For a proper appreciation of the points involved in this appeal filed under section 21 of the Sindh Rented Premises Ordinance, 1979, which are to be disposed of by this judgment it is necessary to refer to the relevant facts in some dctail.
2. The building known as R.T. Centre, constructed on Plot No. M.R2/16, Marriot Road, Karachi, belonged to one Hatim Bhai Muhammad Ali Lotia. The ground floor of this building was on lease with M/s. Muslim Commercial Bank Ltd., at a. Monthly rent of Rs.1,000. By an agreement of tenancy dated 7-3-1985, the appellant had agreed to enhance the rent at the rate of Rs.1,300 P.M. With effect from 1-1-1987. During the subsistence of this tenancy agreement the respondents purchased this building from its previous owner Hatim Bhai Muhammad Ali Lotia somewhere in November, 1986. Usual notices were accordingly sent to appellant, both by there rcspondcnts, the present owners and Hatim Bhal Muhammad Ali Lotia, the previous owner for tendering rent to the respondents. It is alleged that the appellant did not pay or tender rent to the respondents at the agreed rent of Rs.],.W P.M., with effect from 1-1-1987 and they made payment at the old rate of Rs.l,
(XX) P.M. For the months of January and February, 1987. The appellant also stopped making payment with effect from March, 1987. The respondents also required the disputed premises for the use of Muhammad Saecd son of respondent No.1, and Muhammad Saleem son of respondent No.2, who wanted to start their own business. The appellant was, therefore, called upon through a notice to vacate the premises for the said purpose. The refusal of the appellant to vacate the disputed premises led the parties into this litigation.
3. The appellant admitted the tenancy but disputed the quantum of rent by stating that the - tenancy agreement was signed with Hatim Bhai Muhammad Ali Lotia, the previous owner of the building and was not binding in respect of respondents. The allegation of default in payment of rent was denied and it was pleaded that pay orders were sent to the respondents regularly from March, 1987 at the existing rate of rent. The personal need of the respondents for the use of disputed premises by Muhammad Saeed and Muhammad Saleem was seriously questioned. The appellant has also challenged the maintainability of the ejectment application.
4.On the pleadings of the parties the following issues were framed:--- (i)What is the rate of rent between the parties?
(ii)Whether the opponent has committed default?
(iii)Whether the applicants need premises in question for personal bonafide use for their sons?'
(iv)What should the order be?
5. The respondents examined one of them, namely, Haji Shaikh Yaqinuddin (P.W.1), Muhammad Saeed (P.W.2), Abdul Wabeed (P.W.3), and Muhammad Saleem (P.W.4). In rebuttal the appellant examined Muhammad Zikar (D.W.1), the Acccountant of the Bank. On the assessment of evidence available on record, both oral as well as documentary, the learned Rent Controller (Mrs. Khalida Yameen) decided all the issues against the appellant directing its ejectment from the demised premises within a period of 90 days. This order dated 26-9-1988 is the subject-matter of the present appeal. .6. 1 have heard Mr. Inam-ul-Haque, learned counsel for the appellant and Mr. Suleman Kassam, learned counsel for the respondents. I have also gone through the record of this case carefully.
7. Before I proceed to deal with the points raised on merits it is necessary to dispose of an important point of law which is raised on behalf o the appellant. It is contended that the application for eviction was barred under section 69 of the Partnership Act, 1932, which deals with the effect o non-registration of a firm, and since the matter of registration goes to theroot of the matter, the learned Rent Controller was bound to take the 'Same into consideration as a preliminary imperative. This contention is raised on the assumption that the landlords of the disputed premises are M/s. R.T. Centre, Karachi, and not the respondents. The extract from the record of rights (Exh.A/5), however, makes the entire position clear and it shows that the repondents are the owners of the disputed premises and not M/s. R.T. Centre, Karachi, said to be an unregistered firm. Even otherwise the words "other proceedings" used in subsection (3) of section 69 of the Partnership Act, 1932, do not include an ejectment case or a writ petition. In the case of Cooperative Development, Funds and Projects, through its Project Manager, Karachi v. Glimmer Textile Printing Industries, Karachi, reported in PLD 1976 Karachi 808, it was held that the provisions - of section 69 of the Partnership Act, 1932, do not apply to a proceeding before the Rent Controller.
