' This appeal under section 21 of the Sind Rented Premises Ordinance, 1979, is directed against an order of ejectment, dated 14-12-1983 passed by the learned Rent Controller, Sukkur, in R. A. No. 149/80.
2. The facts leading to the impugned order of ejectment, briefly stated, are that the appellant Noor Muhammad is doing his business in rented premises on City Survey No.B-878/2 Mirch Bazar, Sukkur, belonging to the respondent Iqbal Ahmed. The rented premises originally belonged to Abdul Ghani s/o Muhammad Shafi. On his death somewhere in 1976, the said property devolved on his wife Mst.
Mariyam and daughter Mst.Rashida by way of in inheritance. Rent was being paid to them. Some differences crept in between the parties in the year 1978 and the rent was being deposited with the Controller. By way of partition of the property, the rented premises fell to the lot of Mst.Rashida Khatoon. She gifted it to her son Iqbal, the respondent herein. Iqbal gave notice to the tenant/appellant on 30-6-1980, of the transfer of the property to him and demanded rent. It is alleged that the apppellant did not atone to the ownership of the respondent and failed to pay or tender the rent to him. The respondent was, therefore, constrained to file the Rent Application No.149/80 in the Court of Rent Controller, Sukkur, on 9-12-1980, for ejectment of the appellant on the ground of default in payment of rent. Two additional grounds that the appellant had caused damage to the property and impaired its value and utility and also that the respondent needed the shop for himself for doing business there.
3. The appellant resisted the ejectment application. However, he did not deny that he was occupying the premises as the tenant but he denied that he had made default in payment of rent.
He contended that the premises was let out to him at the rent of Rs.125 per month and the rent was raised to Rs.175. Later and he used to pay it to Mst.Rashida Khatoon. He alleged that Mst. Rashida Khatoon asked for enhancement of the rent and refused to accept the rent unless enhanced. He stated that he filed a Rent Application No.114/78 in the Court of Rent Controller, Sukkur for permission to deposit the rent there and he had been depositing rent in that proceeding. He admitted the receipt of the notice of transfer of property to the respondent but contended that he was not shown any transfer deed. He challenged the averment of the respondent that the bona fidely required the premises for his own needs. He denied the allegations that he had caused damage to the property and impaired its value and utility.
4. The learned Controller struck following three issues for determination:
(1) Whether the opponent has caused damage to the property and has impaired the value and utility of the shop in question.
(2) Whether the opponent is wilful defaulter in payment of rent.
(3) Whether the shop is required for applicant for his personal bon fide need.
5. The parties adduced evidence in the form of affidavit. The respondent/applicant/landlord filed his own affidavit and those of two witnesses Abdul Sammand and Muhammad Haroon. On the other hand, the appellant/opponent/tenant filed his own affidavit and that of one witness by name Ahmed Baig. The learned Controllex held, by the impugned order, dated 14-12-1983, that no damage had been caused to the premises, but that the appellant had made wilful default in payment of rent and also that the respondent needed the premises for his bona fide use for starting business there, and, consequently passed order that the appellant should hand over vacant possession of the premises to the respondent within 2 months.
6. The appellant has preferred this appeal against the order of his eviction from the premises passed on the aforesaid grounds. The crucial point agitated in this appeal is that of default in payment of rent. It is not disputed that the appellant was served with the notice, dated 30-6-1980 regarding the transfer of the ownership of the property to the respondent. This notice was replied to by the appellant on 17-7-1980. It is also not disputed that the rent was not directly paid to the respondent even after the service of notice, dated 30-6-1980. However, the learned counsel for the appellant has contented that the appellant was let out the premises bearing No. B-878/2, whereas the notice served upon him by the respondent was in respect of the premises bearing No.B-878/1 and has advanced the argument that the appellant could not be held liable as a defaulter in payment of rent for a different premises. He has further contended that even if it were assumed that the notice, dated 30-6-1980 pertained to the same property let out to the appellant, no default in payment of rent was committed as the rent was regularly deposited with the Controller in the proceeding of the Rent Application No.114 of 1978 and the respondent was aware of that fact. He has relied upon a case reported in 1979 CLC 720. He next contended that the respondent holds other properties and he does not bona fidely need for his own use the premises in occupation of the appellant.
