1. ' This judgment will dispose of the above two first Rent Appeals. In both the appeals respondent is the same, who is the landlord while the appellants are two different persons who are tenants in respect of two shops and the ejectment has been granted against them on the same facts. In F. R.
2. A. 105/81 appellant Jamil Ahmed is the tenant in respect of shop No, 2 on plot No, 7-C Commercial Area, Norangi Town, Karachi, while in F. R. A. 106/81 appellant Shakil Ahmed is the tenant in respect of shop No, 1, situated on the same plot. In both the cases, the tenancy was created under two separate agreements, dated 16-11-1977 and monthly rent was fixed at Rs,
100. I he respondent filed ejectment application on the ground that Jamil Ahmed has defaulted in payment of rent from September, 1975 to March, 1978 while Shakil Ahmed has defaulted in payment of rent from August, 1978 to March, 1979 Another ground alleged by the respondent was that the shops are required for personal use of respondent and his children for carrying on b business there. In both the cases the appellants denied the allegation made by the respondent. They denied that the respondent requires the shops for his personal use and for the use of his children. As regards default it was pleaded that the appellants had sent rent by money order which was refused by the respondent and thereafter, it was being deposited regularly in Court. The Controller by the impugned orders gave his finding in favour of the respondent and granted the ejectment applications against both the respondents.
3. ' The admitted positions that the tenancy was created under an agreement, dated 16-11-1977 for a period of 11 months. This agreement inter alia provided that the shop was rented out on a rent of Rs, 100 per month and was to commence from 1st November, 1977 for a period of II months. It further provided that a sum of Rs, 500 has been paid to the respondent as a deposit which shall be refunded at the time of vacating the premises. As regards payment of rent it provided that the rent shall be paid every month in advance.
4. ' Mr. Mahmoodi the learned counsel for the appellant has contended that considering the facts brought on record the appellant has not committed any default and the finding of the Rent Controller is not supported by any evidence and is erroneous. The appellant has stated that the respondent did not accept the rent, therefore, he sent a money order on 11-10-1978 for Rs, 100 relating to the rent for the month of September 1978 which was refused. Similarly on 7-11-1978 money order for Rs, _00 in respect of rent for the month of September and October was remitted and was refused. Again on 12-12-1978 rent for the month of September, October and November, .1978 amounting to Rs, 300 was remitted, but was also refused. Therefore, in December, 1978 the appellant filed an application for deposit of rent in Court and after the orders were passed he deposited Rs, 400 on 9-1-1979. In this way he has explained that the rent for September to December, 1978 has been deposited. In F. R. A. 106/81 the Controller has held that the appellant sent money order in respect of rent for August and September, 1978 on 11-10-1978. Again rent for August, September and October was sent on 7-11-1978. The rent for August, to November, was sent on 12-12- 1978. He deposited Rs, 500 in Court on 9-1-1979.
5. The Controller has at the outset rejected the evidence produced by the appellant on the ground that the postal receipts have not been proved by examining the Postal Authorities and that the counterfoil of Money Order remittance form did not have any endorsement of the postal authorities. In support of his plea the appellant had produced three postal counterfoils of money order forms through which the money orders were remitted. He had also produced three receipts of the Postal Authorities bearing their stamps showing remittance made by money order. These receipts appear A to have been issued by the Postal Authorities in their official course of business and, therefore, it can be presumed that the appellant had remitted the rent as pleaded by him. The respondent has not produced evidence in rebuttal to show that the rent was not tendered by the appellant. If the appellant would have only produced the counterfoil of the money order form possibly the contention of the respondent may have had some force, but as he has also produced the postal receipts acknowledging remittance it cannot be alleged that the appellant did not remit the money orders.
6. ' The learned counsel for the respondent has contended that the appellant in reply, dated 8.10-1978 to the respondents notice did not make any mention to these money orders. Factually it is correct but this reply (Exh. 0-A) was sent on 29th October, 1978, and therefore, at best if any reference could be made it would have been in respect of the first money order. In the facts and circumstances no reference could be made to the remittance of two money orders. It seems that in his reply the appellant has denied categorically that default has been committed by him. In these circumstances if there is no mention of the money order in the appellants reply it does not lead to the presumption that no money order had been remitted by the appellant. The respondent could have challenged the remittance of these money orders by examining the Postal Authority to show that these money orders were not sent. No such evidence was produced by the respondent.
7. ' On the basis of this evidence and tender made through money order and deposit of rent in Court, it is to be considered whether default has been committed by the appellant. According to the learned Controller as there is an agreement of tenancy providing for payment of rent in advance the rent should have been paid within 15 days of the current month. It was held that the rent for September, 1978 should have been tendered up to 15-9-19 8, for October, upto 15-10-1978 and for November, up to 15-11-1978 As the tenders were made after these dates, the learned Controller held the appellant to be in default. This finding of the learned Controller seems to be completely erroneous. He has proceeded on the misconception that there is an agreement between the parties fixing time for payment of rent and, therefore, it should have been paid within 15 days from the date fixed by the agreement. Mr. Mahmoodi, the learned counsel for the appellant has contended that as no time has been fixed for payment of rent the appellant could have paid it within 60 days from the date when the rent was payable. This contention immediately attracts the provision of section 13(2) (1) of Sind Urban Rent Restriction Ordinance which provides as follows :-
(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller after giving the tenant a reasonable opportunity of showing cause against the application is satisfied that-
(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 ' The learned Controller has relied upon section 15(2) (ii) of Sind Rented Premises Ordinance, 1979 which is in no different terms and is reproduced hereunder :- 15.-(2) The Controller shall, make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in the order, if he is satisfied that-
(i) . . .
