application for ejectment. He further contended that the requirement of the respondent for the personal use is not bona fide.
7. On behalf of the respondent the contentions raised are that the ultimate rate of rent agreed between the parties was Rs, 600 per month excluding electric, Sui gas, water and other charges and that there was no practice of collection of rent in lump sum as contended on behalf of the appellant and that the appellant was persistent defaulter. The further contention on his behalf is that his requirement for the personal use was bona fide.
8. As regards the contention to the effect that the appellant was wilful defaulter the burden of proof of which heavily lay on the respondent-landlord, has been satisfactorily discharged by him as would be clear from the documentary evidence available on the record in that respect. The appellant has relied on the old receipts Exhs. 20, 21 and 22 of which the last receipt is dated 29-2- 1976, when the rent was alleged to have been enhanced by mutual consent from Rs, 500 to Rs, 600 per month exclusive of the other charges from February, 1977. The appellant has failed to produce any receipt for the period after February, 1977. The receipts relied on by him are very clear to the effect that the rent initially was fixed at Rs, 450 per month excluding electric, water, Sui gas and other charges at the rate of Rs, 50 per month which were to be paid by the appellant-tenant. The receipt Exh. 22 makes it further clear that the rent was enhanced from Rs, 450 to Rs, 500 and Rs, 50 per month towards other charges were enhanced to Rs, 100 per month to be paid by the appellant-tenant in all Rs, 600 per month by mutual consent. The appellant has not been able to produce any other receipt to the effect that there was no further increase in the rent by mutual consent w,e,f, February, 1977. On the other hand the respondent-landlord has relied on receipts Exhs. 14 and 15 dated 15-7-1978 and 6-11-1978 respectively. Exh. 14 is for Rs, 3,600 rent paid for the months from January, 1978 to June, 1978 at the rate of Rs, 600 per month and Exh. 15 is for Rs, 2,400 for the month of July, 1978 at the rate of Rs, 600 per month. These receipts make it very clear that this rent is exclusive of electric, sui gas, water and other charges. The receipts themselves very clearly show that only rent of the premises has been mentioned therein. This position would be further clear from the letters Exhs. 16, 17 and 18 addressed by the father of the appellant to the attorney of the respondent-landlord forwarding bank drafts to the attorney. These Bank drafts were forwarded to the respondent after the filing of the rent application as the first letter Exh. 16 was written on 3-7-1979. The respondent accepted these Bank drafts under protest and so also the rents as shown in receipts Exhs. 14 and 15 as they were paid collectively for six months and four months respectively. These letters Exhs. 16, 17 and 18 would clearly show that the rents for the months shown therein which were paid after the rent application was filed were clearly paid at the rate of Rs, 600 per month exclusive of the charges towards electric, sui gas, water etc. As it is more or less an admitted position that since March 1979 the appellant-tenant has get separate electric and other connections and was to pay these charges separately and independently of the monthly rent. The rents paid as disclosed in these letters Exhs. 16, 17 and 18 by Bank drafts were obviously for the months from March, 1979 to January 1980 as well. Had by mutual consent the rent been agreed at the rate of Rs, 600 per month inclusive of electric, Sui gas and other charges as contended by the appellant there was no reason on his part to have sent the rent @ Rs, 600 per month by Bank drafts when he had to pay up the electric, sui gas, water and other charges direct to the concerned Departments as admittedly be had separate connection w,e,f, March, 1979. The contention raised on behalf of the respondent to the effect that the rent ultimately enhanced by mutual consent was Rs, 600 per month exclusive of the electric, Sui gas, water and other charges gets a clear support from the documents produced by the respondent-landlord. On the other hand the appellant has produced old receipts for the period long before February, 1977, when the rent was ultimately enhanced to Rs, 600 per month exclusive of the other charges. Had the appellant's version been correct there is no reason why he could not have produced rent receipts of the period after February, 1977 which alone could have supported his version. In fact the appellant has himself admitted in his cross-examination that the rent of Rs, 600 does not include electric, sui gas, water and other charges. Therefore, there is no doubt that the rate of rent ultimately agreed mutually was Rs, 600 per month exclusive of the electric, sui gas and other charges. The contention raised on behalf of the appellant in that respect therefore, has no substance.