7. On the other hand, the learned counsel for the respondent has urged that the notice, dated 30- 6-1980, admittedly, served on the appellant, pertained to the premises let out to him and he was guilty of wilful default in payment of rent on his failing to pay or tender the rent to the respondent.
He has placed reliance on a case reported in 1983 CLC 2368. He has next urged that deposit of rent in another case did not absolve the appellant of his liability to pay the rent to the respondent after service of notice of change of ownership. He has cited 1983 CLC 337, 1983 CLC 2123 and 1982 SCMR 237 as the supporting authorities. As regards the personal requirement of the respondent, the learned counsel has argued hat other premises held by the respondent are not suitable for his doing business there and that it is the privilege of the landlord to select any premises for doing his buiness and the respondent has made selection of the premises in occupation of the appellant and the appellant has to vacate the premises for the use of the landlord. He has relied upon the cases reported in 1981 SCMR 979; 1983 CLC 1977, 2222 and 2657 and 1984 SCMR 730
8. The main ground for seeking ejectment of the appellant from the rented premises is that of default in payment of rent. The crucial point of time for determining the default in payment of rent could be the day of service of notice, dated 30-6-1980 the respondent gave to the appellant that the property was transferred to him by way of gift. The service of the notice on the appellant is admitted, although the date thereof is not specified. In any case the notice was served on the appellant earlier than 17-7-1980 when he sent reply thereto. A copy of the notice has filed with ejectment application. It is sub-divided into seven paragraphs: Its paragraph No. 1 relates to the transfer of the premises to the respondent. Its paragraph No. 2 contains allegations of default in payment of rent since after November, 1976. Its paragraph No. 3 contains intimation to the appellant of the respondent's ownership over the property. Its paragraph No.9 mentions that the respondent needed the premises for his own use for doing business. Its paragraph No. 5 contains allegation that the premises had been put to a use other than the one for which it was let out. Its paragraph No.6 is reiteration of the assertion of the respondent that he needed the premises for his own use. In paragraph No. 7, it is alleged that the appellant had infringed the conditions of the tenancy. In the concluding paragraph, the appellant was called upon to pay the arrears of the rent to the respondent and also' hand over to him vacant possession of the premises within the period of one month. This notice was replied to by the appellant a copy whereof has been filed by the appellant. It is dated 7th July, 1980. It contains denial of alleged default in payment of rent; and assertion that the rent was being deposited in the proceeding of Rent Application No. 114 of 1978. It further contains intimation to the landlord that he could withdraw the rent deposited with the Rent Controller and that he could receive the future rent after producing the papers of his title over the property. It also contains the assertion of the appellant that the respondent and his predecessor- in-interest held number of other properties and he did not bona fidely need the shop for his own requirement.
9. The evidence adduced by the parties is in reiteration of the facts agitated in the notice, dated 30-6-1980 and the reply, dated 7th July, 1980. Section 18 of the Sind Rented Premises Ordinance, 1979 provides for the steps to be taken into case of change in ownership of rented premises. It lays down that when the ownership of a premises in possession with the tenant has been transferred by sale, gift, inheritance or by such other mode, the new owner shall send an intimation of such transfer in writing by registered post to the tenant and the tenant shall not be deemed to have defaulted in payment of the rent if the rent is duly paid within 30 days from the date when the intimation would in normal course have reached the tenant. This requirement of law was complied with by the respondent by way of notice, dated 30-6-1980. But the appellant did not pay or tender the current rent to the respondent. Two pleas have been advanced for non-payment or tender of the rent. Firstly, that notice served on the appellant pertains to the premises No.B-878/1, whereas the premises in his occupation bears No.B-878/2; and, secondly, that the rent was continuously deposited with the Controller in a rent proceeding filed in the year 1978 under No.114 of 1978 as the respondent had not shown his title deed. No doubt, the notice, dated 30-6-1980 regarding intimation of change of ownership in favour of the applicant mentioned the demised premises with number 878/1 and this fact is not disputed that the premises bearing No.878/1 was transferred to the respondent. The respondent did contend that the premises let out to him and occupied by him was identified by number 878/2 and he produced in support of his plea certain documents, which included and attested copy a plaint in Suit No.182 of 1975 filed by the respondent's predecessor interest. (The original owner.) Abdul Ghani, in the Court of Senior Civil Judge, Sukkur, and a certified copy of Rent Application No.114 of 1978, filed by the appellant for permission to deposit rent with the Controller on account of landlord having refused to accept rent showing that the rented premises bearing No.878/2. No evidence in rebuttal or clarification was adduced by the respondent. But reliance has been laid on an averment of the appellant in clause (iv) of paragraph 13 of his affidavit filed in evidence,the relevant part whereof reads: "The present applicant owns the shop which was property of late Abdul Ghani and the same was inherited as per decree in the Civil Suit No. 183 of 1976 by Mst. Rashida Khatoon mother of the applicant. Mst. Rashida Khatoon has gifted this to Shaikh Iqbal Ahmed the present applicant. This is in possession of the present opponent It ' In the passage reproduced above, the word "applicant" has reference to the respondent herein, and the word "opponent" refers to the appellant herein. Evidently, the appellant did accept in the affidavit in evidence that the rented shop is the same referred to as Shop No. B-877/1. However, the question arises whether he could be certain about this position when he received intimation of transfer of the shop to the respondent. It is therefore necessary to make reference to the events in the background. Intimation of transfer of the shop to the. appellant was sent by the communication i.e. notice, dated 30-6-1980. Reply thereto was sent by the appellant on 7-7-1980.
