1. ' The appellant filed an application for ejectment against the respondent on the ground that he has defaulted in payment of rent from April, 1976 to August, 1976 Rs.550 P.M. He requires the premises in good faith for his own use and without his written consent the respondent has transferred and sublet the said premises to other person. The respondent denied these allegations and pleaded that from April 1976 he is regularly depositing the rent in Court, and that he has not sublet the premises to any one. It was also denied that the premises is required by the appellant bona fide and in good faith. On all these issues the Controller found against the appellant. As to the question of quantum of rent which according to the respondent was Rs.500 the Controller held that it was Rs.550 P.M.
2. ' Mr.J.H.Rahimtoola the learned counsel for the appellant contended that from April 1976 onwards there was no proper tender of rent by the respondent, and therefore, default has been committed by him. It is not disputed that the respondent has not deposited the rent from the month of April, 1976 to August, 1976 regularly. The learned counsel contended that as the deposit of rent can be made only if there is dispute between the parties and since there was no dispute the deposit of rent by respondent was not bona fide, and therefore, it cannot be termed a proper tender as contemplated by section 13 of Sind Urban Rent Restriction Ordinance. In this regard certain facts may be taken into consideration which according to the respondent led to the deposit of rent in Court. The respondent is running a restaurant in this premises and according to him upto September, 1975 he paid rent @ Rs.500 P.M. In October he remitted Rs.1,000 through money order which was refused. According to the appellant it was not sent by the respondent but by the subtenant. The appellant served a notice and as stated in his letter dated 5-7-1976 the respondent had agreed to enhance the rent to Rs.550. The respondent has alleged that in the rent receips interpolations were made but there is nothing in the receipts to justify this allegation. There is no dispute about the payment of rent upto February, 1976 but the point of difference seems to be that the appellant had increased the rent @ Rs.550 which perhaps the respondent did not like. He therefore, served a notice 13th March, 1976 and in view of this dispute he started depositing rent in Court. The rent has been deposited in view of the Explanation (b) to subsection (2) of section 13 of Sind Urban Rent Restriction Ordinance, 1959 which reads as follows:-
(b) 'rent remitted by money order to the landlord or deposited in the office of the Controller having jurisdiction in the area where the building or rented land is situated shall be deemed to have been duly tendered.'
3. ' Where a tenant remits the rent by money order or deposits in the office of the Controller having jurisdiction it will amount to a valid tender and the tenant cannot be termed as a defaulter.
4. 'This explanation provides a mode of tender of rent and does not expressly contemplate that dispute between the parties is a condition precedent for filing application for deposit of rent.
5. However for adopting this mode of tender some reasonable ground should be made out as such procedure of payment of rent varies the obligation of the tenant to pay the rent to the landlord and furthermore it is likely to create inconvenience to him. In the facts and circumstances of the case the respondent had made out reasonable ground for deposit of rent. In any event the Controller allowed him to deposit the rent and therefore, the respondent has deposited the rent @ Rs.550 P.M.
6. ' Mr.Rahimtoola the learned counsel for the appellant referred to the provisions of section 10 of Sind Rented Premises Ordinance to show that in the language of both the provisions i.e. The Sind Rented Premises Ordinance, 1979 and Sind Urban Rent Restriction Ordinance, 1959 there is a remarkable difference, as section 10 Sind Rented Premises Ordinance, 1979 contemplates deposit of rent only in cases when there is a dispute between the parties. On the basis of the arguments of the learned counsel it can well be stated that the provisions of Sind Urban Rent Restriction Ordinance, 1959 do not impose any restriction on the tenant, who can deposit either in cases of dispute or even in cases where there is no dispue but a reasonble ground should be made out. For example, if the whereabout of the landlord is not known, or if the landlord dies and the name of his legal heirs is not available or if there is dispute between the legal heirs, the tenant can make an application for deposit of rent although he has no dispute with the landlord.
7. ' Mr.Rahimtoola the learned counsel for the appellant contended that as in the application for deposit of rent the respondent had agreed to deposit conditionally it was not a proper tender. In the miscellaneous rent application the respondent had stated the dispute about rate of rent and prayed that the rent deposited should not be paid to the appellant. The learned counsel contended that as the deposit was conditional, it was not a valid tender. He has referred to the following passage from para. 526 Halsbury's Law of England Vol. 9, Fourth Edition : - " A tender must be unconditional. If it is made on such terms that by taking the money the creditor would be precluded from claiming that a larger amount was due (as, for instance, if the debtor requires as a condition of payment a receipt in full discharge, or a receipt expressed to be for rent due to a particular day) it is bad. However, a tender is not invalidated by the fact that it is made 'under protest', or is accompanied by a statement that the amount is all that the debtor considers due, provided that the creditor is not required to make any admission as a condition of his receiving the money."
