1. This is an appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 (hereinafter called Rent Ordinance) directed against an order, dated 5-9-1994 passed by learned IIIrd Senior Civil Judge and Rent Controller, Karachi-East, in Rent Case No.60 of 1993, Mrs. Ghazala lqbal v. Wasif Ahmad Jalali, whereby ejectment application filed by the respondent was allowed and the appellant was ordered to hand over vacant possession of the premises within a period of 60 days, hence this appeal.
2. Brief facts of the case are that the respondent/landlady filed Rent Case No.60 of 1993 for ejectment of appellant/tenant from premises first and second floor of Property No. 126, Darakhshan Society, Malir, Karachi, on the ground of non-payment of rent for the months of December, 1992 and January, 1993 as well as non-payment of water charges, (ii) impairing the value and utility of the premises and (iii) on personal requirement of the respondent/landlady. The appellant/tenant filed written statement stating therein that he has paid rent at the enhanced rate of Rs:11,000 per month for the months of December, 1992 to January, 1993 by cheques to the respondent/landlady but the cheque for the sum of Rs.11,000 being rent for the month of January, 1993 was dishonoured due to some circumstances, therefore, rent for the month of January, 1993 was deposited by the appellant/tenant in Miscellaneous Rent Case No.89 of 1993 on 14-2-1992 on account of respondent's mala fide motive who avoided to receive rent so as to create a ground for his eviction. The appellant/tenant also denied that he has impaired the value and utility of the premises and that respondent/landlady required the premises in good faith. The respondent/landlady examined herself and produced two photocopies of tenancy agreement Exhs.l/A and A/2, payment bill of water and conservancy charges, Exh.A./3, electricity payment slip Exh.A./4 and gas payment bill Exh.A./5 and three rent receipts for November, 1992 to January, 1993 and receipt for the sum of Rs.81,000 Exh.A./9, building plan Exh.A./10, receipt for the sum of Rs.1,50,000 Exh.A./11, receipt for the sum of Rs.50,000 Exh.A./12, photo copy of letter of respondent to K:E.S.C., Exh.A./13, cheque for the sum of Rs.11,000 Exh.A./14, bank refusal to pay, slip, Exh.A./15, letter of respondent to Manager Singar Exh.A./16 and letter of Almurtaza Exh.A./17 and examined P.W.2 Saad Baig Khan. The appellant/tenant Mr. Wasif examined himself arid produced relevant receipts Exhs.0/1 to O/3 and letters and also examined D.Ws. Nasir Ali and Muhammad Akbar.
3. After recording the above -evidence and hearing learned counsel for parties, the learned IIIrd Senior-Civil Judge and Rent Controller, Karachi-East passed the impugned judgment.
4. I have heard learned counsel for parties, perused, the record and proceedings of the case and tile case-law cited by the learned counsel for the parties.
5. Learned counsel Mr. K.B. Bhutto for appellant has argued that the respondent/landlady received rent for the months of December, 1992 and January, 1993 through cheques from the appellant as per receipt after filing the said ejectment application, therefore the said acceptance of rent amounted to waiver of default on the part of respondent/landlady, therefore, the finding of the learned Rent Controller on the point of default was erroneous in law and that an amount of Rs.90,000 was still lying with the respondent/landlady which could have been adjusted towards rent and that in view of the admitted face fiat the appellant/tenant has been paying huge amounts in advance from time to time to the respondent/landlady,, therefore, if there was any delay in the payment of rent for one month, the learned Rent Controller should have exercised discretion in his favour. He has further argued that the last tenancy agreement dated 1-2-1992 expired on 31st of December, 1992 and thereafter, appellant/tenant became statutory tenant, therefore, he was supposed to pay rent in terms of section 15(2)(ii) within sixty days after the monthly rent became due for payment under Rent Ordinance and that there has been no default in the payment of rent but only there has been late payment for .The month of December, 1992. He has placed reliance upon 1993 SCM R 200, PLD 1990 SC 389, 1988 CLC 1703 and 1986 SCM R 441, in support of his contentions.
