1. This is an appeal under section 21 of the Sindh Rented Premises Ordinance (hereinafter called the Rent Ordinance) directed against an order, dated 5-9-1994 in Rent Case No.59 of 1993 Mrs. Ghazala Iqbal v. NOman Altmad passed by the learned III-Rent Controller, Karachi-East, whereby ejectment application filed by the respondent was allowed and the appellant was ordered to hand over the vacant possession of the premises within the period of sixty days, hence the present appeal.
2. Brief facts of the case are that the respondent/landlady filed an application under section 15 of the Rent Ordinance against the appellant/tenant in respect of Shop NO.1 on the ground floor constructed on property bearing No. 126, Darkshan Society, Malir, Karachi, which was on rent at the monthly rent of Rs.3,630 exclusive of property taxes, electricity, K.M.C. Water, fire and conservancy charges on the ground that the appellant/tenant was habitual defaulter in the payment of monthly rent as well as other charges like property taxes, water and conservancy charges and was in arrears of monthly rent amounting to Rs.12,090 being rent for the period commencing from September, 1992 to January, 1993 and further that the appellant/tenant has also tailed to pay water charges and property taxes for the period of 1991-92 and 1992-93 and on the ground that the respondent/landlady required bona fide in good faith the said premises for her use and occupation as she wanted to start her garment manufacturing business in the said premises for which the appellant/tenant was asked for but he refused to hand over the possession of the same, therefore, the present ejectment application was filed against him.
3. The appellant/tenant filed written statement stating ' therein that from November, 1992 rate of rent was enhanced from Rs.1,100 to Rs.3,630 and since then the respondent/landlady never issued any rent receipt and the rent up to January, 1993 has been paid to the respondent/landlady but when rent for the month of February, 1993 was refused, the appellant/tenant started to deposit the same with the Controller in Miscellaneous Rent Case No.90 of 1993 and that former made demand of Rs.1,100 in respect of water and conservancy charges in the month of December, 1992 through her husband which amount was paid to him on.10th day of December, 1992 and further that no separate bill in respect of water and conservancy charges was issued in the name of appellant/tenant but it was sweet wish of the respondent/landlady to charge any amount in respect of the same. It has further been stated that the respondent/landlady did not require the premises in good faith for her personal bona fide use and she never informed the appellant about her need and never requested for vacating the possession of the premises. On the pleadings of parties learned Rent Controller settled the following issues.
(1) Whether opponent has committed default in the payment of rent in respect of the premises in question?
(2) Whether, the applicant requires the premises in good faith for her own use?
(3) What should the order be?
4. The respondent/landlady filed her affidavit-in-evidence and produced photo copy of tenancy agreement dated 5-1-1993 as Exh.A./l, photo copy of letter from Almurtaza as Exh.A./2, photo copy of letter from Hina Garment as Exh.A./3. The appellant/tenant filed his own affidavit-in-evidence.
5. Learned counsel cross-examined at length the respective adverse party.
6. Learned Rent Controller after recording the above evidence and hearing the learned counsel for parties allowed the eviction application as per impugned judgment hence the present appeal.
7. I have heard learned counsel for parties, perused the record and proceedings of the case and the case-law cited by the respective counsel for the parties.
