' This appeal under section 21 of the Sindh Rented Premises Ordinance, 1979, is filed against the order dated 24-5-1987, passed by 1st Rent Controller, Sukkur, by which he directed the eviction of the appellant from the disputed premises within a period of four months.
2. The respondent is the landlord of commercial premises bearing C.S. No,D-1627-28, situated at Sukkur, which is on lease with the appellant at a monthly rent of Rs,1,000. On 4-14986 the respondent filed an application under section 15 of the Sindh Rented Premises Ordinance, 1979, against the appellant before Rent Controller, Sukkur, seeking his ejectment on the grounds of default in payment of rent and personal requirement for his own use and for the use of his children.
It was also pleaded by him that he was due to attain the age of 60 years within next six months and was consequently entitled to get vacant possession, a ground which is available under section 14 of the Sindh Rented Premises Ordinance, 1979.
3. The appellant resisted his ejectment by controverting the allegations based on facts. He disputed the default in payment of rent and also questioned the bona fide requirement of the respondent to occupy the disputed premises. According to him the respondent owns various other commercial-premises which are sufficient to cater his needs.
4. On the pleadings of the parties the learned Rent Controller framed the following issues:-
(i) Whether the opponent has committed default in the payment of rent?
(ii) Whether the applicant requires the shop in good faith for his personal use?
(iii) Whether the applicant is entitled for the possession of the shop on the ground of his attaining the age of 60 years?
(iv) What should the order be?
5. The respondent has examined himself (P.W.-1) and his son Azhar Majeed (P.W-2), while the appellant has examined himself (D.W-1), and then closed the side.
6. On the assessm ent of evidence available on record, both oral as well as documentary, the learned Rent Controller decided all the issues against the appellant directing his eviction from the demised premises. It is in these circumstances that the present appeal has been filed.
7. I have heard Mr. Sharafuddin Ada, learned counsel for the appellant and Mr. Abdur Rehman Shaikh, learned counsel for the respondent. I have also gone through the record of this case carefully.
8. The respondent as his own witness (P.W.1) has testified that the appellant had failed to pay rent to him with effect from 1-7-1984 and he was in arrears to the tune of Rs,18,000 at the time when the ejectment application was filed. The appellant has contested the ground of default in his affidavit- inevidence and has testified that he had paid this amount vide receipt dated 18-61985 available on record towards the rent for the months of July, 1984 to December, 1985. The respondent has questioned the genuineness of this receipt by stating that it was forged one. This plea was examined by the learned Rent Controller who answered the same in the following words: "The opponent has contended that on 18-6-1985 he has paid Rs,18,000 being rent for the months of July 1984 to December 1985 to the opponent under a valid receipt issued by him on the the same date, He had produced the receipt alongwith several previous receipts. The applicant has challenged the receipt to be forged one and has categorically denied to have received any such payment. The opponent in his cross-examination has stated that he did not know as to who had written the receipt dated 18-10-1985 or that through whom the applicatant had sent the receipt to him. He has further stated that his servant had told him that one man whose identity has not been disclosed had given him the receipt at his shop. The servant through whom he claims to have received the receipt has not been examined. The examination of the receipt and the comparison of the signature on it with the admitted signatures on other documents such as previous receipts clearly show that the signature on the questioned receipt is not of the applicant. The pattern of loops, the slants of the letters and the shape of the figures of the date written beneath the signature clearly distinguish the signature on the questioned receipt from the admitted signatures of the applicant on other documents. The abence of fluency, the presence of pauses and over writing can be clearly seen by the naked eye.
' The applicant has categorically denied to have received the disputed amount of Rs,18,000 from the opponent and the opponent has not produced any evidence except his oral word to prove that he had actually paid the amount to the applicant. He has neither examined any witness nor produced any book of accounts to show that payment was made to the applicant. The opponent is a businessm an and in the ordinary course of his business he is expected to maintain the books of account. He could have produced the same to show that on the relevant date he had made the entry in the account books regarding his making the payment to the applicant. The burden was upon the opponent to prove that he had made the payment but as mentioned he has miserably failed to discharge the same.
In view of the above facts and the circumstances of the case I am of the considered opinion that the opponent has committed default in the payment of rent from June 1984 and the issue is accordingly answered in affirmative."
9. The only grievance learned counsel for the appellant ventilates is about the comparison of signatures made by the Rent Controller, which according to him is dangerous to rely without the aid of an expert. To support his contention the learned counsel has placed reliance upon the cases of Muhammad Nural Haq Mia and another v. The State, reported in PLD 1958 Dacca 341, and Dr. Major Abdul Ahad Khan, through his legal representatives v. Muhammad Iqbal, through his legal representatives, reported in PLD 1989 Karachi 102. The latter case which was decided by our own High Court certainly appears to lend some colour to the contention raised on behalf of appellant.
