1. Appellant Dr. Khalid Mansoor has called in question his eviction from the premises in litigation ordered on 16-11-1993 by 1st Senior Civil Judge and Rent Controller, Karachi Central in Rent Case No. 590 of 1986.
2. Admittedly the appellant is in possession of front portion of ground floor of the premises constructed on Plot No. 1/15-III, Nazimabad, Karachi. Rent of the premises is admittedly Rs. 500 per month. Admittedly appellant paid rent to the respondent for the period ending December, 1985.
3. Respondent filed Rent Case No. 590 of 1986 for eviction of the appellant from the premises in litigation on the ground that the appellant had defaulted in payment of rent since January 1986, and that the premises were required in good faith by the respondent for his own use. The third ground about covering of open space with tin shed by the appellant was dropped on 16-9-1993.
4. The rent application was contested by the appellant who in his written statement denied the respondent to be his landlord but claimed to have paid rent to landlord's brother Masood. Both the grounds taken for-eviction were controverted by the appellant.
5. After receiving evidence of the parties learned Rent Controller under the impugned order dated 16- 11-1993 accepted the rent application and ordered eviction of the appellant within 60 days after holding that default in payment of rent for January, 1986 to May, 1986 was proved and that requirement of the premises by the respondent for bona fide personal use was established. Hence this appeal.
6. Mr. S.F. Abdullah, learned counsel for the appellant argued that the appellant had been paying the rent in advance as per the rent receipts dated 22-4-1979, dated 26-1-1981, dated 15-2-1982 and dated 21-2-1984. In respect of the period in question, learned counsel for the appellant argued that rent for six months starting with January, 1986 was paid in advance to the respondent who did not issue such receipt there and then, as was usual with him. It was added that the respondent after having received rent for the period January, 1986 to June, 1986 and before issuing receipt for such payment; chose to file the rent case on 4-5-1986. It was next argued that rent for July, 1986 onwards was not accepted and hence the appellant deposited the same in Miscellaneous Rent Case No. 1002/86, where Rs. 1,000 were deposited on 10-9-1986. It was also argued that respondent's witness Masood Ahmad Baqai had said in para. 3 of his affidavit that he as landlord and Rent Collector always issued hand-written receipts whenever rent was paid, but copies of the fourteen receipts produced in the case would show that barring 3 receipts all others are type- written. Learned counsel for the appellant took support from contents of his memo. Of appeal and argued that even if there was delay in payment of rent for any month the same did not constitute wilful default but. It was a technical default. 1t was added that the respondent had taken advantage of his own act of not issuing the receipt for the rent received for January, 1986 to June, 1986 as he was in the habit of postponing issue of rent receipts. Learned counsel for the appellant criticized the observation made by learned Rent Controller that whenever rent was paid in advance the Rent receipt mentioned the words "advance rent" and argued that the words "advance rent" did not appear in any receipt except the receipt dated 22-12-1976. Observation by the trial Court, that when the rent was paid afterwards the rent receipt was issued on the same day, was challenged to be purely imaginative. Learned counsel for the appellant took exception to the observation made in the impugned order that the appellant had not sent any legal notice to Masood for non-issue of rent receipt. Learned counsel for the appellant desired trial Court to have taken the view that the appellant always paid the rent in advance, and according to such practice rent for January 1986 to June, 1986 was also paid in advance and that non-production of rent receipt did not conclusively prove that rent was not paid. On this point reliance was placed on the case of Muhammad Shall v.
7. Iqbal Ahmad and another (PLD 1965 (W.P) Lah. 23). In respect of the ground of personal need learned counsel for the appellant argued that desire of the respondent was mala fide as his allegation about the appellant being habitual defaulter was belied by rent receipts, and his claim about the rent receipts having been written in hand was falsified by the fact that the rent receipts are type-written except the one or, two of them. It was next argued that the respondent had settled in U.K. For over 25 years and he cannot be believed to return to Pakistan. It was also argued that none of the co-owners has been impleaded as a party.
8. Mr. Muhammad Ahsan Shaikh, Advocate, who argued the case for the respondent as his attorney rather than as his counsel, challenged the allegation that rent was refused by the respondent. He argued that the appellant had taken self-contradictory position by saying in the written statement that no rent receipts were being issued and at the same time had produced the rent receipts in Court. It was conceded that rent for January 1986 and February 1986 was deposited in Miscellaneous Rent Case No. 1002 of 1986 on 10-9-1986 during pendency of the Rent Case and as such there was default. Relying on the case of Nek Muhammad v. Muhammad Shafi and others (1983 SCMR 180), learned counsel for the respondent argued that personal bona fide need for the purposes of section 15 (2) (vii) of Sindh Rented Premises Ordinance, may not be of the entire body of landlords taken together. It was further argued that onus to prove default shifted to the appellant after respondent made statement on oath that rent for a particular month was not paid.
