The ejectment application filed by the appellant/ landlord was dismissed by the learned Rent Controller vide Judgment dated 7-5-1.986 and he has now come in appeal against the said judgment, The facts are as follows.
2. As per averments made by the appellant in his ejectment application, he is the owner/landlord of the double storeyed bungalow known as Najma Court. The ground floor and half of the first floor was given on rent to the respondents on a monthly rent of Rs.5,500. The rent was payable in advance by the 10th of the succeeding month and the respondent had also paid a security deposit of Rs.25,000 to the appellant and this amount was refundable only in the termination of the tenancy and the delivery of vacant possession of the premises to the landlord. Ejectment of the respondent was sought on five grounds. Firstly, that the respondents had been irregular in the payment of rent and on the date on which the ejectment application was filed (16-1-1982), rent for the period from July to December, 1981, was in arrears; secondly, that the respondents had sub--let the premises to Al-Mujahid Technical School; thirdly, the respondents failed to pay betterment charges, water charges, conservancy charges and electric and sui gas charges and thus committed violation of the terms and conditions of the tenancy; fourthly, the respondents had materially impaired the value and utility of the demised premises and, fifthly, 'that the appellant required demised premises in good faith for his own use and the use and occupation of his daughter. He explained that he wanted to use the ground floor of the demised premises to house his laboratory which is at the moment in the rented premises and the portion of-the house on the first floor was required to house his daughter who had returned from abroad. In their very detailed written statement the respondents challenged the very locus standi of the appellant to file the ejectment application and stated that the appellant was neither the owner of the premises nor their landlord and it was stated that Mr. Younus Khan and others were the owners and landlords.
Throughout the written statement, the status of the appellant as landlord and owner of the premises was denied. The respondents denied the rate of monthly rent as given by the appellant and stated that the rent was only Rs.3,000 P.M. And added that the appellant was illegally realizing an additional sum of Rs.2,500 P.M. For special fittings although there were no special fittings in the premises. It was claimed that this extra and illegal payment was liable to be adjusted in future rent.
The respondents did not produce in Court the rent agreement and stated in para-2 thereof that it was in the possession of the applicant, implying thereby that they were neither in possession of the original rent agreement nor of its copy. The allegation of default in the payment of rent for the disputed period of July to December, 1981, eras denied. It was stated that from 26-11-1977 to June, 1981 the respondents had paid Rs.2,37,416 at the rate of Rs.5,500 P.M. While the rent of the premises at the rate of Rs.3,000 P.M. Came to Rs.1,29,500 and thus there was an excess payment of Rs.1,71,916 which was liable to be adjusted in future rent. It was further stated that the rent for the period from July to December 1981 was several times offered to the appellant but he avoided to accept it and demanded exorbitant increase in the rate of rent from Rs.5,500 to Rs.11,000 Since the respondents had denied the very locus standi of the appellant to file the application and had categorically stated that he was neither the owner of the premises nor their landlord, it is not clear why the rent for the disputed period was at all offered to him because as per averments of the respondents themselves the appellant had no right to receive any rent whatsoever from the respondents. The charge of sub-letting was also denied. It was admitted that A1-Mujadid Technical School was also located in the premises, but it was stated that it was as sister concern of the respondents. It was denied that respondents had caused any wilful damage to the premises and it was asserted that, on the contrary, they had invested a sum of Rs.70,000 on the improvement of the building and it was also stated that the appellant had given permission to the respondents to affect these improvements. The personal and bona fide requirements of the appellant were denied.
3. The appellant filed his own affidavit in support of his case and produced certain documents.
Some other documents were got produced by the respondents in his cross-examination. The respondent filed the affidavit of their Secretary---General Sultan Ahmed in support of their case and also tendered certain documents. No formal issues were framed by the learned Rent Controller but at the time of writing Judgment he framed the following points for determination:-- (1).Whether the applicant is landlord of the opponent?
(2).Whether the opponents have committed default in payment of rent?
(3).Whether the opponents have sub-let the demised premises to another person?
(4).Whether applicant requires the premises for his personal bona fide use and for his daughter?
Only point No.1 was decided in favour of the appellant whereas all other points were decided against him and the ejectment application was rejected.
4. I have heard the learned counsel for the parties and gone through the record of the case.
5. Even though point No. 1 was decided by the learned Rent Controller in favour of the appellant and it was held that he was the owner and landlord of the premises in question and the respondents were his tenants and even though this point was not agitated in appeal, I cannot help noting that the respondents had absolutely no justification to raise such a frivolous and baseless objection.
