1. ' The respondent filed an application under section 15 of the Sind Rented Premises Ordinance, 1979, on 2nd January, 1981. The main allegations were that the respondent is the owner of the premises in dispute and the appellant by his letter dated 24th April, 1973 applied for allocation of a room on the main gate on rental basis for setting up a Canteen. The respondent agreed and by its letter, dated 30th November, 1973 allowed the appellant to run the Canteen inter alia on the conditions that the appellant will pay monthly rent of Rs, 200 to be reviewed, every year and will be payable in advance every month. The accommodation was rented out initially for a period of three years and was renewable for subsequent period, but was also liable to be terminated without any reason on one month's notice. The electricity and gas connections were to be provided by the respondent and charges of electricity and gas consumed were to be at the expenses of the appellant payable on monthly basis to the respondent. It also provided that the canteen will be suitably furnished, kept clean and proper crockery and cutlery will be provided. It further provided that the prices would be charged with the approval of the Director. The respondent also alleged that the appellant had violated the terms and conditions of this lease and further that he has defaulted in payment of rent since December, 1977 and has failed to pay electricity and gas charges, since the inception of the lease. The last ground was that the premises is required by the respondent for its own bona fide use and occupation. The appellant denied all these allegations. However, the Controller allowed the application by the impugned order.
2. ' Mr. Sher Afghan, the learned counsel for the appellant has contended that the appellant had denied the relationship of landlord and tenant, and therefore, it was incumbent upon the Controller to have first framed the preliminary issue and after giving his finding on this issue he should have proceeded with the matter. On the other hand Mr. Akhtar Ali Mahmood, the learned counsel for the respondent has contended that the relationship has not been denied by the appellant. In the wake of this controversy it would be necessary to examine whether such relationship was denied by the respondent ? In paragraph 3 of the application for ejectment following assertion was made : "That the opponent, in terms of his application, dated 24th April, 1973 applied for allocation of a room near the main gate of the Institute on rental basis to set up a Canteen."
3. ' In para. 5 the terms as stated in the aforesaid letter, dated 30th November, 1973 were set out. In the written statement the respondent first stated as follows :- "That the opponent has been regularly paying the agreed rent namely Rs, 200 per month all inclusive for the use of the said premises to the applicant."
4. ' Thereafter under the heading "parawise reply" in para. 1 he admitted the allegations made in para. 3 of the ejectment application which is reproduced above. From these pleadings it seems that the relationship has not been denied. However, Mr. Sher Afghan has referred to the dispute between the parties leading to filing of Civil Suit No, 961/77 filed by the appellant in the Court of 26th Civil Judge and pointed out that in its counter-affidavit the respondent had stated that it had granted licence to the appellant. On this basis it is contended that the respondent is estopped from taking a different plea now. However, in the subsequent paragraph i. e. Para. 13 of the written statement the appellant pleaded "it is further submitted that relationship between the applicant and the opponent is not solely dependent on lease or licence, but in fact it is a creation of a contract, and unless it is determined he cannot be asked to vacate the premises, and therefore, the dispute is not within the competence and jurisdiction of the learned Rent Controller, but in fact it is a civil contract moving around the contract." It is quite clear that the pleading of the appellant is sufficiently vague. He has never taken a firm stand in specific terms that he is a licensee and not a lessee of the respondent. He has taken shelter under contract for relationship between the parties and has termed that contract as "independent of lease and licence" and never alleged in clear terms that he is not a tenant. From the record it seems clear that although a reference of the counter-affidavit filed by the respondent has been made in the written statement, it was neither produced during trial nor the respondent's witness was confronted with such statement. An incomplete and halfhearted question was asked during the cross-examination which was left without any final and specific suggestion.
