' This first rent appeal is filed by Mst. Ohulam Sakina appellant/landlady under section 21 of the Sind Rented Premises Ordinance, 1979 against impugned order, dated 2hth May, 1980 passed by VII Extra-Joint Civil Judge and Rent Controller, Hyderabad, whereby he has dismissed the application for ejectment against respondent/tenant.
2. Briefly stated the relevant facts are that Mst. Ohulam Sakina (hereinafter to be referred as the landlady) filed an application under section 13 of West Pakistan Urban Rent Restriction Ordinance, 1959, for ejectment against Khalid Bari (hereinafter to be referred as the tenant) on the grounds of the payment of rent and requirement of premises for personal use of the children of the landlady.
Landlady had rented out the shop bearing No, F/47, Lajpat Road, Hyderabad, to the tenant at the rate of Rs, 160 per month vide rent agreement executed between the parties on 1st September, 1965. This agreement was for 11 months and sets out terms and conditions. It is alleged in the appplication for ejectment that the tenant used to pay rent to the landlady through her attorney, who was father or her son Khalid Iqbal. Tenant did not pay rent after December, 1973 and was in arrears till filing of the application for ejectment on 16th January, 1975.
3. Tenant contested the proceedings before the Rent Controller and filed written- statement/objections in which stand was taken that rent agreement was for 5 y ears and no default was committed as there was a private arrangement between the parties that the rent would be collected by Khalid Iqbal son of landlady as and when convenient to him, hence he used to come for collection of rent after long intervals of months together and used to issue receipts.
Further, it was stated in the written-statement that tenant was in possession of receipts which confirm this fact. Allegation of requirement of premises for personal use was also denied and it was alleged that landlady had another shop also which was let out and husband of the landlady demanded enhanced rent @ Rs, 450 instead of Rs, 160 per month from the tenant, which was not accepted by the tenant. It is further stated that on the last occasion when sufficient time had elapsed and Khalid Iqbal did not come to collect the rent, the tenant wrote a letter and also sent alongwith it a cheque for the rent due but both were returned by the landlady.
4. In view of the pleadings of the parties the learned Rent Controller framed the following issues :-
(1) Whether opponent is a wilful defaulter ?
(2) Whether applicant's agent used to collect rent in lump sum as alleged in para. 2 of the written- objections ?
(3) Whether the applicant requires the disputed premises for the personal bona fide use of her children?
(4) Whether applicant is entitled to the relief claimed ?
(5) What should the order be?
5. So far evidence is concerned landlady has not examined herself but has examined Khursheed Muhammad, who is her attorney. He has deposed about the facts as stated above and produced his general power-of attorney, photostat copy of which is Exh. 21 and original rent agreement Exh.
22 and further admitted that tenant had sent a letter along-with a cheque, which were returned by the landlady vide written reply Exh.
25. He has admitted that first rent used to be collected by father of the landlady and then by Khalid Iqbal son of landlady and both of them have died. On the issue of personal need this witness deposed that the landlady has four sons and one of them, namely, Asif Malik has completed studies from Polytechnic Institute and is doing no work and wants to start electric business in the disputed premises.
6. Another witness examined by the landlady is Asifjah Malik and he has deposed that sometimes he used to accompany his brother Khalid Iqbal for the collection of rent. He has further stated that landlady wanted this shop for his personal use as he has passed examination from Polytechnic Institute in the year 1971 and wanted to open electric shop. He had carried on correspondence with several companies for purchase of electric parts and appliances and produced correspondence as Exh. 31.
7. The third witness examined is Muhammad Din, who is husband of the landlady. He has deposed that the tenant did not pay rent and he had never asked the tenant to increase the rent from Rs, 160 to Rs, 450 per month. He has further deposed that his son Asifjah wants to start electric business in the disputed shop.
8. As against this evidence the tenant has examined himself and produced 5 receipts issued by Khalid Iqbal Exhs. 62 to 66. He further stated that Khalid Iqbal used to collect rent periodically. When Khalid Iqbal did not come for a long time, he offered rent to the father of Khalid Iqbal, who informed him that Khalid Iqbal had died. Father of Khalid Iqbal did not accept the rent. He then sent cheque which was returned. He further stated that shop is not required for personal use of the landlady or her son as it is situated in a locality which is basically furniture market, hence it cannot be used as an electric shop. Asifjah was not residing at Hyderabad but was doing some job at Karachi. The tenant further stated that he-had made big investment in the shop and would suffer great financial loss if he was ejected.