They had entered into the agreement of tenancy with the appellant and they themselves produced in court copy of the rent agreement as Ex. I-B which clearly shows that it was entered into by the appellant as the lessor/landlord at one hand and the respondents at the other. The appellant is also owner of the plot on which the premises are located and the copy of the lease-deed is also on record Ex. A/1. It appears that the appellant had privately given the four independent portions of the premises to his four children whose names are also mentioned in the end of the rent agreement. It, however, makes no difference so far as the relationship of landlord and tenant between the parties was concerned. The respondents had entered into the agreement of tenancy with the appellant and not with his children. They had obtained possession of the premises from the appellant and not from his children. They were all along paying rent to the appellant and no? To his children. They had absolutely no jurisdiction whatsoever to claim in the written statement that the appellant was neither the owner of the premises nor their landlord. This objection was obviously raised malafidely.
In fact this objection led the respondents into making further absurd averment because while, at one hand, the very status of the appellant as the landlord was being deified, at the other hand it was being pleaded that the appellant had executed the rent agreement, that rent was being paid to him, that he was corresponding with them as the landlord in respect of the premises in, question, that it was he to whom the rent was paid all along and to whom it was offered for the period in dispute and it was he who had avoided to accept it. Both these assertions arc contradictory to each other and cannot be reconciled and yet they were contained in one written statement.
6. I shall now take up the various other points at issue between the parties and on which the learned Rent Controller has given finding against the appellant, Point No.2.
The first thing to be determined is the rate of rent because whereas the appellant says it is Rs.5,500 per month, the respondents say it is Rs.3,000 per month and the learned Rent Controller has agreed with :he respondents. The copy of tenancy agreement is on record as Ex. 1/B and it is an admitted document in the sense that it was produced by the respondents themselves during the cross-examination of the appellant who had admitted it to be correct. This tenancy agreement shows that originally the entire bungalow consisting of two independent portions on the ground floor and two independent portions on the first floor was contemplated to be leased to the respondents for a total of Rs.7,000 per month. Clause (3) of the rent agreement is quoted below for facility of reference: "3.That the rent will be payable, in advance on or before the 10th of each month as follows:- (a)Rent of premises Rs.4,000 per month.
(b)Rent of special fittings Rs.3,000 per month (in all Rupees seven thousand per month)."
Vide clause (4) of the rent agreement it was contemplated that out of the four independent units, the possession of three units was to be delivered to the respondents outright but the fourth unit was in possession of some other tenant and the possession of this unit was to be delivered to the respondents after its occupant vacated the same: Till possession of the fourth unit was not delivered to the respondents, it was further contemplated under the same clause (4) that the full rent of Rs.7,000 shall not be payable and the respondents would only pay Rs.5,500. It is also clear from clauses (3) and (4) .Of the Rent agreement that the rent was divided into two categories first, rent of the premises (which was stated to be Rs.4,000 per, month) and, second, rent of special fittings (which was Rs.3,000 per month) and out of this the respondents were to deduct Rs.1,000 per month from the former category and Rs, 500 per month from the latter category.
Thus the respondents were to pay Rs.5,500 per month until the possession of the fourth unit of the bungalow was delivered to them whereafter they were to pay Rs.7,000 per month. In view of this clear and unambiguous stipulation in the rent agreement, the respondents cannot be suffered to say that the rent of the premises was Rs.3,000 per month. The contents of a written document are proof unto themselves and they cannot be added to or substracted from by any oral evidence. It is clear that the total rent stipulated by the rent agreement was Rs.7,000 per month for the entire premises and Rs.5,500 per month for the three units. No doubt the rent has been split up into two categories, the rent of premises and rent of special fittings, but this is of absolutely no importance and the respondents cannot state that they are liable to pay only the one part and not the other.
They cannot say that they are not liable to pay the rent of special fittings because there were no special fittings in the premises. It is immaterial as to whether there were or there were no special fittings. The fact remains that they had undertaken to pay for special fittings and that is enough to oblige them to do so. The tenancy agreement does not stipulate that if there were no special fittings rent under this count shall not be paid. The tenancy agreement also did not stipulate that any extranous evidence would be required later on to prove that there were special fittings. The mere fact the rent agreement stipulates that rent for special fittings would be paid is sufficient to conclude that such fittings did IA exist in the premises. It was therefore of no consequence if the appellant stated to his cross-examination that he did not remember what were the special fittings.
Besides, the claim of the respondents that the rent was Rs.3,000 per month is in contradiction to their own actions and their own documents prove it to be a false and dishonest assertion. Ex. 1 is a letter dated 5-3-1979 and it shows that the respondents had tendered Rs.5,500 as the rent for the month of February, 1979. (Incidentally, this letter is' addressed to the appellant and this rent was paid to him whose very locus standi as the owner and landlord was denied) Ex. 2 is another letter of respondents, dated 13th September, 1979. Through this letter B three cheques were sent to the appellant. The first cheque is for Rs.16,500 and it is clearly stated that it is in respect of the rent for the months of April, May and June, 1979. The second cheque is also for the like amount and pertains to the rent for the months of July, August and September, 1979, while the 3rd is for Rs.5,500 and pertains to October, 1979. If this is not a clear admission on the part of the respondents that the rate of rent is Rs.5,500, I fail to understand what else it can be construed to .Lee. Ex.3 is yet another letter of the respondents dated 15-1-1981 through which rent for the months of June, 1980 to January, 1981 was admitted to be in arrears and the raie of rent is clearly mentioned as Rs.5,500.