5. ' Besides this it is aft admitted position that the relationship between the parties commenced as spelt out by the two letters ; one by the opponent dated 24th April, 1973 and the other dated 30th November, 1983 written by the respondent. A reading of these letters establishes that the appellant was the tenant of the premises. In the first place he himself has stated that premises may be rented out to him. Then the respondent by the aforesaid letter specified the terms and conditions on which it was to be rented out. Mere use of the word "allocated" will not change the intention of the parties or the very contents of the document. Again when on 17th April, 1976 (Exh. 10) respondent issued a notice entitled "termination of lease" intimating him the termination, the appellant did not state that he was not a lessee but a licensee. In fact he admitted his lease by saying that the respondent has suppressed the 'facts pertaining to the said lease'. Therefore, neither from the pleading nor from the document filed in evidence brought on record, the appellant has raised or even established that the relationship of landlord and tenant did not exist.
6. In view of these pleadings the Controller was justified in ignoring to frame a preliminary issue relating to the relationship between the parties. It is pertinent to note that even if the Controller had failed to frame the issue on this preliminary point, appellant should have invited the attention of the Controller or filed an application for framing such preliminary issue. No such step was taken b the appellant, instead he proceeded with the matter. In view of these facts the objection relating to the preliminary issue is not sustainable. In fact while dealing with issue No, 1 that whether the opponent violated the terms and conditions of the agreement of lease the learned Controller adverted to the aforestated two letters and held that there was a contract between the parties.
7. ' Having established that the disputed premises was let out to the appellant, the question arises what were the terms and conditions. Respondent has relied, on letter, dated 30th November, 1973.
8. The appellant has contended that these terms and conditions were not acceptable to him, because it did not provide any protection to his investment. However, from the record it seems that after the issuance of this letter the respondent had taken possession of the premises and admitted that he was paying rent regularly at Rs, 200 per month all inclusive. It is not conceivable that the respondent would hand over the premises to the appellant without determining the terms and conditions of tenancy. In the written statement the appellant has denied that he violated any terms and conditions or committed any default. This plea itself admits that there existed one terms and conditions, but no evidence has been led by the appellant to show what were those terms and conditions. Again respondent served a notice, dated 25th August, 1975 pointing out the irregularities committed by the appellants in running the canteen. In reply through the Advocate, the appellant has stated as follows :- "May we at the outset draw your attention that our clients are not the proprietor of the N. I. C. D.
9. However, we submit that they are the proprietors of the canteen situated on the premises of the said Institute by an Agreement, dated 30th November, 1973 which came into operation on or about 1st April, 1974 whereby they were authorised to open a canteen within the Hospital premises and to do so they were allotted the building which was at that time in a dilapidated condition situated near the main gate of the Institute. After entering into the said agreement and more so keeping in mind the prestigious importance of the said Institute our client spent over Rs, 50,000 in renovating the building and opened a fully hygienic and properly manageable canteen which has since then served a multitude who inhabit the said Institute and the student's hostel across the road and patients and their visitors/friends who visit the Institute every day.- ' From this reply it is clear that the appellant admits that the respondent's letter, dated 30th November, 1973 stipulates the terms and conditions of agreement between the parties. Again in the reply (Exh. 11) to respondent's notice, the appellant has admitted the same position. The only stand taken by the appellant was that he has invested huge amount in renovating the canteen and has established a good business and goodwill and that one Mr. Mustafa an employee of the institute wants to run his own canteen, and therefore, the appellant is being harassed. The respondent has examined Mustafa on its behalf, who has produced four letters from various persons, two being the letters signed by a large number of persons and two written by visitors and patients complaining about the mismanagement, misbehaviour, high charges, uncleanliness and insanitary condition in the canteen run by the appellant. Mr. Sher Afghan the learned counsel for the appellant has contended that the persons who have written these letters have not been produced. This objection should have been raised at the time when these letters were produced in evidence. In any event the respondent's witness has categorically stated and produced the letters and notices issued by the respondent pointing out to irregularities of the respondents which were in breach of the terms of agreement. However, except alleging certain motives and a bare denial the respondent did not produce any convincing evidence. It was open for the respondent to have produced t controvert the allegations made in the statement of the respondents witness. No such step was taken. Even in the cross-examination of Mustafa it was not suggested that the action is being taken by the respondent as he himsel and his relation wanted to run the canteen. In view of these facts the Controller was justified in coming to the conclusion that the appellant has I committed breach of the terms of tenancy and, therefore, the case was directly hit by section 15(2)(b) of the Sind Rented Premises Ordinance, 1979.