Likewise, in the case of Messrs Kamleern Cloth Market and 11 others v. Gool Bai Shorabji S. Chinoy and 8 others, reported in 1985 CLC 2423, it was made clear that the bar of suit under section 69 of the Partnership Act, 1932, was not applicable against ,unregistered firm when riling constitutional petition. That being so, the Oreliminary objection raised on behalf of the appellant has got no substance.
8.On merits too it is difficult. To see eye to eye with the contentions raised on behalf of the appellant. The essential question for the determination of issue of default is as to whether the appellant was liable to pay rent to respondents at the rate of Rs.1,300 P.M., with effect from 1-1-1987, on the basis of agreement of tenancy (Exh.A/2), executed between the appellant and the predecessor of the respondents. The execution of this agreement of tenancy is not disputed. The appellant had also shown willingness to pay rent at this rate to the respondents, provided they execute a fresh agreement of tenancy.
Section 8 of the Transfer of Property Act, 1882, contemplates transfer of property and then lays down what ' are the interests in that property that should be deemed to have passed. A transfer of property passes forthwith to the transferee all the interests which the transferor is then capable of passing in the property, and, where the property is a house, the casements annexed thereto, the rent thereof accruing after the transfer and other allied things. Thus the respondents succeeded to all rights already accrued to previous owner, viz., Hatim Bhai Muhammad Ali Lotia. The agreement of tenancy (Exh.A/2) by which the appellant had agreed to increase the rent from Rs.1,000 P.M. To Rs.'l,-W) P.M., was in respect of the disputed premises whereby the said Hatim Bhai Muhammad Ali Lotia was entitled to recover rent from the appellant at Rs.1,3(X) P.M. From 1-1-1987. On sale of this property.To the respondents the rights vesting in the previous owner were also conveyed to them.
9. Much capital was sought to be made out from the fact that in the notice under section 18 of the Sindh Rented Premises Ordinance, 197 (Ex.A/7) the rent was demanded at the rate of Rs. 1,000 P.M.
And not at the of Rs. 1,300 P.M. Admittedly this notice was sent in December, 1986, I the rent of the disputed premises was Rs. 1,000 P.M. The increase of rent effective from 1-1-1987, which position was made clear in the receipt of (Ex.A/8). Tile tenant was legally bound to pay rent to respondents at the of Rs.1300 P.M. With effect from 1-1-1987, The appellant thus admittedly payment of rent for the months of January and February, 1987, which was short by Rs.300 P.M., as is evident from the receipt (Ex.A/8). ,
10. Both Haji Yaqinuddin (P.W.1) and Abdul Waheed, husband of respondent No.2 (P.W.3) have testified that the appellant had not paid rent to them from the month of March, 1987. Since the non-payment of rent is a negative fact the burden shifted to the appellant to prove affirmatively that the rent was tendered to the respondents. If any authority is needed on this point the case of Allah Din v. Habib, reported in PLD 1982 SC 465, may be cited with advantage. In order to discharge this burden the appellant examined Muhammad Zikar (D.W.1), the Accountant of the bank who testified about the mode of payment by stating that pay order for the months of March, April, May and June, 1987 were sent to respondents who have not encashed them. Para. Nos,7 and 8 of the affidavit-in-evidence riled by Muhammad Zikar (D.W.1) are relevant about this tender of rent and are therefore, reproduced in extenso:__ "That the opponent have been paying agreed monthly rent of Rs.1,(W regularly through Bank's pay order as per the Bank's procedure. Such pay orders are the most authentic mode of payment and arc issued according to Bank's strict procedure from the pay order book of the bank. The same are duly and regularly entered in the pay order issue register of the bank at the same time after debiting the expenses pay order account. That all the pay orders of monthly rents issued to the M/s. R.T. Centre including that for the months of March, April, May and June, 1987 are duly entered in the pay order issue register of Bank. That it is the deponent who used to personally deliver such pay orders to M/s. R.T. Centre. The expenses pay order register is filed herewith marked "B-2-A".
The pay order issue register is being riled for the following entries A.Entry dated 29-3-1987, Pay Order No.1354/915721 for Rs. 1,000 in favour of R.T. Centre, exhibited marked 'B-3'. A photostat copy of sheet is being riled herewith.
B.Entry dated 30-4-1987, Pay Order No-1907/804275 of Rs.1,000 having M/s. R.T. Centre, exhibited '134. A photostat copy of sheet is being filed herewith.
