' This appeal has been filed to challenge the orders passed by IV Senior Civil Judge/Rent Controller, Karachi (South) on 19-7-1990 whereby the Rent Case No,101/88 filed by the present respondents was allowed.
2. Briefly the facts are that the present respondents who are a registered society and are the owners and landlords of the building situate on Plot No, 124, Noor Elahi Road, Old Kumbharwara, Lyari Quarters, Karachi filed the Rent case against the present appellants, who are the tenants in respect of residential tenement situate on the ground floor of the said building at the monthly rent of Rs, 15 only. The case of the respondents is that the appellants/tenants wilfully defaulted in payment of rent since March, 1977 till December, 1987, the total amount of default being Rs, 1,935.
The respondents also claimed in the rent case that they required the premises in good faith for accommodating their own office. The opponent Kala Khan had expired and his legal representatives were joined in the case, who filed the joint written statement wherein they admitted the relationship of landord and tenant and the rate of rent. However, they denied to have defaulted in payment of rent. Their case is that the rent was offered to the landlords; as they refused to accept the rent, the tenants filed Miscellaneous Rent Case No, 703/78 in the Court of Rent Controller and are depositing the rent regularly in the said case which they have done up to June, 1989. They also denied that the landlords required the premises in good faith for their own use.
3. On these pleadings, the learned Rent Controller settled the following issues:
(i) Whether opponent committed default in payment of rent?
(ii) Whether applicants require the premises in good faith for personal use?
(iii) What should the order be?
4. The learned Rent Controller finding both the issues in favour of the landlords, allowed the rent case and directed the present appellants to hand over the vacant possession within 30 days.
5. I have heard the learned counsel for the parties and perused the record and proceedings of the lower Court. My findings are as under: ' ISSUE NO,1.---The burden to prove this issue rests heavily on the tenant. It is for the tenant to prove that he had tendered the rent to the landlords. In the present case the present appellants have examined Mst. Mahmood-un-Nisa, the widow of Kala Khan, who has filed her affidavit-in-evidence and was cross-examined. She has stated in her affidavit-in-evidence that her late husband Kala Khan was the original tenant who has paid rent regularly to the landlords and on their refusal to accept the rent by the landlords, he deposited rent in Court in Miscellaneous. Rent Case No, 703/78 till his death; and that after his death, the monthly rent has been deposited as usual in Court. She has produced one rent receipt issued by the respondents in the name of the deceased Kala Khan and few other receipts showing that rent was deposited in the abovesaid Miscellaneous Rent Case No,703/78. There is no other evidence on the record to corroborate her statement to the effect that deceased Kala Khan had offered the rent for the period in dispute i,e, March, .1977 onwards to the landlords; and that they had refused to accept the same. One receipt produced by the present appellants as Exh.O/1 in the rent case shows that the same was issued on 1-3-1977 for a sum of Rs, 165 being the rent for the period April, 1976 to February, 1977. The next receipt that has been produced is dated 11-2-1978 and is marked as Exh.O/3. This receipt is for a sum of Rs,240 and is the first receipt showing deposit of rent in Court. The very fact that the above said Miscellaneous Rent Case No, 703/78 was filed in the year 1978 itself goes to show that during the period March, 1977 till this rent case was filed in 1978, no other efforts were made by the tenants to tender the rent. As provided in section 10 of the Sindh Rented Premises Ordinance, 1979, there are three modes of tendering the rent by the tenant. The first mode is that rent shall be paid directly to the landlord; the second mode is that in case the landlord refuses, it may be sent to him through postal money order and the third mode is that in such case, the same may be deposited with the Controller within whose jurisdiction the premises is situate. Now in the present case except for oral word of the appellants Mst. Mahmood-un-Nisa, there is no other evidence to corroborate her statement that she or her husband had tendered the rent which was refused by the landlords. Admittedly, the rent has not been sent through postal money order. As regards the deposit of rent in Court, it may be observed that by voluntary deposit of rent in the Court by a tenant after having become a defaulter as provided in Sindh Rented Premises Ordinance, 1979, he cannot be absolved of the liability to which he becomes subject. In the present case, the evidence on record of the very fact that the rent was deposited in Court as from March, 1977 shows that the rent was deposited in Court on 11-2-1978 i,e, after a lapse of a period of almost one year. This on the very face of it goes to prove the contention of the present respondents as raised in their rent case that the present appellants have wilfully and negligently defaulted in payment of rent. In these circumstances I find no IE reason to disagree with the Rent Controller. Accordingly, the finding of the Rent Controller on this issue is maintained.
