1. ' By this appeal, the appellant Sh.Jamil.-ur-Rehman has called in question the judgment of VIllth Senior Civil Judge and IIIrd Rent Controller, Karachi Agha Rafiq Ahmed Khan dated 26-7-1980, whereby his ejectment application seeking ejectment of the respondent, Akbar Hasan from the disputed premises was dismissed.
2. ' The factual background of the case is as follows. In pursuance of a lease agreement, dated 1-9- 1971, the appellant leased out the disputed premises which is a shop bearing No.2 and situating on Plot No.2, Ali Akbar Square Bahadurabad, Karachi, to the respondent at monthly rent of Rs.325 exclusive of water, conservancy and other taxes, payable in advance.
3. ' The appellant's case is that at the time of execution of the agreement it was agreed between the parties that Rs.25 per month would be paid by the respondent towards the said taxes. Accordingly the amount of Rs.3,900 paid by the respondent as rent for 12 months (i.e. from 1-9-1971 to 31-8-1972) in advance did not include the payment of taxes. Even after full adjustment of the above amount the respondent continued to make payment at the same rate of Rs.325 per month upto 31-12-1972 by crossed payee's Account cheques. Thus he fell in arrears of Rs.400 on account of taxes and also committed default in payment of rent with effect from 1-1-1973 to 30-9-1973. Apart from above, the respondent was alleged to have made alterations in the shop unauthorizedly and had thereby impaired the utility of the shop. Additionally it was pleaded by the appellant that he required the shop for his personal bona fide needs as he wanted to set up his song in life. On the basis of above grounds the appellant instituted ejectment proceedings seeking ejectment of the respondent from the disputed shop.
4. ' The respondent vehemently opposed his eviction from the disputed shop. He took the plea that the contents of the lease agreemen't were not read over to him and his signature was obtained thereon through fraud and misrepresentation. It was denied by him that Rs.325, the monthly rate of payment was exclusive of taxes. It was averred by the respondent that the appellant demanded the rent at enhanced rate of Rs.350 per month and as he did not accede to such unjust demand the appellant refused to accept the rent. Therefore, the rent was sent to him first through cheques but as he did not issue receipts, the respondent started depositing the rent in Court under intimation to the appellant. The respondent also denied the allegation of unauthorised alterations attributed to him. His explanation in this regard was that the replacement of wooden door by iron shutters was made with consent of the appellant. According to him the alleged change did not in any way impair the utility of the shop. However, as the alteration in dispute was made about two years prior to filing of the ejectment application, the appellant was estopped from agitating the same. The appellant's plea of personal requirement of the disputed premises has also been refuted by the respondent who averred that this ground has been concocted, adding that the sons of the appellant are already in possession of business place.
5. ' I have heard the arguments addressed at the bar and have also gone through the written material relevant for disposal of the appeal.
6. ' On the question of default, the learned counsel for the appellant contended that in view of the written agreement of lease between the parties the payment of rent as well as taxes was to be made by the respondent in terms of the said agreement. He submitted that according to the agreement the monthly rent of Rs.325 was exclusive of the taxes which were to be paid at the rate of Rs.25 per month as agreed between the parties at the time of execution of the lease agreement. He complained that the respondent has not paid anything on that account with the result that he was in arrears of Rs.400 in respect of taxes alone. As for payment of rent the learned counsel stated that the respondent has committed the default in respect of the month of January 1973.
7. ' In reply to the above arguments it was submitted by the learned counsel for the respondent that the lease agreement being for an indefinite period required registration and as it was not registered the appellant could not enforce his right on the basis of the said agreement. it was further submitted by the learned counsel that the word "exclusive" used in the lease deed in relation to payment of taxes is with regard to future taxes. According to him since the appellant has not been able to prove that the taxes were to be paid at the rate of Rs.25 per month the question of default in payment of such taxes would not arise. His argument about the default in respect of the rent for January 1973, was that the payment for that month was made in cash in presence of witnesses whose evidence could not be lightly ignored.
8. ' Taking up the question of non-registration of the lease deed and its effect on the appellant's case there is no doubt that no period has been specified in the agreement for which it was to remain operative. Thus, it is an admitted position that the lease agreement is for an indenfinite period.
9. Following authorities were cited at the bar on the point of non-registration of the lease-deed and the effect thereof: ' Malik Muhammad Ishaq v. Messrs Erose Theatre and others PLD 1977 SC 109; Moosa and others v.