Ejectment application was filed on 9-12-1980. Written statement was filed on 3-1-1980. The respondent filed affidavit in evidence on 5-3-1981. The appellant filed affidavit in evidence, on 5-3- 1983. The respondent did mention in the notice, dated 30-6-1980 that the premises No.B-878/1 was transferred to him and it was in occupation of the appellant and demand was made for arrears of rent etc. The appellant did not deny in the reply, dated 7-7-1980 that he was in occupation of the premises No.B-878/1. But he did not expressly admit either that he was occupying the premises bearing No. 878/1. Of course, he informed the respondent that he had been depositing the rent with the Controller and he could withdraw it from there on showing his entitlement thereto and that he would directly pay him future rent thereafter. The appellant did admit in paragraph 2 of his written statement the contents of paragraph 2 of the ejectment application that the premises No.B-878/1 was in his occupation as a tenant. But he mentioned in paragraph 5 of further pleas raised in the written statement that the premises was numbered as B-878/2. This plea was not imaginary but it was based on the fact that he had been depositing rent in rent proceedings No.114 of 1978 filed by him for premises bearing No.B-878/2. He also produced other documents that the premises was indentified by No.B-878/2. His admission in his affidavit filed in the year 1983 that he was in occupation of premises No. B-878/1 could be in consequence of documents filed in evidence which he might not have been aware of when notice of transfer was served upon him. It is also pertinent to note that no demand for future rent was made in the notice, dated 30-6-1980. In the circumstances, appellant seems to have adopted safer course of continuing deposit of rent with the Controller in the rent proceedings No.114 of 1978. It is not denied that the appellant had continued depositing rent with the Controller. Moreover, there are on the record photostat copies of two receipts of deposit of rent for the months of November and December, 1980 in the rent proceedings No.114 of 1978 in the Court of the Controller. The question of wilful default is to be considered on the basis of the facts outlined above and the reported cases cited by the learned counsel.
10. The learned counsel for the appellant has relied upon only one case reported in Muhammad Siddique v. Muhammad Ilyas 1979 CLC 720. It was held in that case by a Single Judge of this Court that the tenant was justified in not tendering rent on mere service of notice of transfer unless the person claiming to be transferee establishes transfer in his favour. In this case, the cases reported in PLD 1977 Kar. 418; PLD 1967 Lah. 29 and PLD 1963 Dacca 714 were distinguished on facts.
11. On behalf of the respondent, reliance has been placed on the following cases:
(i) Sarwar Abbas v. Mst. Hajra Bai and others 1983 CLC 337.
(ii) Habib Abdul Kadir v. Mst. Habibunnisa Begum 1983 CLC 2123.
(iii) Aziz Hussain v. Mst. Afifa Khatoon 1983 CLC 2368.
(iv) Waqf Muhammad Mehar Elahi v. Abdul Razak Ltd. 1983 CLC 3285.
(v) Muhammad Ashraf v. Abdul Hameed and others 1982 SCMR 237 (2).
