1. These are two appeals under section 21 of the Sindh Rented Premises Ordinance, 1979 (hereinafter called Rent Ordinance) directed against an order, dated 15-10-1992 in a Rent Case No.979 of 1988 (Ghulam Rasool and another v. Habib Bank Limited) passed by V-Senior Civil Judge and Rent Controller, Karachi-South, whereby ejectment application filed by respondent/landlord against the appellant/tenant was allowed on the ground that respondents/ landlords required the premises for their personal use against which finding appellant/tenants Habib Bank Limited filed F.R.A. No.573 of 1992 while on the finding on the issue of default in the payment of rent which was decided in the negative holding that the appellants/tenants Habib Bank Limited has not committed default in the payment of rent, the respondent/landlord has preferred a separate Appeal No.601 of, 1992, both appeals being against the same order in respect of same property are being disposed of by this judgment.
2. Brief facts of the case are that Ghulam Rasool for himself and on behalf of Messrs Noor Timber Importers filed an application under section 15 of the Rent Ordinance on 19-7-1988 against the appellants/tenants Habib Bank Ltd. For their ejectment on the ground that former required the premises bona fide for their personal use and occupation for commercial purpose to shift their office from the rented premises at Old Haji Camp to the premises in occupation of appellants/tenants Habib Bank Limited for that the latter were served with a notice dated 15-3-1987 to vacate the said premises on the expiry of lease period i.e. 30-4-1977 and on the ground that appellants/tenants Habib Bank Limited have failed to pay agreed rate of rent of Rs.1,500 per month for the months of March and April, 1987 in respect of property bearing Plot No.M.R.l/67, situated at Murad Khan Road, Khori Garden, Karachi. The appellants/tenants filed written statement stating therein that the respondents/landlords did not require the premises for their personal use in good faith and that they have paid rent for the months of March and April, 1987 to the respondents/landlords through pay slip, and the rent for the months of May, 1987, was sent through pay-slip to the respondents/landlords but same was refused thereafter rent for the said month was sent through money order which too was refused hence rent from May, 1987 to December, 1988 was deposited in Miscellaneous Rent Application No.922 of 1987 with the Controller. On the pleadings of parties the Rent Controller settled the following issues:--
(1) Whether the applicants required the premises in question for their personal bona fide use?
(2) Whether the opponents have committed default in the payment of rent as alleged by the applicants?
(3) What should the order be?
3. The respondents/landlords in support of their case filed an affidavit of the attorney A.I Raza who has produced general power of attorney Exh.5, photo copy of postal A.D. Receipt Exh.6 and Exh.6/A.
4. The appellants/tenants Habib Bank Limited filed an affidavit of attorney Shaikh Saeed Ahmad who has produced photo copy of power of attorney, photo copy of notice dated 15-3-1987 sent by respondents'/landlords' Advocate and photo copy of reply dated 5-4-1987 to the said notice, photo copy of voucher dated 31-3-1987 mentioning Nos.966935 and 966936 of pay slips each for the sum of Rs.1,500 photo copy of counterfoil of pay slip dated 31-3-1987 with No.PAG-966935, photo copy of postal A./D. Receipt photo copy of envelope, photo copy of money-order coupon 2064 for the sum of Rs.1,500 dated 2-6-1987. Both the witnesses were cross-examined at length by the counsel for respective parties. The Rent Controller after recording the above evidence and hearing learned counsel for the patties passed the impugned judgment whereby on the finding of Issue No.1 ejectment application was allowed while Issue No.2 in respect of default in payment of rent was answered in negative.
5. I have heard learned counsel for parties and perused the record and proceedings of the case and the case-law cited by the counsel for parties.
6. Learned counsel, Mr. Muhammad Saleem Iqbal, for appellant/tenant Habib Bank Limited has argued that the respondents/landlords are already in occupation of another premises therefore, the requirement of the respondents/ landlords is not based on bona fide good faith. He has further argued that the learned Rent Controller has not properly appreciated the evidence on record therefore, the finding of Rent Controller was erroneous in law. He has further argued that the appellants/tenants Habib Bank Limited tendered the rent through pay-slips by registered post A./D.
