1. ' The Appellant is aggrieved by the order dated 5th October, 1989 passed by the learned Vth Senior Civil Judge and Rent Controller, Karachi (East) in Rent Case No,479 of 1986, whereby the appellant was directed to hand over vacant possession of Shop No,2, Building No,663-C/2, Central Commercial Area, P.E.C.H.S., Karachi to the respondent within two months from the date of the order.
2. ' The respondent's application for ejectment was under section 15 of the Sindh Rented Premises Ordinance, 1979 on three grounds, firstly, the appellant had defaulted in payment of rent from 11-2- 1986 till the filing of the application viz. 6-7-1986, secondly, the respondent required the shop in good faith for her business of garments/boutique and thirdly, the appellant by installing a big size Board in front of the staircase of the building has caused nuisance.
3. ' The appellant contested the said application on all the three grounds, maintaining that he is a lessee in perpetuity having made payment of Rs,55,000 as pugree to the respondent in consideration of which the respondent had granted him rights under clauses 11 and 13 of the lease agreement dated 1-84984 to renew the lease and to sublet the premises. Hence the appellant cannot be evicted on the ground of personal bona fide requirement.
4. ' With regard to the default, it was alleged that upon receipt of intimation from the previous landlady, the appellant sent rent of the shop amounting to Rs,667 from 11-2-1986 to 31-3-1986 to the respondent through Postal Money Order No,1290 dated 20-3-1986 but the respondent refused to accept the same with ulterior motives to create false ground of default. Subsequently, on 12-4- 1986, he deposited rent from 11-2-1986 to April, 1986 amounting to Rs,1,067 in the Court of Vth Rent Controller in Misc. Rent Case No,289 of 1986 in the name of previous landlady Hasina Begum. Again on receipt of intimation dated 29-4-1986 from the respondent's Advocate under section 18 of the Sindh Rented Premises Ordinance, 1979, the appellant remitted Rs,1,467 being rent from 11-2-1986 upto May 1986 through Postal Money Order dated 21-5-1986. The appellant also remitted rent of June, 1986 to the respondent through another Postal Money Order dated 4-6-1986. Both the Money Orders were again refused by the respondent with ulterior motives so as to create false ground of default in payment of rent. As to the allegation of nuisance, it was denied that installation of board has caused any nuisance to any one and it has been in existence from the very beginning of tenancy. The learned Rent Controller however, found the appellant liable to be evicted on all the said three grounds.
5. ' Mr. S. Hamid Hussain, learned counsel for the appellant, first assailed the finding of the learned Controller on the ground of personal bona fide requirement stating that the respondent's predecessor namely Hasina Begum had relinquished and/or waived her right to evict the appellant on personal bona fide requirement by allowing him to sublet the premises in consideration of pugree amount received by her. It was contended by him that although nowhere reference is made to the pugree amount in the lease agreement dated 1-8-1984 but in view of evidence adduced by the appellant read with clauses 11 and 13 thereof an inference can easily be drawn that such relinquishment and/or waiver by the respondent's predecessor was for consideration. It was urged that the further effect of the said relinquishment/waiver was that a lease in perpetuity came into existence in favour of the appellant. It will be advantageous to reproduce here clauses 11 and 13 of the agreement dated 1-8-1984 as under: "11. That provided the lessee has paid all rent due and is otherwise not in breach of any obligation under the lease, the lessee shall always have the option to renew this lease for further periods upon the same terms and conditions except that the rent shall be reviseable subject to mutual agreement after every three years.
12. .
13. That the lessee shall always have the right to pass on tenancy rights to another person and the lessor shall acknowledge him as her tenant and shall issue rent receipt in his/her name. And the terms and conditions of this lease-deed will be applicable to the new tenant in the same spirit subject to revision of rate of rent."
6. ' According to him although no renewal of agreement was made after the expiry of eleven months as the option to renew was not expressly exercised by the appellant, he continued to occupy the premises on the same terms and conditions. This proposition was challenged by Mr. Ghulam Ghous, learned counsel for respondents, who further urged that there was no waiver/relinquishment as alleged nor any pugree was received by her predecessor.
7. Next, it was contended on behalf of the appellant that there is unrebutted evidence on record to show that the appellant never committed any default in payment of rent and in fact the respondent herself has admitted in her cross-examination that she does not know if the appellant had committed any default. As to the alleged nuisance, it was argued that the appellant committed no nuisance and the respondent has failed to show that an advertisement board has caused nuisance to the respondent or anyone.