C.Entry dated 24-5-1987 Pay Order No. 2288/813657 for Rs.1,000 faving M/s. R.T. Centre marked exhibited B-5'. A photostat copy of sheet is being filed herewith.
D. Entry dated 22-6-1987 Pay Order No.2776/800046 for Rs. 1,000 faving M/s; R.T. Centre marked exhibited 'B-6'. A photostat copy of the sheet is being filed herewith."
11. It is the case of appellant that these - drafts were sent along with covering letters (O/9 to O/14).
Muhammad Zikar (D.W.1), the only witness examined by the appellant, however, admitted in cross- examination in clear terms that these letters were never sent to the respondents and they were prepared in order to keep the record straight, to use his own words "to fill the file". No doubt the pay orders were prepared, but as indicated by record they were not delivered to respondents. Para. 8 of the affidavit-in-evidence filed by Muhammad Zikar (D.W.1), further reveals that the pay orders for the disputed periods were prepared and sent to respondents at the rate of Rs.1,000 P.M. So even if it is accepted for the sake of arguments that the appellant had tendered rent for the aforesaid period, the payment was short by Rs. 300 per month. Thus, from whatever point of view the matter may be looked at, the appellant was defaulter in payment of rent and the issue was rightly decided in favour of 0 respondents.
12. It is the case of the respondents that the disputed premises is required for the use of Muhammad Saeed (P.W.2), son of respondent No.1, and Muhammad Saleem (P.W.4), son of respondent No.2, who have got no place for their business and are forced to sell toy cycles on the footpath adjacent to the disputed premises. Haji Shaikh Yaqinuddin (P.W.1) has testified about of the need of his son of Muhammad Saeed (P.W.2), and the need of Muhammad Saleem (P.W.4), the son of respondent No.2. Both Muhammad Saeed (P.W.2) and Muhammad Saleem (P.W.4) have also testified about their compelling need. The respondents have also brought on record three photographs (ExA/10 to A/12) to prove the assertions made by Muhammad Saeed (P.W.2), and Muhammad Saleem (P.W.4). The appellant has seriously questioned the bona fide requirement of the respondents for the use of Muhammad Saeed (P.W.2), and Muhammad Saleem (P.W.4), by stating that it suffers from taint of mala rides for the following reasons:-- (i)That no particulars of business which Muhammad Saeed (P.W.2), and Muhammad Saleem (P.W.4), proposed to start in the disputed premises were disclosed in the application for eviction.
(ii)That Haji Shaikh Yaqinuddin (p.W.1) owns a spacious shop of cycles by name 'Asia Cycles' which fact was concealed by him in the application for eviction.
(iii)That photographs (ExA/10 to A/12) cannot be taken as substitute of legal evidence to prove that both Muhammad Saeed (P.W.2), and Muhammad Saleem (P.W.4), are compelled to do business on the footpath near the disputed premises.
13. The answer to first contention is, however, provided by the Supreme Court in the well-known case of Mst. Saira Bai v. Syed Anisur Rahman, reported in 1989 SCMR I.W, wherein following observations were made:-- "Regarding to non-mentioning of the nature of the business in application it may be observed that an applicant has to state in his application, the material fact, i.e., facts which constitute cause of action. In a case of present nature the applicant has to state those facts which prima facie show that the requirement is according to law, and is made in good faith. This has been so stated in the application. It is not essential as it is not part of the cause of action to state the nature of business which the applicant intends to carry on. Take a case where the applicant states in the application that she requires the shop for her son for carrying on a particular business but later on pending hearing of the application or after eviction of the tenant, the applicant thinks that the business can no more suitably and profitably be carried on in the shop, the question might arise, could he change the nature of business or not? The choice of doing a particular business also depends on many other factors such as the nature of the locality or the nature of business being carried on in other shops in the neighbourhood . It also depends on the flow of customers and class of people residing in the Area. Therefore, if there is any change in circumstances, the nature of business could also be changed.Accordingly, the answer would be that the applicant could change the nature of business with the change of circumstances because in law no restraint or bar is provided.
Therefore, the mentioning of the nature of business was not a material fact or so essential that without it the application must fail.