10. Muhammad Yakoob and others PLD 1966 Kar. 376 and Muhammad Ashraf v. Muhammad Sharif and 3 others PLD 1971 Lah.
11. 610.
12. ' In the first case of Malik Muhammad Ishaq the Supreme Court was pleased to hold as follows: "It may be added that the argument based on the requirement of compulsory registration of the partnership deed has really lost its relevance in view of the replacement of the original section 49 of the Registration Act by a new section by the Registration (Amendment) Ordinance, 1962. The former provision that an unregistered document creating, declaring or transferring a right in immovable property could not be received in evidence is no longer the law of the land and the only penalty for non-registration is that the document in question shall not be operative in respect of rights in immovable property."
13. ' In another case of Moosa a suit was filed for refund of an earnest money. As regards the document involved in the suit, which though required by law to be registered was not registered, the view expressed was that at best it was to be used for collateral purposes namely to prove that a sum of Rs.16,000 was paid as earnest money towards the agreement. In the same case it was further held: "Under the amended section 49 (Registration Act) the only penalty is that no document required to be registered shall operate to create, declare, transfer, limit or extinguish whether in present or in future any right, title or interest in any immovable property.
14. ' The former effect of non-registration that it could not be received as evidence of any transaction affecting such property is no longer the law of this country."
15. ' In the third case of Muhammad Ashraf it was held:- "Further the document was being used, if at all, for collateral purpose of ascertaining the mode of payment and not as the basis of the tenancy which has been found to be a statutory tenancy in terms of clause (ii) of section 2 of the Ordinance."
16. 'The legal position that emerges from the above authorities is that consequent upon the amendment of section 49 of Registration Act in 1962, the only effect of the non-registration of a document which is compulsorily registrable under the law is that it shall not be used as proof for creating, declaring, transferring, limiting or extinguishing in present or in furture any right, title or interest in any immovable property. However, it is no longer prohibited to receive such unregistered document in evidence and use the same for collateral purposes.
17. ' In the instant case no such right, title, or interest is being enforced on the basis of lease deed. The appellant has come to the Court for seeking ejectment of the respondent from the disputed premises. The relief of ejectment obviously is not in the nature of right, or interest which is enforceable in accordance with the lease deed. Moreover, the right of ejectment is a statutory right which is conferred on the landlord by a statute namely the Urban Rent Restric tion Ordinance, 1959. In this connection reference may be made to subsection (1) of section 13 of the said Ordinance. It reads as under:- "A tenant in possession of building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this Ordinance, or otherwise, and whether before or after the termination of the tenancy, except in accordance with the provision of this section."
18. 'It would appear from above provision of law that right of ejectment can be enforced by the appellant irrespective of what has been specified in the lease agreement. Therefore, it is not correct to say that the( said document is being used for enforcement of any right. All that is being ascertained from the lease agreement is the rate of rent payable by the tenant and the mode of its payment. As has been pointed out above there is no restriction on its user for such collateral purpose. The argument that it is being used by the appellant for recovery of rent and taxes is also not correct. As one of the grounds on which the ejectment has been sought is default in payment of rent and taxes, it has to be examined if the respondent has failed to pay the rent and taxes in accordance with the lease agreement. There should be no legal objection to consult the lease deed for that purpose which is obviously collateral in nature. Thus, it follows from the above discussion that non-registration of the lease agreement is not relevant to disposal. of the appeal in hand.
19. ' The next point to be considered is whether the respondent is guilty of default in payment of rent and taxes. The appellant's case is that so far taxes are concerned, the respondent is in arrears of Rs.400, as he has not paid the taxes right from commencement of the tenancy. As for the rent, the appellant's allegation is that the respondent has not paid the rent for the month of January 1973. On the other hand, according to the respondent since he has been paying the rent at Rs.325 which includes taxes, he 'cannot be held in arrears in respect of the taxes. So far the rent for the month of January 1973 is concerned, the respondent has claimed to have paid the same in cash in presence of witnesses Muhammad Yahya and Muhammad Alam. To resolve the controversy between the parties on the question of payment of taxes, reference may be made to the lease deed. As stated above it can be used for ascertaining the rate of rent and the mode of payment thereof. The respondent's allegation that his signature was obtained on the said deed through misrepresentation and fraud is devoid of any substance.
20. He has not been able to establish the allegation. Even otherwise it does not appeal to reason that the respondent who apart from being literate, is a businessman would blindly sign the lease deed.