8. Learned counsel Mr. K.B: Bhutto for the appellant has argued that there were three tenancy agreements and the last was Exh.A./1 executed on 1-7-1992 between the parties and further that initially rate of rent was Rs.1,000 which was increased from time to time and as per last agreement of tenancy, the rate of rent was enhanced to Rs.3,630 and further that the respondent/landlady refused to accept the rent from February, 1993, therefore, rent was deposited in Miscellaneous Rent Case No.90 of 1993. He has further contended that as per para. 3 of ejectment application, the respondent/landlady has only shown as arrears Rs.12,090 but has not stated any amount in respect of water and conservancy charges. Learned counsel for appellant has referred to paras. 2 and 4 of the last tenancy agreement and has also referred to paras. 5 and 6 of the affidavit-in- evidence of respondent/landlady. He has placed reliance upon 1991 MLD 621, 1983 SCMR 200 and Article 129(g) of the Qanun-e-Shahadat in support of his contention that the respondent/landlady has not proved the default in payment of rent and has not produced the counterfoils of the rent receipts alleged to have been issued by her, therefore, adverse presumption be drawn against the respondent/landlady under the law. He has further contended that after the expiry of last agreement, dated 1-7-1992 on 31-5-1993 the appellant became statutory tenant, therefore, was liable to pay rent in. Terms of section 15(2)(ii) of the Rent Ordinance within sixty days after the rent became due under the Rent Ordinance. He has further contended that the respondent/landlady has been withholding sum of Rs.87,000 still unadjusted towards rent which was far in excess of alleged arrears of rent of Rs.12,090, therefore, the appellant tenant could not be held defaulter in the payment of rent. On the point of personal requirement of the respondent, learned counsel for appellant has argued that the said requirement was not based on good faith as she has failed to even examine any employee of the alleged garment factory to support her need for the said purpose. He has also referred to cross-examination of respondent/landlady wherein she admitted that there was a hotel as well as four shops and also a clinic on first and second floor of the building. Learned counsel has further contended that the respondent/landlady has not explained as to how her present business place was insufficient to run the alleged garment factory when the third floor of the building was already in occupation of the respondent/landlady and that respondent/landlady has failed to produce necessary licence/approval for running the alleged garment factory in residential building from the competent Authority. Learned counsel for appellant has argued that the respondent/landlady filed ejectment application on 26-1-1993 whereas the tenancy agreement was up to 31st May, 1993, therefore, no ejectment application would lie against the appellant/tenant on the basis of personal bona fide need as the period of lease has not expired. Learned counsel in the end contended that the finding of the Rent Controller was erroneous in law and was not based on proper appreciation of evidence on record. He has placed reliance upon 1989 CLC 285 in support of his contentions.
9. Learned counsel Mr. Hamza 1. Ali for respondent has argued that the appellant/tenant has failed to pay rent from September, 1992 to January, 1993 and that the personal requirement of the landlady has been proved as per evidence on the record, therefore, findings of learned Rent Controller on both the issues were legal and based on proper appreciation of evidence on record. Learned counsel for respondent pressed only default in the payment of rent and did not press the default in the payment of other charges. He has referred to para. 3 of the ejectment application and para. 8 of the written statement and para. 10 of the affidavit-in-evidence of respondent. He has further argued that Rent Ordinance has provided three modes of payment under section 10 of the Rent Ordinance. He has argued that in case according to appellant/tenant, rent from September, 1992 to January, 1993 was paid but was not issued rent receipts, then the appellant/tenant should have sent the payment of rent through postal money order and in case the said postal money-order was refused then but no such modes of payment of rent were followed as laid down of the Rent Ordinance therefore, now the alleged defence that rent was paid but receipts were not issued would have no merit and further that an amount of Rs.87,000 lying with the respondent/landlady could not be adjusted towards the rent in view of para. 4 of the agreement dated 1-7-1992 Exh.A./1 and that appellant/tenant could not be termed to be statutory tenant to be liable to make payment under section 15(2)(ii) of the Rent Ordinance but he would be governed by the terms and conditions of the last agreement dated 1-7-1992 Exh.A/1 in respect of the payment of rent. He has placed reliance upon Mst. Saeeda Khatoon v. Muhammad Ahmad Latifi PLD 1990 SC 389,' Mrs. Zarina Khawaja v. Agha Mahboob Shah PLD 1988 SC 190, Syed Asghar Ali Imam v. 1Vluhammad Ali PLD 1988 SC 228, Kala Khan v. Anjuman Musalmanane Mashraqui Punjab, Karachi 1993 CLC 250, Mst. Rasheeda Begum and another v. Mst. Samina Mushtaq 1993 M LD 1825 and Ghulam Hyder Baloch v. Ghulam Nabi 1993 M LD 386 in support of his contentions. So far the issue No.2 about the personal requirement of the respondent/landlady the learned counsel for respondent has argued that period of tenancy expired during the pendency of litigation between the parties, therefore, the respondent/landlady was entitled to evict on the cause of action mentioned in the ejectment application. He has placed reliance upon National Bank of Pakistan v. Shaikh Muhammad Sharif and 3 others 1993 CLC 2272, Mst. Rabia Bai Fatima Bai v. Ghulam Muhammad Donal 1987 CLC 404 and Raj Muhammad v. Haji Muhammad Zareen and 3 others 1980 SCM R 339 in support of his contentions.