8. 'The question arises whether application for deposit made conditionally would deprive the tenant of the protection afforded by law. When a tenant makes deposit in Court instead of paying the rent directly to the landlord then it indicates that there is some difficulty in payment of rent directly or that there is some dispute between the parties which has led the tenant to adopt this mode of tendering the rent. If there is dispute between the parties then the tenant would be entitled to state such facts and if he prays that the rent may be paid on decision of this dispute then it does not mean that there is an element of bad faith on the part of the tenant in depositing the rent. Once the tenant invokes the jurisdiction of the Controller and deposits the rent subject to the dispute raised by him then such deposit would amount to a 'tender under protest'. The principle of valid tender as contended by the learned counsel for the appellant, in my opinion, will not be attracted to cases where the tenant deposits rent in pursuance of a provision of law under the order of the Controller.
9. ' The learned counsel for the appellant contended that as the provision of law under which deposit is made is a deeming clause the Court should determine its purpose and share of operation, and then the meaning of word tender can be understood as canvassed by him. He has referred to Begum B.H. Syed v. Afzal Jahan Begum PLD 1970 SC 29 where the rule for interpreting the deeming clause has been laid down as follows:- "There is no quarrel with the contention of the learned counsel for respondent No.1 that where the statute says that you must imagine the state of affairs; it does not say that having done so you must cause or permit your imagination to boggle when it comes to the inevitable corolaries of that state of affairs. This is the classic observation of Lord Asquith in East End Dwelling Company Ltd. v.
10. Finsbury Borough Council 1952 AC 109. But at the same time it cannot be denied that the Court has to determine the limits within which and the purposes for which the Legislature has created the fiction. This principle was enunciated by James, L.J. In re: Levy Ex parte Walton 17 Ch. D 756. In this connection the learned Judge observed as under:- 'When a statute enacts that something shall be deemed to have been done which in fact and in truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fixction is to be resorted to".
11. ' In the light of the aforestated principle while determining the scope and sphere of the legal fiction introduced by the Explanation (b) to section 13(2) one has to see the object of the Ordinance. It is intended to regulate the relationship of landlord and tenant and to afford protection by restricting he increase of rent and eviction of tenants. In this background a statutory fiction has been introduced whereby a deposit of rent is deemd to be a proper tender.
12. The tenant cannot straightaway deposit the rent. It has to be done under the orders of the Controller. In these circumstances if the Controller orders for deposit of rent, the condition imposed by the tenant loses its efficacy and is of no signifcance. The tenant deposits the rent in obedience, of the order of the Controller and therefore, he shall be deemed to have tendered the rent to the landlord. At best the proceedings for deposit of rent and the deposit made by a tenant, may be termed as deposit under protest because the tenant though expressing the dispute has paid the rent as demanded by the landlord. Whatever the tenant states in the application is not a condition precedent for deposit of rent. According to Halsbury's Laws of England relied upon by Mr.Rahimtoola 'a tender is not invalidated by the fact it is made under protest.' A tender under protest is a valid tender, for the protest is not a condition but merely a notice that the tender is not admission and as held in Scott v. Uxbridge etc. 1866 L.R. 1 C.P. 596 the landlord has only to say, 'Protest as much as you please. I take the money.'
13. ' Another aspect of the case is that the Controller in exercise of the discretion conferred under the Ordinance may not grant ejectment even in cases where default has been committed.
14. Mr.Rahimtoolah the learned counsel for the appellant contended that the discretion should be exercised in a judicial manner. The discretion is exercised taking into consideration all the facts and circumstances of the case. It should not be arbitrary or based on whims and caprices. It should be exercised judicially. In the present case, the respondent has been paying rent regularly and even the rent for the months in respect of which default is alleged has regularly been deposited at the same rate at which it is claimed by the appellant. In these circumstances, even if there was no bona fide and genuine dispute between the parties, and their being no evidence that the mode of payment of rent by deposit in Court was adopted merely to harass the appellant, in my opinion, discretion should -be exercised in favour of the respondent even if he has committed a default as alleged by the appellant because it is very technical in nature.
15. ' The next contention of the learned counsel for the appellant is that the premises is bona fide required by him. The learned counsel first referred to the pleadings of the parties and contended that there was no specific factual denial by the respondent. In paragraph 5 of the application the appellant had alleged as follows:- 'The applicant requires the said premises in good faith for his own use.'