9. The further contention raised on behalf of the appellant to the effect that there was practice prevailing between the parties to the effect that the landlord was collecting the rent in lump sum and therefore, in view of the defaults he has committed, he is not a wilful defaulter, is equally without substance. He has further contended that the application for his ejectment from the premises was filed as the respondent was demanding higher rent from him, which he had refused to pay. It was held in the case of Haji Sharafuddin v. Sabir Hussain and others (1) that the liability to pay or tender the rent due remains on the tenant, irrespective of the higher amount demanded by the landlord. So far the plea raised on behalf of the appellant that a practice had arisen between him and the landlord that the rent will be paid periodically after intervals of 3, 4 or 5 months is concerned, reliance has been placed on the authority reported in the case of Abdul Rashid v. Saleh Muhammad (2). It was held therein that the parties cannot contract themselves out of the provisions of law nor can any party plead a practice contrary to law. It was also held that the mere fact of landlord having accepted delayed payments in the past cannot be said to have given rise to a practice authorising the tenant to make delayed payments in derogation of provisions of section 13 of the Ordinance, 1979. It would be useful to refer to the following observations of the learned Judges of the Supreme Court in that respect :- "8. This plea is based upon a misconception with regard to the legal position on the point. It has been held time and again that in such cases the parties cannot contract themselves out of the provisions of the law on the subject namely the West Pakistan Urban Rent Restriction Ordinance.
Similarly, neither party can plead a practice which is contrary to the said law. Moreover, the mere fact that a landlord accepts a delayed payment of rent by the tenant on number of occasions, cannot 'be said to have given rise to any practice whitling down the requirement of law that the rent has to be paid by the tenant by the 15th of every month. It was held by this Court in S. Riaz All v.
Shabbir Ahmed Khan 1971 SCM R 598, that "a tenant cannot lead evidence in variation of the terms and conditions of the written agreement of lease, and moreover, the receipt of rent by the landlord-respondent for several months at a time, showed that the landlord has condoned the default and not that he had agreed to vary the terms cind conditions of the rules regarding payment of rents."
Accordingly the appellant can neither plead a practice against the contract between the parties nor against the provisions of law. According to the rent
(1) 1973 SCM R 309 (2) 1980 SCM R 506 deed he was required to pay rent in advance up to 15th of each calendar month and according to law within 15 days after the expiry of the time fixed in th agreement. On the admitted facts of the case it would be clear on th basis of the documentary evidence available on the record that the appellant defaulted in payment of rent, continuously as is alleged on behalf of the respondent landlord. On the facts and circumstances of the present case, therefore, there is no doubt that the appellant-tenant is proved to have bee wilful defaulter in the payment of rent and is liable to be ejected from the premises in question on this ground alone.
10. As regards the contention with regard to requirement of the premises in dispute for bona fide personal use of the respondent, there is hardly any evidence available on the record in support of such requirement. The respondent-landlord has examined his attorney, whereas the appellant- tenant has examined himself. No purpose of the requirement has been disclosed either in the pleadings or in the evidence adduced on behalf of the respondent. On the contrary it is admitted that the respondent is a school teacher serving at Daro, District Thatta, sufficiently far away from Hyderabad and is permanently residing there. On his behalf, the only reason disclosed is that he would assure that on getting the premises he would use it for his personal use only. The appellant has in his evidence challenged the bona fides of his requirement for his personal use. I find only a solitary word of the respondent-landlord against a solitary word of the appellant-tenant. The landlord in no circumstances is relieved of his basic onus to prove affirmatively that he does bona fidely require the premises for his personal use. In view of the evidence available on the record the landlord-respondent has failed to discharge the onus which heavily lay on him. I would find the case in favour of the appellant on this ground of landlord's requirement for his personal bona fide use of the premises.
11. The result would be that the appeal is dismissed. However, the appellant shall hand over the vacant possession of the premises in dispute to the respondent-landlord within a period of two months from the date of this judgment.