(ii) the tenant has failed to pay rent in respect of the premises in his possession within fifteen days after the expiry of the period fixed by mutual agreement between the tenant and landlord for payment of the rent, or in the absence of such agreement, within sixty days after the rent has become due for payment; ' These provisions clearly provide that a tenant shall be in default if he does not pay or tender rent due by him within 15 days after the expiry of time fixed in the agreement of tenancy, but where there is no such agreement it should be paid within 60 days from the period for which the rent is payable. Therefore, where time for payment of rent has been fixed by an agreement it can be paid within 15 days after the expiry of time fixed by such agreement. But where there is no such agreement the rent can be paid within 60 days from the period, for which the rent is payable. Mr. Hafiz Abdul Baqi the learned counsel for the respondent has contended that as there is an agreement for payment of rent in advance, if the tenant fails to pay within 15 days in the month for which the rent is payable he will commit default. The entire controversy, therefore, arises on interpretation of the provisions reproduced above. It seems clear that in order to attract the first part of section 13(2) (i) of the Ordinance of 1959 there should be an agreement between the parties and it should fix a time for payment of rent. Where these two conditions are satisfied the tenant will be entitled to pay rent within 15 days after the expiry of time so fixed by agreement, but where under the agreement no time is fixed for payment of rent, then in spite of the agreement if the tenant pays the rent within 60 days from the period for which the rent is payable, he cannot be held to be in default.
8. ' Mr. Baqi the learned counsel for the respondent has relied on Alif Din v. Khadim Hussain (1), and contended that as under the agreement the rent was payable in advance the rule of 15 days will apply. I am unable to agree with the contention of the respondent for the simple reason that this case is completely distinguishable. In this case the agreement provided that the rent shall be paid in advance by 5th of every month. It is thus clear that in Alif Din's case the agreement had fixed the time for payment of rent which is missing in the present case. Here the agreement only provides that rent shall be paid in advance. It can, therefore, be very well asserted by the appellant that the option was left to the appellant to pay the rent in advance either on the first of the month or before the expiry of the month and in all these events it will be a proper compliance of the agreement as the rent will be paid before the expiry of the month. Viewed from this angle it seems clear that the appellant having established that the rent was being tendered successively on expiry of every month no default seems to have been committed. In my view this is a case where rule of 15 days will not apply because no time or date has been fixed for payment of rent in advance. In this regard reference can be made to following observation made in Muhammad Ashraf v.
9. Muhammad Sharif and others (2) which has been quoted with approval by the Hon'able Supreme Court in Alif Din's case:- "We may now turn to the provisions contained in clause (i) of subsection (2) of section 13 of the Ordinance dealing with the question of default. According to these provisions, default is committed after the tenant does not pay or tender rent due from him 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."
10. There is no doubt that where under an agreement time for payment of rent has been fixed fifteen days grace period are allowed from the date so specified in the agreement for payment of rent.
11. This interpretation will equally apply to the provisions of section 15(2) (ii) of Sind Rented Premises
(1) 1980 SCMR 767 (2) PLD 1971 Lab. 610 Ordinance, 1979. In these premises as no time for payment of rent was fixed the appellant could have paid rent within sixty days from the period for which the rent was payable. The appellant had tendered rent within sixty days and cannot be held to have committed default.
12. ' The appellant has also been ejected on the ground that the shops are required by the respondent for his personal use and for the use and occupation of his son. The respondent owns three shops in the same building. He has applied for ejectment of all the three tenants. During the pendency of the case Abdul Ghani tenant in respect of Shop No, 3 was ejected and possession was delivered to the respondent, on 11-11-1979. In these circumstances the burden was entirely on the respondent to establish that shops under these appeals were also required by the applicant in good faith. The respondent has examined himself and his son Abdul Rahim. The respondent has stated that he needs the shops for the bona fide need of his children for doing business. He has stated that he has obtained possession of Shop No, 3 from Abdul Ghani, but as this shop is very small he wants to convert all the shops in one shop. He has three sons aged 23, 16 and 12 years. Abdul Rahim is not studying for the last three years. Abdul Rahim has stated that he is jobless and has to start the business in these shops after they are converted in one shop. He has also stated that he has worked with Mau General Store and has experience of business. This evidence is hardly sufficient to establish that the respondent requires all these shops for the bona fide need of his son. Mere words of appellant or his son are not sufficient to establish it. It was the duty of the respondent to have established by proper evidence the arrangements he has made for running the business at such large scale, the funds he has collected and how he proposes to establish a business in these shops. All these facts are lacking and the respondent has not been able to establish that on shop in his possession will not satisfy the need of his son. Mr. Mahmoodi has referred to Mst. Almas Begum and others v. Haji Peer Bux (1), where it E was held that mere desire of the landlord to have the premises for the use of his children cannot establish his requirement. The landlord has to establish his requirement and need with cogent and convincing evidence. The landlord is bound to prove his requirement and need with relation to the existing circumstances. This cannot be achieved by a bare statement that he requires the premises for his use and occupation. This burden has not been discharged by the respondent. For these reasons by a short order, dated 19-1-1983 the orders passed by the Controller impugned in both the appeals were set aside and the appeals were allowed.
(i) PLD 1964 Pesh. 278