' This is a First Rent Appeal against the judgment dated 12-5-1984 passed by the XIIth Senior Civil Judge/Rent Contoller in Rent Case No.3505/1981, allowing the application of the respondent on the ground of default in payment of rent as well as bona fide personal need.
2. The brief facts of the case are that the respondent let out shops Nos.1 and 2 situated on plot No.5-J-414, Saeedabad, Baldia Town, Karachi by a tenancy agreement executed by and between the parties for eleven months commencing from January 1,1979.
3. It was urged in the application filed under section 15 of the Sind Rented Premises Ordinance, 1979 that the appellant failed to pay the rent to the respondent since November, 1980 and thus he committed default and was liable to be ejected. It was further alleged that the respondent was an aged person of 55 years and due to old age and ill health he was unable to do any work of labour.
He, therefore, required the shops in question in good faith for his personal bona fide use to run his personal business therein. The learned Rent Controller after recording the evidence, both oral and documentary, granted the application on both the grounds.
4. The appellant has now come in appeal against the said judgment which came up for Katcha Peshi on 21-6-1984 before my learned brother, Abdul Razzak Thahim, J., who was pleased to order for issuing pre admission notice to the respondent.
5. I have heard the learned counsel for the parties. The learned counsel for the appellant has contended that the tenancy agreement having expired in November, 1979 and the tenancy being in existence immediately before coming into force of this Ordinance, the appellant became a statutory tenant and, therefore, he, becoming a statutory tenant, will be deemed to be in default if he fails to pay the rent within 60 days after the rent has become due for payment. He further submitted that the rent for the month of November, 1980 was paid to the respondent who failed to give any receipt to him for the same.
6. I have perused para. 3 of the Written Statement of the appellant wherein it is stated that he paid the rent for the month of November to the respondent but he was given no receipt. The same statement is repeated in para. 2 of his affidavit filed in evidence. But during the cross-examination he changed his earlier statement and stated that the rent for the month of November, 1980 was remitted to the respondent by money order, acknowledgment whereof was not available with him as it was with the advocate. There is a note by the Presiding Officer that the "advocate repeatedly called-absent". At the Close of his cross-examination he again changed his stand and stated that he had paid the rent for November, 1980 to his advocate and who has deposited the rent in Court.
7. It is pertinent to note that the appellant had filed a Miscellaneous Application dated 1-2-1981 for seeking permission to deposit the rent for the month of December, 1980 onwards on the plea that the respondent had refused to accept the rent. The learned Advocate appearing for the appellant was not able to tell the actual date of filing of the said application in Court. The order was, however, passed by the learned Rent Controller on that application on 12-2-1981 for depositing the rent as prayed therein.
8. The learned counsel for the appellant has relied on a number of authorities namely Ghulam Sakina v. Khaliq Bari 1984 CLC 71, and Naimat Siddiqui v. Farooq Umar 1984 CLC 969 in support of his plea that on the expiry of the tenancy argreement he became a statutory tenant and so his case is governed by section 15-subsection (2) whereby the default will be deemed to have been committed if he failed to pay the rent within 60 days after it had become due. I agree with the contention of the learned counsel that in this case he will be liable to default only when it is proved that he has not paid or tendered rent within 60 days from the period for which the rent was payable. Admittedly, the dispute is over the payment of rent for the month of November, 1980 which in view of the fact that the agreement for eleven months had already expired, he will be liable to default if the respondent is able to prove that the appellant failed to tender or pay the rent on or before 29th January, 1981. He, however, tendered the rent by money order as stated in para. 4 of the Miscellaneous Application No.569/81 filed in the lower Court. Although the rent sent by money order in January, 1981 is stated to be for the months of December, and onwards, I hold that there is no default in payment of rent for the month of November, 1980 as he tendered the same by money order within 60 days after the rent had become due. The rent remitted for December 1980 could well be adjusted towards November, 1980.
9. As regards the personal bona fide need, the learned counsel for the appellant contends that the respondent has failed to disclose the nature of business which he intends to do at the said shops.
He puts his reliance on Syed Israr Alam v. S.M. Hussain 1983 CLC 468, Barkat Ali v. Mst. Sughra Bai and 9 others PLD 1980 Kar. 223, Fazlur Rehman v. Muhammad Siddique 1983 SCMR 1189 and Muhammad Hafeez and another v. Muhammad Azeem and 9 others 1984 CLC 1083.
10. In the first authority the learned counsel for the appellant invited my attention to the observations made at page 470. It reads- "After all, a landlord, when he is projecting his needs, has to subject himself to judicial scrutiny, so that it should be found, whether the needs, that he expresses, are genuine, or, he is wanting more accommodation on account of desire to live in un reasonable luxury, or, a desire to dislodge his tenant."
' This was a case wherein the landlord wanted more accommodation. The facts of the case, cited above, are different to the facts of the present case. Here the case is not that the respondent is in possession of another shop and he needs a bigger one.
11. The second authority, though relevant to the contention of the learned counsel for the appellant as the landlord in that case had not disclosed as to what for his four unemplyed sons and whether he had means for the same business he wanted to start but is of no avail to the appellant. Here it is an admitted position that the respondent is selling 'Chholay' on the 'Thela' for the last 30 years, as stated before me by the learned counsel for the appellant. According to the statement made in the application as well as the evidence led by the respondent, the nature of business has been disclosed i.e. he wants to carry on the said business at the shops as now he is an old man of about 60 years and he cannot do any work of hard labour.
12. The third authority of the Supreme Court is also of no help to the appellant and is distinguishable from the facts of present case as there was a concurrent finding of facts and the 2nd Appeal having been dismissed by the High Court, the learned Supreme Court held that there was no scope for interference by the Supreme Court.
13. The last cited authority is also not applicable to the appellant inasmuch as in the case cited it was held that the finding of the Rent Controller as to the requirement of the landlord was based on mere conjectural hypothesis whereas in the present case the respondent has admittedly proved that he was carrying on the business of selling 'Chholay' on 'Thela' for the last thirty years and now wants a settled place because he cannot undertake the labour required to carry on the said business of 'Chholay' on 'Thela'.
14. The learned counsel for the respondent has placed his reliance on a case reported as Muhammad Ibrahim v. Faqir Muhammad 1982 CLC 230. In this case it was observed: -- "The contentions that the respondent has not specifically disclosed as to how the disputed shop will be used by him is not tenable as the landlord is not required to specifically plead all ingredients of section 13 of the Ordinance and his case would not fail merely because he has failed to plead in his application that the disputed shop would be required by him for either opening a medical store or it would be used by him to work there as a petition-writer."
15. I have carefully considered the contentions of the learned counsel for the appellant as well as the respondent and have also examined the evidence produced by them. The point which requires due consideration is, whether the respondent bona fide required the disputed shops for his personal use. The contention of the learned counsel for the appellant that the respondent has not specifically disclosed as to how the disputed shops will be used by him, to my mind, has no force. It is sufficiently D proved by the respondent that he was presently engaged in selling 'Chholay' on a 'Thela'. He has clearly stated that in view of his old age and ill health he cannot do any hard labour any more and requires the premises in question in good faith for his personal bona fide use for running his own business therein for earning livelihood for himself and his family as he owned and possessed no other property except the premises in question. He also stated that he had no male issue.
16. In view of above facts and reasons, I uphold the findings of the learned Rent Controller as to the personal bona fide need of the E respondent and dismiss the appeal with costs.
17. At the request of the learned counsel for the appellant I, however, grant one month time to the appellant to vacate and hand over peaceful possession of the premises in question to the respondent.