7. There is some evidence on record that the record of Excise & Taxation shows that the rent of the premises is Rs.3,000 and that the appellant had not disclosed to the Excise 8c Taxation Department that the rent of the premises was Rs.5,500 p.m. All such evidence is totally irrelevant for purposes of determining the rate of rent which the respondents are liable to pay. The rate of rent as per record of the Excise & Taxation Department may even be Rs.300 p.m. And not G Rs.3,000 but this would not entitle the respondents to claim that the rent of the premises is Rs.300 per month. The relationship between the parties is governed by the tenancy agreement and the rate of rent as given therein is the absolute and final proof determining the liability of the respondents in this regard.
8. For the reasons noted above, I hold that the rate of rent payable by the respondents is Rs.5,500 p.m.' and not Rs.3,000 p.m.
9. The next thing to be determined now is as to whether the respondents had tendered the rent for the disputed period (July to December 1981) within time and the appellant had refused to accept the same
10. In para.3 of the written statement the respondents simply stated that paras.3 and 4 of the ejectment application were denied. It was in para.4 that the appellant had stated that the rent for the period from July, 1981 to December 1981 was neither paid nor tendered. It is to be noted that the respondents did not state that rent for the period July to December, 1981 was paid by them or was even tendered by them. Their reply was a mere simple denial. After making this simple denial, the respondents gave the to ia! Of the money so far paid by them to the appellant and come to the conclusion that they had paid an excess of Rs.107916 because the rate of rent was Rs.3,000 per month and they had paid at the rate of Rs.5,500. Since it is held that the rate of rent was not Rs.3,nt0 per month but Rs.5,500 per month, the calculations of the respondents become redundant and irrelevant and there is left no defence to the allegation of default for the disputed periods. The further claim of the respondents that they offered this rent to the appellant and he avoided to accept it cannot be believed for two reasons. First, it is not clear why the respondents should offer or tender this rent to the appellant as they did not recognise him as their landlord. Obviously, the rent if offered only to the landlord and not to any Tom Dick and Harry. Second, the respondents by claiming that the appellant was not their landlord and that the rate of rent was not Rs.5,500 have shown themselves to be absolutely unreliable persons whose word cannot be believed unless it is corroborated by some cogent evidence on record. There is not even an iota of evidence to support the claim of the respondents that the rent for the disputed period was offered or tendered to the appellant and I am convinced that the respondents did not tender or offer the rent for the disputed period. The documents on record also show that this claim of the respondents is incorrect. Ex. A/4 is the letter of the respondents dated 13--9-1979 and it shows that on this date rent for the months of April, May, June July, August and September, 1979, was due and payable. As per terms of the agreement, rent for the month of April should have been paid by the 10th of that month and so on for the subsequent months. The respondents "sincerely regretted" the delay in the payment of rent.
Ex. A/5 is another letter of the respondents dated 15-1-1981 and it shows that a sum of Rs.42,000 was due and payable on this date by way of rent for the period from June, 1980 to January, 1981, and out of the arrears of Rs.42,000 only Rs.21,000 were tendered and the balance of Rs.21,000 was still left unpaid and a reference was made (in this letter) to the personal visit of the representative of the respondents to the appellant and to the understanding reached between them for the payment of the entire arrears in two instalments. It is thus clear that the respondents had been very irregular in the payment of rent, as alleged by the appellant in para. 3 of the ejectment application. Under these circumstances the claim of the respondents that they offered the rent for the disputed period sounds hollow and unconvincing. Besides, why should the respondents had thought it necessary to tender this rent when according to them they had already paid an amount of Rs.107,916 in excess of the legitimate rent. It is thus sufficiently proved on record that the respondents were in default in the payment of rent for the period from July, 1981 to December, 1981.
The finding of the learned Rent Controller in this regard is totally untenable.
Point No. 3 The allegation of the appellant was that the respondent had handed over the possession of the premises to Al-Mujadid Technical School and this they had done without his consent. This allegation is contained in para. 5 of the ejectment Application and it was denied in para. 5 of the written statement. The respondents did not deny the allegations of the appellant as such but their denial. Is based on their assertion chat Al-Mujaddid Technical School was their sister concern. In other words, the defence of the respondents is that although they have handed over possession of the premises to Al-Mujaddid Technical School but still their action does not amount to sub-letting because Al-Mujadid Technical School is their sister concern. In para. 11 of his affidavit, the representative of the respondents has averred the same thing. The respondents have, however, led no evidence that Al-Mujadid Technical School is their sister concern. The mere word of the representative of the respondents, unreliable as he has proved himself to be, is not sufficient to come to the conclusion that AI-Mujadid Technical School is a sister concern of the respondents.