12. In the first case viz. Sarwar Abbas v. Mst. Hajra Bai and others, it was held that a tenant cannot withhold rent after intimation of change of ownership and ask for documentary proof thereof. In that case, the tenant was intimated that the original landlord had expired and he was survived by certain persons. The tenant did not pay or tender rent to the heirs of the deceased unless proof was given as to who were the heirs. It was held that the tenant should have atoned to the change of ownership by death of the original landlord on being informed thereof and, in case any doubts were entertained regarding heirship, he could have deposited rent with the Controller, but he should not have withheld payment or tender of rent for indefinite period. In the instant case, there was confusion about the identity of the rented premises as discussed above, and the appellant had continued depositing rent with the Controller as the previous landlord had declined to accept the rent. Obviously, the facts of this case are distinguishable from the facts of the aforesaid case.
13. In the second case--Habib Abdul Qadir v. Mst. Habeebunnisa Begum, the tenant was intimated change of ownership over rented premises on account of death of the original landlord who was succeeded by his daughter as his sole nominee. Landlady filed ejectment proceedings on the ground of default in payment of rent. Ejectment application was resisted on the grounds that there was no relationship of landlord and tenant no default in payment of rent was committed.
Ejectmentapplica tion was allowed. In appeal, it was held that there existed relationship of landlord and tenant between the parties but no wilful default in payment of rent was proved. Thereafter, the landlady filed another ejectment application on the ground of default in payment of rent for the proceeding period and also for the subsequent period. The tenant's plea that he had deposited rent in Court in the joint names of the landlady and her brother was not considered as proper and legal tender and it was held that wilful default was committed. In this case, the identity of the rented premises was doubted and rent was deposited in the rent proceeding filed earlier for deposit of rent and the facts of the aforesaid reported case are not identical to the facts of this case.
14. In the third case--Aziz Hussain v. Mst. Afifa Khatoon, rent was not deposited by the tenant as directed by the Controller and the explanation put forth that the Office of the Controller had not accepted deposit of rent during summer vacation was not accepted and it was held that default was committed in payment of rent. No such question is involved in this case.
15. In the fourth case--Waqf Muhammad Mehar Eilahi v. Abdul Razak Ltd., it was held that it was obligatory on the tenant to pay or tender rent. In this case rent was tendered by deposit in the rent proceedings which was already pending for deposit of rent.
16. In the fifth case--Muhammad Ashraf v. Abdul Hameed and others, the tenant had deposited rent in the name of the landlord/allotttee who had let out the premises to him deposit the fact that he was intimated that the property stood transferred to another person. It was held that the conduct of the tenant was contumacious as he did not make efforts to know as to who was transferee of the rented property or he would have deposited rent with the Controller and he was liable to be ejected. The facts of this case are, of course just identical to the facts of this case but there is subtle distinction between them. In the reported case, there were rival landlords. The first landlord was the allottee of the property and he had let it out to the tenant and there was contractual tenancy between them. The second landlord was the transferee of the property and he had become the statutory landlord. After intimation of such change over, the deposit of rent in the name of the former landlord was detrimental to the interest of the statutory landlord. In the instant case, the respondent became statutory tenant by way of gift of the property from his mother and the rent was deposited in the name of his mother as was being done before and no dishonest motive was imputable to the appellant in doing so. In my opinion, such technicalities, unless coated with dishonest intention, do not entail wilful default.
17. It follows from the appraisal of pleadings of the parties and the evidence adduced by them, discussed above, and review of the precedent cases relied upon by the learned counsel for the parties tha non-payment of rent to the respondent did not amount to wilful default A and the finding of the learned Controller that there was wilful defaul as the deposit of rent in the rent proceeding No.114 of 1978 pertaining to the Property No. B-878/2 in the name of other person did no absolve the appellant of his liability of payment of rent to the respondent for the premises No.B- 878/1, is not sustainable.
18. Another ground advance for seeking eviction of the appellant from the premises is that the respondent needs the shop premises for doing business there himself. To establish this fact, the respondent filed his own affidavit stating that he did not own any other shop and he would start business of general merchandise there for earning his livelihood. He also filed affidavit of one witness Abdul Sammad but did not produce him for crosss-examination and gave him up. An affidavit to another witness by name Muhammad Haroon also was filed by the respondent but it pertained to allege damage caused to the premises and not to the personal requirement of the respondent for getting possession of the premises. The appellant refuted the assertion of the respondents, and alleged that it was male fide ground for ejecting the appellant. According to him, the respondent held other shops in the city and he could do his business there. The respondent denied that he held other shops in the city for doing business. The learned Controller accepted the plea of the respondent/landlord that he needed the premises for his bona fide use for doing business and repelled the contention of the appellant/tenant that the respondent did not bona fidely need the premises for doing business there. Provision for eviction of a tenant on the ground of requirement of the landlord to have the premises for his own use or that of his spouse or children is contained in section 15(viii) of the Sind Rented Premises Ordinance, 1979.
