1. Appellant Zubair Ahmed has called in question his eviction ordered from the house in litigation by Ist Senior Civil Judge and Rent Controller Karachi Central, in Rent Case No.2829 of 1985 (old No.3366/1979).
2. Admittedly appellant Zubair Ahmed is living in the house in litigation bearing No.510-A, Block `L'
3. North Nazimabad, being tenant of the same. It is also admitted position that the house in litigation was transferred to Mst. Abida Hasan by the Settlement Authorities. Said transfer was challenged by the appellant who filed such suit to protect his own interest. It is also an admitted position that Mst.
4. Abeda Hasan sold the house in litigation to respondent Syed Hasan Mehdi under a registered sale- deed dated 15-1-1979.
5. Rent Case No.3366/1979 (new No.2829 of 1985) was filed by the respondent for eviction of the appellant from the house in litigation on two grounds, firstly that the appellant had failed to pay or tender rent to the respondent and he was wilful defaulter and secondly that the house in litigation was required by the respondent for his personal bona fide use. In his rent application the respondent claimed to have sent legal notice dated 6-5-1979 to the appellant under section 13-A of W.P. Rent Restriction Ordinance (hereafter mentioned as the Old Ordinance 1959) informing him about purchase of the house in question and requesting him to pay the arrears of rent and monthly rent and to vacate. Said notice was replied on 31-5-1979. The eviction of the appellant was sought on the grounds that he had failed to tender rent to the respondent even after service of statutory notice under section 13-A of Old Ordinance, 1959, and secondly, that the demised premises were required by the respondent for his personal bona fide use as he wanted to shift his family to Karachi, where he had no accommodation. The rent application was contested by the appellant, who in his written statement challenged maintainability of the rent application and title of the respondent in the property in litigation. It was averred that Abeda Hassan Ara, predecessor of the respondent, had obtained transfer of the disputed house in questionable manner and hence Suit No.135 of 1979 was instituted against her by the appellant and his wife. The appellant controverted the ground of default and contended that he had been depositing rent in Court in M.R.C. No.3912 of 1978 and in M.R.C. No.1925/72. It has come on record that the appellant also paid the property tax, the amount of which was allowed to be adjusted towards the rent in terms of the order dated 30-10-1988 passed by a learned Single Judge of this Court in F.RA. No.624 of 1987, which was between the same parties. The appellant did not claim any where in his written statement, if the rent was offered or sent to the respondent by any of the recognized modes of payment except that it was tendered in Court. The ground of personal requirement was also controverted and challenged to be untrue. The appellant added that in pursuance of a notice issued to him by the Administrator of Abandoned Property Organization he deposited rent at enhanced rate under protest.
6. The learned Ist Senior Civil Judge and Rent Controller, Karachi Central, after recording evidence of the parties, accepted the rent application under the impugned judgment dated 24-4-1993 and ordered eviction of the appellant from the premises in litigation within 60 days. Hence this appeal.
7. Mr. Muneeb Ahmad Khan, learned counsel for the appellant argued that in the rent application no period was specified for which the rent was allegedly not paid and that the appellant had been depositing rent since 1972 in M.R.C. No.1925/72 in name of Abu Tahir and then in 1978 he started depositing rent in M.R.C. No.3912/78 in name of Abeda Hassan Ara and in 1979 the appellant received notice (Annexure `B') dated 6-5-1979 from Advocate for Syed Hassan Mehdi informing him that the house in litigation was sold by Abeda Hassan Ara to Syed Hassan Mehdi for a heavy consideration on 15-1-1979. Under said letter/notice dated 6-5-1979 the appellant was called upon to pay the rent of the demised premises to Syed Hassan Mehdi for the period starting from 15-1- 1979. It was argued on behalf of the appellant that he had also received a letter from Abandoned Property Organization to deposit the rent with said Organization. It was next argued that the order dated 13-10-1985 about striking off defence of the appellant for non-compliance with the rent order dated 23-5-1984 had been set aside on 16-3-1987 30-10-1988 under F.RA. No.624 of 1987 where the view taken was the amount paid as property tax was to be counted towards payment of rent. In respect of the ground of personal requirement, the learned counsel for appellant argued that the respondent was already living in P.E.C.H. Society, Karachi and in the previous litigation he had given address of P.E.C.H. Society, where he was settled and hence the ground about requirement of the disputed premises for personal use is mala fide. In support learned counsel for the appellant cited the cases of; (i) Aftab Ahmad v. Mrs. Haziq and others PLD 1985 Quetta 108, (ii) Malik Aman v.
