1. ' The premises in dispute consist of a shop bearing Survey No. 246 and the 1st floor on Survey No. 247 which belong to the respondents and were let out to the appellant Bank in early sixties.
2. Disputes arose between the parties but were resolved and an agreement of tenancy was executed on 31-8-1964 whereunder the appellant had agreed to pay Rs. 130 per month and Rs. 95 per month as monthly rents of the sho and 1st floor, respectively. The shop is being utilised as a Bank while the 1st floor is being used as a residence by the appellant.
3. ' The predecessor-in-interest of the present respondents namely Jarumal and Wadhumal both sons of Amrumal filed two Rent Applications No. 81 of 1980 and No. 82 of 1980 against the appellants in the Court of Senior Civil Judge and Rent Controller, Jacobabad praying for ejectment of the appellants from the premises on the ground of default in payment of rents from July, 1974 to the date of filing of the applications i.e. 4-3-1979. Another ground for seeking possession was personal requirement. This personal requirement was described in para. 7 of the two applications in identical terms in the following words: "That, the above tenement alongwith S. Nos. 246 & 247 are required by the applicants, for their personal use bona fide in good faiths, as they are Zamindars and want to carry on their own affairs and business."
4. ' The appellant Bank contested the proceedings and filed their W.S. denying the allegation of default and alleging that the prayer for possession was inspired with ulterior motives and that it was not made in good faith. The relevant portion may be reproduced: [URDU TEXT] ' Other preliminary objections were also raised and were disposed of by the learned Rent Controller.
5. As learned counsel have confined themselves to only default and personal need I will dispose of only this controversy in this appeal.
6. ' The learned Rent Controller formulated only three points for determination. They are as follows: "(1) Whether the rent application is not maintainable in law ?
(2) Whether the opponent has committed default in payment of rent from July, 1974 to 4th March, 1979?
(3) Whether the applicants require the disputed premises for their personal bona fide use ?"
7. ' Parties led evidence. Jarumal and Ladharam filed their affidavits in evidence and were cross- examined Exh. 80, Exh. 81, The appellant Bank examined only Muhammad Shafi, Manager of the Bank as their witness who produced documents in support of their defence on the question of the alleged default.
8. ' All the three points were decided in favour of the respondent landlord. By an order passed on 21- 11-1983 the learned Rent Controller held that the appellants has made a default in payment of rents to the landlord for a period from July, 1974 to 4th March, 1979. He further held that the respondents had proved their personal need for claiming the premises.
9. ' On those findings the learned Rent Controller allowed the ejectment application and directed the appellants to hand over possession of the premises to the respondents. The appellants have filed this appeal against this order. Learned counsel for the appellants has attacked the order on grounds of default and personal need and I now examine the contention of the learned counsel.
10. ' On the point of default the starting point is July, 1974. It is admitted that the rents have been paid upto June, 1974. As the learned Rent Controller has decided this issue against the appellant and I am disagreeing with his findings, it would be necessary to examine the evidence of the parties in details on this issue. To start with the few lines from the affidavit in evidence of Muhammad Shafi Manager of the respondent-Bank. It is Exh. 113, dated 27-4-1983 in the R & P of Rent Application No. 82 of 1980.
11. "The applicants have accepted the rents upto June, 1974 and thereafter the opponent through his peon has sent the rent for the month of July, 1974 for both the C.S. Nos. collectively Rs.225 as usual but the applicants refused to accept the same, thereafter the opponent sent rent of the month of July, 1974 collectively for both premises through pay order on 6-8-1974 by registered post A/D, but the applicants refused to accept the same. Thereafter the opponent sent the rent from the months of July and August, 1974 vide Pay Order No. 380103 and 380113, dated 30-7-1974 and 29-8-1974 through registered, dated 8-9-1974, but the appplicants refused to accept the same and again the opponent sent rent for the month of July to September, 1974 through registered notice, dated 25-9- 1974, but the same was also refused by the applicants. Thereafter, in reply of notice the opponent sent the rent for the month of July, 1974 to 30th April, 1975 amounting to Rs.2,250 vide Pay Order No. 1380171, dated 19-4-1975 through registered AID which was received by the Advocate Mr. Abdul Ghafoor Magsi of the applicants, but ultimately the same pay order was returned by their counsel, in spite of that the opponent was continuously sent rent to the applicants but they refused to accept the same as they have got mala fide intention to get Rs.500 per month from the opponent.
12. The opponent has from time to time issuing notices to the applicants but they refused to accept the rent as such the opponent is not a wilful defaulter."
