' This appeal under section 21 of the Sindh Rented Premises Ordinance, 1979, is filed against the order dated 11-5-1987 passed by Ist Senior Civil Judge and Rent. Controller, Jacobabad, whereby he directed the eviction of appellant from the demised premises within a period of two months.
2. The respondent is the landlord of premises bearing C.S.No,263, situated in Ward No,4, Jacobabad, comprising of a shop and a residential unit over it, which is on lease with the appellant at a monthly rent of Rs,600. The appellant who was a bad pay master defaulted in payment of rent with effect from 1-2-1982. He also committed such acts as are likely to impair the material value or utility of premises. The respondent also required the said premises for the use and occupation of his son Imtiaz Ahmad who intends to start the business of stationery in the said premises. On 31-1-1985 the respondent filed an application under section 15 of the Sindh Rented Premises Ordinance, 1979, seeking the ejectment of the appellant on the aforesiad grounds.
3. The appellant has controverted the allegations based on facts. According to him the premises was rented out at a monthly rent of Rs,300. He claims to have paid rent upto the month of February 1982, and thereafter a sum of Rs,5,438 was adjusted towards the amount spent over the repairs of the premises carried out with the consent of the respondent. The plea of personal requirement of the said premises by the respondent was also resisted by the appellant.
4. The parties went to trial on the following issues:--
(i) Whether the application is not maintainable in law?
(ii) Whether this Court has got no jurisdiction to entertain this application?
(iii) Whether the opponent committed wilful default in payment of rent?
(iv) Whether the opponent has made alterations and additions in the premises and diminished its value?
(v) Whether the premises are required by applicant for use and occupation of his son in good faith?
(vi) What should be the order?
5. The respondent examined his son and attorney Imtiaz Ahmad (P.W.1), Muhammad Yaqoob (P.W.2), and Din Muhammad (P.W. 3), while the appellant examined himself (D.W. 1), Naraindas (D.W.2), and Warrand Mal (D.W.3).
6. On the assessm ent of evidence, both oral as well as documentary, the learned Rent Controller decided issues Nos. 3 and 5, against the appellant directing his ejecment from the demised premises. It is in these circumstances that the present appeal has been filed.
7. I have heard Mr. Ahmad Bux Ansari, learned counsel for the appellant and Mr. Manzar Alam, learned counsel for the respondent. I have also gone through the record of this case carefully.
8. Admittedly there is no agreement in writing regulating the tenancy. Imtiaz Ahmad (P.W-1) who is son and attorney of the respondent has testified about the quantum of rent and the manner in which the default had occurred in para No,2 of his affidavit-in-evidence, in the following words:- "That the applicant is the owner of the property bearing C.S. No,263 situated in Ward No,4 at Jacobabad comprising of a shop and Bungalow constructed over it, and such mutation has also been effected in the City Survey Record, Jacobabad in the favour of the applicant, hereinafter called the "premises". The opponent was already in the possession of the shop in the said premises as a tenant of the applicant at the rate of Rs,300 P.M. And thereafter the opponent had also taken the Bungalow on rent from the applicant, as such the opponent is in the possession and occupation of the shop and Bungalow i.e, entire premises C.S.No,263 Ward No,4 as a tenant at the rate of Rs,600 P.M. Which the opponent used to pay in irregular manner to the applicant, and after many demands and approaches to the opponent. The opponent has paid the rent upto 31-1-1982 to the applicant and then stopped paying rent as such he has violated the principles of law. The applicant has issued the rent receipt upto 31-1-1982 to the opponent. The opponent has deliberately and wilfully failed to pay or tender the rent from 1-2-1982, as such the arrears of rent from 1-2-1982 to 31-12-1984 for the last 35 months at the rate of Rs,600 P.M. To the tune of Rs, 21,000 are outstanding against the opponent, although repeated requested were made to the opponent for the payment of rental arrears, but to no effect. As such the opponent is a wilful defaulter within the meaning of section 15 (2) (ii) of S.R.P.O.
1979."
9. The appellant has disputed the quantum of rent in para No,2 of his affidavit-in-evidence in the following words:-- "That the applicant had rented out shop bearing C.S.No,263 situated in Ward No,4, Masjid Road, Jacobabad, alongwith its upper structure i.e, one room and open space on the monthly rent of Rs,300 to me since so many years. The applicant himself used to receive rent at his own sweet will for the months together."