Even if Al-Mujadid Technical School were the sister concern of the respondents, it appears that the respondents would still be held to have sub-let the premises. On this point I have been refereed to PLD 1960 Kar 276; PLD 1967 Kar 449 and PLD 1974 SC 351. All these authorities I pertain to the.
Same case, the first is the decision of the Single Judge, the second of Division Bench in appeal and the third as the decision in appeal by the Supreme `I Court. The fact of the case in these authorities that; the tenant was a partnership firm and it had converted itself into a limited company and it was held that the fact that the partnership was no more in occupation of the premises which were now in occupation of the limited company. It amounted to sub-letting because a j partnership firm was different from the limited company. On the same apology, parting of possession by the respondents in favour of Al-Mujadid Technical School amounted to sub-letting. This is, however, only an academic discussion because the respondents have not been able to show that Al- Mujadid Technical School was their sister concern. The findings of the learned Rent Controller are contrary to the facts on record and, I should rather say, perverse. I am of the view that the charge of sub-letting has been proved against the respondents.
Point No.4 This point pertains to the personal requirement of the appellant. His personal requirements are two-fold. First, he clamed that he required the ground floor to house his laboratory which is at present located in the rented premises. Second, he required the accommodation on the first floor to accommodate his daughter who was so far abroad and had now returned.
So far as the requirements of the appellant in respect of the accommodation on the first floor, the objection raised by the respondents is that the daughter of the appellant has not appeared as a witness to depose about her requirements and therefore the claim of the appellant could not be sustained. This objection is not sustainable. I have been referred to 1981 SCM R 844, 1981 SCM R 895 and 1981 SCM R 1081 which all hold that it is not required by law that the person for whom the accommodation is required must of necessity be G produced in Court as a witness and it is sufficient if the landlord otherwise proves to the satisfaction of the Court that he requires the premises for the use of any of his family members. However, even so, I am not satisfied that the appellant in fact requires the tenement on the first floor of the premises for the use and occupation of his daughter. The daughter is well-settled in the house belonging to her husband and nothing was brought on record to show that she did not want to live in that house and preferred to live in the tenement on the first floor of the premises in dispute. To this extent, I agree with the learned Rent Controller and uphold his finding. So far as the ground floor of the tenement is concerned, the appellant states that he is a qualified M.BB.S. Doctor but he is not practicing as a consultant and physican but is running a pathological laboratory in the rented premises at Aram Bagh and he wanted to shift his laboratory to the ground floor of the premises under dispute. It has came in evidence that the appellant is 79 years of age and I can appreciate his desire to avoid travelling all the way from North Nazimabad to Aram Bagh and to shift his laboratory to the premises in dispute which are located in Nazimabad which is, comparatively speaking, very near to his residence at North Nazimabad. The stand taken by the respondents in this regard is again, contradictory. At one place it was alleged that the appellant was leading a retired life and was not doing any work and a suggestion to this effect was put to him in the very beginning of his cross-examination where he repelled such suggestion and stated that it was incorrect that he was enjoying retired life and that he was practicing as a pathologist and running a laboratory. At another place it was alleged that the appellant had a laboratory at Aram Bagh and had no necessity to shift the same to the premises in dispute. Both these stands are contradictory in nature. Either the appellant is leading a retired life or he is running pathological laboratory. He cannot do both the things simultaneously. It was argued by the learned counsel for the respondents that the appellant had great goodwill for his laboratory at its present premises and therefore he could not really desire to shift it to the premises in dispute. This argument ignores two facts. First, the appellant is now 79 years of age and he may not like to travel all the way from North Nazimbad to Aram Bagh everyday. Second, the city of Karachi has expanded a great deal and there may be no problem for the appellant to re- establish laboratory at Nazimabad. In any case, the appellant has every right to shift his laboratory from rented premises to his own property and there is nothing on record to infer that his claim in this respect is main fide. I am therefore satisfied that to appellant bona fidely requires the ground floor of the premises for establishing his laboratory and for shifting the same from its present site at Aram Bagh.
For the reasons noted above, the impugned order is set; aside, the appeal is allowed and the respondents are directed to put the appellant into possession of the premises which are subject- matter of this appeal. Since the respondents are an education institution, they are allowed 4 moths time to vacate the premises so that they may have sufficient time at their disposal to find alternate accommodation. The appellant shall have his costs in this Court.
M.Y.H./M-787/K.