13. ' The Rent Controller in his impugned order makes following important observations: "The opponent has filed affidavit in evidence of one Muhammad Shafi as Exh. 113 who has produced sealed envelopment alongwith A/D receipt as Exhs. 114 to 129, copy of reply of notice by Advocate for applicants to Advocate for opponent, dated 8-5-1975, as Exh. 130, pay order amounting to Rs.2,250, dated 19-4-1975 as Exh. 131, postal receipt as Exh. 132, money order coupon as Exh. 133 another registered A/D letter alongwith A/D as Exh. 134 copy of reply notice, dated 19-4-1975 as Exh.135, and the counsel for the opponent closed his side vide statement as Exh.
14. 136."
15. ' I have closely examined all the exhibits. They bear postal marks and seals of the Post Office with dates. Each envelope as well as the covering A/D. receipt bearing Postal seals carries an endorsement of the postman to the effect that the addressee refused to accept. There are as many as 17 such envelopes enclosing pay orders which were despatched to the respondents under Registered A/D receipts and which were returned to the Bank with the endorsement of the postman. One more fact before I proceed to examine to reasonings of the learned Rent Controller.
16. It is in evidence that for the first time the respondent sent a notice Exh. 83,dated 5-4-1975 informing the appellant that the premises were required for personal use by the respondents and casually mentioning "Since July, 1974 rents in respect of these two survey numbers are also not paid to my clients which amounts to Rs.2,025 w.e.f. 1-7-1975 to 31-3-1975." Promptly the letter was acknowledged by a reply, dated 19-4-1975 enclosing a pay order in the sum of Rs.2,250 being the rents from July, 1974 to April, 1975. It was sent to the Advocate of the respondent. The learned counsel for the respondents did receive the draft but returned the same to the appellants for the reason which are rather amusing. In his reply, dated 8-5-1975 Exh. 130 he reafirms the instructions of his clients for filing an ejectment case against the appellants and gives reasons for returning the drafts.
17. ' The reply is as under: "with reference to my previous notice,dated 5-4-1975, and your reply, dated 19-4-1975 (received by me on 28-5-1975). I am to further address you as under :- 'that your client has given you wrong notion that my clients want enhanced rent of the said premises. As a matter of fact, my clients need both the tenements for their personal use very badly as they are big Zamindars and need these tenements for their personal business purpose. You are, therefore, requested to advise your clients to deliver vacant possession to my clients without fail.
18. "I am also sending herewith the postal order sent by you for an amount of Rs.2,250, as your clients were supposed to sent cash. In the end, I further make it clear to you, that in case, vacant possession is not delivered to my client within a fortnight, after receipt of this notice, I have clear instructions to file ejectment proceeding against your clients which please note."
19. ' The learned counsel seems to have missed the point that money was being tendered not through a cheque nor a " postal order" as described by him but through a " pay order" which is as good a tender as Cash.
20. ' Be that as it may. After the ejectment case was filed by the appellant not only put up a clear defence through their Manager but they confronted the respondent with all the steps they had taken to pay the rents in time. The cross-examination of Jarumal on this part of the case is informative. He says: "I do not know that we were receiving the rent collectively from the Bank. Opponent paid rent upto the month of June, 1974. It is not a fact that opponent sent rent for the month of July, 1974, through peon of the Bank to us, which we refused. It is not a fact that the opponent sent rent for the month of July, 1974 by pay order, dated 6-8-1974 through Regd. A/D which we refused I do not know if the opponent sent rent for the months of July, August and September, 1974 by pay order, dated 25-9- 1974 through Regd. A/D which we refused. We had not served any notice to the opponent had sent rent from July, 1974 to April, 1975 amounting to Rs.2,250 by pay order through Regd. A/D to our Advocate Mr. Abdul Ghafoor Magsi which he received. I do not know if afterwards Mr. Abdul Ghafoor Magsi returned the pay order to opponent. It is not a fact that we deliberately returned the pay order to the opponent in order to enhance the rent at Rs.500 per month. It is incorrect to suggest that the opponent Bank has not committed default in respect of payment of rent."
21. ' This evidence has been criticised by the learned Rent Controller in his order. This is how he rejects the appellants defence in the order. At page 5 of his order he gives the reasons'for rejecting it; "The case of opponent is that the applicants demanded enhanced rent at the rate of Rs. 500 per month therefore they refused to receive the rent from the month of July,1974. The opponent has not mentioned the name of peon through whom he had produced peon book to show that the payment order were being sent to the applicants through peon in order to prove their condition.
22. The opponent has not even mentioned the name of peon through whom he had sent the rent to the applicants nor opponent has examined peon to prove that actually the rent for the month of July, 1974 was tendered by the opponent through his peon. The opponent has produced (17) registered A/D letters as Exh. 114 to 129 and 134 containing pay order addressed to the applicants Wadhumal Jarumal; but the applicants have not received the same. P.W. Jarumal has denied to have refused the pay order sent by opponent. The opponent has not examined postman in this respect to prove that actually above-registered A/D letters containing pay orders were offered by the postman to the applicants."
