MUKHTAR AHMED JUNEJO, J.- Appellants Mst. Sher, Baoo and Mst. Zohra Bai have challenged dismissal of their rent application by IInd Senior Civil Judge and Rent Controller Karachi South under a judgment dated 14.3.1990.
2. Appellants filed Rent Case No. 3348/1981 (given new number 115Q)/85) for eviction of the respondent from the premises in litigation mentioned as "Factory premises No. 21 on plot No. LR- 9/31/1-E-II Orangi Street, Lawrence Quarters, Nishtar Road Karachi". The respondent company is said to be occupying the said promises, as tenant of the appellants, on monthly rent of Rs. 600/- Appellants sought eviction of the respondent on two grounds. First ground was about wilful default in payment of rent and the other ground was for personal bona fide need.
3. T^he real case was contested by the respondent who filed written statement. It was averrted that the premises in litigation belonged to Ahmed Ali and Moiz Ali, in Whose life time the appellants cannot attain title in the property. Moreover they had not given required notice u/S. 18 of Sindh Rested Premises Ordinance (hereinafter to be mentioned as the Ordinance) to the respondent as alleged. For this reason jurisdiction of the Rent Controller was challenged. In respect of the ground of default, it was averred by the respondent that initially the rent payable Was Rs. 150/- p.m. And then it was increased to Rs. 300/- p.m. And then to Rs. 600/- p.m. And since the landlords required money for payment of taxes and other expenses, they were collecting the rent in lumpsum at their sweet will and not monthly. It was also averred that on receipt of rent for a couple of Smooths, only one rent receipt was issued. It was further stated in the written statement that the respondent was an old and established industry, and collection of accumulated rent did not suit it, but it had to succumb to the instructions of the landlords. The ground of personal requirement was also controverted and it was t averred that the appellants and their children were comfortable in huge bungalow ? And most of the children in family of the*appel(ants were students and as such the appellants did not require the premises in litigation.
4. The appellants led their evidence in the trial Court but the respondent did not lead any evidence.
The respondent did not even cross-examine the witnesses of the appellant.
5. ". At conclusion of the rent proceedings, the Rent Controller under the impugned order dated 14.3.1990 dismissed the ejectment application, after holding the rent application. Was maintgtgabic and th^f the respondent had lowiedged the appellants as its landlords'and the bar of Section 18 of the Ordinance would not apply. On other issues covering the grounds for ejectment, '{he finding was against the appellants. Hence this appeal.
6. Mr. Abdul Sattar Memon, learned counsel for the appellants argued that the respondent had defaulted in payment of rent, because rent for the year 1979 was not paid month-wise but it was paid in lumpsum in March, 1980, and that the rent for 1980 was also paid in lumpsum in July, 1981. It Was also argued |hat late payment of rent would amount to default in payment of rent for the purpose of Section 15 of the Ordinance. In respect of the personal requir ment, learned counsel for the appellant argued that the appellants were not requ sd to give full details about their requirement in the rent application and that they required the premises for establishing business for Talib Hussain and Mustafa fcho were examined as witnesses and whpse evidence remained unchallenged, as he respondent chose not to cross-exa'mine them. In support learned counsel for he appellants cited the qasps of;
(i) Shakir Jameel v. ZaheerAkhtar (1984 MLD 400).
(ii) Qazi Zaheer Ahmed v. AmjadAH Shaikh (1984 MLD 1080).
(iii) Mst. Razia Sultana v'. Mrs. Muhammad Hassan Khan and others (1991 LC 632).
(iv) Muhammad Iqbal v. Mst. Amtul Bashir (1990 CLC 1511).
(v) Syed Hamid Hussain v>. Mst. Humaira Ghias (1986 CLC 1873).
(vi) M/s. Habib Bank Ltd. v. M/s. Thai Jute Mills Limited (1988 CLC 2310).
(vii) Abdul Rahim v. Mst. SherBano (1991 MLD 1130).
7. Mr. Syed Ali Ahmed Tariq, learned counsel for the respondent argued that the premises in litigation were housing a factory and the same were mentioned as factory premises in the rent application itself and consequently such premises were beyond the scope of the Ordinance and as such the rent application and the rent appeal merited dismissal. In respect of the ground of default, learned counsel for the respondent argued that there was established practice between the parties about collection of rent in lumpsum and as such payment of rent for I9l4 in March 1980 and payment of rent for 1980 in July, 1981 did not constitut default in payment of rent, for the purpose of Section 15 of the Ordinance. I respect of the ground of personal requirement, learned counsel for the respondent relied on the observations made on this point, by the Rent Controller in th impugned judgment, It was also argued that the respondent factory was being ru for proceeding 30 years and it cannot be uprooted on the grounds mentioned the rent application, fn support learned counsel cited the cases of: #tbs (>)
(ii)
(iii)
(iv)
8. #tbe Gul Afzal Khan v. Muhammad Hani/Arif (PLD 1979 Lah. 398).