21. The learned counsel for the respondent perhaps realizing the weakness of the above allegation has not seriously contested the same. In para. 2 of the lease deed it is clearly mentioned that the monthly rent of Rs.325 is "exclusive of water, conservancy and other taxes". Therefore, the respondent's plea in this regard is far from convincing. According to the respondent's own showing he has not made any other payment over and above Rs.325 per month. Thus it is established from his own admission that he has not paid anything towards taxes though he was required by the lease agreement to pay water, conservancy and other taxes apart from the monthly rent of Rs.325.
22. It is true that the said agreement is silent as to the amount to be payable as taxes. But the appellant has stated on oath in his evidence in Court that "Rs.25 was agreed for taxes to be paid by the opponent". Although the appellant was subjected to a lengthy cross-examination, no question has been put to him challenging his above statement. The only suggestion made to him in his cross-examination clearly shows that according to the respondent the payment of all taxes including property tax was the liability of the appellant himself. Admitting that property tax is payable by him, the appellant has categorically denied his liability to pay the other taxes. Even the above suggestion put by the respondent to the appellant as to payment of taxes other than property tax, is manifestly inconsistent with the respondent's own plea that the amount of Rs.325 that he has been paying as rent includes the amount payable on account of taxes. I see no reason to disbelieve the sworn testimony of the appellant inasmuch as that amount of Rs.25 was agreed between the parties as payable towards taxes particularly when the respondent has not been able to shake the same. On the contrary the respondent has lent support to the appellant's version by taking inconsistent stands on the question of payment of taxes. Assuming that the appellant's version with regard to payment of taxes was not true, the respondent too has not come up with any figure to be payable as taxes, once he accepted his liability to pay the taxes. Thus, I am convinced that upto filing of the ejectment application the respondent was in arrears of Rs.400 on account of his default in payment of taxes.
23. ' As for the default in payment of rent the respondent has allegedly committed the default in respect of the rent for January 1973. In this connection reference may first be made to the respondent's written statement. The stand taken by him in the said document which is the foundation of his case is couched, in the following words:- "As the applicant illegally and unjustly refused to accept the lawful and agreed rent, the opponent first sent the same through cheques and then on account of non-issue of receipts, and as per advice deposited the rent in Court and is still doing the same, under due intimation to the applicant."
24. ' It is clear from above pleading that after the appellant refused to accept the rent, the respondent first tried to send it to the appellant through cheques but as he did not issue receipts, the respondent started depositing the rent in Court. Thus there is no indication in the respondent's earliest version contained in his written statement that he ever attempted to pay rent much less the rent for month of January 1973 in cash. It appears that prior to filing of the ejectment application on 17th September, 1973, the appellant had sent notice to the respondent through his Advocate, dated 13th March, 1973 to which the respondent's Advocate had replied by letter dated 26th March, 1973. Even in that reply the respondent had not mentioned about payment of rent in cash for January 1973. Coming to the respondent's affidavit in-evidence, all that he has stated therein is: "That the intention underlying the filing of rent case is to coerce enhancement in the rate of rent for which he had also approached me before Abdul Yahya and S.M.Alam in whose presence, he had refused to issue rent receipt for January 1973 although rent was paid to him."
25. ' It appears that even his statement in his affidavit in Court does not disclose that the rent for the month of January was paid to the appellant in cash. The above statement only shows that the appellant had approached the respondent for enhancement of rent in presence of Muhammad Yahaya and S.M.Alam and that in their presence the appellant had also refused to issue rent receipt for January 1973, although the rent was paid to him. So, it was the issuing of rent receipt which was refused by the appellant in presence of the aforesaid witnesses. The respondent has not said in his above statement that the had paid the rent for January 1973 in cash in their presence.
26. Admittedly after first advance payment of rent for 12 months was fully adjusted, the respondent started paying the rent through crossed payee's Account cheques. This practice had continued until 31st December, 1972. The respondent has complained that the appellant refused to issue receipts even for the payment made through cheques and, therefore, he started depositing the rent in Court. In these circumstances, the respondent had obviously no reason to make a departure from the established practice of making payments through cheques and pay the rent for solitary month of January in cash.
27. ' Apart from above the respondent has produced application which he had made to the Controller for permission to deposit the rent in Court after the appellant had allegedly refused to issue rent receipts. The application is Exh.8-A in the Court's record. The pares. 2 and 3 of the application which are relevant are reproduced as under:- "(2) That my rental position is upto date and the rent is paid regularly every month through crossed cheques.