9. In support, Mr. M. Ahsan Shaikh, attorney for the respondent cited the cases of:--- (i)Nek Muhammad v. Muhammad Shafi and others (1983 SCMR 180).
10. (ii)Mst. Hajra Bai v. Allah Din (1993 CLC 1693).
11. (iii)Abdul Latif v. Syed Akhtar A.I and others (1993 CLC 1951).
12. (iv)Mst. Ahmedunisa and others v. Mst. Parveen Siraj (1985 SCMR 2012).
13. (v). Mat. Zohra Kazmi v. Sami Ahmed and another (1994 CLC 1656).
14. 1983 SCMR 180), it was held that in accordance with clause (2) of section 12 of West Pakistan General Clauses Act. The term `landlord' would also cover a case where several persons are jointly owners or landlords within meaning of the word `landlord' defined by clause (c) of section 2 of W.P.
15. Urban Rent Restriction Ordinance. It was also held that clause (ii) of subsection (3)(a) of section 13 of said Ordinance, covers the need of any of the landlords as well as the collective need of entire body of landlords. In view of this authority, there is no substance in the objection that the respondent as one of the co-sharers of the property in litigation, could not file this application.
16. On the point of default, the view taken in the case of Mst. Hajrra Bai v. Allah Din (1993 CLC 1693) was that initial burden of proof lies upon the landlord and if the landlord appears in Court and states that he has not received the rent, it is sufficient to hold that the landlord has discharged his burden of proof. For taking this view reliance was placed on the case of Allah Din v. Habib (PLD 1982 SC 465). In the case of Abdul Latif v. Syed Akhtar A.I and others (1993 CLC 1951) the view taken was that initial onus to prove default was upon the landlord but once the landlord alleged that the tenant had not paid rent, the onus shifted to the tenant. In the same case it was observed that without obtaining receipts it cannot be believed that the rent was paid. On this point learned counsel for the appellant cited the case of Muhammad Shafi v. Iqbal Ahmed and another (PLD 1965 Lah. 23) where the view taken was that if there was doubt about payment or non-payment of rent then the doubt was to be resolved in favour of the tenant because the onus to prove default was on the landlord. It was also observed in the said case that even if non-payment of rent was there, it was a matter of discretion with the Rent Controller to make an order directing the tenant to put the disputed premises in possession of the landlord.
17. Case of the, appellant was that he had paid rent for January, 1986 to June, 1986 but rent receipt was not supplied to him there and then. That rent receipts were supplied after the actual payments. Appellant Dr. Khalid Mansoor stated in his affidavit-in-evidence that he paid rent to Muhammad Baqai his landlord till 1976. He produced such rent receipts. The rent receipt dated 29- 12-1973 is in respect of the rent for January, 1973 to December, 1973. Rent Receipt dated 28-5-1976 covers the period January, 1976 to May, 1976. Rent Receipt dated 22-12-1976 covers the period January, 1977 to June, 1977. Rent Receipt dated 4-5-1978 covers the rent for June, 1977 to December, 1977. Receipt dated 31-12-1978 covers the period June, 1978 to December, 1978. Receipt dated 22-4- 1979 covers the period January, 1979 to June, 1979. Receipt dated 31-12-1979 covers the period July, 1979 to December, 1979. The receipt covering rent for the period January, 1980 to December, 1980 does not bear any date. Receipt dated 26-1-1981 covers the period January, 1981 to December, 1981.
18. Receipt dated 15-2-1982 covers the period January, 1982 to June, 1982. Receipt dated 22-1-1983 covers the period July, 1982 to December, 1982. Receipt for the rent paid for January, 1983 to December, 1983 does not bear any date. Receipt dated 21-2-1984 covers rent paid for the period January, 1984 to December, 1984. Receipt covering rent for the period January, 1985 to December, 1985 does not bear any date. All the receipts mentioned above show that the rent was being paid and accepted in lump sum after intervals. Receipt dated 22-12-1976 covers the period which was yet to come. Receipt dated 22-4-1979 coves rent for January, 1979 to June, 1979. This period included months of May, 1979 and June, 1979 which were yet to come when rent was paid. Receipt dated 26-1-1981 was for the period ending December, 1981 and it can be termed as receipt for advance rent like the receipt dated 22-12-1976 and dated 22-4-1979. Receipt dated 15-2-1982 included rent for March, 1982 to June, 1982 which was yet to come. Receipt dated 21-2-1984 included rent for March, 1984 to December, 1984, which were yet to come. This shows that the appellant has been paying advance rent at intervals. In his affidavit the appellant stated in para. 3 that in January, 1986 he paid to Masood, advance rent for January, 1986 to June, 1986, but no receipt was supplied to him. Appellant added in his cross-examination that he demanded the receipt from Masood, but the same was not issued. There is no other evidence in support.