M/s. International Fisheries (Pakistan) Limited and others v. M/s Standard Fisheries Corporation (1983 CLC 3294).
Bashir Ahmed v. Mst. Zubetla Kliatoon (NLR 1983 Civil 225) j TaherAli and others v. M/s. Miran Bux, Karam Bux and another (198] SCMR 403)
M/s. Rehman Cotton Factory v. M/s. Nichimen Co. Ltd. (PLD 197 SC 781). (i In the rent application the respondent is shown to be in possession h factory premises No. 27. The respondent is mentioned to be* M/s. Standa) Industries Ltd. Through the Managing Director of the Company. This alone shov that the respondent is an industry being run by directors of the same. In Jq respect it was contended that a factory does not come within the ambit of ll Ordinance. Section 15 of the Ordinance, under which present application w moved, entitles a landlord to be put in possession of the premises* after eviction of his tenant, on fulfilment of one of the conditions mentioned below on sub-section (2) of Section 15 of the Ordinance, In other words a landlord can invoke the provisions contained in Section 15 of the Ordinance in respect of the "premises", which means a building or land, let out on rent, but does not include a hotel vide clause (h) of Section 2 of the Ordinance. A building or a land does not cease, to be premises defined by clause (h) if it is used for running a factory. Had it been so, such provision would have been made in the provisions contained in Section 2(h) or Section 15 of the Ordinance.
In the case of GulAfzal Khan v. Muhammad Haitif Arif (PLD 1979 Lah. 398) the view taken was, that a building let out for the purpose of business and being used exclusively for purposes of business, shall be treated as non-residential building, In same case it was observed that unless a building is used solely for the purpose of business or trade, it will be treated to be a residential building even though some parts of the building may be used for residential purposes and the other parts may be in use for non-residential purposes, In the case of M/s. International Fisheries (Pakistan) Ltd. And others (1983 CLC 3294) the view taken was that a business undertaking let out to the defendants does not fall within the definition of 'building' or 'premises' as defined under the Ordinance. This was in a civil suit where plea was taken on behalf of the defendant that his possession was protected by the Ordinance because he had entered into an agreement with the other side and such agreemefit amounted to a contract of tenancy. No such point has arisen in the instant case. In the case of Bashir Ahmqd (NLR 1983 Civil 225) the view taken was that a saw machine was hot covered by the definition of premises' or 'building' or 'land' given u/S. 2 of the Ordinance. Said case is distinguishable because in said case the subject-matter of the agreement was a saw machine with piece of land. In support case the factory being run by the respondent is not subject-matter of any agreement between the parties. In the case of M/s. Rehman Cotton Factory (PLD 1976 SC 781) followed in the case of Bashir Ahmed (NLR 1983 Civil 225) the lease of running ginning factory, equipped with machinery for processing and ginning cotton and not merely of a 'non-residential building', was held to be not falling under any of the three categories of the properties to which W.P.
Urban Rent Restriction Act, applies. Case of M/s. Rehman Colton Factory is distinguishabl because in said case the ginning factory was itself subject-matter of the litigation and was covered by an agreement between the parties. As a result of this discussion, there does not appear to be any substance in the contention raised or behalf of the respondent that the provisions of the Ordinance would not apply t( the present case.
9. In respect of the default, the grievance of the appellants as per para ! Of their rent application is, that rent for 1979 was paid in March, 1980 and the rer for 1980 was paid in July 1981. Acceptance of rent in the aforesaid manner without any protest or resentment prima fcacie shows that the appellants themselves were party to such practice of payment of rent in lumpsum. Contents of para 3 of the rent application are reiterated in para 4 of the affidavits at Mst Zohra Bai, Mst. Shehr Bano and Moizali. Affidavit of Mst. Zohra Bai was, however, not relied on the appellants. There is obviously no evidence from the side of the respondent but the appellants can to get out of the fact that they have themselves admitted that rent was being paid yearly and not monthly. In the case of Taher Ali and others (1989 SCMR 403) the two Courts below gave finding of fact that it was the practice of the landlords to collect the amount of rent in lumpsum and such finding was based on admitted documents which clearly proved payment of rent on yearly basis and as such eviction on the ground of nonpayment of rent from 1.1.1974 till 24.4.1974 was declined.
