' By this appeal the order passed by the Rent Controller in Rent Case No,444/1985, (Old No:4022/1982), directing the appellants to vacate the premises in dispute, has been challenged.
The facts of the case are that the respondent had filed the said rent case against the present appellants on the grounds of default and requirement for personal use. His case is that, he had purchased the said premises from its previous owner through Sale-Deed dated 26-5-1977 while M.A. Naqvi alias Abdul Qasim Naqvi, the predecessor of the present appellants who died on 30-1- 1980, was the tenant of the previous owner at the monthly rent of Rs,117. It is further contended that the present appellants being his heirs have become the tenants by operation of law and that the respondent had served the statutory notice on the appellants as required under section 18 of the Sind Rented Premises Ordinance, 1979, (hereinafter referred to as the Ordinance), both by registered post and publication in a local newspaper Daily 'Dawn' dated 23-6-1982. He has claimed that the appellants/tenants have defaulted in payment of rent since June, 1977 till September, 1982, and also that he requires the premises in good faith for his own use and occupation.
2. The appellants filed their joint written statement denying both ie allegations. It is their case that they came to learn about the purchase of disputed premises by the respondent through the newspaper Daily 'Dawn' of 23-6-1982, and accordingly, they sent a letter dated 3-7-1982, and thereafter they made all the payments through money-orders, one after the other which were accepted by the respondent. They have further contended that the previous landlord had also filed a rent case against their predecessor, being R.C. No,376/1969 and that rent was being deposited in the said case till the year 1982 when the said case was withdrawn without intimation to them. The respondent has filed his affidavit, while the present appellant No,2 has also filed his affidavit. Both were cross-examined and the learned Rent Controller holding that the appellants had committed default and that the respondent required the premises for his personal use, was pleased to allow the present rent case.
3. It may be pointed out that alongwith this appeal, an application under section 21(3) of the Ordinance was moved by the appellants, whereby, they had sought to produce seven documents from the earlier Rent Case No,376/1969, which are marked as Annexures A/1 to A/7. This application was allowed by a consent order passed on 16-8-1987.
4. I have heard the learned counsel for the parties. Before proceeding further, I may point out that it is an admitted position that the rent was being deposited by the present appellants and their predecessor in R.C.No,376/1969, which fact is evident from the notices given on behalf of the respondent to the appellants during the pendency of the present rent case. It is also admitted by the respondent in his cross-examination that he has been receiving the rent since July, 1982, i.e, after the publication of the said notice. The order of the Rent Controller also shows that the period of default involved in the case is from June, 1977 to June 1982, and that Rent Controller has held that in spite of the plea taken by the appellants that they were depositing the rent in Rent Case No,376/1969, they have not produced any evidence in the form of receipts, etc. To substantiate their case.
5. Mr. Zafar Alam Khan, learned counsel for the appellants, has drawn my attention to the documents Annexures A/1 to A/7, filed in the present appeal, which were ordered to be taken on record as additional evidence. Annexure A/1 is the plaint, filed in R.C,No,376/1969 by previous owner Dali Dada Bhoy Mama in which rate of rent was claimed to be Rs,100 while Annexure A/3, is the order passed by the Rent Controller on 24-3-1970, directing the opponent in the said case to deposit monthly rent at the rate of Rs,100. Annexure A/4, is the application under Order 23 Rule 1 C.P.C., in the said case and the order passed thereon on 18-5-1982, which shows that the said rent case is dismissed as withdrawn, while Annexure A/5 is the application in the said rent case by the present respondent for withdrawal of the rent deposited, to which no objection was given by the previous landlord vide Annexure A/6. The other material document is Annexure A/7 which is the statement of accounts and shows that the rent in the said rent case was being deposited regularly from 11-6-1976 upto 8-7-1982. From these documents, Mr. Zafar Alam Khan has argued that the rate of the rent at least till July, 1982 was Rs,100 per month and the same was being deposited in Court, therefore, the appellants could not be held to be defaulters for the impugned period i.e, June 1977 to.June, 1982. He has further argued that the present appellant No,2 in his affidavit, has stated that he was out of Pakistan during the period July 1977 to February 1979 and could not know exactly about the rate of rent, therefore, in June 1982, when he learnt about the change of ownership through the newspaper, he started sending the rent to the new landlord at the rate of Rs,117 per month, as he was told that it was the rate of rent at that time,
6. Mr. S.M. Razvi, learned counsel for the respondent, repelling the above said contention, has argued that in the first instance the rate of rent for the entire period i.e since 1977, the date of his purchase, was Rs,117 as stated in the application and objections of the present rent case. Therefore, even if the rent is paid at the rate of Rs,100 the appellants have committed default by making short payments. I cannot agree to this contention of the learned counsel as the documents of R.C.No,376/1969 which are brought on record by consent, very clearly show that the rent claimed by the previous landlord was Rs,100 per month and so was ordered by the Rent Controller in that case.
There is no document brought on record by the respondent to show that he has ever claimed the rent at Rs,117 per month prior to filing of the present rent case. Even the notice under section 18 of the Ordinance which was published in the daily 'Dawn' shows that the appellants were called upon to pay the "Agreed Rent" without specifying the rate of rent and as disclosed from the previous rent case the agreed rent was Rs,100 per month. Mr. S.M. Razvi, has further argued that in the objections in the present case, the appellants had admitted the rate of rent Rs,117 per month and now they cannot resile from the said stand. He has referred to the case of the National Bank of Pakistan and another v. Messrs Film Exhibitors Ltd. (1987 CLC 1547) and also the case of Rana Khurshid Ahmed v.