16. ' In the written statement the respondent replied as follows:- 'Para. 5 of application is vehemently opposed. The applicant does not require the premises in good faith and has adopted this lame excuse in order to compel the opponent to accept his illegal and arbitrary demands for enhancement.'
17. 'There can be no better denial of the claim, made by the appellant. The appellant himself has made vague claim without giving any particular of his personal requirement.
18. Although it is not necessary to give full particulars of personal requirement in the application, the averment should not be so brief and scanty that hardly the nature of requirement can be spelt out.
19. While making a claim for bona fide use and occupation such necessary facts should be stated from which the bona fide requirement of the landlord could be made out. Mere repeating the language of the statute is not sufficient.
20. ' The respondent's premises is a part of the building in which the appellant is carrying on business for manufacturing furniture. He has stated that he wants to open a show room in the disputed premises.
21. ' Mr.J.H.Rahimtoola the learned counsel for the appellant contended that as the appellant's statement on oath is consistant with the averment made in the application, the claim for bona fide requirement stands established. The learned counsel has referred to Hassan Khan v. Mrs. Munawar Begum PLD 1976 Kar. 832 where it was held that where an assertion of the claim on oath by the landlord that he requires the premises for his personal use is found to be consistent with the submis sions in the application and not shaken in cross-examination or disputed in rebuttal, it should be accepted by the Controller. in that case from the evidence it was established that the landlord had no other accommodation of his own. This case was approved in Mst. Tauheed Khanam v. Muhammad Shamshad 1980 SCMR 593, where the appellant had applied for ejectment on the ground that she needed the shop for her personal use as she wanted to run a business in the shop through her son. The appellant was not engaged in any business and the son was jobless.
22. ' Mr. Rahimtoola the learned counsel has referred to Ever Ready Picture Ltd. v. Chanan Begum PLD 1982 Kar. 770 where Tauheed Khanam and Hassan Khan's cases were followed. In this case the landlady required the premises for her son and it was established that he was not engaged in any business and therefore, ejectment application was granted. The learned counsel also referred to Muhammad Shafi v. Muhammad Abbas Khan 1983 CLC 2657 where the ejectment application was filed by the landlord amongst others on the ground of bona fide requirement for his own use and the aforestated view was ,followed. There can be no cavil with the principles laid down by these authorities. But before applying them one has to examine the facts of each case as the question of bona fide use is a question of fact and has to be determined on the basis of facts proved by the parties. A close scrutiny of all the aforestated judgments will show that there the landlord required the premises for his bona fide use and occupation or for his son and did not have in possession any other property or shop nor the landlord was carrying on business anywhere else. In the present case the facts are slightly different. Here the landlord is neither jobless, nor he is not doing any business anywhere else. Admittedly in the same building he is carrying on business of manufacturing furniture. In such circum stances when a landlord is in occupation of a commercial premises of his own and he wants to acquire any other shop then his statement on oath that he wants to open his business in the disputed shop even if it is consistent with his averment in the application would not be sufficient to establish his bona fide requirement unless he further explains that the existing premises is not sufficient or suitable for his requirement. The appellant is carrying on business and if he wants to open a show room in this shop then he has to satisfactorily explain how the existing premises is not sufficient for his business. Unless such explanation is given mere statement that he wants the disputed premises will only be his desire and not a bona fide need. Considering the case from this point of view the appellant has failed to explain the reasons for which he wants to occupy the disputed premises. Since long he has been manufacturing furniture and selling it but has not stated whether he has any show-room or not. He has not given definite J particulars of the accommodation in his possession which would have helped in determining whether he has sufficient space for his show-room or not. In these circumstances the appellant has failed to establish that he requires the disputed premises for his bona fide requirement.
23. The last ground urged by the learned counsel for the appellant is that the premises has been sublet by the respondent. The learned counsel contended that from the photograph produced by the appellant it is clear that a sign board of an 'Estate Agency' has been fixed in the disputed premises. Except the statement of the appellant and the photograph no independent evidence has been produced to show that the respondent has sublet the premises to anyone. Although the appellant is carrying on business in the same building he has not been able to name even that person to whom the premises has been sublet. The disputed premises is situated in a commercial area, and there may be various shops nearby but no independent witness has been produced by the appellant, nor any genuine attempt has been made in this regard. The appellant has therefore, failed to establish that the respondent has sublet the premises and is recovering rent from such tenants. The appeal is therefore, dismissed.