10. The first contention of the learned counsel for appellant is that the respondent/landlady was paid rent from September, 1992 till January, 1993 but latter did not issue receipts,for the said period and when rent for the month of February, 1993, was tendered but was refused by her, therefore, rent for the said month was deposited in Miscellaneous Rent Case No.90 of 1993 hence there was no default on the part of the appellant.
11. The respondent/landlady in para. 3 of the ejectment application has stated that the appellant/tenant was in arrears of monthly rent amounting .To Rs.12,090 viz rent Rs.1,200 at Rs.600 per month for the months of September and October, 1992 and Rs.10,890 rent from November, 1992 to January, 1993 at Rs.3,630 being rent for the period from September, 1992 to January, 1993 as per para. 3 of the tenancy agreement, dated 1-7-1992 and the, said statement is consistent with the statement made by her in para. 5 of affidavit-in-evidence while in para. 8 of the affidavit-in- evidence the respondent/landlady has stated that there remain unadjusted amount of Rs.87,000 after adjustment of advance rent from September, 1990 to October, 1992 which was to be kept by the respondent/landlady as security deposit refundable to the appellant/tenant at the time of handing over the possession of the demised premises subject to deduction of the dues and losses if any done to the premises in view of agreement; dated 1-7-1992. The appellant/tenant in the affidavit-in-evidence has stated that he has paid sum of Rs.1,00,000 as advance rent to the respondent/landlady adjustable towards the rent and now sum of Rs.87,000 remained in balance with her and that from November, 1992 the rent has been enhanced from Rs.1,100 to Rs.3,630 per month and that he has not been in any arrears of rent as stated by the respondent/landlady and has paid rent up to January, 1993 and rent for the month of February, 1993 the respondent/landlady refused to accept the rent, therefore, the said rent was deposited in Miscellaneous Application No.90.Of 1993.
12. Para. 1 of tenancy agreement Exh.P.A./1 states that lease period would expire on 31-5-1993, para. 3 states that from first day of November, 1992 monthly rent will be Rs.3,630 which shall be paid in cash/cheque and no adjustment will be made against the remaining unadjusted advance rent and in para. 4 it has been stated that amount of Rs.87,000 will be paid/refunded at the time of vacation of premises by second party subject to deduction by first party of dues and losses if any done to the property. At least from the above terms of agreement it would be clear that the appellant/tenant cannot claim adjustment of payment for the months the rent of which has fallen- due from sum of Rs.87,000 lying with the respondent/landlady. Now the point for consideration would be whether in view of evidence on record the appellant/tenant has paid rent from September 1992 to January, 1993. The Respondent/landlady has been cross---examined at length by the learned counsel for appellant wherein she has stated that out of sum of Rs.1,00,000 art amount of Rs.13,000 was adjusted towards the rent at the rate of Rs.1,000 while there remained Rs.87,000 to be refunded with her. She has also stated that she was issuing 'the rent receipt to the appellant/tenant and was maintaining counterfoils of, the rent receipts issued by her. It will not be out of place to state here that at no stage the appellant/tenant moved the Rent Controller to call upon the respondent/landlady by giving her notice to produce the counterf6ils of, the rent receipts in the Court and if that notice would have been given and if she would have failed to produce the counterfoils then the adverse presumption could have been drawn against the respondent/landlady but as no such notice was given to respondent/landlady, therefore, no adverse presumption could be drawn in the circumstances of the case. Besides when the rent has not been paid by the appellant/tenant and received by the respondent/ landlady there would be no counterfoil for the said period. The evidence adduced by respondent/landlady would show that the appellant/tenant has not paid rent to her from September 1992 to January 1993 as per para. 3 of tenancy agreement and thereby has discharged her onus and has, proved the said fact and thereby the onus in respect of payment of rent to the; respondent shifted under the law upon the appellant/tenant. Nothing has been brought on record by the appellant/tenant to disprove the averments made in the ejectment application which were consistent with the contents of her affidavit-in-evidence and the veracity of the landlady in the cross-examination could not also be shaken. Section 10 of the Rent Ordinance runs:--
10. Payment of rent.---(I) The rent shall in the absence of any- date fixed in this behalf by mutual agreement between the landlord and tenant, be paid not later than the tenth of the month next following the month for which it is due.