Additional District Judge Rawalpindi and 2 others (PLD 1984 Lah.169). In my view, the above two cases will not be applicable to the present case, as in the present case the circumstances are different. Here the documents of the previous rent case show that the agreed rent between the old landlord and the tenant was Rs,100 and that the new landlord had never demanded the rent at increased rate of Rs,117 per month. Even, the said notice under section 18 A published in the newspaper does not call upon the tenant to pay the rent at the said enhanced rate. Whereas, the appellant No,2 in his affidavit has stated that he has been out of Pakistan for about three years before the death of his ancesstor and that when he came to Pakistan, the rent was being deposited by the heirs of the deceased tenant in the earlier rent case and that he started sending the rent through money order after seeing the notice in the newspaper at the rate of Rs,117 as he was so told. In these circumstances, I do not find that the appellants have committed any wilful default. I would, therefore, set aside the finding of the Rent Contoller on the issue of default and hold that no default has been committed by the appellants. Mr. S.M. Razvi, learned counsel for the respondent has further argued that the annual rental value of the said premises has been increased as disclosed by the Taxation Department and as such the respondent is entitled to enhanced rent in accordance therewith. He has contended that even if the landlord does not demand enhanced rent, it is the responsibility of the tenant to pay the same at the enhanced rate. I am afraid I cannot agree with this contention of the learned counsel also.
7. On the second issue of the respondent's requirement for personal use, Mr. Zafar Alam Khan has argued that the landlord has not only to show that he requires the premises for his personal use but the landlord is also required to prove that the premises are so required in good faith. He has argued that the respondent has not mentioned any particulars in his ejectment application as well as affidavit-in-evidence. All that he has said is that he is an un-married person and is residing with his brothers, sisters and family members comprising of about 18 persons. It is further argued by Mr. Zafar Alam Khan that he being a single person has not shown as to how the premises where he is living is not suitable for his use, specially when he had purchased the present premises in 1977 and did not require the same for the period of five years till. September, 1982 when the present rent case was filed. He has referred to the case of Mst. Farukh Nisa v. Safdar Ahmed and 6 others (PLD) 1985 Kar.639), wherein, Haider Ali Pirzada, J., has held as under: "From the phraseology used in clause (vii) of the said Ordinance, it is further clear that that the landlady has to prove that she requires the premises in good faith for her occupation or for the occupation or use of her spouse or any of her children. The expression "requires the premises in good faith" has been considered by the superior Courts on several occasions. Broadly stated mere wish, convenience, whim or fancy of the landlord/landlady would not be enough to show that landlord/landlady requires the premises in good faith. The landlord/landlady must allege and prove his/her requirement. The law does not require a landlord/landlady to establish absolute requirement or absolute need, without which he/she shall have no shelter over his/her head. What is meant by "requires in good faith" is that the landlady requires the premises for her reasonable requirement or needs and that she is not seeking eviction on the pretext of requiring additional accommodation with an oblique motive of realizing some extraneous purpose. The requirement has to be reasonable and in good faith. The onus of proof of this is certainly on the landlord/landlady. Although the word "reasonable' does not appear in the Ordinance, the question of reasonableness is relevant in deciding the bona fides or good faith of the landlord. Gross unreasonableness may in proper circumstances lead the Controller to reach a conclusion that his/ her requirement is not bona fide. Therefore, while dealing the question of bona fides, the reasonableness of need or requirement is relevant. Full effect will have to be given to the expression used in the clause, namely, "requires in good faith". The words "good faith" mean honestly and not actuated by bad faith or oblique motive. Mere wish or intention of the landlord/landlady is not sufficient to give him/her right to evict the tenant. As already observed with the avowed object of protecting tenants against unreasonable eviction and at the same time it makes a provision that the landlords/landladies will be entitled to get the possession of their premises on the grounds enumerated therein. One of such grounds is that a landlord/landlady is entitled to get order of eviction from the Controller to evict a tenant if he/she requires the premises in good faith for his/her own occupation. Subsection (2) of section 15 of the said Ordinance further enjoins a duty upon the Controller to enquire into the requirement of the landlord/ landlady and if on enquiry the Controller is satisfied that the requirement of the landlord/landlady will be met by occupation of the premises. Then he has to pass an order of eviction. Therefore, all the relevant factors will have to be objectively considered before such a question is decided by the Rent Controller."
8. As against this, Mr. S.M.Razvi, has relied on the case of Abdul Haq and another v. Sayed Basharat Ali (PLD 1985 Kar.200), in which case, Munawar All Khan, J., (as he then was) has held: "When the prayer for eviction is based on the ground of personal requirement, it is the duty of the Rent Controller to ascertain through proper enquiry if the requirement of the landlord was genuine and was put forth in good faith. For the purpose of such enquiry he has to take into consideration all such factors which seek to throw light on the requirement of the landlord."
9. Mr. S.M. Razvi, has also cited a number of other cases. In my view the burden in such circumstances is on the landlord to show the element of bona fides which the present respondent has failed to prove in this case. I do not agree with the findings of the Rent Controller on this issue also and set aside the same.
10. The upshot of the above discussion is that the order of the Rent Controller is set aside, this appeal is allowed and the rent case filed by the respondent is dismissed. However, there will be no order as to costs.