1. ' By this common judgment I intend to dispose of these two, Rent Appeals which pertain to same premises and common points of facts and law are involved. The parties are also same.
2. ' Briefly the facts are that the two premises consisting of residential house on ground floor as well as two shops on the ground floor are owned by the present appellant/landlady which were rented out to the respondent on monthly rent of Rs,200 for the residential premises and Rs,325 for shops.
3. According to the case of the appellant/landlady, the respondent had failed to pay the rent in case of both the premises since June, 1980. It is also urged that the appellant/landlady, who is a patient of Chronic Arthritis has been advised by the Doctor to take residence in the premises which are situate on ground floor and to avoid climbing the stair case. It is on these two _grounds that the said Rent Case was instituted. The respondent filed his written objections wherein he contested the pleas taken by the appellant. According to the respondent/ tenant he has not defaulted in payment of the rent but the practice had been that the husband of the landlady who posed himself to be the owner of these premises had inducted the respondent tenant and that he used to collect the rent by himself. According to the respondent he did not know about the address of the appellant or her husband and that after great difficulty he could find one address and sent the rent to that address within a period of sixty days from the date the rent fell due which money order was returned and, therefore, he started depositing the rent in Court in Miscellaneous Rent Case No, 5286 of 1980. He further contended that a sum of Rs,1,200 and Rs,3,000 respectively is lying with the appellant by way of security deposit and the default if any could have been adjusted against the said security deposit. Both the parties filed their affidavit-in-evidence and were cross-examined.
4. The appellant also filed the affidavit-in-evidence of her husband Muhammad Zaheer Alam and also examined Postmaster of Bahadrabad Post Office, Karachi. After hearing the arguments of the learned counsel for the parties, learned Rent Controller was pleased to dismiss the rent case filed by the present appellant deciding both the points against her. Being aggrieved the appellant has preferred these two rent appeals, the F.RA. No, 1171/1987 with regard to residential premises and F.RA.
5. No, 1172/1987 with regard to two shops.
6. ' I have heard the learned counsel for the appellant: At the time the arguments had started Mr. Ismail Kassam, Advocate had appeared on behalf of Mr. Muhammad Naqi, Advocate for the respondent and stated that the counsel is coming within 15 minutes. Mr. Muhammad Naqi, Advocate for the respondent has reached the Court at this stage. However, I have heard him. My findings on the points are as under: ' As regards- the question of default in payment of rent it may be observed that the case of the appellant is that the tenant had defaulted in payment of rent since June, 1980. The burden in such circumstances is on the tenant to show that the rent had been tendered as required under section 10 of the Sindh Rented Premises Ordinance, 1979. No doubt it is for the tenant to first show that he had tendered the rent which means that he had offered the rent to the landlady and it is only when the landlady had refused to accept the rent then he could resort to other modes of payment of rent i,e, by tendering the same through money order or depositing it in the Court. In the present case the contention of the tenant is that when the landlady did not approach for the recovery of the rent, he sent the same through money order to an address, which with great difficulty, he could procure as the rent agreement did not mention any address of the appellant. I have gone through the rent agreement and the point raised by the tenant stands substantiated as the same does not mention the address of the appellant. Mr. Mubarak Hussain Siddiqui, learned counsel for appellant has placed reliance on the case of Kala Khan through Legal Heirs v. Anjuman Musalmanane Mashraqui Punjab, Karachi (1993 CLC 250). He has placed reliance on a number of other cases in this respect. It may be observed that in these cases the tenant was held liable to consequence of not tendering the rent to the landlady in the first instance for the reasons that he could have done so. In the present case admittedly the address of the appellant was not mentioned in the agreement and, therefore, it could not have been possible for the tenant to have tendered the rent initially to the landlady as is required under section 10 of the Sindh Rented Premises Ordinance, 1979 and, therefore, he was justified in seeking recourse to other modes by sending the same through money order at whatever address he could find and also that in case of non-acceptance of rent at the given address he could have resorted to third mode by depositing the same in the Court. In these circumstances I am of the view that the case-law referred to by the learned counsel for the appellant does not have any bearing to the present case. Accordingly, I find no reasons to interfere with the findings of the Rent Controller on this point.
7. ' The second contention of the landlady is that the premises are required for the personal use. Mr. Mubarak Hussain Siddiqui, learned counsel for the appellant during course of arguments has submitted that this contention is fully substantiated by the appellant in her affidavit and also is supported by her husband in his affidavit-in-evidence. The counsel has submitted that the appellant is suffering from Chronic Arthritis and is unable to climb the stairs and, therefore, she was advised by her Doctor to seek residence in a place which is situate on ground floor so that she may not have to climb the stairs. So far as this plea of the learned counsel is concerned it may be observed that it is an admitted fact that during the pendency of the rent proceedings the appellant had shifted to another rented premises which are situated on ground floor. The other plea which was taken in the rent-case by the appellant is that her previous landlady was forcing her to vacate the premises in her occupation. Even this point stands answered by her shifting to premises which are on ground floor. In these circumstances the two grounds urged for personal requirements in the rent case do not exist any more. The learned counsel for the appellant has submitted that it is the choice of the landlord to live in his own house. He has further submitted that landlady cannot be prevented from seeking ejectment on the ground that she wishes to live in her own house. He has further argued that it cannot be the Rent Controller who can choose and select the premises on behalf of the landlord. He has placed reliance on a number of cases in support of the above contention including the cases of Miss Zaffar Fatima Rizvi v. Syed Saleem Raz (1993 CLC 270), Mrs. Ghazala Shamim v. Mrs. Shahnaz Ahmed (1993 CLC 262) and Abdul Majeed Shahid v.