9. Another witness examined by tenant is Syed Afzal Ahmad. He has deposed that he runs furniture shop near the shop of tenant. Khalid Iqbal was a close friend of tenant. In his presence Khalid Iqbal informed the tenant that since they were friends he would collect rent periodically after every 3-4 months. Tenant used to insist that the rent be collected every month but Khalid Iqbal used to avoid it.
10. I have heard Mr. Muhammad Din, Advocate for the landlady, who is her husband and attorney and Mr. Raja Qureshi, Advocate for the tenant. Issues Nos. 1 and 2 relate to default. The case of the landlady is that the tenant failed to pay rent from January, 1974 to January, 1975 when ejectment application was filed. That means the tenant was in arrears for about one year. Tenant has taken the plea that the rent was being collected periodically. Both parties have relied upon tenancy agreement Exh.
22. This agreement was executed by the parties on 1st September, 1965. It is admitted position that this agreement was operative for 11 months and was renewable after expiry of the period stipulated therein but was never so renewed. Mr. Raja Qureshi argued that since rent agreement was only for 11 months and was executed in the year 1965, it had expired in the year 196(5 because it was not renewed hence the tenant had become statutory tenant and was liable to pay rent after 60 days of each month for which the rent was due. This being so, it was further argued that the tenant could not be dubbed as a defaulter for the reason that there was mutual arrangement between the parties according to which son of landlady used to collect rent periodically. Tenant has produced five receipts to prove this fact. Receipt Exh. 62 shows that rent was accepted by Khalid Iqbal in the lump sum of Rs, 1,280 from June, 1971 to January, 1972. Exh. 63 shows acceptance of rent in the sum of Rs, 480 from February, 1972 to April, 1972. Exh. 64 shows that rent was accepted from May, 1972 to November, 1973 and Exh. 65 shows that rent was accepted for the month of December, 1973. Exh. 66 shows that rent was accepted in the sum of Rs, 1,120 for the period from April, 1973 to October, 1973. On the other band, it was argued by Mr. Muhammad Din Malik, Advocate that those were few rare occasions on which rent was accepted in lump sum and this fact is indisputable that these very receipts produced clearly show that default was committed against the terms of agreement and acceptance of rent in lump sum on each such occasion by the landlady was condonation of default as an act of indulgence. Questions which arise now for consideration are firstly, whether parties are still bound by the terms of the agreement which has expired and secondly whether plea can be taken by the tenant that the rent used to be collected periodically. So far the first points is concerned, admittedly the rent agreement has expired hence the parties are governed by the provisions of the statute. Under the old law i,e, West Pakistan Urban Rent Restriction Ordinance, 1959, section 13 specifically provided that ejectment can be granted the tenant has not paid or tendered rent due by him within 15 days after the expiry of time fixed in the agreement of tenancy or in absence of any such agreement within 60 days from the period for which the rent is payable. Similarly section 10 of the Sind Rented Premises Ordinance, 1979 which is operative now, provides that the rent shall, in the absence of any date fixed in this behalf by mutual agreement between the landlord and the tenant, be paid not later than tenth of the month next following the month for which it is due. In both these laws it is mandatory for the tenant to pay rent for each month when edit is due except when there is an agreement between the parties to the, contrary. In the instant case, there was an agreement between the parties which provided expressly for payment of rent for every month. Even in that agreement there was no such provision for payment of rent periodically. Whatever be the terms of that agreement, after its expiry the parties revert to statutory provision, which requires that tenant shall pay rent every month not later than 10th of the month next following the month for which it is due. Words "agreement of tenancy" mean agree mint in force and not an agreement expired or dead. Reference can be made to the case of Muhammad Yousaf v. Abdullah (1).
11. So far acceptance of rent periodically is concerned, the tenant cannot be allowed to take such a plea on the basis of practice or oral agreement between the parties as the parties cannot contract themselves out of the provisions of law or plead a practice contrary to law because no such practice or contract can whittle down the mandatory provision of law. Mere fact of landlord having accepted delayed payment in the past cannot be said to have given rise to a practice authorising the tenant to make delayed payment of rent in derogation of provisions of law. It is so held by the Supreme Court in the case of Abdul Rashid v. Saleh Muhammad (2). This view is further reiterated by the Supreme Court in the case of 1982 SCMR 442.
12. Mr. Raja Qureshi then argued that there is security deposit with the landlady of Rs, 3,000 which is refundable at the time of delivery of vacant possession of the shop and this amount can be adjusted against the arrears of rent. It appears that in the application for ejectment filed by the landlady this fact is not only admitted but reliance has been placed on the terms of agreement including this one which have been reproduced in the said application in express terms. The relevant clauses of the agreement with regard to the deposit are stated in the application for ejectment in the following terms "(c) The opponent/tenant has deposited Rs, 3,000 (Rupees Three Thousand) with the applicant which was refundable at the time of delivering the vacant possession of the shop by the opponent/ tenant to the landlady/applicant.