6. Mr. Hamza Ali, learned counsel for respondent has, argued that the appellant offered two cheques, dated 27-1-1993 for the month of December, 1992 and January, 1993 on 27-1-1993 as per Exhs. A/6 and A/8-when rent for December, 1992 was to be paid by 20-12-1992 and rent for January, 1993 was to be paid by 20-1-1993 and the said cheque for the month of January, 1993 was dishonoured and after that rent was deposited for the said month in Miscellaneous Rent Case No.89 of 1993 on 14-2- 1993 in the Office of Controller, therefore, there was no tender of rent within time under the law hence there was default in the payment of rent on the part of the appellant and that acceptance of rent for the month of December, 1992 would not amount to waiver in view of Article 114 of Qanun- e-Shahadat. He has placed reliance upon AIR 1956 Tripura 28, 1981 CLC 327, 1988 MLD 2759 and 1985 CLC 1429. He has also placed reliance upon Article 114 of Qanun-e-Shahadat that the respondent by accepting rent did not abandon her right to file ejectment application against the appellant/tenant and by acceptance of rent she was not estopped to file the same. He has argued that even on the expiry of tenancy period as per last agreement of tenancy, the appellant/tenant would not become statutory tenant but would be regulated by the terms and. Conditions mentioned in the last tenancy agreement. He has placed reliance upon PLD 1988 SC 190. PLD 1988 SC 228. He has further argued besides non-payment of rent for the month of December, 1992 and January, 1993 in time, the appellant/tenant has also- failed to pay water charges amounting to Rs.3,578 for the year 1991 as per Exh.A/3 and that there was no balance of amount of the appellant left with the respondent for adjustment to wards rent as per Exh.A/9 the balance amount of Rs.81,000 was paid to the appellant and that even if Exh.A/9 is said to be not proved then also the said amount of Rs.81,000 could not be adjusted towards the rent for the further period as said balance of Rs.81,000 would be a debt amount which could be recovered through civil suit. He has also referred to para. 3 of the agreement dated 1-2-1992 which stated that from November, 1992 and onwards rent will be Rs.11,000 per month and the same shall be paid up to 5th day of each English calendar month in advance which would show that there was no outstanding amount of the appellant with the respondent. Learned counsel Mr. Hamza Ali has also referred to tenancy agreement EXh.A/1 para. 17, wherein it has been mentioned that the respondent undertook to refund fixed deposit of Rs.39,000 to the second party which was received as security deposit subject to adjustment if any loss to the property and to the deduction of dues if any, therefore, the said amount of Rs.39,00O being security deposit could not be adjusted towards the payment of rent. He has further contended that cases cited by the learned counsel for the appellant are not applicable and are distinguishable to the' facts of the instant case.
7. Mr. K.B. Bhutto for appellant in reply has argued that the clause in respect of payment of rent in advance was repugnant to the provisions of section 10 of the Rent Ordinance, therefore, the tenancy of appellant could not f be regulated by the terms of expired tenancy agreement. So far the waiver, he has argued that the Indian case was not applicable as it dealt to a case of compensation. He has placed reliance upon 1971 SCM R 725 in support of his arguments. So far the water charges, he stated that the same pertained to future charges, therefore, the same were not due at the time when ejectment application was filed against the appellant.
8. It is admitted by the appellant's learned counsel that the rent for the month of December, 1992 was paid through Cheque No.92511465 ort 27-1-1993 to, the respondent and rent for the month of January, 1993 was paid through Cheque No.92511466 on 27-1-1993 to the respondent but the said cheque for the month of January, 1993 was returned unpaid to the respondent as per Exhs.A./14 and A./15. It has also been admitted by- the appellant's learned counsel that the appellant deposited rent for the month of January, 1993 on 14-2-1993 as per photocopy of receipt of Miscellaneous Rent Case No.89 of 1993 filed with the R&P. .It would mean that rent for the month of December, 1992 was tendered on 27-1-1993 while rent for the month of January, 1993 was tendered on 14-2-1993. Now the main point for consideration would be whether the appellant/tenant was to pay rent in terms of an agreement dated 1-2-1992 executed between the parties or was to pay rent under section 15(2). (ii) of the Rent Ordinance. The contention of the learned counsel for appellant is that after the expiry of tenancy period, i.e. On .31st of December, 1992, the appellant became statutory tenant, therefore, he was to pay monthly rent within sixty days from the date it became payable as required by section 15(2)(ii) of Rent Ordinance, therefore, rent for the month of December, 1992 which was paid on 27-1-1993 was paid within time and rent for the month of January, 1993 which was also deposited on 14-2-1993 was also paid within time, therefore, there was no default.