8. Syed Abdul Bashir (1993 CLC 148). No doubt the above dictum is laid down in all the cited Single Bench judgments of this Court but in those very cases it has also been emphasized that a landlord could resort to seeking relief of ejectment where the premises were required by him in good faith.
9. Good faith means reasonableness and also that good faith could be inferred from the circumstances of each case. As against this mala fides would mean a case where the proceedings are initiated for reasons which are based on ulterior C motives. The learned counsel has also placed reliance on the case of Abdul Malik v. Haji Ejaz Ahmed (1985 CLC 1546), wherein it has been held that if a landlord had let-out a portion of residential building for non-residential purposes out of necessity that itself would be no legal bar to his seeking the relief of ejetment for personal requirement on the ground to accommodate his large family.
10. ' Mr. Muhammad Naqi, learned counsel for the respondent has vehemently opposed the contention raised by the learned counsel for the appellant and has submitted that the essential requirement in such cases is to see if the same is in good faith and secondly that mere ipsi dixit of the landlord is not sufficient. He has pointed out that as discussed above the two grounds for the personal requirement as raised in the application for ejectment do no more exist and as such the application for ejectment to that extent has become infructuous. He has further pointed out that other pleas taken by the learned counsel with regard to his desire to live in his personal premises and that the prerogative and the choice rests with the appellant cannot be taken into consideration as the same were not raised in the rent case itself. He has placed reliance on the case of The Darul Uloom Naieemia Trust v. Munir Ahmad (1984 CLC 3483), wherein Naimuddin, J.- (as his Lordship then was) had been pleased to hold that if a plea is not taken in the pleadings by the tenant no amount of evidence could be looked into with respect to such plea. I am not in agreement with the learned counsel for the appellant. It may be observed that the very case of civil nature depends on the pleadings of the parties and has to be confined within four corners of the same. No plea not specifically taken by either party can be looked into nor any evidence can be looked into nor any evidence can be led with regard to such plea and even if such evidence is brought on record it cannot be looked into.
11. ' The learned counsel for the respondent has raised another question in the present case. He has pointed out that the affidavit-in-evidence sworn by the appellant cannot be looked into as the same is not an affidavit sworn as required by law. He has referred to the affidavit of the appellant which carries the following endorsement at the foot made by the Oath Commissioner before whom the affidavit is supposed to have been sworn: "Solemnly Affirmed Before Me (Sd.)
12. Muhammad Yusuf Khan, BA., LL.B., Advocate, Oath Commissioner Karachi."
13. ' This endorsement shows that the affidavit has been made on solemn affirmation before the Oath Commissioner and also that the appellant had put her signature in his presence. As against this the appellant in her cross-examination admits that she had signed the affidavit at her residence and sent the same to her Advocate for submission in Court due to her illness. This goes to show that this affidavit was neither signed before the Oath Commissioner nor was made on solemn affirmation in his presence. In such circumstances this affidavit cannot be relied on or looked into.
14. Reliance may be placed on the case of Master Muhammad Bashir v. Moinuddin (1990 CLC 703). As regards the affidavit of the husband of the appellant, it may in the first instance be observed that his affidavit could be looked into but first the appellant has to show as to why the appellant had not given the evidence in the case. It may be argued that the appellant was ill and, therefore, could not give evidence. In such cases an application could have been made in the Court for allowing for her affidavit to be sworn on commission and also for her cross-examination on commission which has not been done in the present case. However, considering the affidavit of the husband of the appellant which is on record, it may be observed that as regards the personal requirement he has stated as under: "6. That it is further submitted that the entire plot on which the house in dispute is constructed is residential and therefore the applicant requires the same for her own use as she wants to demolish the shops and construct additional rooms therein for her accommodation and to accommodate her family."
15. ' It may be observed that the contents of above paragraph do neither speak of requirement of the appellant on the ground of her suffering Arthritis nor the same contains any mention that she is being pressurized by her landlord to vacate the same. However, the ground taken in this paragraph is that she needs the entire plot as the same is residential plot and she wants to construct more rooms thereon to accommodate her family. This is not the ground taken in the application for ejectment. Accordingly, I find no force in submissions of the learned counsel for the appellant on this point also.
16. ' In view of the above discussion these two appeals are dismissed with no order as to costs.