' Appellants M/s. Chaudhry Brothers have called in question the judgment dated 3-9-1989 delivered by the 5th Senior Civil Judge and Rent Controller, Karachi East, in Rent Case No,272/87.
2. Parties in their pleadings were agreed that the premises in litigation, which are part of the building standing on Plot No,684 Allama Iqbal Road, P.E.C.H. Society, Karachi are in possession of the appellants as tenants of respondent Mst. Asma Irfan. It is also admitted position that initially rate of rent of the disputed premises was Rs,1,400 per month and subsequently it was enhanced to Rs,2,100 per month with effect from April, 1986.
3. Respondent filed Rent Case No,272/87 for eviction of the appellants from the disputed premises on the grounds (i) that the appellants had failed to pay the rent in respect of the disputed premises since Ist October, 1986, (ii) that the disputed premises were required by the respondent in good faith for her personal bona fide use to carry her own business and (iii) that the appellants had parted with the possession of the disputed premises, which were handed over to M/s. Chaudhry Brothers Furnishing (Pvt) Limited.
4. The rent application was contested by the appellants, who in their written. Statement stated that in pursuance of a letter received from father of the respondent on 25-9-1986 the appellants sent two demand drafts dated 3-2-1987 for total amount of Rs,14,700 to the respondent and thereafter another demand draft dated 8-3-1987 for Rs,2,100 was sent to the respondent as rent for March, 1987. It was alleged that the respondent did not issue any rent receipt for having received rent for October, 1986 to February, 1987 at the rate of Rs,2,100. Subsequently respondent was said to have returned the bank drafts and to have sent a Court notice dated 4-4-1987 to the appellants. In this way the ground of default was denied and it was further alleged that rent for March, 1987 at the enhanced rate of Rs,2,100 was sent to the respondent under a bank draft but the same was returned. The plea of personal requirement was alleged to be a cooked up ground. It was denied if possession of the premises was handed over to any other agency and it was claimed that the appellants company was registered as Chaudhry Brothers (Furnishing) Limited and it continued to be in possession of the premises.
5. After recording evidence of the parties, learned Rent Controller under the impugned judgment ordered eviction of the appellants, within two months of the date of the judgment after holding that the grounds of default and of bona fide personal use were proved although the ground about having parted with possession of the premises, was not proved.
6. Mr. Zameeruddin, learned counsel for the appellants argued that respondent Mst. Asma had admitted in her cross-examination that there was a practice by which she used to accept the rent through demand drafts and through cheques. Referring to the receipt Annexure `A'/1', learned counsel for the appellants argued that it showed that rent was being received through bank drafts and cheques. It was added that the pay orders and cheques were accepted under a compromise.
Learned counsel argued that respondent had admitted payment of rent till September, 1986 and in October, 1986 the rent was enhanced to Rs,2,100 with retrospective effect from April, 1986 and that the appellants sent to the respondent demand draft dated 3-2-1987 for Rs,7,000 covering difference of rent for April, 1986 to September, 1986 and another demand draft of same date for Rs,7,700 as rent at the enhanced rate from October, 1986 to February, 1987 and another demand draft dated 8-3-1987 for Rs,2,100 as rent for March, 1987 and as such there was no default on 22-3- 1987 when the present rent case was filed. In respect of the ground of personal need, learned counsel for the appellant argued that the respondent had averred that after being divorced by her husband she wanted to do business in the disputed premises and that such a ground did not exist after re-marriage of the respondent on 2-4-1986. In support of his case, learned counsel for the appellants cited the cases of (i) Haji Muhammad Usman v. Yousuf Ali Muhammad Bhai (1986 CLC 380), (ii) Abdul Ghani v. Abdul Aziz (1986 CLC 1778) and (iii) B.C. Aga & Co. v. Fakhruddin (1988 CLC 2322). In (i) above the view taken was that the parties cannot contract out of the provisions of the Rent Ordinance, but where the landlord was collecting the rent in person at his own convenience after interval of 2, 3 or four months and he subsequently refused to receive the rent, there was no deliberate or wilful default by the tenant. In (ii) above the landlord had been collecting rent of the premises in lump sum after lapse of 6 to 8 months and the tenancy being oral, the landlord did not abide by the terms printed at back of rent receipt and the view taken was that in the circumstances the tenant had not committed wilful default. In (iii) above there was practice of the rent being collected periodically and the view taken was that when the landlord had adopted a mode of realising rent consistently for a long period, the tenant was led to believe that if rent would be paid in that manner, it would not amount to be a default.
7. Mr. Musheer Alam, learned counsel for the respondent took a legal objection that this appeal having been filed by Shahid Ahmed was not maintainable, because there was nothing on record to show that Shahid Ahmed was authorised by the appellants to file the appeal. In this respect learned counsel cited the cases of Khan Iftikhar Hussain Khan v. M/s. Ghulam Nabi Corporation Limited (PLD 1971 SC 550) and Mirza Munawar Ahmed and another v. Official Liquidator and others (PLD 1980 Lah. 86). In former case it was held that a suit on behalf of a company by a person was not competent unless such person was so authorised by a resolution passed by the Company's Board of Directors. In latter case the point arose, as to whether partners of a firm, which went under liquidation, could file their application before the Company Judge without taking prior permission.