9. Contention of the learned counsel for the appellant that the clause in respect of payment of rent in advance in the tenancy agreement, dated 1-2-1992 was repugnant to the provisions of Sindh Rented Premises Ordinance; therefore, the appellant-would be liable to pay rent under section 15(2)(ii) of the Rent Ordinance has no merit and substance. Reference is made to Mst. Zarina Khawaja v. Agha Maboob Shah PLD 1988 SC 190 wherein Supreme Court of Pakistan at page 192 held:-- "The terms of the so-called expired agreement which are not repugnant to the rent law shall continue to operate. For example, the rate of rent, the mode of payment thereof including its advance payment or deposit, provision for agreed incretise in rent provided it is not after the determination of fair rent, provisions for re-entry of a tenant after he vacates the premises for reconstruction, all covenants which support the conditions in section 15 of the Sindh Law and section 13 of the law repealed by it, and similar other conditions and covenants. "
10. Reference is also made to Syed Asghar Ali Imam v. Muhammad Ali PLD 1988 SC 228 where at page 231 the Supreme Court of Pakistan held:-- "The last argument of the learned counsel for the respondent has also no force. The date of payment of rent after the expiry of the 1st period of tenancy has been fixed in para. 4 of the agreement as 5-1-1975. It was to be of advance rent, which as held by us in the case of Mst. Zarina Khawaja, is permissible. Taking the liberal view in tenant's favour, we would hold that the use of the word 'monthly' and ' Rs.1,100' in the last sentence of para. 4, would make it advance rent only for one month and not for six months. Thus, it was due on` 5-1-1975 and would be payable up to 20-1-1975, i.e. Within 15 days. It is in case of ' agreement' even if expired but continued by the law as held in the said case of Mst.,Zarina Khawaja. The 60 days' rule will not apply."
11. The decision of the Supreme Court is binding upon this Court and no contrary view has been cited on the said point by the learned counsel for appellant, therefore, it could be said that the terms in respect of the advance payment of rent being not repugnant to the Rent Laws would be operative and the appellant p would be bound in terms of agreement to pay the rent, to the respondent in advance of each calendar month.
12. The rext contention of learned counsel for appellant is that as the respondent accepted the cheques in respect of rent for the month of December. 1992 and January, 1993; therefore, it amounted to waiver of the default on his part, therefore, the finding of Rent Controller on the point ofdefault was erroneous in law. Learned counsel for appellant has referred to Adam Ahmad, Thaqia v. Muhammad Hanif 1988 CLC 1703. In the cited case, the landlord knowingly relinquished his right to apply for ejectment during the existence of .Tenancy agreement for the period of 11 months when the agreement specifically stipulated that rent would become due on the first of each month payable in advance. In the cited case four defaults were committed during the existence of tenancy agreement and after the expiry of tenancy agreement two defaults were committed and the landlord finally woke up from slumber on 5-8-1982 and filed eviction application before the Rent Controller, when the landlord admitted that last rent was paid by the tenant on 2-8-1982, therefore, under the cited case it was held that conduct of landlord clearly implied waiver on his part. In the instant case the facts of the case are quite different and distinguishable to the facts of the cited case as in the instant case the said default pertained to the month of December, 1992 and January, 1993 when the ejectment application under section 15 of the Rent Ordinance was filed on 26-1-1993 and that after the acceptance of rent through two cheques- for the months of December, 1992 and January, 1993 out of which cheque for the month of January, 1993 was not paid by the banker which was ultimately deposited on 14-2-1993 in the Office of Controller when the ejectment application was filed on 26-1-1993 by the respondent and there was, in fact, no delay in prosecuting the remedy, therefore, the acceptance of rent would not amount to waiver.
13. Reference is made to Mite Muhammad Shafi v. Abdur Rahim PLD 1967 Pesh. 22;3 at page 228, para. 23 where the learned Judge in Chamber observed:-- "On the reasoning adopted in this authority, it would appear that the liability of -a tenant for eviction in respect of buildings and tenancies governed by the Ordinance 'is to be regulated by the provisions of the Ordinance alone, and the principles of the Transfer of Property Act are not to be imported. I am in respectful agreement with this reasoning. According to clause (i) of subsection
(2) of section 13 of the Ordinance, a tenant is liable to be evicted if the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that the tenant has not paid or tendered rent due by him in respect of building or rented land within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement, within sixty days from the period for which the rent is payable.