8. Khawaja Abdul Aziz through L.Rs. 1991 SCMR 68, (iii) Sultan Press Ltd. v. Muhammad Hassan PLD 1985 Kar. 624, (iv) Fasahat A.I v. Mst. Noor Jehan Begum 1991 CLC 1902, (v) Syed Anisur Rehman v. Mst.
9. Sara Bai PLD 1985 Kar. 714, (vi) Haji Khuda Bux v. Muhammad Anwar 1982 CLC 1006 and (vii)
10. Muhammad Siddique v. Abdul Karim and others 1983 CLC 913.
11. Mr. Syed Zaki Muhammad, learned counsel for the respondent argued that after purchase of the disputed house from Abeda Hassan Ara a notice dated 6-5-1979 under section 13-A of the Old Ordinance, 1959 was sent to the appellant who gave reply dated 31-5-1979. It was added that in spite of receiving notice, no rent was paid by the appellant to the respondent and hence this constituted ground of default on the basis of which the eviction can be ordered. It was further argued that on the point of personal requirement, there is affidavit of respondent Syed Hassan Mehdi to the effect that he requires the house for his personal bona fide use as he did not own or possess any house as tenant at Karachi or elsewhere. In support learned counsel for the respondent cited the cases of: (i) Manzoor Ahmad and others v. Karim Bux and others PLD 1986 Kar.
12. 637, (ii) Noor Muhammad v. Iqbal Ahmad 1985 CLC 1007, (iii) Mrs. Anthony v. Riaz Ahmad Malik 1985 CLC 1309 and (iv) Abid and others v. Heer Bai 1987 CLC 692.
13. Before dealing with the evidence, it is necessary to examine the case --law cited at the Bar.
14. PLD 1985 Quetta 108), the amount of house tax was paid by the tenant at the instance of the landlord and the view taken was that the landlord is not permitted by law to recover from the tenant the amount of any tax or any portion thereof in respect of any building notwithstanding any agreement and that the tenant is entitled to reimbursement or adjustment of such amount as paid on account of house tax, towards rent to be paid to the landlord.
15. 1991 SCMR 68 the tenant in a miscellaneous rent case had deposited specific amount, which was more than the tentative rent determined under section 16(1) of the Sindh Rented Premises Ordinance, 1979 (hereinafter to be mentioned as Ordinance 1979). In the cited case the point for consideration was whether the tenant had complied with the rent order under section 16(1) of the Ordinance, 1979. The point whether there was default in terms of section 15(2)(ii) of the Ordinance, 1979, never arose in said case.
16. PLD 1985 Kar. 624 the view taken was that mere wish, convenience, whim or fancy of landlord to occupy his own premises would not be enough to show that the landlord requires the premises in good faith in terms of section 15(2) (vii) of the Ordinance, 1979.
17. 1991 CLC 1902 the view taken was that a landlord has not merely to establish a case of personal.
18. Need but has also to show that the requirement or need is an honest or bona fide one and that proof of element of personal requirement cannot automatically result in ordering eviction unless the requirement is proved to be an honest one. In said case the tenant made a categorical statement in his evidence that certain property other than the property in litigation was in the personal physical occupation of the landlord and the view taken was that no case for personal requirement was made out for eviction. There is no such categorical statement in the present case by the appellant.
19. The judgment in the case of Syed Anisur Rehman v. Mst. Sara Bai PLD 1985 Kar. 714 laying down that where no details had been given in the application for ejectment as to the kind of the business proposed to be set up in demised premises no case for personal requirement was made out, was set aside by the Supreme Court of Pakistan in the case reported in 1989 SCMR 1366.
20. 1982 CLC 1006 the view taken was that the tenant, who paid the amount of house tax due on premises in litigation, to the Assessing Authority pursuant to a notice was entitled to be given discharge for such payment to the prescribed authority.
21. 1983 CLC 913, the discussion revolved around the point, whether the defence of a tenant can be struck off under section 13(6) of the Old Ordinance, 1959. In the said case the view taken was that spirit of the law is, that if a person has acted wilfully in disobedience to the order of a rent tribunal, then he has to be vested with the penalty of striking off the defence but if the element of wilfulness is missing as a result of bona fide belief for which a reasonable or plausible explanation has been offered, then the element of contumacious or deliberate disobedience of the order, will be found to be missing.