Learned counsel for the respondent argued that no rent was paid by the appellants for the period October, 1986 to February, 1987 and that the rent for October 1986 was sent by the appellants by a draft after receiving a legal notice dated 7-1-1987. Learned counsel further argued that the rent was payable in cash and not through cheques or drafts, as per the rent receipts, and that there was no evidence if the rent was payable through the cheques. On this point learned counsel cited the cases of Zulfiqar Hussain v. Mrs. Tazeen Choudhry (1986 CLC 393) and Ghafoor Ahmed v. Anwar Baig (PLD 1982 Karachi 403). In said cases it was held that tender of rent by cheque was not legal tender. It was next argued that sending of rent in the shape of drafts after commission of the default in payment of rent, cannot erase the default and that the respondent was justified in returning the drafts because rent for October, 1986 was payable by 10-11-1986 and for such default cause of action accrued to the respondent to file the ejectment case on 10-1-1987 while the drafts were received after 10-1-1987. Relying on the case of Peerzada Rafiq Ahmed v. Ch. Abdul Rehman (1980 SCMR 772) it was argued that demand of higher rent would not militate against bona fides of the landlady, who had established her personal need, by examining herself and her father. As regards maintainability of the rent case, it was argued that the respondent was owner of the disputed property and she alone could file the rent application for her personal use and her father could not file the same, although he was the landlord. In this respect reliance was placed on section 2(f) of the Sindh Rented Premises Ordinance. It was conceded that a portion on the first floor of the disputed property was occupied by father of the landlady. It was further argued that it was the prerogative of the landlord to use the premises most suitable to his needs and that evidence of the respondent was not rebutted' and hence she had made out a case for personal bona fide need. In support learned counsel for the respondent cited the cases of (i) Mujtaba Hussain Abidi v. Ferozuddin (PLD 1985 Kar. 663), (ii) Haji Majeed v. Haji Imamuddin (1981 CLC 1091),
(iii) Bhal Dino and others v. Din Muhammad and others (1986 CLC 395), (iv) Mrs.. J.C. Rehman v.
Mrs. Sultana Ahmed (1985 CLC 2271) and (v) S. Muhammad Alam v. Mst. Ageela Begum (1985 CLC 2791), (vi) Mst. Anwar Sultana v. Muhammad Azad Abbas (1982 CLC 2164), (vii) Mst. Shahnaz Khan v. Imtiaz Ahmed (1986 CLC 2048).
8. The memo of appeal was signed by one Shahid Ahmed, attorney of the appellants, although the power of attorney was neither filed nor required by office to be filed. It was the duty of the office to call upon the attorney Shahid Ahmed to produce in Court copy of the power of attorney executed in his favour by the appellants. Since the memo of appeal was accepted with Shahid Ahmed as attorney of the appellants, hence this point cannot be opened now. Case of Mirza Munawar Ahmad and another v. Official Liquidator and 3 others (PLD 1980 Lah. 86) does not apply to this case because in said case the concerned firm went into liquidation. In the case of Khan lftikhar Hussain (PLD 1971 SC 550), the person who filed the suit on behalf of the firm was not attorney for that firm.
Hence the objection about the maintainability of the appeal is overruled.
9.On the point of default, respondent Mst. Asma said in her affidavit that the appellant failed and neglected to pay the rent since Ist October, 1986 despite efforts by her and her father to collect the rent. Respondent admitted that the appellants sent to her two demand drafts, one for Rs,7,000 and another for Rs,7,700 under letters dated 3-2-1987. She added that these drafts were received after default was committed by the appellants and hence, she returned the two drafts to the appellants under a letter dated 10-2-1987. In her cross-examination the respondent admitted that the disputed shop was rented out to the appellants at the rate of Rs,1,400 per month. She also admitted that the appellants had paid rent for the period ending September, 1986 at the rate of Rs,1,400 per month. She showed her ignorance if her father had written to the appellants to increase the rent by 50%. Respondent accepted to be correct a rent receipt dated 17-4-1982 Ex.A-11, which shows that the rent was being accepted by pay order and cheque. This admission shows that the respondents have been accepting rent by cheques and drafts and consequently this case would be covered by the cases cited by the learned counsel for the appellants and reported in 1986 CLC 380, 1986 CLC 1778 and 1988 CLC 2322. Evidence of the respondent shows that she had received one draft of Rs,7,000 and another draft of Rs,7,700. The draft of RS.7,000 covered rent for five months viz October 1986 to February 1987 at the rate of Rs,1,400 per month, while the draft of Rs,7,700 covered difference of rent for eleven months viz. April 1986 to February 1987 at the rate of Rs,700 per month. This was understood to be so by the respondent, as per para. 8 of her affidavit. Both the drafts were sent to the respondent under a letter dated 3-2-1987 when rent payable for October, 1986 was due on 10- 11-1986 and the rent for November, 1986 was due on 10-12-1986 and the rent for December, 1986 was due on 10-1-1987. In this way while the rent for October, 1986 to February, 1987 was sent to the respondent on 3-2-1987 the appellants had already committed default in failing to pay rent for October, 1986, November, 1986 and December, 1986. Late tender of rent for October, 1986, November, 1986 and December, 1986 has not been explained. It is a settled position of law that once default in payment of rent is committed, it cannot be erased by subsequent payment. I, therefore maintain the finding given by the trial Court on the point of default.