10. No documentary evidence is adduced by the respondent to prove that the rent of disputed premises was Rs,600 P.M. And not Rs,300 P.M. Imtiaz Ahmad (P.W.1) has on the other hand admitted in his cross-examination that no such evidence was available With him. The following extract from his cross-examination is self-explanatory:-- "My father used to issue rent receipts to the opponent. My father does not possess any counterfoil of receipt for more than Rs,300. My father does not possess any record regarding enhancement of rent."
11. As against this vague evidence on the point of enhancement of rent from Rs,300 P.M. To Rs,600 P.M., the appellant has produced a rent receipt (Ex.29) to prove that the rent from October 1981 to February 1982 was paid to respondent at the rate of Rs,300 P.M. Imtiaz Ahmed (P.W-1) when confronted with this receipt (Ex.29) had to admit the contents thereof. Faced with this situation Imtiaz Ahmed (P.W-1) took a somersault by stating that the upper portion of the disputed premises was rented out to appellant in the month of March 1982. There is, however, no satisfactory evidence on record to prove this fact. Muhammad Yaqub (P.W-2) and Din Muhammad (P.W-3) are also not specific about this aspect of the case. The appellant has, however, examined Naraindas (D.W-2) who is his close neighbour to prove that both commercial and residential units were taken on rent by him from the very inception of tenancy at the rate of Rs,300 P.M. Warrand Mal (D.W-3) who was a working partner of the appellant has also testified so. Thus, it is proved from the oral as well as documentary evidence that the rent of disputed premises, viz. Shop and residential unit was Rs,300 P.M.
12. The receipt (Ex.29) shows in clear terms that the rent of the disputed premises was paid to the respondent upto February 1982. Quite admittedly the appellant did not pay or tender rent to respondent till 5-11-1984 when a sum of Rs,3,000 was remitted through (Ex.31), after adjusting the amount spent over the repairs of the premises. This money order was followed by another money order (Ex.30) through which an amount of Rs,562 was sent. Both these money orders were refused by the respondent and thereafter the arrears of rent were deposited in the office of the Rent Controller.
13. The main controversy between the parties centres round the adjustment of an amount of Rs,5,438 spent by the appellant over the repairs of the premises. The appellant has testified that this repair work was carried out by him with the express permission of the respondent. He has placed reliance upon a letter (Ex.28) dated 7-5-1982 of the respondent addressed to him. The following extract when read together with the remaining text of the letter would naturally be interpreted as granting permission to carry out repairs to the extent of Rs,2,000 only:-- {{URDU TEXT}} ' When read carefully the letter (Ex.28) does not sound like an unconditional permission to get the premises repaired without any limit.
14. Mr. Manzar Alam, learned counsel for the respondent has, however, contended with force that the appellant was not entitled to claim any adjustment as no permission as required by section 12 of the Sindh Rented Premises Ordinance, 1979, was obtained. Section 12 lays down as follows:-- "Repairs. Subject to the agreement, if the landlord fails to make such repairs or white-washing as may be necessary to keep the premises in proper shape, the Controller may, on application made to him by the tenant and after such inquiry as the Controller deems fit to make, direct that such repairs or white-washing may be made by the tenant and the cost thereof may be deducted from the rent payable to the landlord.
(2) Where any authority empowered by a law for the time being in force has required the landlord to make such repairs within such period as may be specified by such authority and the landlord has made default in this behalf, such authority may require the tenant to make such repairs.
(3) Where the tenant has made the repairs as aforesaid the authority ordering the repairs shall after the verification of the details of the expenditure incurred by the tenant, certify the cost of repairs and the tenant may thereupon deduct the amount so certified from the rent payable to the landlord."
15. It will be seen that under this provision of law a landlord can be directed to carry out repairs to keep the premises in proper shape and if he fails to do so, the Rent Controller may on application made to him by tenant direct that such repairs may be carried out by him and the cost thereof be deducted from the rent payable to the landlord. This exigency, however, arises when there is no equation between the parties. In the present case the respondent had permitted the appellant to carry out necessary repairs but only to the extent of Rs,2,000 which could be inferred from the language of the letter (Ex.28) sent by the respondent to the appellant. The cases reported as Seth Girdhari Lal v. Mst. Marzia Bano and another PLD 1963 Quetta 25, and Syed Abdul Jabbar through his Legal Heirs v. Syed Mohsin Abbas through his Legal Heirs 1986 CLC 2007, which are cited on behalf of respondent are, therefore, distinguishable. In both the cases the tenant had carried out repairs without the consent of the landlord and permission of the Rent Controller. In the latter citation my learned brother Saleem Akhtar, J. Observed as follows:-- "His main contention is that the appellants were entitled to adjustment of Rs,282, and therefore, no default has been committed. If it is established that the respondent had agreed for adjustment and on that basis permitted the appellants to spend on repair of electric motor and also to pay the charges for electricity for operating electric motor, then perhaps the appellants may have a good defence. The burden, therefore, entirely lies upon the appellants to show that the amounts required to be adjusted were paid with explicit or implied consent of the respondent. The learned counsel has referred to the statement of the respondent from which it is clear that the electricity charges in respect of water pump which is used by both the parties was paid by the appellants but there is no evidence to show that the respondent had agreed and allowed the appellants to pay and adjust it in the rent. Even if for argument sake it is taken by implication that because the benefit was being received by the respondent also, half of the charges should be borne by the appellant, the question remains whether the appellant was entitled to get the electric motor repaired and adjust it in the rent. There is specific provision in law which provides that repairs can be made only with the permission of the Controller and then the cost can be adjusted in the rent. No such procedure was adopted by the appellants. They got it , repaired at their own will or necessity without the consent of the riI respondent and adjusted it in the rent. In the circumstances the default stands established."