(3) That said landlord has not issued me any receipt for the advance payment and other payments made by me and in spite of my repeated request and demands, he has not so far complied with my request."
28. ' It is clear from the above application that the respondent paid the rent regularly every month through crossed cheques and such payments were not acknowledged by receipts by the appellant despite the respondent's repeated demands. Even in this application the respondent has not disclosed that contrary to usual practic of paying the rent through cheques, he paid the rent for January 1973 in cash.
29. ' However, contrary to what has been stated above, Muhammad Yahya who has been examined by the respondent in support of his case has come foward to say that in his presence the appellant came to the shop of respondent to collect the rent for the month of January 1973 which was paid to him but he gave no receipt even though the same was demanded from him. First of all it does not sound reasonable that the appellant who went all the way long to the respondent's shop for collecting the rent for the disputed month and even though the same was paid to him he would not pass any receipt, despite the insistence of the respondent. Secondly Muhammad Yahya had no reason to be at the shop of the respondent, as by that time he had not yet rented out any shop of the appellant in the same building. It is clear from his statement that in those days he used to visit appellant rather than respondent for having a shop on rent. His statement is also in conflict with that of the respondent inasmuch as that according to the latter he had been paying the rent through cheques where as the above witness has stated that not only the rent for January 1973 was paid in cash but he had seen the respondent paying rent in cash four five times. On top of above, Muhammad Yahya is obviously a prejudiced witness as he has admitted that even against him the appellant's case for ejectment was pending when he gave his evidence. The other witness Muhammad Alam has not been examined. For above reasons Muhammad Yahya appears to be a set up witness. He seems to have joined hands with the respondent, who like him is also the tenant of same landlord, in order to defeat their common foe namely the appellant in the rent litigation he has filed against them. Therefore, no reliance can be placed on evidence of such witness.
30. ' At this stage it seems pertinent to refer to following two authorities cited at the bar. The first case is of Haji Ashraf-ud-Din v. Sabir Hussain and others 1973 SCMR 309 wherein it was held: "In this latter case the learned Judges have rightly laid down that the liability to pay or tender the rent due remains on the tenant irrespective of the higher amount demanded by the landlord."
31. ' The other authority is mentioned as Mian Rehmat Ali v. Khadija Hakim PLD 1967 Lah. 29 wherein it was held: "If the landlord demands rent in his notice which is in accordance with proviso (a), the person in possession must pay rent due within three months of the date of the receipt of the notice, but if the landlord does not mention the rate of rent at the time of transfer or the rate of rent according to the latest assessm ent, then the person in possession is not placed on enquiry to find out what the latest rent is------------------------------------------- He is not, however, absolved of the liability to pay the rent he was paying immediately before the transfer--------------------------- In the present case, depsite the notice by the respondent to the appellant to pay rent at the excessive rate of Rs.125 per month, he was under obligation to pay rent at the rate of Rs.80 per month from the date of transfer in order not to lose the protection to proviso
(b) to subsection (1) of section 30. There is nothing in section 30 which invalidates the notice because the rent demanded in it is excessive."
32. ' In view of the above authorities even if the rent including taxes demanded by the appellant/landlord was excessive, still it was the responsibility of the respondent/tenant to have ensured that he had paid the rent due. Since he has neither paid anything towards taxes nor paid the rent for January 1973, he is clearly a defaulter liable to eviction.
33. ' On the question of personal requirement of the appellant the latter's plea raised in the ejectment application is to the following effect: "That the shop premises in question are reasonably and in good faith required by the applicant for his sons who are to be set up in life and have no place for business."
34. ' The respondent in his written statement has challenged the plea of personal requirement, stating that it is mala fide as according to his information the applicant's sons are already in possession of the business place. However, the applicant in support of his plea of personal require ment has stated in his evidence in Court that he has four sons from whom two elder sons share with him, his only office of business expert. According to the appellant he requires the disputed premises for his third son Hilal Ahmed who has passed B.Com. and would like to run provisions store in the disputed shop. In course of cross-examination the appellant denied that his son Hilal Ahmed is working with him. Even if this may be true, it does not mean that the disputed shop will not be needed by the appellant for establishment of his son, Hilal Ahmed. Until, the shop in dispute is vacated the said Hilal Ahmed is not expected of site idle. Hilal Ahmed who has also come forward to give evidence has thrown his full weight on the side of his father namely the appellant. He has corroborated his father by stating that he has done his B.Com. and wants to run provision store in the disputed shop which is required by his father for his (Hilal Ahmad's) bona fide use. The respondent has not been able to bring out anything from both the father and son to show that their evidence is untrustworthy.