10. ' The next ground for ejectment was that the appellant has not paid rent from December, 1977 and further that gas and electricity charges have not been paid from the date of possession. The defence of the appellant seems to be that he has paid the rent upto December, 1977 and from January, 1978 regularly deposited the rent in Court. In support thereof he produced the receipts which confirm his contention. Mr. Akhtar Ali Mahmood has, however, pointed out that in terms of agreement the appellant was to pay rent @ Rs, 200 and further that he was to pay electricity and gas charges on monthly basis. The learned counsel for the appellant has stated that from 6th November, 1979 gas and electricity was disconnected. However, the question is whether he has paid the electricity and gas charges upto 6th November, 1979. The appellant's stand is that Rs, 200 was inclusive of all charges and probably on this basis it has been stated that the whole amount has been paid. The respondent's witness Mustafa has categorically stated that no charges have been paid towards the electricity and gas consumption. This' statement has gone unchallenged.
11. The appellant's stand that Rs, 200 was inclusive of all charges it is not substantiated as in letter, dated 30th November, 1973 it was made clear that the charges for electric and gas consumption will be at the expense of the appellant payable on monthly basis. It is, therefore, clear that the appellant has defaulted in payment of electricity and gas charges. So far the rent is concerned there seems to be no default.
12. The last ground for ejectment was that premises were required for bona fide use and occupation of the respondent. In this regard it has been stated that the respondent wants to establish and run its own canteen. The learned counsel for the appellant has contended that the respondents bona fide has not been established as the respondent is running a canteen in the main building and further that the standard at which it wants to run a canteen cannot be achieved by opening a canteen in the premises in dispute. The fact remains that the respondent is an Institute for heart patient and has a unique position in this country. Considering the nature of duties and services performed by it and its doctors and the heavy responsibilities upon them it is their duty not only to see that the medical care provided is of high standard but to ensure that all other services are also to be maintained of the same standard. Considering this aspect it has to put certain conditions and restrictions on the use and running of the canteen as any negligence in this respect may create serious health hazard to the patients as well as the visitors who use the canteen.
13. Considering the special circumstances and unique position of the respondent, it is not to be equated with any other concern which wants to run a hotel or canteen. The canteen has to be run for specific purpose for special consideration, and therefore, it seems that in this sense of the matter the respondent's bona fide requirement has been established. The learned counsel for the appellant has contended that as the respondent is running a canteen its requirement has come to an end, and therefore, this plea cannot be taken into consideration. During cross-examination the appellant did not make such suggestion to the respondent. The learned counsel for the appellant, on quarry, stated that canteen has been started by the respondent soon after the gas and electricity was disconnected in November, 1976 it, therefore, seems that at the time when the ejectment application was filed, on the aforestated statement of the appellant's Advocate the respondent had started a Canteen and required this disputed premises to run it more properly. The learned counsel for the appellant has contended that opening of a canteen by the respondent is a subsequent event which should be taken into consideration for determining the bona fide need of the respondent. This is not a subsequent event as according to the appellant's as stated above the respondent had started the canteen from November, 1976 whereas the application for ejectment was filed in 1981. The learned counsel has referred to Dr. Miss I. All Muhammad v. Muhammad Shafique (1) but this case is completely distinguished on fact and does not apply to the present case.
14. ' For the aforestated reasons, by a short order, dated 27th January, 1983 the appeal was dismissed.