14. The liability to ejectment arises on account of the commission of default in the payment of rent and there is 'no provision in section 13 of the Ordinance that such liability is waived if the landlord accepts rent for a period subsequent to that for which default has taken place, or at a date subsequent to the filing of his application for the tenant's eviction."
15. Reference is made to Dwarkin & Son Ltd. v. Hari Singh AIR 1955 NUC (Calcutta) 2896, D. B.) where it was observed at page 2897, column No.1:-- "Therefore, where there Was no valid tender to the landlord within the time by which such a tender could be made and on the dates on which the rent was tendered to the landlord and accepted by him, there was no longer any right in the tenant's to make a deposit with the Rent Controller the tenants are in no way made to alter their position and are not affected in regard to any of their rights, by the acceptance, of the rent by the landlord. Therefore, the tenants' plea that the landlord by accepting the rent paid to him after the due date was debarred by the principles of estoppel and waiver from relying on clause (i) of the proviso to section 12(1) cannot succeed."
16. The case AIR 1956 Tripura 28 cited on the point of waiver by the learned counsel for respondent has no application to the facts of the instant case. Reference is made to Mrs. Afia Baig v. Messrs Pakistan State Oil Company Ltd. PLD 1991 Kar. 239 wherein learned Judge in Chamber at page 245 observed;-- " 'Waiver' precisely means to abandon or relinquish, a known right by an express declaration or by conduct. In Shaukat Ali v. Shakhawat Hussain 1984 CLC 34 a learned Single Judge while following a case of Muhammad Saleh v. Muhammad Shafi 1982 SCM R 33 observed as follows:-- 'The 'Waiver', therefore, is either express or implied. Waiver by implication can be inferred from the circumstances of each case. However, to prove waiver there should be some clear and decisive act or' conduct beyond mere silence. Reliance is placed on the authority of the Supreme Court in Muhammad Saleh v. Muhammad Shafi 1982 SCM R~ 33, wherein it was held that 'omission to enforce one's legal right strictly cannot give rise to an inference that the right has been abandoned'. The Supreme Court in the case, referred to above held that in order to establish 'waiver' by conduct" it must be shown, firstly, that the person entitled to the right had knowledge of the breach thereof, and secondly, that he had acquiesced' or failed to act, notwithstanding that knowledge. Therefore, mere failure to take objection or to take action due to ignorance of the breach of one's right cannot be said to give rise to any 'waiver' by conduct'.
17. A perusal of this case would show that in order to constitute waiver, something more than mere in action or delay in asserting one's right would be necessary. Therefore, mere failure to file eviction application for eviction cannot be said to give rise to any 'waiver' by conduct. "
18. Reference is made to C.L. Massey v. Muhamrmad Amin 1988 MLD 2759 wherein learned Judge in Chamber observed:-- .
19. "There is no provision in section 13 of the Ordinance Whereby the landlord waives his right to receive rent as provided under the statute if he accepts rent for the period subsequently after the default has already been committed or on a date before the filing of the ejectment application. The ejectment application filed by the respondent No.1 was competent even if he had received rent from the petitioner after the default had been committed by him. "
20. Reference is also made to Abdul Majeed v. Ibrahim 1984 CLC .1596 Wherein, learned Judge in Chamber at page 1600 observed:-- "In any case the default had already been committed and by filing distress warrant proceedings and recovering the rent, without anything further, it cannot be presumed that the landlord had waived the default and had given up his right to pursue the case for ejectment on the ground of default in the payment of rent. Of course, there might be cases wherefrom the circumstances and the special facts of those cases the Courts may come to the conclusion that there was a waiver on the part of the landlord as far as the default is concerned but otherwise the default that has been committed is not obliterated by subsequent payment. "
21. In the instant case there is no evidence from the side of appellant that the respondent waived abandoned his right to file ejectment application against him either expressly or by his conduct. It would appear that soon after the acceptance of cheques in respect of the rent, the respondent filed eviction application against the appellant, therefore, there could not be waiver on the part of the respondent in favour of the appellant so far his right to file eviction application under the law.