10. In the case of Abdul Aziz v. Abdul Gftaui (1986 SCMR 1857) the landlord himself adopted practice of receiving arrears of rent in lumpsum and it was held that conduct of the landlord himself was such which furnished sufficient jurisdiction to exercise of discretion against him.
11. Case law cited on behalf of the appellants requires brief discussion. 1u the case of Shakir Janieel (1984 MLD 400) the view taken was that mere acceptance of payment of arrears of rent and payments of monthly rent, in an irregular manner by the landlord, would not amount to waiver of default.
12. In said case reliance has been placed pp 1he case of Alima Ahmad v. Amir Ali (PLD 1984 S.C 32) wherein an ejectment case the tenant pleaded fha| landlord had intentionally defayed the receipt of rent from time to time and that there was a practice to clear accumulated rent. In said case the Supreme Court of Pakistan observed that if promptness in payment of rent, with option to the tenant to deposit it with the Rent Controller, is a condition precedent for enjoying such protection it cannot be relaxed or diluted on grounds of economic well being, fairness or in the name of justice.
In the case of Qazi Zaheer Ahmed (1984 MLD 1080) the view taken was that acceptance of rent at subsequent stage cannot condone default in payment of rent. In the case of Mst. Rada Sultana (1991 CLC 632) the view taken was that acceptance of certain money orders by landlord, would at the most be construed as an act of condonation of default on the part of the landlord, but such payments would not absolve the tenants of their liability to pay rent within specified time, unless it has been established that accumulated rent was being paid at the request of the landlord or by express agreement to that effect between the parties. Said case is in conflict with the case qf Taher Ali (1989 SCMR 403). In the case of Muhammad Iqbal (1990 CLC 1511) the landlord's evidence about default was not refuted, and the default in payment of rent was held to have been established. The cases of Shakir Jameel, Qazi Zaheer Ahmed, Mst. Razia Sultana and Muhammad Iqbal are distinguishable. In the present case, it is stand of the appellants that they had been collecting the rent yearly and not monthly. In the circumstances the Rent Controller rightly exercised his discretion in favour of the tenant. In such cases the Rent Controller has a discretion not to order eviction even where default in payment of rent is proved, as per the view taken in the case of Najmuddin v. Zamir Ahmed (PLD 1982 Kar. 188). I am, therefore, not inclined to disturb finding of the trial Court on thp point of default.
13. In respect of the ground of personal requirement my impression on reading para 4 of the rent application is not different from that of the Rent Controller. While taking the ground of personal requirement, the appellants stated in para 4 of their rent application that the number of their family members had multiplied and hence they personally required the demised premises for their genuine need. Such wording no doubt gives an impression that the premises are required for residential purpose because it is the residential accommodation which a family requires when its members are multiplied. It has not been mentioned in the rent application that the demised premises are required for running of a business by Moiz Ali or by any of his sons namely Talib Hussain and Mustafa. The authorities cited on this point are distinguishable. In the case of Syed Hamid Hussain (1986 CLC 1873) the view taken was that where a landlady coming with various grounds to show that she needs the disputed house for her personal bona fide use, had not been crossrexamined in respect of such grounds, her claim of personal requirement of the disputed house had gone unchallenged. In the case of Ni(/s, Habib Bank LltJ, (1988 CLC 2310) the view taken was that where eviction was sought on ground of personal requirement it was not necessary to give all details in the eviction application, All details need nof.Be given, but at least basic facts constituting bona fide requirement, require to be spelt out in an application for eviction of a tenant on the ground of bona fide personal need. In the cited case a Bank was seeking eviction, of it tenant, on said ground. Requirement of the premises by a bank is different from the same by an individual, planning to set up business.
14. Distinguishing feature of this case which makes it different from the cases just discussed is, that according to affidavits-in-evidence filed from the side of the appellants, they require accommodation, for business while according to the rent application the requirement is for residential purposes, although this was not stated in so many words. In the case of Abdul Rahim (1991 MLD 1130) the view taken was that every detail about landlord's requirement of premises need not be stated in application for ejectment. Present case is distinguishable from the cited case where there was no inconsistency between the contents of rent application and the evidence.
Although there is no evidence from the side of the respondents but it is an established principle that weakens of case of tenant cannot strengthen case of the landlord seeking eviction, because the initial onus lies on the landlord to substantiate the ground put forth for ejectment of the tenant and he has to stand on his own legs.
15. For the foregoing reasons, I find no substance in this appeal which stands dismissed with no orders as to costs.