(2) The rent shall, as far as may be, be paid to the landlord, who shall acknowledge receipt thereof in writing.
(3) Where the landlord has refused or avoided to accept the rent, it may be sent to him by postal money order or, be deposited with the Controller within whose jurisdiction the premise is situate.
(4) The written acknowledgment, postal money-order receipt or receipt of the Controller, as the case may be, shall be produced and accepted in proof of the payment of the rent: Provided that nothing contained in this section shall apply in the case pending before the Controllers on the commencement of this Ordinance. "
13. From the perusal of the above provision, it would appear that law has laid down duty upon the tenant to pay rent to the landlord/landlady and obtain an acknowledgment of the same and in case acknowledgment .Is not to be given in respect of rent then the rent could be sent by postal money-order, the postal receipt of which would be sufficient proof of payment of rent but in case postal money-order is refused then the rent could be deposited with' the Controller having jurisdiction where the property is situated and the rent payment receipt of the Rent Controller would be sufficient proof of payment of rent. I cannot understand as to why the appellant/tenant executed an agreement dated 1-7-1992 whereby he enhanced the rate of rent from Rs.1,100 to Rs.3,630 wherein it was clearly stipulated that henceforth no adjustment of rent will be made from the balanced amount of Rs.87,000 and if, the rent receipt was not being issued by the respondent/landlady then why the rent was not tendered through postal money --order and in case of failure to receive the same, why the rent was not deposited with the office of Rent Controller. Mere statement of the appellant/tenant that he paid rent to the respondent/landlady but the receipts were not issued would not be sufficient proof of the payment when there has been no other corroborative piece of evidence in. Support of the said statement. Law has imposed an obligation upon the tenant to make payment of rent in a particular mode and if that mode is not followed the person who has failed to follow the law has to suffer. It is admitted position that the rent from February 1993 onwards was not paid by the appellant, therefore, the said rent should have been deposited with the Rent Constroller. The appellant/tenant has not also brought any evidence' showing as to when he deposited the rent for the month of February, 1993 and onwards with the Rent Controller but only stated that he deposited rent in Miscellaneous Rent Case No. 90 of 1993. Next question which would arise in this case would be as to when monthly rent should be payable by the appellant/tenant after the lease period has expired i.e. On 31st May, 1993. In the instant case as per para. 3 of tenancy agreement Exh.Adl monthly rent from July, 1992 to October, 1992 shall be Rs.600 paid in cash and the remaining 85.500 shall be adjusted towards the adjustable-rent and shall be paid up to 5th of each calendar month in advance: --o far the payment of rent from first day of November, 1992, there is nothing in the tenancy agreement as to when monthly rent would be payable by the appellant/tenant to the respondent but prior to the said period the monthly rent was to be paid up to 5th day of each calendar month in advance, therefore, in absence of any period mentioned in the agreement in respect of payment of rent the same shall be payable as provided under section t5(2)(ii) of the Rent Ordinance, consequently, the rent of Rs.600 for the month of September, 1992 would become due on its expiry and would be payable within sixty days, thereafter, which would mean that it was to be paid by 29th of November and rent of Rs.600 for the month of October, 1992, was to be paid by 30th of December, 1992, while rent of Rs.3,630 for the month of January, 1993, was to be paid by 1st April, 1993, but there is nothing on record to show that the appellant/tenant made any payment within due time in respect of the said months either by sending it through postal money-order