In any case, there is authority of this Court in the case of Mst. Toheed Khanum v. Muhammad Shamshad (1980 SCMR 593) wherein a similar point was raised and it was observed as follows:-- "Again the High Court fell into an error when it placed undue reliance on the fact that the nature of the business was not stated in the application."
Further, as mentioned hereinbefore, it was unambiguously stated by I the applicant that she requires the shop, in good faith, for use and occupation of her son, and her son, in his deposition, has in clear terms, stated that he would carry on the business of paints in the shop. Therefore, this objection has no force and ought not have been given any weight by the High Court."
14. Coming now to the second question about non-disclosure of other ' shop owned by respondent No.1, all that is contended is that the respondents D have not come to Court with clean hands. The Supreme eourt has again effectively answered this contention in the case of Qamaruddin through his. Legal Heirs v. Hakim Mahmood Khan, reported in 1988 SCMR 819, wherein it was observed that it is not obligatory upon the landlord to disclose all properties which he owns or which he had rented out to other tenants. All that he was required to show is that he needed the premises in "good faith".
This question was again considered by the Supreme Court in the case of Haji Mohibullah & Co. And others v. Khawaja Bahauddin, reported in 1990 SCMR 1070. Wherein it was observed that the failure on the part of landlord seeking ejectment of non-residential property to mention in the ejectment of non-residential property tos,-eklPg ton that ejectment of non-r-sidential property to men"on his ejecirric-rit petit' he was not occupying similar commercial property in sarric area sunal)]c for Jus needs, would not be fatal to his case. It may he addcd that the disputed premises is required by the respondents for the use of lkfuharnraad Sacedi (P.W,2) son (if respondent No.l. And Muhammad 1, , Saicem WAVA) son oil respondent No,2. And not for the use of respondent No, I hims0f, Thereforc, I E the fact that the respondent No.] and his othc-r sons arc in possession of a bid, shop in the same area was hardly relevant,
15. As regards the third contention, it may he observed that the respondents have not based their entire case on photographs (Exs.A/10 to A/] 2) alone. They were produced to lend support to their statements made on oath to this effect. The appellant has also not challenged the genulnenesq Of these photographs, but has simply pleaded that these photographs were taken just to create evidence. Para. 13 of the affidavit- in-evide nee fileol hv Muhammad Zikar (D.W.1) is self- explanatory. The evidence about the nci.;& of Muhammad Saced (P.W.2), and Muhammad Saleem (P.W.4) which has come on record appears to be convincing and there is no reason for me to take a different view from the one taken by the Rent Controiler.
16. Clause (vii) of subsection (2) of section I ' 5 of the Sndh Rented Premises Ordinance, 19719, empowers the Rent Controller to order the eviction of the tenant, if he is satisfied that the landlord requires the fircmiscs in good faith for his own occupation or use or for the occupation or usc cif his spousc or any of his children. It is, however, necessary to see that the landlord does not under the pretext of his personal requirement, invade the ilght of the tenant to possess the premises while discharging its c(intraCtUal/statutoryl obligations as a tenant. The only restriction which the legislature have placed' for the protection of the rights of the tenant is that the need (if the landlord ought to be 'bona fide' rir in 'good faith'. Both'thesc terms are higher Icims of ethics and moralitv and the Rent Controller should, therefore safistv himself at~ to the good faith of the personal requirement in an ob*cctilvel manner according lo the facts and circurnstanccs brought On record, A merc (Icsire or necessity to occupy or usc the premi erroneous approaches. - -- 1JOS"eSslor (a it '~:r~;Jut are h(ah!
17~ Applying the above, test to tflc E'lctS (if the. Presci , ca"e, I ani that the respondents have made out a c-c of persona! Ric'ed, P i% ()f rL"c n that the sons of owners of the propcrty"a~'re compellcd to do JPUSHIWS,~, ~) mot- path close to the disputed premises undej- the constant'fcar of poiicc and the appellant voants to retain posscss*o r -tern ()f ItiSc~, hecau,~C a' (me, trale tile premises was rented out to the hank, IS. No exc~,pjitn I cam thcreforc, h takenol filil, ,e Rent Controller on all tile ;S-sucs. ThcnI ;b_- 1992 Abdul Sattar v. Ibrahim (Wajihuddin Ahmed, J) . . &aracni .3z_3 accordingly digmissed. Two months' time is, however, allowed to appellant to vacate the dcmised premises.
11.8/M-1631/K