7. For the months of March and April, 1987 which were received by respondents/landlords, while rent for the month of May, 1987 was sent at per practice through pay-slip as per registered post A./D.
8. But it was returned undelivered therefore, rent for the said month was sent through money-order but it was also refused therefore, rent for May, 1987 to December, 1988 was deposited in Miscellaneous Rent Application No.922 of 1987 with the Controller. Learned counsel has contended that there was no deliberate and wilful default in the payment of rent and that the finding of Rent Controller was legal and based on proper appreciation of evidence on record.
9. Learned counsel Miss Mehrunnisa for respondents/landlords has argued that the respondents/landlords are in occupation of the rented premises therefore, they required the premises in occupation of the appellants/tenants so that the respondents/landlords could shift their business in their own premises therefore, the need of respondents/landlords was based on good faith and further that the evidence adduced by the respondents/landlords is consistent with the evidence on record and no satisfactory rebutting evidence has been produced by the appellants/tenants Habib Bank Limited and further the testimony of the respondents/landlords could not be shaken in the cross-examination by the counsel for the appellants/tenants Habib Bank Limited therefore, the finding of the rent Controller was legal and based on proper appreciation of evidence on record. She has further argued that the finding of the Rent Controller on the issue of default in payment of rent is erroneous in law and is not based on proper appreciation of evidence on record as the appellant/tenant Habib Bank Limited failed to tender rent for the months of March and April, 1987 within due date and no documents or receipts have been produced for the months of March and April, 1987 in respect of payment of rent to the respondents/landlords. Mere filing of photo copy of voucher dated 31-3-1987 and photo copy of counterfoil of pay slip No.PAG-966935 for the sum of Rs.1,500 would not prove the payment of rent having been made by the appellant/tenant.
10. The respondents/landlords in para.3 of the ejectment application have stated that they needed the premises bona fide for personal use and occupation for commercial purpose of shift their office from the rented premises at Old Haji Camp to the premises in occupation of the appellants/tenants Habib Bank Limited. In notice dated 15-3-1987 the respondents/landlords in para. 3 have stated that they needed the premises bona fide in good faith for personal use and occupation as their office. Respondents' attorney in para.4 of affidavit-in---evidence of A.I Raza has stated that respondents needed bona fide the premises for their personal use and occupation for commercial purpose to shift their house from rented premises. In the cross A.I Raza he has stated:-- "The applicant is tenant at Mustafa Manzil Old Haji Camp Road since last 20 years. The building in occupation of applicant where he is tenant is a godown and improvised office. Haji Abdul Rasool and his brother are the owners of that building. Applicant had a godown in Timber Market and there is litigation on that godown also. The adjacent office to the bank on the ground floor is in possession of Haji Jatta Bai Gokal. It is fact that bank people used to pay rent in that office adjacent to that. The applicant is the partner of that office. I do not know the area of this office.
11. There are three tenement on the upper storey of the bank. The applicant has not filed any rent cases against the tenant in occupation of both flats. It is incorrect to suggest that the applicants do not need the premises for personal occupation but they wanted to re-let it on higher rent and on Pugree. The adjacent office to the bank is not owned by the applicants. This place is owned by the applicant and other partners. It is incorrect to suggest that this office is sufficient for applicant's use and occupation. "
12. The appellant/tenant Habib Bank Limited in para.3 of the written statement stated that personal bona fide requirement of the respondents/landlords is not genuine but made with ulterior motive.
13. Shaikh Saeed Ahmad attorney of the appellants'/tenants' Habib Bank Limited in para.4 of counter- affidavit has stated that personal bona fide requirement of the respondents/landlords is not genuine and they have many properties in the city of Karachi. Shaikh Saeed Ahmad attorney of the respondent in the cross-examination has stated:-- "It is incorrect to suggest that the owner of the premises in question does not have any other property. It is incorrect to suggest that Noor Timber Importer does not have any property.