23. ' The reasoning of the learned Rent Controller seems to be quite superficial. It is difficult to concede that if the name of the peon was mentioned or say if a person clothed as a peon was put in the box to say that he had been employed as errand boy on that particular July to take the cheque to the respondent but had failed in his mission, this would have added any wright to tilt the scales in favour of the applicants. Again it was not a case of one or two occasions when the Registered envelopes despatched to the respondent were returned with an endorsement by the postman.
24. Surely if it was a case of one or two endorsements relied upon by the appellant and denied by the respondent the chances of their being of dubious character could not be ruled out and unless the endorsement had been proved by calling the postman and proving the refusal, they could not be treated of much value. In line with the chain of authorities on this point, the endorsement ought to have been rejected out right as not proved because the author of the endorsement was not summoned to prove the endorsement and was not offered for cross-examination to prove the "Refusal" attributed to the respondent.
25. ' In the present situation the point at issue is not the execution of the document or solitary incident of refusal. There are 17 such refusals and this would have to be kept in mind while determining the conduct of the parties in this particular situation. This will not be the only piece of evidence to determine the liability but only one of the elements forming the whole picture to see whether there was a real default in payment or/tender of the rent or there was a genuine effort on the part of the appellant to offer the rents but a deliberate and calculated resistence to accept the tendered amount in order to create grounds for ejectment.
26. 'As very aptly observed by Zafar Hussain Mirza, J. in Allah Din v. Habib PLD 1982 SC 465. "In civil proceeding an issue is to be decided by preponderance of evidence and in case where there is a word against a word it is the party on whom lay the burden must fail."
27. ' In the present case the allegation to be investigated is: ' Whether "the tenant has not paid or TENDER rent due by him."
28. ' The material available on record to aid in determining this issue is the following:
(i) Word against word in the shape of positive assertion and a bare denial that no tender was made.
(ii) As many as 17 registered A/D envelopes enclosing pay orders bearing seals of the post office and carrying endorsement of the postman that acceptance was "Refused" by the addressee.
(iii) That these registered stamped and sealed envelopes were not despatched on one day but on different dates and months and the endorsement of refusal is not for one occasion, but on 17 different occasions spreading over a period of time and carrying endorsement in different inks and in different handwritings of the postman of the beat. Even the postal stamps affixed to the envelopes are published by the post office on different periods.
(iv) The appellants wrote a letter Ex. 135,dated 19-4-1975 in reply to the respondent letter, dated 5- 4-1975. Para. 2 of this letter is important. It gives complete details of how these pay orders were made out and each time were refused by the respondent. Paras. 3, 4 and 5 of the letter are as under: Para 3: ' That as usually my above client had sent the rent Rs.225 for the month of July, 1974 by payment order through his peon as usual to your clients, but the same is refused by your clients. Again the same was sent by Registered post A/D under Registry No. 38, dated 6-8-1974, but your clients have not accepted the same.
29. Para 4: ' That my client had sent again the rent for the months of July, August, 1974, through Pay Order 380103 and 380113, dated 30-7-1974 and 29-8-1974, each for Rs. 225, respectively by Registered Post A/D under Registry No. 89, dated 8-9-1974, but your clients have refused to take the delivery of the same.
30. Para. 5: ' That my above client has sent rent for the months of July, August and September, 1974 alongwith Registered notice with A/D, dated 25-9-1974 to your clients with warning that they should accept said rent to otherwise my client is not responsible for default.
31. ' The respondents counsel by his reply Exh.130, dated 8-5-1975 acknowledge the receipt of this letter but has not said a word contesting the positive assertions made in the letter he was answering. This indicates the conduct of the parties before they came to Court. As mentioned in the earlier part of this Judgment the pay order received by the Advocate for the respondent was returned on the excuse. "I am also sending herewith the postal order, sent by you for amount of Rs.2,250 as your client were supposed to send cash".
32. 'Not a word has been said rejecting a clean and detailed assertion that rents were being regularly tendered to the respondents through pay orders and were constantly "refused" by them.
33. ' In this context the production of the postman or postmen who handled these 17 tenders at different times would have been ceremonial. All the evidence put together and read in context makes a complete picture leaving no room for doubt that the appellants have tendered rents due by them and have not committed any default. The findings of the learned Rent Controller to say the least are a superficial assessm ent of the evidence on the record and a misconceive application of the case-law quoted by the learned Rent Controller. The findings are, therefore, reversed.