22. Accordingly, the said contention of learned counsel has no merit and substance.
23. The third contention of the learned counsel for appellant is that an amount of Rs.90,000 was lying with the respondent, therefore, the latter could have adjusted rent from the said amount and, therefore, the finding of Rent Controller on the point of default was based on mis-appreciation of the evidence on record.
24. Para. 3 of the tenancy agreement dated 1-2-1992 runs:-- "That the monthly rent is Rs.4,000 (Rupees four thousand only). The second party shall pay Rs.2,000 (Rupees two thousand only) in cash and Rs.2,000. (Rupees two thousand) shall be adjusted towards the adjustable Advance Rent up to the month of June, 1992 and from July, 1992 to October, 1992, the rent of Rs.4,000 will be received in cash/cheque and further from November, 1992 and onwards the rent will be Rs.11,000 per month and the same to be paid up to 5th day of each English Calendar month in advance. "
25. From the above provision, it would appear that from November, 1992 onwards the rent would be Rs.11,000 per month and same shall be paid by 5th of each calendar month in advance. There is nothing that any amount was, in balance with the respondent or that some portion of the said rent or the entire rent was to be adjusted from the balance if any with the respondent.
26. Para. 17 of the said agreement further states:-- "That the first party doth hereby undertake to refund the fixed deposit of Rs.39,000 (Rupees Thirty nine thousand only) to the second party without any interest/profit thereon which was received as security deposit, subject to adjustment of any loss/harm to the property and subject to deduction of dues if any, and without any interest/profit thereon. "
27. The above provision confirms the above interpretation of para. 3 of the said agreement though there was only an amount of Rs.39,000 towards the fixed deposit with the respondent which was to be refunded subject to its adjustment towards the loss/harm to the .Property and was not to be adjusted towards the rent. 1n addition to the above two provisions contained in the admitted documents between the parties there is a receipt Exh.A./9 wherein it has been said to have been acknowledged by the appellant/tenant to have received cash amount of Rs.81,000 from the respondent from the remaining balance of unadjusted advance rent, though the signature on this document has been denied to be of the appellant/tenant by his learned counsel but it would not be out of place to state here that the appellant/tenant nowhere in the written statement stated as to what was left in balance from the' sum of Rs.2,00,000 paid by him to the respondent though he stated that an amount.Of Rs.2,00,000 was deposited with the respondent from which monthly rent have been adjusted. If there would have been any balance left then he could have stated so in the written statement though admittedly some amount out of Rs.2,00,000 must have been adjusted as per terms of agreement and some of it must have been left which as per Exh.A./8 was paid in cash to the appellant/tenant. In fact, the appellant/tenant cross-examined the respondent wherein latter stated -that out of Rs.2,00,000 given by the former, advance rent amounting to Rs.1,19,000 was adjusted and balance of Rs.81,000 was refunded to the appellant/tenant. In cross-examination respondent/landlady denied the suggestion that still there was outstanding balance of Rs.81,000 lying with her and that she has managed forged receipt in respect of refund of the balance amount of Rs.81,000.
28. However, in view of the contentions of the parties and evidence on record, the question about the balance of amount, if any lying with the respondent could be decided by the competent Civil Court in civil suit not in the rent proceedings. In view of the terms of last tenancy agreement as per clause (3) of the said agreement an amount of Rs.11,000 is to be paid per month by 5th of each calendar month in advance and the security deposit .Could not be adjusted towards the future rent. I am supported by a case reported in ' Mrs. Zarina Khawaja v. Agha Mehboob Shah PLD 1988 SC.190 at page 201:-- "The next question (sixth) is to be answered in the light of the foregoing discussion in the negative.
29. The security deposit in this case 'is to be applied by the landlord, according to the terms quoted 'earlier, to compensate himself at the, time of the tenant handing over possession to him, for unpaid rent and/or damages caused by the tenant to the property at any time. Its application by the High Court for absolving the tenant/respondent from liability to make a deposit under section 16(2) and old 13(6) is impermissible and unlawful. The default remained intact notwithstanding the security deposit. It is clarified that the covenant ' in each agreement as to security will be construed according to the agreement itself. "
30. I am also supported by a case .Reported in Syed Asghar Ali Imam v. Muhammad Ali PLD 1988 SC 228 at page 231:-- "The second question as already analysed depends upon the terms of agreement; which in this case do not permit the utilisation of the security deposit for obviating the default committing by the respondent in payment of the rent in accordance with the terms of the agreement:"
31. In the instant case also the terms of agreement above-quoted would show that there was no advance and the balance of amount of Rs.81,000 was refunded to the appellant/tenant and the appellant/tenant was to pay rent of Rs.11,000 per month in advance by 5th of every calendar month therefore, in any advance even if still remained with the respondent the same could not be adjusted towards the payment of rent for the months of December, 1992 and January, 1993.
