1. ' These two appeals arise from the order of the XIIth Senior Civil Judge, Karachi, dated 8-7-1984, ordering the .Appellants, Messrs Mack Industries, to hand over vacant possessison of the premises in question to the respondents.
2. ' Briefly, the facts of the case are, that Messrs Mack Industries were tenants at the monthly rent of Rs,600 in respect of premises situated on industrial Plot No,166 in Sector 27, Korangi Industrial Zone, Karachi, of which one Haji Abdul Karim, the predecessor of the respondents was the landlord. Haji Abdul Karim filed an application before the learned Rent Controller, being Rent Case No,2082 of 1973 averring therein that the said appellant was persistent and habitual defaulter and had committed default in payment of rent from the month of January, upto April, 1978. It was also averred therein that the premises in question were required by him for his bona fide use and occupation as he wanted to start his own business. It was further alleged that the appellant had damaged the premises in question and had materially impaired their value and utility.
3. ' A written statement was filed by the appellant in which the said averments were denied. The stand taken in respect of default was that the appellant had tendered rent by cheques which were refused by the landlord. It was further urged that there was an agreement between the parties according to which Rs,2,000 had been paid to the landord which were to remain in deposit with him during the subsistence of the agreement and since the said agreement had expired on 31-12- 1975, the said sum of Rs,2,000 had become recoverable by the appellant and in the same could be adjusted towards rent.
4. ' The learned Rent Controller after recording evidence in the case, came to the conclusion that default had been committed by the appellants in payment of rent as claimed by the landlord. The other grounds, viz. The bona fide personal use and damage having been caused to the premises did not find favour with the learned Rent Controller. As a result of the findings arrived at by the learned Rent Controller, the appellants were ordered to be evicted from the premises in question within sixty days of the date of the order.
5. ' Aggrieved by the said order both the parties have filed separate appeals, in F.R.A. No,757 of 1984, the tenants, namely Messrs Mack Industries have assailed the ejectment order passed against them while in F.R.A, No,777 of 1984 the appellants therein who are the legal representative of the original landlord, namely, Haji Abdul Karim, are aggrieved by the order of the Rent Controller as their pleas in regard to personal use and damage to the premises were rejected by him.
6. ' I have heard Mr. Sher Afgan and Mr. Rashid A. Rizvi, the learned counsel appearing on behalf of the respective parties in these appeals.
7. ' The contention of Mr. Sher Afgan, the learned counsel for the appellant in F.R.A. 757 of 1984 has been, that the respondent .n that case have failed to establish that any default was committed by the appellant, or that the premises were required, in good faith, by the predecessor of the respondents, or that any damage hadubeen caused by the appellants to the premises which could impair their utility or value.
8. ' As far as the question of commission of default is concerned, admittedly, rent was not paid for the period between January, 1978 to April, 1978. The argument of Mr. Sher Afgan has been that since the agreement of tenancy had expired, the appellant had become a statutory tenant, therefore, except for the month of January, 1978, no default had in fact been committed by the appellant in respect of the other months. According to the learned counsel rent for February, 1978 was payable within sixty days to be computed from 1st March, 1978 and admittedly the same had been paid within time to constitute any default as contemplated by the Rent Ordinance. In this respect, the main argument of Mr.Sher Afgan has been, that since Rs,2,000 were lying in deposit with the landlord after the expiry of the tenancy agreement, the same could be adjusted towards rent for the month of January, 1978. Mr. Sher Afgan has also relied upon Muhammad Yusuf v. Abdullah PLD 1980 SC 298 in which the Supreme Court has held that lessee's deposit lying with the lessor could be adjusted against rent due from him. Although the factual position as stated by Mr. Sher Afgan has not been denied by Mr. Rashid A. Rizvi, but his argument has bee that according to para. No,3 of the tenancy agreement, the deposit o Rs,2,000 was not to be considered adjustible against rent at any stag during the tenancy.