or by making deposit with the Rent Controller as the appellant/tenant himself admitted to have deposited rent for the month of February onwards in Miscellaneous Rent Case No.90 of 1993 which would mean that no rent for the said months was paid or deposited in favour of respondent/landlady, therefore, it could be said that there has been default in the payment of rent for the said months. So far the contention that the appellant/tenant after the expire of period became statutory tenant would not alter the position in the instant case as there is no term in the agreement Exh.A./1 with regard to the time of payment of monthly rent viz. In advance or in the following month before 10th of each month or in accordance with section 15(2)(ii) of Rent Ordinance though in case of Mrs. Zarina Khawaja reported in PLD 1988 SC 190, Supreme Court of Pakistan held that even after the expiry of the period of tenancy, the rent would continue to be paid on the same terms and conditions if the terms and conditions are not found to be repugnant to the rent laws so also in the subsequent decision reported in Syed Asghar Ali Imam v. Muhammad Ali reported in PLD 1988 SC 228 the same observations of the Supreme Court were followed that even after the expiry of tenancy period tenant would be governed by same terms and conditions unless the terms and conditions are shown to be repugnant to the rent laws. In the instant case, there is no condition in respect of payment of rent by particular date, therefore, as observed above the payment of rent would be made in accordance with section 15(2)(ii) of the Rent Ordinance.
14. Next contention of the learned counsel for appellant is that the respondent/landlady could not evict the appellant/tenant from the premises on the ground of personal requirement in good faith as the period of tenancy as stated in tenancy agreement Exh.A./1 had not expired on the date when the ejectment application was filed. It is correct that the ejectment application was filed on 26-1- 1993 while tenancy period wag to expire as- per Exh:A:./l on 31st May, 1993. This fact has not been denied by the learned counsel for the respondent/landlady that the tenancy period was to expire on 31st May, 1.993. Admittedly in terms of tenancy agreement the appellant/tenant has to remain in the premises till 31st May, 1993, subject to condition mentioned in the tenancy agreement Exh.A./1. It is not the case of the respondent/landlady that she served the appellant/tenant with a notice with two months' period to vacate the premises as provided in para.12 of the agreement Exh.A./1, therefore, the appellant/tenant would not be entitled to repudiate the terms of agreement in respect of period of tenancy unilaterally when there has been no cause of action to the respondent for seeking the eviction of the appellant/tenant from the premises on the ground of personal requirement which could have accrued to her, when she would have given two months' notice to vacate the premises on the ground of personal requirement which could have accrued to her, when she would have given two months' notice to vacate the premises to the appellant/tenant.
15. Reference is made to Mrs. Zahra Begum v. Messrs Pakistan Burma' Shell Limited PLD 1984 SC 38 wherein Supreme Court of Pakistan held: "In this view of the matter if at the time of entering into lease agreement in 1965 the landlord knew that he was bartering away his personal need under the law then in force ... He cannot under the statutory provision made in the Ordinance turn back to repudiate the terms of the agreement. In the first place the Ordinance keeps alive the contract....And professes to protect as much the right of the tenant as that of that landlord. In the second place even if there was such a right available under the law ... It stood waived because it is not...Public policy, but the personal privilege which the landlord could forego for valuable consideration....In view of a valid subsisting contract between the ,parties the appellant/landlord cannot invoke the ground of personal requirement and that his application is premature ....."