34. ' So far as the question of personal need is concerned, it is enough to say that here again the learned Rent Controller has not bestowed due attention to the case.
35. 'The landlord/respondent was obliged to satisfy the Rent Controller, that he required the premises in good faith for his own use or for the' use of any of his male children.
36. ' Now "good faith" used in the statute is not a term of art. It must be proved through facts and circumstances to inspire confidence in the mind of the Controller for exercise of power in favour of the landlord to such a degree as to deprive the tenant of his statutory protection under the special law. In this context it is pertinent to observe that each case must be judged on its own merits. Too much reliance on the case-law may prove to be dangerous any attempt to form any code or to hammer out some set of rules to be universally applied may create more problems then it may solve. Hardly any two situations of personal needs would be identical and similar in nature.
37. ' One should not forget that in a rent case before a Rent Controller the owner of property is not asking for possession of demised premises under the T.P. Act. Under the Rent laws something more persuasive than mere desire to occupy his own property must be pleaded and proved in order to dispossess a tenant in possession which possession it may be repeated is fully protected by the statutory provisions.
38. ' In the present case, it is admitted that Jarumal and Wadhumal are real brothers. They form a joint family and are living in peace in one house as one family. The premises in dispute were occupied by a "cousin" of father-in-law of Jarumal. They were vacated by him some time in early sixties when they were let to the Bank. It is in evidence, that this is a prosperous family of Zamindars owning vast properties in Jacobabad. They have other houses and shops as well.
39. ' In the Rent application the need has been pleaded in para. 7 in the following form:
(7) "That, both the tenements are required by the applications, for their personal use bona fide in good faith as they are Zamindars and want to carry on their own affairs and businesses."
40. ' In the notice, dated 8-5-1975 Exh. 130 the Advocate of the respondents wrote to say:- "As a matter of fact, my clients need both the tenements for their personal use very badly as they are big Zamindars and need the tenements for their personal businesss purpose."
41. ' The impression one gets is that these Zamindars require the premises occupied by the appellant Bank for their "affairs and business. Later on this need for business became a need for personal residence. Jarumal filed his affidavit of evidence. In para. 5 he, speaking for self and his brother, contended to say only few words about this need: Para. 5: "That we also need the above tenement for our personal use in good faith."
42. ' Then at the time of cross-examination he explained this need in the following words:- "I require the disputed house/premises for my personal use. The other applicants will reside in their present house. It is incorrect that the disputed premises is not fit for residential purposes but it is fit for commercial purpose. The total area of our house which consists of 8 small houses is about 733 yards. The area of the disputed premises is smaller than the area of our houses."
43. ' The story of personal need set up by Jarumal is supported by his nephew Ladharam who was brought on record after the death of his father Wadhumal who was the original applicant. The relevant portion of Ladhomal's statement is reproduced below : "It is fact that we are owners of other shops and houses at Jacobabad. It is fact that we have constructed 8 shops. It is a fact that we are owners of one building adjacent to old. Municipality which was rented out to some person. It is a fact that we have got vacated that building through Court. At present the said building is lying vacant. It is a fact that I run Munhari shop. My brother Kirpaldas works with me on my shop. My brother Hargunda is running a business in newly- constructed shop. Jarumal is looking after agricultrual lands. We require the disputed premises for residential purposes. We need the disputed premises either for my use or use of my uncle Jarumal.
44. Q. Whether you can run business in the disputed premises ? A. We will not use the disputed premises for commercial purposes.
45. ' Our house in which we are residing at present is insufficient for our family as we are 18 family members. The C.S. No.91 consists of 8 small houses. The roof of the disputed premises has been cracked and the laterine and bath room constructed over the premises are in damaged condition and water is pouring from them I have stated in my affidavit that the roof of the disputed premises has been cracked and water from both room and laterine. We have not approached the bank for payment of rent or for the possession of the disputed premises. It is incorrect to suggest that we do not require the disputed premises for our bona fide personal use."
46. 'The evidence of these two members of the same joint famil living in 8 houses since long leaves much to be- added to inspire confidence in their bare demand for personal occupancy. The chang that has occurred is that one of the sons of late Wadhumal has migrated to India. By now Jarumal and Wadhumal are dead and it is not clear how the need of this joint family has now increased to necessitate a place away from their own ancestral house which would result in the split up of the family a concept not very common in a joint Hindu family.
47. ' I am afraid on this state of evidence much remains to be desired to allow the plea of personal need as has been done by the learned Rent Controller.
48. ' The findings on this issue as well cannot be sustained and are set aside.
49. ' The result is that this appeal is allowed with costs. The order of the Rent Controller, dated 21-11- 1983 is set aside.