19. Respondent examined his attorney Muhammad Ahsan Shaikh, who stated in para. 4 of his affidavit that the appellant had committed default and he was in arrears of rent for the months January, 1986 to May, 1986. Muhammad Ahsan Shaikh was not subjected to cross---examination by the appellant whose counsel was not present and even appellant was not present when attorney Muhammad Ahsan Shaikh was to be cross-examined.
20. There is no other point showing that rent for January, 1986 to June, 1986 was paid. Deposit of Rs.
21. 1,000 in Miscellaneous Rent Case No. 1002 of 1986 by the appellant on 10-9-1986 was in respect of rent for July, 1986 and August, 1986 as stated by him in para. 3 of his affidavit. This was not deposit for January, 1986 and February, 1986. In the circumstances payment of six months' rent for January, 1986 to June, 1986 by the appellant on an unspecified date is not proved. Even deposit of Rs. 1,000 in M.R.C. No. 1002/86 was during pendency of the rent case. Rent for January, 1986 was payable by 10th February, 1986 and its non-payment till 10-4-1986 gave cause of action to the landlord to move Rent Application for eviction of the appellant tenant under clause (ii) below subsection (2) of section 15 of Sindh Rented Premises Ordinance. Respondent filed the rent case on 4-5-1986. .
22. Perusal of the rent receipts shows that the appellant has been paying and the respondent has been accepting accumulated rent in lump sum. On this point it was held in the case of Abdul Rasheed v. Saleh Muhammad (1980 SCMR 506) that the parties cannot contract themselves out of the provisions of law on the subject, and the mere fact that a landlord accepts a delayed payment of rent by the tenant on a number of occasions, cannot be said to have given rise to any practice whittling down the requirement of law that the rent as to be paid by the tenant by 15th of every month. 1n the case of Haji Muhammad Kassam v. Meharban A.I (1983 SCMR 1205), it was held that mere fact that the landlord accepts the rent from a tenant periodically does not mean that he does not desire or expect the rent to be paid in time as required by Rent Ordinance. In the case of M/s. Tar Muhammad Janoo & Co. v. Tahir A.I and others (1981 SCMR 93), it was held that 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. However, Honourable Supreme Court of Pakistan changed its view in the case of Abdul Aziz v. Abdul Ghani (1986 SCMR 1857). In said case there was sufficient evidence on the record that it was the landlord who had adopted a practice of receiving the arrears of rent in lump sum and on two occasions the landlord received the arrears of rent after eight months, on one occasion he received the arrears of rent after ten months and on four occasions he received the arrears of rent after a period of more than two months without any objection. This practice was in vogue from the very beginning of the tenancy. In the circumstances, it was held that though the rent had not been paid by the respondent/tenant to the landlord as required under the law but conduct of the petitioner/landlord himself was such which furnished sufficient justification to the appellate Court to exercise its discretion against him in dismissing his eviction application. The appellant could have been given benefit of the cited case by the Rent Controller had his case been factually identical to the same. The learned Rent Controller has not exercised such discretion in favour of the appellant and at appellate stage it would not be proper to interfere with finding of the Rent Controller on this ground. I, therefore, hold that the Rent Controller has rightly held that the appellant had defaulted in payment of rent.
23. On the point of personal requirement respondent Dr. Azhar Baqai did not enter the witness-box. His attorney Muhammad Ahsan Shaikh said in para. 5 of his affidavit that the respondent is a doctor and serves in England. That for want of proper place for his medical practice in Pakistan, the respondent is held up in England and as such he requires the demised premises for his personal use and occupation, in good faith. This version goes unchallenged because attorney Muhammad Ahsan was not cross-examined. In his affidavit, appellant Dr. Khalid Mansoor did not say anything about respondent's requirement of the premises in litigation for bona fide personal use. On this point reliance was placed on the cases of Mst. Zohra Kazmi (1994 CLC 1656) and Mst. Ahmedunnisa (1985 SCMR 2012). In latter case the demised premises contained furniture and belongings of the landlady, who was living abroad, but was visiting Pakistan occasionally and it was held that the provisions of the Ordinance would be rendered nugatory in cases where a landlord residing outside Pakistan bona fidely requires his own house in Pakistan for his own occupation or use. In the case of Mst. Zohra Kazmi, the view taken was that a person residing abroad has right to occupy his own premises on his return to this country. In the circumstances case for personal bona fide use was made out and finding of the Rent Controller is unassailable.
24. For the foregoing reasons I dismiss this appeal and direct the appellant to vacate the demised premises within a period of three months, or else force would be used to evict him