35. ' The respondent has stated in evidence that the appellant under the cloak of personal requirement actually desires the enhancement of rent. He has further stated that the appellant has another building in the same locality in the name of his sister and he had got some shops recently vacated in that building and that he again let out the Shop No.3 to one Sharfat Hussain. The respondent's witness Muhammad Yahya who has already been disbelieved in respect of payment of rent for January 1973 has also spoken of the appellant having another building in the name of his sister in the same locality. Like the respondent his evidence also shows that recently appellant got vacated some shops in the said building but again let out one shop to Sharafat Hussain.
36. ' It is not disputed that the appellant and his sons belong to business community. The respondent has also not challenged the assertion made by the appellant and his son Hilal Ahmed that the latter would run provision store in the disputed shop. He has also not denied that beside the disputed shop the appellant has no other premises for establishment of his son Hilal Ahmed. However, both the respondent and his witness Muhammad Yahya have stated that the appellant has another building in the name of his sister in the same locality and in that building he recently got some shops vacated, suggesting thereby that the appellant could establish his son in one of those shops. It would appear that not a single question has been put in cross-examination either to the appellant or his son Hilal Ahmed about another building the appellant allegedly has in the name of his sister in the same locality nor any question has been asked from them about any shops having been got recently vacated in the same building. If it is believed for a moment that any such building does exist in the same locality even then on the respondent's own showing it belongs to the appellant's sister which cannot be regarded as his own property. Moreover, one would always prefer to occupy his own premises. In case the landlord expressed his desire to move into his own premises the ejectment of the tenant, could not be resisted merely on the ground that some other accommodation even though not belonging to the landlord was available to him. In support of this view Rajab Ali v. Darius B.Kandawalla and another PLD 1984 Kar. 14 can be cited as authority.
37. ' Apart from above, it was argued by the learned counsel for the respondent that on the point of personal requirement since the pleading of the appellant was not consistent with his evidence in Court, his demand for vacating of the building was not bona fide. In this connection reliance has been made on Fahmeeda Jehan Begum v. Varindamal 1980 CLC 604 wherein the view taken was that assertion or claim on oath by the landlord that he requires premises for his personal bona fide use can be accepted only when the case disclosed in evidence is consistent with averments made in the application and it is not shaken in corss-examination or disproved in rebuttal.
38. ' The above authority is obviously not applicable in this case. The arguments of the learned counsel does not appear to have any force. On careful perusal of both the appellant's pleadings as contained in the ejectment application and his evidence in Court, I have not come across the alleged inconsistency. As stated above in the ejectment application he has taken a stand that he requires the disputed premises for his sons who are to be set up in life. In his evidence in Court he has been categorical by mentioning the name of his son Hilal Ahmed whom he wants to establish in the disputed premises. Thus, there is no conflict in the two versions. At this stage reference may be made to the authority of Supreme Court laid down in the case of Dr.Major Abdul Ahad Khan v.
39. Soofi Muhammad Yasin & Bros. PLD 1984 SC 200. In this case the view expressed by the Supreme Court was that contradiction between the case set up in the ejectment application by the landlord and his deposition as to requirement for particular purpose is not material and the question involved should be decided on preponderance of evidence on either side and considering documentary evidence produced by the parties. Thus, even if the aforesaid so called inconsistency is taken as contradiction, yet in view of the above Supreme Court authority it is not material. The question of personal requirement has to be decided on preponderance of the evidence which, as has been discussed above, is certainly in favour of the landlord/ appellant.
40. 'As pointed above it was also argued on behalf of the respondent that the appellant's demand for enhancement of rent recoils on his case, clearly implying that the ground of personal requirement for vacating of the disputed premises was mala fide. The argument does not appear to be impressive. Suffice it to say that it has been repeatedly held by Superior Courts that demand of higher rent by itself does not cast any doubt on bona fides of personal requirement. In support of this view the case of Sitaldas and 2 others v. Haji Muhammad Saffar PLD 1984 Kar. 87 may be pressed into service.
41. ' For above reasons the appeal is allowed with costs and the impugned order of the learned Rent Controller is hereby set aside. The respondent is directed to vacate the disputed premises and deliver the possession thereof to the appellant within two months of this order.