Article 84 of the Qanoone-Shahadat Order, 1984, lays down an additional mode of proving signature and the Court can compare the disputed signatures with the admitted signatures. The following observations made in the case of Faizul Hoque and others v. Noor Meah and another, reported in PLD 1960 Dacca 835, are self-explanatory:- "In the present case also since the Evidence Act permits such examination by the Court itself, it cannot be said that by launching upon such an examination the Court had committed an error in the procedure of law or that it had made any material mistaken assumption in so launching upon a comparison of the signatures and thumb-impressions on Exh.3. There is no doubt that such inexpert comparison has repeatedly been discouraged by this Court. But nevertheless, it cannot be said that it is an illegality in procedure whatever might be the value of such examination."
10. The weightly observations of their Lordships of the Supreme Court in the case of Mst. Ummatul Waheed and others v. Mst. Nasira Kausar and others, reported in 1985 SCMR 214, support the above view of the Dacca High Court. At page 216 it as held: "On the legal plane we find that the latest decision of this Court is contained in All Ahmad alias Ali Ahmed Mia v. The State (PLD 1962 SC 102) that a Court is entitled to compare the handwriting even if there be an opinion of an expert on the subject. In S.M. Zahir v. Fazal All Ajmeri (1974 SCMR 490), it was held that there is no rule of law which requires examination by an expert in every case. The Court itself was held entitled to compare the handwriting and to come to its conclusion. In the High Court, it was the petitioner's counsel who insisted for the comparison; got such a comparison done and the learned Judge in the High Court affirmed the view taken by the First Appellate Court. We do not find any material even after looking into the documents which are sought to be referred to, to come to any different conclusion."
11. The learned Rent Controller who had compared the signature of the respondent on the disputed receipt has given cogent reasons in support of the conclusion drawn by him and I see no ground to differ with the assessm ent made by him.
12. The record also shows that the respondent had served the appellant with a notice before filing the ejectment application which was not replied by him, giving rise to an adverse inference. The cases of Kameshwar Lal v. The King, reported in AIR 1948 Patna 406, and Major Sher Sher Afzal v.
Shamim Firdaus and another, reported in PLD 1980 SC 228, are relevant in such a situation. The silence of the appellant in this behalf amounts to an admission.
13. Even if the disputed receipt dated 18-6-1985 is accepted as genuine (for arguments sake) still the appellant was a defaulter in payment of rent. The case of Messrs Tar Muhammad Janoo & Co. v. Taher Ali and others, reported in 1981 SCMR 93, is clear on irregular payment of rent by the tenant. I cannot do better than quoting the relevant observations in extenso:-- "We are not impressed by this contention. When a premise is taken on rent on monthly basis, the rent becomes due each month on the date specified in the agreement. If the tenant fails to pay the rent within 15 days of the said date he would be a defaulter according to the relevant provision of the West Pakistan Rent Restriction Ordinance, 1959. In cases where there is no rent deed or written agreement, a tenant would be a defaulter if he failed to pay the rent within two months of the date when the rent became due. It is the duty of the tenant to pay or at least tender the rent to the landlord and he cannot be allowed to plead that the landlord did not make any effort to collect the rent. The mere fact that a tenant has made it a habit not to pay the rent regularly every month, and that the landlord has tolerated his default for some time and accepted the rent paid at irregular intervals cannot in any way, be deemed to have established a practice of payment of rent whenever the tenant pleases or affect the liability of the tenant to pay the rent unless the landlord comes and collects it. Nor does it absolve the tenant from paying the rent every month. A landlord's acceptance of the rent paid to him at irregular intervals does not in any way, show that he does not expect it to be paid regularly every month, as the reason for receiving the delayed payment might be his decency, his desire to accommodate his tenant, his pre-occupation with his own work, his hesitation to go to Courts of law or his reluctance to incur the expenses and hazards of litigation. The tenant cannot be allowed to take advantage of his own negligence or of his having taken advantage of deliberate non-payment of rent in time every month on the ground that the landlord has been accepting the same and argue that the same had given rise to a practice of irregular payment of rent. In this view of the matter we feel that the Courts below were justified in holding that default in payment of rent stood proved and the High Court rightly dismissed petitioner's appeal. Consequently, we dismiss this petition as being without any merits."
14. An attempt was also made on behalf of appellant to show that he had spent a sum of Rs,75,000 over the construction of the disputed premises and he was consequently entitled to an adjustment of this amount. This plea was not E raised by the appellant in his written statement. In the case of Mst. Akhtari Begum v. Muhammad Qasim, reported in 1987 CLC 157, it was held that when a plea is not taken in pleadings, no evidence can be led or looked into in support of such a plea.