32. Accordingly, contention of learned counsel for appellant that an amount of advance deposit which was lying with the respondent should have been adjusted towards the rent has no merit and substance.
33. Now there remains reported decisions cited by the learned counsel for appellant. The first case in that of M.K. Muhammad v. Muhammad Abu Bakar 1993 SCM R 200. In the aid case the Supreme Court of Pakistan at page 207 observed:-- "As regards the merits of the case, it may be observed that the learned Rent Controller as well as the learned Judge in Chamber found that the appellants had committed default. The learned Rent Controller relied uporn the factum that no rent receipt was produced for the defaulted period by the appellants. In respect of remission of rent through the money order it was pointed out that the appellants' witness in the cross---examination admitted as follows:-- 'Money order was, sent on 28th August or before this I do not remember. It was not for Rs.600.'
34. The above finding has been concurred with by the High Court. Since both the Courts have held that the-respondent had received a sum of Rs.17,000 which he was not entitled to receive, the arrears of rent of the period in default could have been adjusted against the above amount or, in any case, the default could have been condoned as the respondent was holding with him an amount more than the amount of arrears of rent, which he was not entitled under the law to receive from the appellants. We are, therefore, inclined to reverse the finding of the two Courts below on the question of default. "
35. In the said cited case, there was specific finding that an amount of Rs.17,000 which was with the respondent/landlord was not entitled to receive the same, therefore, the amount of arrears of rent of the period in default was held to be adjusted against the said amount or in any case, the default could be condoned as the respondent was holding with him an amount more than the amount of arrears of rent which he was not entitled under the law to keep the same.
36. In the instant case there is no such evidence nor any such finding of the Rent Controller nor it was pleaded by the counsel for appellant that the respondent/landlord was not entitled to the advance of Rs.2,00,000. On the contrary, in the instant case, it has come on record that there was no balance left behind, out of Rs.2,00,000 with the respondent which could be adjusted, as per Exh.A./9 an amount of Rs.81,000 was refunded to the appellant and in view of the case-law reported in PLD 1988 SC 190 and 228 the security deposit of Rs.39,000 could not be adjusted towards future rent, unless there has been any provision in the agreement of tenancy between the parties which admittedly in J the instant case did not exist. Accordingly, the facts of the cited case are distinguishable to the facts of the instant case.
37. Next case is Mst. Saeeda Khatoon v. Muhammad Ahmed Latifi PLD 1990 SC 389. In the said case the Supreme Court of Pakistan held:-- "That amount of security could not be adjusted against the rent due during the occupation of the premises by the tenant or before surrender of vacant possession of the premises as it would amount to changing the terms of agreement on which the premises was held by the tenant."
38. However, in the said case there was only default for one month and the Rent Controller had exercised his discretion in favour of appellant/tenant and High Court had also not found exercise of discretion arbitrary, capricious, therefore, Supreme Court also did not interfere with the discretion exercised by the Rent Controller and upheld by the High Court, therefore, the facts of cited case have no application to the instant case so far as the exercise of discretion in respect of default is concerned. On the contrary on the point of adjustment of the arrears of rent from the security deposit this case supports the contention of the respondent's counsel. In Karamat Hussain v. Kazi Ali Muhammad 1986 SCM R 441 it was held: "That the High Court has agreed with `the two Courts below that, technically speaking, there was a default by the tenant inasmuch as he had not complied with the stipulation contained in clause
(iv) of the lease agreement relating to the payment of Rs.70 per month for the two months in dispute, but it has observed that on the date of the filing of the ejectment application a sum of Rs.140 was still lying in deposit with the landlord out of the advance rent paid by the tenant."
39. Supreme Court of Pakistan held that the circumstance showed that the default if any was of technical nature and there was a sum of Rs.140 still lying in deposit with the petitioner from the advance rent, therefore the Rent Controller should have exercised discretion in favour of tenant.