Subsection (viii) of section 15 reads as under :- "The landlord requires the premises in good faith for his own occupation or use or for the occupation or his spouse or any of his children."
'The expression "requires the premises in good gaith" is not without significance and it indicates that the landlord has to establish his "good faith". In other words, he has to establish this requirement by tangible evidence and not by only making simple statement that he needs the premises for his own use. Should mere statement of a landlord that he needs the rented premises for his own use be sufficient for obtaining eviction of a tenant, the expression "in good faith" would be redundant. Moreover, if that view were to prevail, hardly a tenant can escape eviction on such ground. In the instant case, the respondent C did not disclose the circumstances which had prompted him to do any business there.
19. The learned counsel for the respondent has urged that mere statement of the landlord that he needs rented premises for the bona fide use is sufficient, unless rebutted, for getting the premises vacated. While convassing this argument, he has cited following cases as the supporting authorities:-
(i) Shaikh Muhammad Riaz v. Mst. Naseem Akhtar 1981 S 979(1).
(ii) Dawood H. Chhatto v. Qamar Muhammad 1983 CLC 1977.
(iii) Sher Muhammad Khan v.Ali Jan Khan 1983 CLC 2222.
(iv) Muhammad Shafi v. Muhammad Adam Khan 1983 CLC 2657.
(v) Mian Bashir Haider v. Mrs.Nur Jehan Karmani 1984 SCMR 730.
20. In the case at S. No. (i), it was observed that eviction of a tenant sought on the ground of personal requirement cannot be refused merely on the ground that landlord owns other property in same urban area. In this case it was, of course alleged that the respondent held other properties in the same city but those allegations were denied and the appellant could not substantiate that fact. In any case, question of "good faith" was not involved in the said reported case whereas that question has been agitated in this case and the facts are thus distinguish able.
21. In the case at S.No.(ii) requirement of the landlord was accepted to be bona fide on the basis of his explaining that he was occupying a rented house, which he had to vacate at the instance of his landlord and he was supported by his landlord. There is nothing of that nature in this case. What the respondent has represented is that he intends to start his independent business without disclosing what he had been doing and what circumstances had brought change in his business enterprise. Obviously, the said case has no similarity with the instant case.
22. In the case at S.No.(iii), the landlord had adduced sufficient evidence to prove that he needed rented shop for doing some business on his retirement from service. But no evidence except the word of the respondent, has been produced in this case that the respondent really needs the rented premises for doing business himself.
23. In the case at S.No.(iv) , it was held that mere statement of the landlord that he needs the rented premises for his own use is sufficient for obtaining eviction of the tenant and reliance was placed on a case Hassan Khan v. Munawar Begum PLD 1976 Kar.
832. In that case, the landlord was supported by two witnesses that he needed the rented premises for his own use of course, no hard and fast rule can be laid down for the quantum and quality of evidence to prove bona fide need of a landlord for seeking eviction of a tenant on that ground.
Even statement of the landlord alone can be sufficient to prove his personal requirement if it can satisfy a prudent mind by objective evidence that such requirement does exist. But bare statement by the landlord that he needs the rented premises for his own use would not be sufficient to bear out the element of "good faith". In the instant case, the evidence of "good faith" has not been put forth.
24. In the last case at S.No.(v), it was held that landlord's case for eviction of tenant on the ground of personal need proved by evidence, did not collapse merely on the statement by landlady that the tenant was desired to continue on enhanced rent. There is no such situation in the instant case.
25. It would appear form the foregoing reasons that mere statement of the respondent that he needed the rented premises doing business F there himself is not established and the view adopted by the Controller is not maintainable.
26. Consequent to the findings recorded above, the appeal is allowed and the order of the Controller, dated 14-12-1983 is set aside.IG Considering the legal implications of the case, no order is made to costs.