16. On the point of personal bona fide need, the respondent/landlady in her affidavit-in-evidence has stated that she needed the premises for her bona fide need as she would carry on the garment business in the premises. In support, he has also produced Exh.A/2, photocopy of letter from Almurtaza written to Hina Garments 'wherein the respondent/landlady has been informed about the description of the sewing machines and their rates and has also produced photocopy of Exh.A./3, a letter written to Manager, Singer Machine, wherein she has asked for complete and accurate estimate in respect of 40 stitching machines. On the other hand the appellant/tenant has denied that the respondent/landlady needed the said premises in good faith for her personal need on the ground that she did not disclose in the eviction application the fact that she was already carrying on the garment business in the name and style of Hina Garments so as to enable the appellant/tenant to make enquiry about the accommodation and suitability of the said premises where the said business was carted out by the respondent/landlady, therefore, the said suppression would reflect that the respondent/landlady's requirement was not based on good faith. Besides above the appellant/tenant has stated that the respondent was having in her occupation third floor and other shops on the ground floor but she has asked for the possession of the premises in occupation of the appellant/tenant which would show that need of the respondent/landlady was not based on good faith. It is settled law that it is the prerogative of the landlord/landlady to have a choice of the accommodation which would be suitable for his/her need and that right could not be given to a tenant therefore, in the instant case also it, could not be said that the respondent/landlady should not have asked for the possession of the ground floor in occupation of the appellant for her need. Reference is made to Agaria Amir Ali v. Abdul Majid 1993 SCM R 67, Muhammad Bashir v. Sakhawat Hussain 1991 SCM R 846 and National Bank of Pakistan v.
17. Shaikh Muhammad Sharif and 3 others 1993 CLC 2272 wherein learned Judge in Chamber, at page 228 observed:--- "Likewise the suitability or sufficiency of accommodation is the prerogative of the landlords, and not of the tenant. Several rulings can be cited in support of this view, but I abstain from encumbering this judgment by quoting them which, in my opinion, is unnecessary."
18. However, in the instant case, the point for decision would be whether the ejectment application in the circumstances of the case on the ground of bona fide need would be competent when the period of tenancy has not expired though as per evidence on record the respondent/landlady has proved her requirement in good faith. My answer would be in negative. Reference is made to Mrs. Zehra Begum v. Messrs Pakistan Burmah Shell Limited reported in PLD 1984 SC 38 wherein Supreme Court of Pakistan held that landlord cannot turn back to repudiate the terms of the agreement when the Rent Ordinance has kept alive such contract and that the bona fide requirement of the premises by landlord for his own use and occupation or his spouses or any of his children would riot be allowed in view of subsisting contract between the parties whereby landlord could be allowed to invoke the eviction on the ground of personal requirement. In the instant case, it has already been stated that lease was to expire on 31st May, 1993, while eviction application was filed on 26-1-1993, therefore, the ejectment, application was premature on the ground of personal bona fide need and further that no notice as required by para. 12 for the period of two months was served upon the appellant/tenant, therefore, there was no cause of action for ejectment on the personal bona fide need against the appellant/tenant.
19. In the circumstances, the finding of the Rent Controller on issue No-2 E is not based on proper appreciation of law keeping in view of the stated facts, therefore, same is set aside holding that the respondent/landlady could not have trade ejectment application against the appellant/tenant on the ground of personal bona fide requirement before the expiry of tenancy period. Mere fact that the period of tenancy expired during the period of litigation would not make the ejectment application as competent. The finding of the Rent Controller on the point of default in the payment of rent is maintained in this appeal. Consequently, appeal has no merits, which is hereby dismissed. However the appellant/tenant is directed to hand over the vacant possession of the premises to the respondent/landlady within 90, days from the date of this order subject to deposit of rent regularly in the office of the Rent Controller. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.