40. Accordingly, exercise of discretion by High Court was said to have been rightly exercised. The facts of instant case are distinguishable to the facts of the cited case. In Fazal Hussain v. Mt. Bundu Hajjan 1991 M LD 651 the landlord was found to have never issued rent receipt and did not produce any book of account to show that rent for a particular month was hot paid by tenant and landlord was found to have received certain amount from tenant in advance which could be adjusted towards monthly rent if there was any default and it was also found that landlord did not come to Court with clean hands as he suppressed fact that previously he had filed rent case for eviction of tenant. In the circumstances, the facts of the case cited are distinguishable to the facts of the instant case.
41. In view of the evidence and case-law discussed above, the contentions of the learned counsel for appellant as to the finding of default of the Rent Controller have no merit. Accordingly, the finding of the Rent Controller is maintained on the issue of default.
42. Learned counsel for appellant has also challenged the finding of the Rent Controller in respect of the personal bona fide need of the respondent/landlady. He has argued that the respondent/ landlady did not state in the ejectment application that she was already running any garment business in same other premises but only stated that she needed the premises to question for her requirement to run a garment manufacturing business there but subsequent in the affidavit-in- evidence of respondent/landlady stated that she was already carrying out garment business under the name and style of Hina Garments on low scale without having any manufacturing unit elsewhere and this improvement made by the respondent in her statement could be said to be suppression of the material fact and thereby latter has not come to the Court with clean hands.
43. Learned counsel for appellant has further argued that if she would have disclosed the said fact about her establishment being run in a particular place then she could have been asked about the suitability and sufficiency of that accommodation so as to disentitle her for having the premises in question for her personal requirement. He has also argued that the respondent has not examined any person from the establishment said to have been running for which she needed the present premises as well. He has placed reliance upon 1986 CLC 1715, 1983 SCM R 473; 1991 M LD 326, 1985 CLC 2791, 1984 CLC 755 and PLD 1981 SC 590 in support of his contentions.
44. Mr. Hantza Ali counsel for respondent has referred to para. 5 of ejectment application and para. 15 of the written statement filed by the parties so also para. 10 of affidavit-in-evidence of respondent/landlady showing that the respondent/landlady has given the required particulars as required by rule 2 of Order 6, C.P.C. In the ejectment application and has not suppressed any material fact so as to cause any prejudice to the appellant/tenant. He has further contended that the respondent/landlady has proved her bona fide need and the said need cannot be said, to be a tainted one and further that the evidence of the respondent/landlady was consistent with pleadings and further the appellant/tenant has failed to rebut his testimony of the respondent on the point of bona fide need and thereby the finding of Rent Controller was legal and based on proper appreciation of the evidence on record and the case-law. He has placed reliance upon 1993 CLC 148, 1993 CLC 505, 1993 CLC 2272, 1993 M LD 410 and 1993 SCM R 67 in support of his contention.
45. The respondent/landlady has in para. 5 of her ejectment application stated that she required premises in good faith for her own occupation and use as she wanted to start a garment manufacturing business in the said premises. In her affidavit-in-evidence in par a. 10 she has reiterated her statement made in the ejectment application and has further stated that she was already carrying on garment business under the name and style of Hina Garments on low scale without having any manufacturing unit elsewhere but would start the same in the demised premises for which she has obtained invoices of garment manufacturing machines from various companies. The appellant/tenant has denied in written statement in para. 15 that need of the respondent was not bona fide and in good faith but was mala fide and she wanted to harass the appellant and he in his affidavit-in-evidence in para. 13 has denied that premises were required by the respondent/landlady in good faith. In the cross-examination of the respondent/landlady denied that the premises was not required for personal use by her in good faith and that she would sell the same and shift to America and that she was not having any licence of export and import.
46. The respondent's learned counsel also suggested to the appellant/tenant in the cross that the respondent had informed him that she would instal factory of garment in the premises and he knew that she was carrying out the business in the name and style of Hina Garment and wanted to extend her business, therefore, needed the premises in question to which the appellant/tenant denied. .