10. On the point of personal requirement the respondent in her affidavit stated that the tenement in question was required by her in good faith for her own personal bona fide use. The respondent further stated that previously she was living with her husband, but she had obtained dissolution of her marriage on the ground of Khula from her husband and she was no more dependent on her husband and she wanted the tenement in question to keep herself busy and to lead independent life. She added that she wanted to open ready-made garments store in the tenement in question and that she had sufficient funds to establish such store. In support of her case the respondent examined her father Muhammad Irfan. In her cross-examination the respondent admitted that she had filed the rent case in February, 1987, while Khula decree had been granted to her in September, 1987. Respondent admitted that she got possession of one commercial premises on the first floor of the same building, but the same was occupied by her father. Muhammad Irfan said in his affidavit that the respondent who was dependent on her husband wanted to lead independent life after her separation. He added that the respondent had sufficient funds to establish business in the disputed premises situated on the ground floor. In his cross- examination Muhammad Irfan admitted that the respondent had been married on 2-4-1988. Remarriage of the respondent does not mean that requirement of the respondent to do independent business has ceased to exist.
Respondent being landlady of different tenements, has choice to select for her the tenement suitable for her needs. In the case of Haji Majeed (1981 CLC 1091) it was held that in case of different tenants the landlord can choose to pick one of his shops for personal use. If the respondent demanded increase of rent that would not cast any doubt on her plea about personal requirement. In the case of Peerzada Rafiq Ahmed v. Ch. Abdul Rehman (1980 SCMR 772) the landlady had established her personal need and hence it was held that demand of higher rent would not militate against her bona fides. In the case of Haji Majid v. Haji Imamuddin (1981 CLC 1091) it was held that demand for higher rent does not per se cast any doubt about personal bona fide requirement, if independently proved. Evidence of the respondent was fully supported by her father and it was not shaken in cross-examination. In rebuttal the appellants examined Shahid Ahmed, who alleged that the respondent had filed the ejectment case to extort money by way of "Pugri" as the respondent had remarried and she did not require the premises in question for her own use and occupation. In his cross-examination Shahid Ahmed admitted that the appellant's company had not given him any authority to appear and depose before the Court, but he was given power of attorney by the Managing Director of the company. The Power was not produced in evidence. Allegation that purpose of the rent case was to extort money is not substantiated.
Evidence of the respondent has not been rebutted by evidence of the appellants. In the case of Bhale Dino v. Din Muhammad and others (1986 CLC 395), the view taken was that statement made on oath by the landlord with regard to personal requirement if in consonance with the pleadings and if remaining unchallenged and unshaken, and if supported by witnesses, with no rebuttal, should be accepted. In the instant case statement made by the respondent stands supported by her father and it is not rebutted. In the case of Mrs. J.C. Rehman v. Mrs. Sultana Ahmed (1985 CLC 2271) the view taken was that the assertion of landlady on oath as to requirement for her personal use has to be accepted if such assertion was not shaken in cross- examination or disproved in rebuttal. In case of Mst. Anwar Sultana v. Muhammad Azad Abbas (1982 CLC 2164), the view taken was that law provides sufficient safeguard to a tenant on being ejected on ground of personal requirement of landlord, if the landlord does not himself occupy the premises. In the case' of Mst. Shahnaz Khan v. Imtiaz Ahmed (1986 CLC 2048), the statement of the landlord in respect of difficulties faced by him and his family in his existing accommodation remained unchallenged and eviction of the tenant was ordered. In light of the case-law discussed above, I maintain finding of the trial Court on the point of personal bona fide requirement.
11. The point that the appellant had parted with possession of the demised premises withoutt consent of the respondent was not emphasised during the arguments. The respondent in her affidavit said that M/s. Choudhry Brothers had let out the premises to M/s. Choudhry Brothers Furnishing (Private) Limited. In paragraph No,8 of his written statement, the appellants explained that their company was registered in the year 1976 under the Companies Act 1913 and the Certificate of Registration dated 15-5-1976 was issued in the name of "Chaudhry Brothers (Furnishing) Limited" and the word "Private" was added thereto in terms of the requirement of the Companies Ordinance 1984. The printed letter pads used by the appellants in sending letters copies Ex.A/4 and Ex.A/6 to the respondent show that correct name of the appellant is Chaudhry Brothers (Furnishing) (Private) Limited. It is not alleged if premises in question have been sublet by the appellants. The objection raised on this point appears to be misconceived and view of the trial Court appears to be correct.
12. In view of my above findings I dismiss this appeal with costs and maintain the impugned order.
Appellant is given a period of four months to vacate the premises in litigation. These are reasons for my short order dated 1610-1990 in identical terms.