1. ' This is First Rent Appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the 'Ordinance') directed against the order dated 2-5-1988 passed by the IIIrd Senior Civil Judge/Rent Controller, Karachi East, whereby he dismissed the eviction application filed by the appellants.
2. ' The facts leading to the filing of the above appeal are that the appellants are the owners of building constructed on Plots Nos. 2-513, 514 and 5151 situated at Darul Aman Society, Stadium Road, Opposite Chandi Chowk, Karachi and the respondents are the tenants in respect of ground floor of the said building at monthly rent of Rs,1,500. The premises in question were let out to the respondents by the parents of the appellants under written agreement executed on 21-5-1975 for a period of ten years. Subsequently, after the death of parents with adjustment with the brother Javed Ehtasham, the appellants became owners of the property. The respondents were duly informed and accepting the appellants as their landlords they started payment of rent to the appellants. The case of the appellants as set out in the eviction application, is that the agreement expired on 20-9-1985 and though the respondents were served with notice to hand over the possession, they failed to do so. It is the further case of the appellants that under the lease agreement, the respondents have undertaken to pay municipal taxes but they never paid the same in spite of verbal demand and written demand dated 13-8-1979. The respondents are liable to pay the charges from 21-2-1975 uptodate. Since the respondents committed default in payment of the charges, they are defaulters.
3. ' The appellants are real sisters and with the consent of all, the premises are now required for personal need of appellant No,
3. The respondents contested the eviction application and denied the allegation of default and personal requirement. The appellants filed affidavit-in evidence of husband and attorney of appellant No, 3, Javed Alam in support of eviction application. The respondents filed affidavit-in-evidence of their Manager, Nasim Iqbal. They were cross-examined by the learned counsel for the respective parties.
4. ' The Controller on assessm ent of the evidence on the record, decided Issues Nos. 1 and 2 in the negative and dismissed the application. The appellants being aggrieved have filed the present appeal.
5. ' I have heard Mr. Usman Ghani Rashid, learned counsel for the appellants in support of the appeal and Mr. Manzoor Ali Khan, learned counsel for the respondents. I have perused the record of the case and have gone through the impugned order.
6. ' The appellants asserted in the eviction application that they required the premises in question to establish business of husband of appellant No,
3. The appellants asserted that appellant No, 3 is doing multi nature business under the firm and is facing shortage of accommodation. The attorney of the appellant No, 3 stated in his affidavit that business of the appellant No, 3 is import of steel material, pipe fitting, sanitary fittings and supply in the rented shop of 15' x 10' only which is not adequate for the need of the appellants. The agreement of lease is on the record. Clause (iv) sub- clause, (b) provides that this agreement shall be renewed and extended for further periods at the option of the lessee. Sub-clause (c) thereof provides that notice acquiring to be served upon the lessees shall be sufficiently served upon them if delivered to them or sent to them by registered post and shall be sufficiently served upon the lessor if delivered to him or sent to him by registered post at his address given above or at his last address communicated by him for this purpose.
7. ' The case of respondents, as set out in the written statement, is that Bank exercised option to renew the lease for a further period. The respondents pleaded that the appellants accepted rent after 20-5-1985 and the eviction application was presented on 13-3-1986, that is, after lapse of nine months.
8. ' This question was considered by the hon'ble Supreme Court in the case of Mrs. Zehra Begum v.
9. Messrs Pakistan Burmah-Shell Ltd. PLD 1984 SC 38. It was held at page 43 as follows:--- "The provisions of the Ordinance permit freedom of contract based on equality of bargaining power in both parties. It formalizes the contract. It does not profess to protect any one class against the other. In this view of the matter if at the time of entering into lease agreement in 1965 the landlord knew that he was bartering away his personal need under the law then in force for a period of thirty years, he cannot under the statutory provision made in the Ordinance turn back to repudiate the term of the agreement. In the first place the Ordinance keeps alive the contract, lends it continued validity and force and professes to protect as much the right of the tenant as that of the landlord, referable always to a valid subsisting contract. In the second place even if there was such a right available under the law (for arguments sake but not as a fact), it stood waived because it is not a part of public policy, but of a personal privilege which the landlord could forego for a valuable consideration."
10. ' It was further held that in view of a valid subsisting contract between the parties the appellant cannot invoke the ground of personal requirement and that this application is premature.
11. ' The dictum laid down by their Lordships of the Supreme Court is applicable to the facts of the instant case. It seems that the Controller rightly decided this issue. I am of the humble opinion that the appellants cannot B invoke the ground of personal requirement and their application is premature. The fmding on this issue is affirmed.
12. ' The appellants also sought eviction on the ground of failure to pay K.M.C. taxes. The appellants annexed K.M.C. bills with the affidavit-in evidence. Javed Alam admitted in his cross-examination that these bills pertain to the property owned by the appellants.
13. ' Clause 11 (2) of the agreement of lease provides that the lessee undertakes to pay and discharge all municipal taxes, rates and taxed other than land tax, property tax.
14. ' The appellants sent a letter dated 13-8-1979 (Exh. 4/P) demanding taxes and charges at the rate of 13% upon annual rental basis besides 5% on account of betterment tax by Government of Sindh.
15. This letter was sent to the Senior Manager (Administration), National Bank of Pakistan, Karachi Zone, Karachi and copy of this letter was sent to National Bank of Pakistan, Head Office, I.I.
16. Chundrigar Road, Karachi. This letter was not sent by registered post as provided by clause (iv) (c) of the agreement of lease. Apart from this letter, there is nothing on record to show that any letter or copy of bill was sent to the respondents. A perusal of the evidence would show that the appellants have not bifurcated the taxes and charges and did not care to send the same to the respondents for payment. On the contrary, they demanded the payment for whole building. As the initial burden is not discharged by the appellants, the burden has not shifted to the respondents. It seems that the Controller has rightly decided issue No, 2 in the negative.
17. ' For the aforesaid reasons, I dismiss this appeal leaving the parties to bear their own costs.