22. Although the appellant in his written statement denied title of the respondent in the premises in litigation, but subsequently by his own conduct he has acknowledged the respondent to be his landlord. The appellant admitted even the fact that he received notice from the respondent as per para. 7 of the written statement. According to section 18 of the Ordinance, 1979, which corresponds to section 13-A of the Old Ordinance, 1959, where ownership of certain premises in possession of a tenant, has been transferred inter alia by sale, the new owner shall send an intimation of such transfer to the tenant and the tenant shall not be deemed to have defaulted in payment of rent, if the rent due is paid within 30 days from the date when the intimation should, in normal course have reached the tenant. In the instant case the appellant has not claimed if within 30 days of notice dated 6-5-1974 he sent rent to the respondent through any mode of payment except that he had been depositing the rent in Court and such deposit was made in different accounts, at different times and in different names. In his objections to the application under section 16(1) of the Ordinance, 1979, the appellant claimed to have deposited rent in M.R.C. No.3912/78 upto July, 1980.
23. He also claimed to have made payment of property tax for-1979-80 and for 1978-79 at the rate of Rs.174 per year upto July, 1980. In his cross-examination appellant Zubair Ahmed admitted that the respondent had purchased the disputed house on 15-1-1.979 and that on 6-5-1974, he was served with a notice sent by the respondent through his Advocate and that on 31-5-1974 he sent reply to the said notice. The appellant also admitted that after receipt of the notice dated 6-5-1979 he did not send any rent to the respondent. In this way the appellant has admitted his non-compliance with the provisions contained in section 18 read with clause (ii) of subsection (2) of section 15 of the Ordinance, 1979. Even the deposit of rent in Court was not in name of the respondent till passing. Of the order under section 16(1) of the Ordinance, 1979, as admitted in cross--examination by the appellant. The property tax has been deposited by the appellant on 12-1-1992 while the default occurred much earlier viz 30 days after his having received notice dated 6-5-1979, when he did not pay the rent due within the statutory period. Once default has been committed the same cannot be erased by a subsequent payment of rent or of a property tax on behalf of the tenant. In the circumstances the -ground of default has been established even on the basis of admissions made by the appellant and as such there is no use of reproducing evidence of the respondent in his affidavit about non-receipt of rent.
24. The respondent in his affidavit stated that he required the house in litigation for his personal bona fide use, as he did not own or possess any house as tenant at Karachi or elsewhere. The respondent did not state if he did not own or possess any house as an owner. Neither in his rent application nor in his affidavit, the respondent has given even the basic facts which may constitute his requirement of the demised premises in good faith for personal need. He has not stated as to in which part of Mirpurkhas District his family is living for the present. He has not given the number of his family members. In para. 10 of his affidavit he said that he was residing at Karachi. He did not give Karachi address in his affidavit. The' respondent appears to have suppressed certain le facts.
25. Mere fact that the respondent had purchased the house in litigation, would not by itself establish his requirement much less bona fide requirement, for the premises in question. In his rent application, the respondent has given his address of P.E.C.H. Society. He has nowhere stated, as to, why he wants to leave the present residence for shifting to the premises in litigation. The authorities cited on behalf of the respondent do not further his case. In the case of Manzoor Ahmed and others v. Karim Bux and others PLD 1986 Kar. 637 the view taken was that the burden primarily is upon the landlord to show that he requires the premises in good faith which can be ascertained from the circumstances of the case. In said case a landlord's personal bona fide requirement was not found to have been made out when he already possessed two out of three houses with his family consisting of seven members. In the case of Abid and others v. Heer Bai 1987 CLC 692 circumstances of the case clearly indicated that after rent for four months was tendered by Money Order, the tenant thereafter failed to tender rent for subsequent months in time. In said case there was no question of eviction on personal need. In the case of Noor Muhammad v. Iqbal Ahmad 1985 CLC 1007 the view taken was that no hard and fast rule can be laid down for the quantum and quality of evidence to prove bona fide need of a landlord for seeking eviction of a tenant on that ground. It was added that even statement of the landlord alone can be sufficient to prove his personal requirement, if it can satisfy a prudent mind by objective evidence that such requirement does exist but bare statement by the landlord that he needs the rented premises for his own use would not be sufficient to bear out the element of "good faith". This was a case where the premises were required by the landlord for doing business but such requirement was not established. In the case of Mrs. Anthony v. Riaz Ahmad Malik 1985 CLC 1309 the view taken was that a landlord has to prove and establish by evidence something more, than mere desire to shift from a rented premises to his own house, to fulfil the requirement of law as to his bona fide personal need. In the cited case the evidence of the landlord on the point of bona fide personal need was unchallenged and hence order of eviction was not interfered with. All these cases are distinguishable.
26. For the foregoing reasons, I maintain the finding of the Rent Controller that the appellant has defaulted in payment of rent but set aside his finding that the premises in litigation are required by the respondent in good faith for personal need or need of the family.
27. Consequently this appeal stands dismissed with no order as to costs. The appellant is given a period of two months to surrender possession of the demised premises to the respondent or else he would be ejected by force.