8. ' First I will take up the question relating to default in payment of rent. It is imperative that the Rent Controller should bear in mind that whereas the Sindh Rented Premises Ordinance, 1979 provides under section 10 (3) two modes for payment of rent by the tenant, one by postal money order and the other by deposit with the Controller, in case the landlord refuses or avoids to accept the rent and whereas under subsection (4) thereof written acknowledgment, postal money order receipt, or receipt of the Controller may be produced and accepted in proof of the payment of rent, this does not imply exclusion of evidence, either ocular or documentary as to any other mode of payment e.g. Dasti (by band), by cheque etc. The learned Controller could not have brushed aside the entire evidence adduced by the appellant merely on the ground that the postal money orders do not bear the endorsement of "refused" on them. No doubt the burden of proof as to the payment of rent is upon the appellant, once it is shown that he was duly served with a notice under section 18 of the Sindh Rented Premises Ordinance. This is also the case of the respondent that despite notice dated 29-5-1986 served by her on the appellant, he committed default in payment of rent. Now it is an admitted position that much before this notice was served upon him, on 6-7-1986 the appellant had deposited rent of a sum of Rs,1,067 upto April, 1986 in Misc. Rent Case No,289 in the Court of the Vth Rent Controller, Karachi in the name of the previous landlady. Even if the money orders dated 21-5-1986 and 4-6-1986, sent by the appellant may be disregarded, there was default in payment of rent for the month of May only within the meaning of section 15 (2) (ii) read with section 18 of the Ordinance and in the circumstances of the case, the learned Controller ought to have exercised his discretion in favour of the respondent. Apart from this, the learned Controller completely overlooked the statement of the respondent to the effect that she did not know if the appellant had committed default in payment of rent. Hence the finding of the learned Rent Controller on this ground is set aside.
9. ' As to the respondent's personal requirement, her case is that she is a resident of the building for the past 13 years and purchased the property with a view to use it as her residence and also for the purpose of carrying on her business of garments. Her evidence as well as the evidence of her husband as to her experience and ability to ruti the business and to generate resources therefor have remained unshaken but not her good faith. At the same time, the appellant's plea that the respondent's predecessor had bartered away her right of personal requirement which is binding on the respondent, upon the receipt of Pugree in the sum of Rs,55,000 who in return granted to the appellant unqualified rights to renew and transfer the tenancy, is not without substance and significance. This aspect of the case however, requires closer examination with reference to the "good faith" of the respondent.
10. ' The appellant Moizur Rehman has produced the lease agreement and in rebuttal has placed reliance on the said clauses 11 and 13 referred to above under which he claims rights to renew the lease for further periods and to sublet the shop to anyone. According to him, these rights were given to him by the previous landlady in consideration of payment of pugree of Rs,55,000 to her.
11. First payment of Rs,10,000 was made by him through Pay Order No,889716 (Annexure 'C') dated 4- 6-1984 drawn on Habib Bank Limited, Tariq Road Branch, PECHS, Karachi supported by a certificate from the Bank (Annexure 'D'). Afterwards he made payment of the balance amount of Rs,45,000 in cash to her. According to the advice received by him, the terms and conditions of lease agreement dated 1-8-1984 subsequently renewed vide certificate dated 3-2-1986 issued by the previous landlady were fully binding on the respondent who has stepped into the shoes of the former.
12. Appellant's witness Habibur Rehman an officer of the Habib Bank Limited, has produced the original Pay Order (Exh.O/S) in the name of previous landlady so also her statement of account (Exh.0/6) showing that Exh.0/5 was deposited in her account. Appellant's another witness Saleem Shahzad Khan, Manager in a Travelling Agency, states that he was an attesting witness of the lease agreement dated 1-8-1984 and that the appellant had made payment of balance Pugree amount of Rs,45,000 in cash in his presence to the previous landlady. The appellant in cross-examination admits that neither in the lease agreement any reference is made to the Pugree amount nor he got any receipt therefor from the previous landlady.
13. ' In a recent judgment of the Supreme Court of Pakistan, Habib Bank Limited v. Munawar Ali Khan, 1991 SCM R 1185, it was held that the "tenant's plea that such agreement was in perpetuity was untenable because perpetual lease could only be created by a registered instrument as envisaged by provisions of section 107 of Transfer of Property Act". It was further held: "While referring to the case of Mrs. Zohra Begum v. Messrs Pakistan Burmah Shell Ltd. PLD 1984 SC 38 that at that time the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959 were in force and proviso (1) to sub-clause (ii) of clause (a) of subsection (1) of section 13 of it expressly provided that if the tenancy was for a specified period, the landlord shall not be entitled to apply under the above section before the expiry of such period. Secondly, there was a registered lease containing clear clause as to the renewal of the lease twice for 10 years each. Thirdly, that lessee was to invest considerable amount in the form of installing a petrol pump on the assumption that it would he enjoying lease for a period of 30 years in all."