47. The respondent/landlady in the ejectment application as well as in the affidavit-in-evidence has stated that she needed the said premises for her bona fide need for running the garment factory in it. Subsequently, she also stated in her affidavit-in-evidence that she was already running the said business. There is no evidence to rebut the testimony of the respondent/landlady on the point that she did not require the said premises for running a garment factory. There is also no evidence on record to show that the respondent/landlady was not running the said business under the name and style of Hina Garments. On the contrary, the respondent has produced a letter addressed on her letter pad of Hina Garments to Area Manager of Singer Sewing Machine and one letter written by Alrnurtaza to Hina Garments, 126, Darakhshan Society, Malir, Karachi. So far the plea of the learned counsel for appellant that the respondent/landlady has suppressed the fact ejectment application that the respondent was already running garment business, but she did state in the paragraph 10 of her affidavit-in-evidence and this was sufficient notice to the appellant/tenant who could not be said to have been prejudiced in any way and the learned counsel for the appellant could have shaken the veracity of respondent in her cross-examination which was conducted long after filing of affidavit-in-evidence and for that purpose the appellant/ tenant could have inquired about the suitability and sufficiency of the premises where she was carrying on her business but having not done so, the appellant/tenant could not say that there was suppression of material fact which has prejudiced the appellant. I do not find any substance in the, said contention. The testimony of the respondent could not be shaken in the cross---examination and there has been no sufficient reliable rebutting evidence to the evidence on point of requirements in good faith of the respondent in respect of the premises.
48. It is settled law that it was not necessary that the landlord should give all details in respect of the business which he could start in the premises for which eviction has been sought. If the landlady proves her need to be based on good faith and her testimony is not shaken in the cross- examination and no satisfactory rebutting evidence is adduced to the said testimony then it would be deemed that the requirement in good faith has been proved. Reference is made to Abdul Majeed Shahid v. Syed Abdul Bashir 1993 CLC 148, Mrs. Chung YinglK Hsiung v. Mst. Seema Saeed 1993 CLC 505, National Bank of Pakistan v. Shaikh Muhammad Sharif and 3 others 1993 CLC 2272, Atiuddin v. Saleem Karim 1993 M LD 410, Agaria Amir Ali v. Abdul Majid 1993 SCM R 67, Muhammad Bashir v. Sakhawat Hussain 1991 SCM R 846 in support of finding that the respondent/landlady has proved her requirement in good faith and that there was sufficient evidence on record which could not be rebutted by the appellant/tenant, therefore, the contention of learned counsel for the appellant that the finding on the issue of default was erroneous in law and based on misappreciation of the evidence has no merit and substance. Now there remains the cases cited by the learned counsel for appellant. The, first case cited is Umer. Din v. Additional District Judge 1983 SCM R 473 where the Rent Controller has ordered eviction of the tenant but the said order was reversed by the Additional District Judge holding that landlord has filed the present ejectment application after having failed in the first round of litigation for the eviction of tenant from, the same shop and thereafter writ petition was preferred against the said order of the Additional District Judge where plea was taken that the High Court disregarded the contention that there was misreading of evidence by the learned Additional District Judge which material influenced the mind of the Court. The Supreme Court held that even if misreading of evidence by the learned Additional. District Judge is ignored the rest of evidence on record would establish that premises was not required in good faith by the landlord. The facts of the instant case are quite different and distinguishable to the cited case. In Abdul Razak v. Abdul Sattar Khan 1991 M LD 326 case there was requirement of the landlord for his son when the latter admitted in the cross-examination that he was carrying on business as an agent of fruit products which fact was concealed by landlord in his ejectment application and there was no evidence available on record to satisfy the Court that the shop in occupation of the landlord's son was not sufficient for his needs, therefore, it was held that the ground of bona fide need was not established. The facts of the instant case are quite different and distinguishable to the cited case. In Mst. Begum Jan v. Abdul Rasool 1984 CLC 755 case, the landlady did not come to the Court with clean hands and suppressed the material facts in the rent application filed on the ground of bona fide requirement when the landlady was not widow and pleaded as widow so as to gain sympathy by making misrepresentation though the landlady became widow during the pendency of appeal before this Court, it was held that she was not entitled to ejectment and should prefer fresh case under section 14 of Rent Ordinance.
49. No other plea has been raised before me by the learned counsel for appellant in support of his appeal except the above which have been discussed and answered as per evidence and the case-law and pleas raised have been found to have no merit and substance. Consequently, the impugned judgment of the learned Rent Controller is maintained and the appeal is dismissed with no, order as to costs with direction to the appellant to vacate the premises in question within 90 days subject to the deposit of rent regularly in Court.