(d) This deposit of Rs, 3,000 was to be forfeited by the applicant/ landlady in case of breach of any term of agreement of tenancy."
13. It is thus clear that security clauses in the agreement are penal in nature and forfeiture of this amount to the landlady in case of breach D Hof any term of tenancy is inconsistent with the letter and spirit of the Sind Rented Premises Ordinance. In this context reliance is again placed on the case of Muhammad Yousuf v. Abdullah in which the Supreme Court has held that provision for compensation in the agreement is hit by section 74 of the Contract Act and such security deposit is liable to be adjusted against rent due from tenant. In the instant case, landlady has claimed arrears of rent from the tenant for 12 months @ Rs, 160 per month which comes to Rs, 1,920. The security deposit is of Rs, 3,000 which is lying with the landlady. Amount of security deposit is larger than the amount of arrears of rent claimed by the landlady. Even after deducting this amount still the landlady will be indebted to the tenant for return of Rs, 1,080. In the circumstances, I hold that the landlady cannot claim ejectment on the ground of default for the reason that arrears of rent can be adjusted against the amount of security lying with the landlady.
14. Another important issue is with regard to the requirement of demised premises for personal need. Landlady wants the shop in question for the use of her son. On this point evidence produced is of Khursheed Muhammad attorney of the landlady and Muhammad Din husband of the landlady, who have both stated that the shop is required for Asifjah who has completed studies in Polytechnic School and wants to open an electric shop. It would be worthwhile to point out here that when Muhammad Din, husband of the landlady stated so in express terms in his statement before the learned Rent Controller, no further question was put to him in the cross-examination. In fact chance was given but the learned counsel appearing for the tenant did not put even a single, question in the cross-examination. This means that statement of this witness regarding requirement of shop for the use of his son as electric shop is not challenged by the tenant before the learned Rent Controller. Additionally, landlady has examined Asifjah, him self who has deposed in detail about his educational qualifications and passing of examination in Polytechnic and further that he wants to open an electric shop in the said premises for which he had already carried on correspondence with different companies and has produced such letters E which are on the record as Exhs. 31/1 to 31/7. As against this evidence the tenant has not produced any evidence in rebuttal except the denial of this fact. This evidence produced by the landlady appears to be more than sufficient to prove the assertion that the shop in question is required for personal use of her son Asifjah. It is not open to the tenant to state that the locality in which shop in question is situate is not suitable for opening electric shop as there are only furniture shops in that area. It is the choice of the landlady or landlord and neither the tenant nor for that matter even the Court can offer any gratuitous advice with regard to the suitability of accommodation for the purpose for which it is being F acquired. In this context it would be pertinent to reproduce hereunder the relevant paragraph from the judgment of the Supreme Court in the case of Dr. A. R. Khan v. Muhammad Ishaque (1) :- "The learned District Judge, therefore, committed a legal error in reaching his conclusions on pure conjectures and surmises which fully justified interference by the High Court in second appeal. The learned District Judge was wrongly influenced by the circumstance that the respondent had not thought of putting his son earlier in business although he was out of job for three years. It was for the landlord to decide as to the opportune time for putting his son in business depending on his resources and opportunities. Again the opinion of the learned District Judge that the Respondent should have put his son in business in Rawalpindi which was more prosperous town from the business point of view than Murree is clearly fanciful. It was wrong on the part of learned District Judge to assume the role of gratuitous advisor as to which place was more suitable for the son of the respondent to set up his business."
15. Mr. Muhammad Din Malik, Advocate, who is husband of the landlady submitted before me that the landlady does not own any other shop and there is no alternative accommodation and further their son .Namely Asifjah bona finely requires the shop in question as he is unemployed and has obtained diploma from Polytechnic School and wants to open up electric shop in the premises in question. His such statement as witness in the case before the Rent Controller has not been challenged by the tenant and no cross examination was made to him as stated earlier. Asifjah has been examined before the Rent Controller and he has deposed in detail about his need and correspondence with the companies for the purpose of opening electric shop. I find evidence produced by the landlady on this issue is satis-factory and sufficient to prove that requirement for personal use is bona fide. Tenant has offered no evidence at all in rebuttal of the evidence produced by the landlady. In the circumstances and for the reasons mentioned above I set aside the order passed by the learned Rent Controller and grant ejectment on the ground that the shop in question is required for the son of the landlady for his personal use. Tenant is directed to hand over vacant possession of the shop to the landlady with. In three months' time from the date of this judgment. In the result, appeal is allowed. Parties are to bear their own costs.