15. On all the above scores the finding of learned Rent Controller on issue No,1, is not open to exception.
16. I now proceed to examine the issue of personal requirement. Clause (vii) of subsection (2) of section 15 of the Sindh Rented Premises Ordinance, 1979, empowers the Rent Controller to order the eviction of the tenant, if the landlord requires the premises in "good faith" for his own occupation or use or for the occupation or use of his spouse or any of his children. The respondent has testified about his needs. His evidence shows beyond any shadow of doubt that he does not own any other commerical premises in Sukkur city and he wants to adjust his grown-up sons, namely, Mansoor Alam, Suhail Aslam, and Azhar Majeed, in business, who are presently jobless. Azhar Majeed (P.W.-2) has supported his father, the respondent, in this behalf. The cross-examination made to respondent merely emphasised that Azhar Majeed (P.W-2) runs a shop by name "Zahid Traders", which fact was denied by the respondent who stated that Azhar Majeed (P.W.2) was only doing repair work of refrigerators, etc. In the said shop which belongs to one Barkatullah. There is nothing on record to prove it otherwise. In seeking ejectment of a tenant for personal requirement the landlord has only to satisfy the Rent Controller that his needs are genuine and he requires the premises honestly. Honesty is a state of mind and is capable of proof F or disproof only by evidence of conduct. There are several factors to be considered in assessing such evidence. Much emphasis is, however, laid upon the word "good faith" used in clause (vii) of subsection (2) of section 15 of the Sindh Rented Premises Ordinance, 1979, meaning thereby the honesty of intention, and though I have certainly no wish to suggest that the appellant has spoken with deliberate falsity, I am clear that I should not be justified in giving effect to his evidence to the extent that the respondent and his sons own other properties and they do not need the disputed premises honestly. No exception can, therefore, be taken to the finding of the learned Rent Controller on this issue also.
17. Issue No,3 relates to the ground of ejectment under the provisions of section 14 of the Sindh Rented Premises Ordinance, 1979, which should have invoked through a separate application.
However, no prejudice appears to have been caused to the appellant by the consolidation of these grounds of ejectment in one application. The evidence of the respondent on this issue has gone unchallenged. Even otherwise in view of the decision on issue No,2 in favour of respondent the finding on this issue has got only academic value. The finding recorded by learned Rent Controller on this issue also is confirmed.
18. A point which was touched upon by Mr. Sharafuddin Ada, learned counsel for the appellant during the course of his arguments may now be dealt with. It was contended that during the pendency of this appeal the appellant had received a notice dated 7-3-1990 issued by Municipal Corporation, Sukkur, alleging therein that the disputed premises in his occupation belonged to the said Corporation and there was encroachment over the plot. The objections filed on behalf of the respondent to C.M.A. No,I37 of 1990, however, make the entire position clear, which for the sake of convenience are reproduced below:-- "That the appellant has himself managed the notices just to delay the proceedings already delayed. The property No,D-1628-39 sq. Yards (P.27 or R & P) belongs to me. A portion of municipal plot measuring 355 sq. Feet lying in front of my said plot out of C.S. No,D-1627 was granted to me on pacca patta (Certificate No,48 dated 31-3-1990 annexed). I thereafter reconstructed the building after approval of the sanctioned plan on 6-5-1979 (original annexed)."
19. Article 115 of the Qanun-c-Shahadat Order, 1984, embodies the principle of estoppel arising from the contract of tenancy. It is based upon a healthy and salutary principle of law and justice that a tenant who could not have got possession but for his contract of tenancy admitting the right of the landlord should not be allowed to launch his landlord in some inequitable situation taking undue advantage of the possession that he got and probable defect in the title of his landlord (Field's Law of Evidence). One of the leading authorities is to be found in Kumar Krishna Prosad Lal Singha Deo v. Baraboni Coal Concern, Ltd., and others, reported in AIR 1937 Privy Council 251, where Sir George Rankin, in an indubitable language, gave a clear analysis of the scope of section 116 of the Evidence Act, 1872 (Article 115 of the Qanun-e-Shahadat Order, 1984). His Lordship observed that:-- "The section postulates that there is a tenancy still continuing, that it had its beginning at a given date from a given landlord. It provides that neither a tenant nor anyone claiming through a tenant shall be heard to deny that that particular landlord had at that date a title to the property. In the ordinary case of a lease intended as a present demise--which is the case before the Board on this appeal--the section applies against the lessee, any assignee of the term and any sublessee or licensee. What all such persons are precluded from denying is that the lessor had a title at the date of the lease and there is no exception even for the case where the lease itself discloses the defect of title. The principle does not apply to disentitle a tenant to dispute the derivative title of one who claims to have since become entitled to the reversion, though in such cases there may be other grounds of estoppel, e.g., by attornment, acceptance of rent, etc. In this sense it is true enough that the principle only applies to the title of the landlord who "let the tenant in" as distinct from any other person claiming to be reversioner. Nor does the principle apply to prevent a tenant from pleading that the title of the original lessor has since come to an end."
20. The cases of Ahmed Shah Khan v. Abdul Barkat, resorted in PLD 1960 Dacca 107, Roshan Ali v.
Settlement Commissioner, Khairpur Division and another, reported in PLD 1975 Karachi 444, Muhammad Anwar, through his legal representative v. Abdul Shakoor, reported in 1982 SCMR 1120, Qambar Ali v. Mst. Khiraj Begum, reported in PLD 1983 Quetta 17, and Abdul Karim v. Abdul Shakoor, reported in 1984 MLD 559 also support this enunciation of law.
21. In view of the above legal position, the appellant cannot dispute the title of the respondent, which otherwise also is not in clouds.
22. For all the aforesaid reasons, the appeal merits dismissal and is accordingly dismissed with costs. Two months' time is, however, allowed to the appellant to vacate the demised premises.
C.M.A. No, 137 of 1990 is also dismissed.