' ISSUE NO,2.---The burden to prove that the premises is required by the landlords in good faith lies on the landlord. Mr. Dastagir Ghazi, the learned counsel for the appellants has submitted that the only witness examined by the respondents/ landlords is Ch. Ghulam Nabi, who is Honorary Treasurer of respondents Anjuman. Of course the Anjuman is a registered body but the respondents have not produced their Bye-Laws etc. To show as to which of the office-bearers of the Anjuman was to exercise the executive authority of the Anjuman. The application for ejectment filed by the present respondents is signed by Muhammad Yakoob, the President of the Anjuman while the evidence is given by the Honorary Treasurer. It is contended by the learned counsel for the appellants that this witness did not have any authority from the present respondents to give evidence in the case as he has not produced any such letter of authorization or power of attorney.
The learned counsel has submitted that generally the executive authority is exercised by the President or Secretary of such Bodies and not by the Treasurer. He has also pointed out that this witness of the respondents has not stated that he had ever collected the rent from the tenants so as to bring him within the definition of landlord as given in the Ordinance. His evidence, therefore, on the point of requirement of the landlords in good faith would be of no avail. Moreover, it may be observed that in the present case the landlords are a registered Anjuman who admittedly are holding their meetings etc. In other premises and, therefore, it is the Anjuman who has to decide if they want of shift their office to the premises in dispute. No such decision of Anjuman or resolution passed by the Anjuman has been produced. From this Mr. Dastagir Ghazi, the learned counsel for the appellants has submitted that mere word of this witness of the respondents would not go to prove their requirement and the bona fides thereof. He has placed reliance on the case of Sultan Trust Ltd v. Muhammad Hassan (PLD 1985 Kar. 624) wherein my Lord S. Haider Ali Pirzada, J. Has held that a mere ipse dixit of landlord that he required the premises in good faith was not enough and that such fact must be supported by valid reasons to his requirement being genuine. The learned counsel has also placed reliance on the case of Associated Sales Agencies, Karachi v. The Standard Insurance Company Ltd. 1985 CLC 2419 wherein Saleem Akhtar, J. (as his Lordship then was) has held as under: "The respondent's registered office is at Muhammadi House and no resolution has been produced to show that the Board of Directors has decided to shift the registered office, to any other place. In evidence, the entire thrust of demand is in respect of Branches only. If by expansion of business the respondent means the volume of business which has increased in the Branch office, than as observed earlier, the Branches cannot be clustered in one building because it is against the very concept and purpose of opening of the Branches. The averment made in ejectment application and statement made on oath are not the same. In the circumstances, the requirement sought to be established in the evidence that the disputed premises is required for accommodating the Branches is not a bona fide requirement of the respondents."
"The building was purchased in the year 1972 and for the first time notice was issued on 17-11-1975 and the ejectment application was filed in the year 1976. If the intention of the respondents would have been to occupy the premises immediately on purchase, they would have not taken steps for ejectment after about four yeaRs, Furthermore, merely because a landlord is in occupation of a rented premises he cannot ipso facto obatin an ejectment of tenant in respect of his own premises unless he proves his bona fide requirement."
' In the present case also it may be observed that the present rent case was filed in the year 1988 whereas on the applicant's own showing the present appellants were the tenants in the said premises at least since April, 1976. If the premises were required by the respondents for their bona fide use then why did they wait for 12 years to file the rent case is not explained although their witness states in cross-examination that such notice was served on the tenants after purchase of property by the Anjuman but he further states that he does not remember the date of notice nor any such notice has been produced in case.
' In view of above discussion I hold that the respondents have failed to prove this issue. Accordingly the finding of the Rent Controller on this issue is set aside.
' In this view of the matter, this appeal is partly allowed to the extent that the finding on Issue No,2 is set aside but the appeal with regard to finding on Issue No,1 is dismissed. The appellants will hand over the vacant possession to the respondents within three months from the date of this order.
There will be no order as to costs.