14. Distinguishing the facts of Mrs. Zohra Begum's case 1991 SCM R 1185, it was held that in the latter case there was no registered lease deed and the lease agreement was not a legal document on the basis of which the petitioner could have acquired lease in perpetuity. Similarly in the instant case the position is not different and the plea of the appellant that there was a lease in perpetuity is not tenable as there was no registered lease deed as required by section 107 of the Transfer of Property Act and there was no express waiver whereby the leandlord could not apply for personal bona fide requirement for a specific period. It was an agreement of tenancy for a period of eleven months and after its expiry, the tenancy has become month to month. Reference may be made to the case of Zarina Cehangani v. Agha Mahboob Shah, PLD 1988 SC 190.
15. ' There is yet another distinguishing feature. Whereas in Mrs. Zohra Begum's case, the lessee had invested "considerable amount in the form of installing a petrol pump on the assumption that it would be enjoying lease for a period of 30 years", in the instant case, the previous landlady of the appellant in unqualified terms had permitted the appellant to pass on his tenancy rights to any one and bound down herself to accept such person as her tenant on such rent as may be agreed upon. It is admitted by Mr. Ghulam Ghous, learned counsel for the respondent that this right is not ordinarily granted to a tenant. What then, is the significance of this right? What advantage or benefit the appellant would have in parting with the possession of the shop to another person of his choice instead of giving back possession thereof and surrendering his tenancy rights to the landlady? According to Mr. S. Hamid Hussain, learned counsel for the appellant, the advantage or benefit would be in terms of return of pugree amount with such excess sum, if any, which the appellant would receive from the person nominated by him.
16. ' It is true that in the agreement dated 1-8-1984, there is no reference to receipt of pugree amount by appellant's previous landlady but her granting right to the appellant to transfer tenancy of the shop with possession under clause 13 thereof to anyone, by itself is of great deal of significance, which in my humble view, cannot be overlooked. In 1991 SCM R 1185, it was held by the Supreme Court of Pakistan that "renewal clause" without specifying a period thereby depriving the landlord on the ground of personal requirement for all times may not be enforceable as repugnant to the scheme of Ordinance. In the present case, irrespective of the fact whether the pugree amount for the shop was paid or not the question remains as to what is the effect of granting unqualified right by her to her tenant to transfer tenancy to his nominee and her corresponding obligation in respect thereof. It is true that the ground of personal requirement cannot be extinguished, waived or relinquished for all time to come but it is always open to Rent Controller to gauge the "good faith" of a landlord by looking into the agreed terms, surrounding circumstances and other facts. In an extreme case, would the landlord be entitled to evict his tenant on the ground of his personal requirement when the very next day after granting to the latter the said right, an application under section 15 of the Sindh Rented Premises Ordinance, 1979 is made by him. In my view such action being in violation of agreed terms will be mala fide. In the present case also the respondent, on one hand has expressly relied upon the agreement dated 1-8-1984 and, on the other hand, in her cross- examination has shown her ignorance if there was any agreement between the appellant and the previous landlady. She has also expressed her ignorance if there was any Pugree system in the area or if purgee of the shop was Rs,1,00,000 although she has been living in the building for the past thirteen years. It is unbelievable that she was not aware of her predecessor's commitments to the appellant under the agreement while purchasing the property. The unusual haste on her part in seeking eviction of appellant on personal ground is pointer to her anxiety that the appellant tenant may not invoke his right under clause 13 of the agreement and nominate a tenant in his place and part with the possession of the shop premises. Her second ground on personal requirement will therefore fail for want of good faith on her part.
17. ' The last ground for ejectment of applicant is that the appellant has installed a big size board in front of the staircase of the building which has caused Inuisance. In order to succeed on the ground of nuisance it has to be established under section 15(v) of the Sindh Rented Premises Ordinance, 1979 that "the tenant has indulged in such activities, as are causing nuisance to the neighbours". This board admittedly was in existence from the very beginning of the appellant's tenancy. The respondent has failed to mention anywhere as to appellant's alleged activities causing nuisance to neighbours. In fact there is not a word about it and no one from the neighbourhood has been produced by her in support of her case. The only evidence on record, which indeed is not relevant, is of the respondent herself that certain persons are tnisled by the advertisement board, as a result of which they ascend the staircase and knock at the door of her house. This situation could have been averted by affixation of another board at the Facade of her house that the shop in question was downstairs. Hence, this ground also fails.
18. ' In the result, I accept the appeal and set aside the order dated 5-11-1989 passed by the learned Rent Controller, Karachi (East). The parties are left to bear their own costs.