9. ' That may be so but one cannot loss sight of the fact that the tenancy agreement was valid only for a period of two years from th date of its signing which admittedly expired on 31st December, 1975.A After expiry of the agreement none of its terms could be enforced b any of the parties. It is, therefore, manifest that the amount of Rs,2,00I lying in deposit with the landlord, could be adjusted towards rent Since admittedly the default was committed only in respect of the mont of January, 1978. I cannot but agree with Mr.Sher Afgan that Rs,2001 which were lying in deposit with the landlord could have been adjuste towards arrears of rent by the landlord and the case of Muhamma Yusuf v. Abdullah was applicable to the instant case in full force.Mr. Rasheed A. Rizvi, however, argued that according to the plea taken by landlord in the ejectment application the tenant was a persistent defaulter in payment of rent, therefore, it was not alone the question of commission of a single default by the tenant. Be that as it may, but it cannot be denied that a party has to be specific in his pleadings. Although it is true that such allegations have been made by the landlord but since no specific plea was taken by the landlord the tenant cannot be penalised on the basis of vague allegations of default.
10. ' Next, coming to the question of bona fide personal requirement, the contention of Mr. Sher Afgan has been that the evidence adduced by the landlord on the point is not sufficient to establish his bona fides. The learned counsel has drawn my attention to para. No,4 of the rent application wherein it has been specifically stated by the landlord that he required the premises in question for his use and occupation as he wanted to start his own business in the demised premises. Having stated so in his application, the landlord at the time of recording of his evidence by the Rent Controller stated that the premises in question were required for his two sons who were jobless.
11. This according to Mr. Sher Afgan was a clear deviation from the stand taken by the landlord in his pleadings. Mr. Sher Afgan has also relied upon a case earlier decided by this Court and reported as Jana Bai v. Mst. Gulshan and another 1984 CLC 1061. In that case the evidence of the landlord regarding the personal requirement of premises was found to be at variance with his pleadings and it was held by a Single Judge of this Court that a decision of the case could not be passed on the ground outside the pleadings of the parties and in such case the only course open to the landlord would be to seek amendment of the ejectment application. Against this, Mr. Rasheed A.
12. Rizvi has placed reliance on two cases decided by the Supreme Court and reported as Nisar Muhammad and another v. Abdul Rauf 1972 SCMR 561 and Subah Sadiq, etc. v. Mistry Taj Din, etc. 1979 SCMR 297. In the first case, the landlord had applied to the Rent Controller for ejectment of the tenant on the ground that the shop in question was required in good faith by the landlord for his personal use. At the time of recording of the evidence, however, the landlord stated that the shop was required by the landlord in good faith by his children who were growing up. The Supreme Court refused to accept the plea advanced on the tenant's behalf that the two statements made in the pleadings and evidence, respectively were conflicting. In the other case decided by the Supreme Court, the landlord had similary stated in his pleadings that the premises were required for his own personal use, but in the evidence, recorded after seven or eight years after making of the eviction application, the landlord stated that the premises were required for the use of his children and an argument was advanced on behalf of the tenant that the landlord had taken inconsistent pleas in his application for ejectment and in his evidence. The Supreme Court, while disagreeing, held that since the landlord could evict the tenant on the ground that the shop was required in good faith for his own use or for the use of any of his male children, the discrepancy between the landlord's evidence and pleadings was not material. Another factor which seems to have weighed was that the landlord was giving evidence after seven or eight years of .The filing of the ejectment application. However, both the cases cited by Mr. Rashid A. Rizvi are distinguishable.
13. In the instant case, the landlord made a categorical statement in his ejectment application that the premises in question were required by him for his bona fid use and occupation as he wanted to start his own business. At the time of giving evidence which was only after a year of filing his eviction application, he stated that the premises were required for his sons. That was a clear deviation from the earlier stand taken by him. Under the circumstances it has been rightly argued by Mr. Sher Afgan that landlord has failed to prove bona fides as required under the law in the instant case. Needless to say that establishment of bon fides or good faith are material requirements for landlord to prov before getting an eviction order in his favour.
14. Mr. Rashid Rizvi has referred to the definition of "person use" in clause (g) of section 2 of the Sind Rented Premises Ordinance, 1979 according to which "personal use" means "the use of the premise by the owner thereof or his wife (or husband), son or daughter". I am afraid this definition is hardly of any avail to the landlord as whe the eviction application was filed the West Pakistan Urban Rent Restriction Ordinance, 1959 was in force. As in that Ordinance the words "persona use" had not been assigned any particular meaning and since requirement of the premises for the use of the landlord's children was not specificall pleaded, the landlord at the time of giving evidence clearly deviated from his pleadings.
15. ' No other ground has been urged by the parties before me.
16. ' Under the circumstances Appeal No,757 of 1984 is allowed and the findings of the Rent Controller on the point of default are set aside and the appeal No,777 of 1984 is dismissed. The parties in these