I6. .It, therefore, follows from the above discussion that the appellant could at best adjust an amount of Rs,2,000 towards the cost incurred by him over the repairs of premises. The case of Muhammad Salim and. Another v. Muhammad Abdullah Mushariff Abedeen Farhad, through Legal representatives, reported in 1983 CLC 3053, cited on behalf of appellant is pot relevant to the facts of the present case. By withholding the rent beyond the grace period and the period covered by Rs,2,000, the appellant committed wflful default in payment of rent to respondent and he must suffer for it.
17.Again the demand of enhanced rent did pot absolve the appellant to pay or tender the agreed rent. He was bound to make payment tp the landlord within time at the same rate, which quite admittedly he failed to do. The finding of 1 learned Rent Controller on issue No,3 is, therefore not open to any exception and is confirmed. : 18.Para No,5 of the application for eviction deals with issue No,5, in the following words:-- "That the applicant requires the said premises in dispute for the personal use and occupation in good faith and the applicant, has, got no other, property in the same locality for use and occupation of his .Son, as such the applicant requires the said premises for his son Imtiaz Ahmed for the business purpose of the stationery work and affairs."
19.The expression "good faith" used in clause (vii), subsection (2) of section 15 of the Sindh Rented Premises Ordinance, 1979, was .Examined by me in the case of Mrs. Rehana Abrar v. Inamucjdin Malik, reported; in, 1989 CLC 616, wherein it was observed:- "The expression "good faith" is an abstract term hot capable of any rigid definition. The ordinary dictionary meaning of the expression 'good faith' is honesty of intention and; therefore, what is required under clause (vii) of subsection (2) of section 15 of the Sindh Rented Premises Ordinance, * 1979, is that the landlord should have a genuine heed of the premises, which should certainly be more than' a mere 'wish' or 'desire'. The expression 'good faith' has been used in clause (vii) designedly. The words 'desire' or ' need' have hot been used and that would negate the two extreme views which are pleaded in cases of this nature; A mere desire or an absolute necessity are both erroneous approaches."
20.The respondent has simply stated that the disputed premises is Required by him for the business of his son Imtiaz Ahmed who wants to open a shop of stationery. Imtiaz Ahmed (P.W.1) has also testified to this effect. He, however, admitted in his cross-examination that he has got an agency of Michels Fruit Products and was running a shop near Palace Hotel, Jacobabad. This fact was concealed by the respondent in his application for ejectment. There is also nothing on record to satisfy the Court if the shop which is in occupation of Imtiaz Ahmed (P.W.1) does not cater his- needs. A simple desire to get the premises vacated is not sufficient. In somewhat similar circumstances Ajmal Mian, J. (as he then was) rejected the plea of personal requirement in the case of Province of Sindh, through Secretary, Education, Sindh Secretariat, Karachi and 2 others v.
Nisar Ahmad, reported in 1983 CLC 1905, in the following words:-- "It maybe observed that in the above para 10 of the rent application, it was inter alia averred that the applicant requires the premises in possession of the appellants for his own and his two sons bona fide personal use as they want to start business in the said premises. However, the respondent in his cross-examination admitted that both the sons have separate shops in their possession and they have been running their business there. The above material fact was suppressed by the respondent in the rent application. The evidence on the above point produced by the respondent does inspire confidence. I am, therefore, not inclined to concur the finding of the learned Rent Controller .On the question for personal requirement:'
21. In the above circumstances, the finding on issue No,5 recorded by learned Rent Controller is reversed.
22. In the result the appeal is dismissed, but the parties are left to bear their own costs. Two months' time is allowed to the appellant to vacate the demised premises.