14. Voluntarily says he has big office adjoining to the premises in question. I do not know if the office situated adjoining to the premises in question has no concern with the applicant Noor Timber."
15. It would appear from the evidence produced by the parties that admittedly the respondents/landlords are carrying on business in the rented premises and they wanted to shift their office from there to the premises in occupation of appellants/tenants Habib Bank Limited. The appellants/tenants Habib Bank Limited have not shaken the veracity of the respondents/landlords as to the fact that they have been carrying on their business in the premises not owned by them.
16. There is no rebutting evidence that the premises in occupation of the respondents/landlords was not owned by them and was insufficient to their needs. On the contrary; the appellants/tenants in the cross-examination stated that he did not know if the office of applicants/respondents known as Noor Timber on the building is on rent whereas the respondents/landlords stated that it was on rent and further the appellants/tenants Habib Bank Limited stated that they did not know if the office situated adjacent to the premises in question has no concern with the respondents. This would show that there is no rebutting evidence to the statement of the respondents/landlords that they needed the premises in occupation of the appellants/tenants Habib Bank Limited for opening their office after shifting the same from rented premises situated presently at Old Haji Camp. The evidence of the respondents/landlords is consistent with the pleadings and it has been stated on oath that they needed the said premises in good faith. Mere fact that there is an allegation from the appellants/tenants Habib Bank Limited that the respondent landlords after getting the possession of the premises in question, the same would be re-let out at enhanced rate of rent and would earn Pugree would not disentitle the respondents/landlords who has otherwise proved their personal requirement in good faith for getting the possession of their own property for running their business unless the tenant has produced strong rebutting evidence to disprove the evidence of the landlord. I may state that law has provided protection for the tenants and check upon the landlord by inserting section 15(A) of the Rent Ordinance whereby in case where the possession is obtained under clause (vii) of section 15 and the said premises is re-let to any person other than the previous tenant or the said building is put to use other than personal use, within one year of such possession, the landlord could be punished with fine and the tenant could apply for restoration of possession of the said premises to him. The respondents/landlords have discharged the onus and have proved the personal bona fide need in good faith for premises in question which evidence could not be satisfactory rebutted by the appellant/tenant Habib Bank Limited hence the finding arrived at by the learned Rent Controller cannot be disturbed or set aside in this appeal being unexceptionable in view of evidence on record therefore, the same is maintained.
17. Next contention of the learned counsel for respondents is that learned Rent Controller has erred in holding that the appellants/tenants Habib Bank Limited have not committed default in payment of rent. The respondents/landlords in para.5 of the ejectment application have stated that the appellants/tenants have failed to pay rent for the months of March and April, 1987 at the agreed rate of rent of Rs.1,500 per month. A.I Raza in counter---affidavit in evidence in para. 7 has stated that appellants/tenants Habib Bank Limited have not paid rent for March and April, 1987 as would be evident from Miscellaneous Rent Application No.922 of 1987 made under section 10 of the Rent Ordinance where rent for the months of May and June, 1987 was deposited on 4-7-1987. A.I Raza respondents' attorney denied in the cross---examination to have received rent by way of pay-slip till April, 1987 and stated that he did not know if on 23-5-1987 rent for May, 1987 was sent by pay-slip through registered post A./D. And that on 2-6-1987 rent was sent to respondents by money order.
18. The appellant's attorney Shaikh Saeed Ahmad in paras. 6 and 7 of his counter-affidavit stated that appellants/tenants Habib Bank Limited paid rent for the month of March and April, 1987 to the respondents through pay-slip No.9669335 being rent for the month of March, 1987 and pay-slip No.966940 being rent for the month of April, 1987 to the respondents/landlords and further that rent for the month of May, 1987 was also sent through pay-slip but it was refused and returned undelivered therefore, rent for the said month was sent through money order which too was refused therefore, rent was deposited in Miscellaneous Rent Case No.922 of 1987. Shaikh Saeed Ahmad, Attorney of the tenant Habib Bank Limited in the cross-examination stated that rent from May, 1987 was deposited in M.R.C. No.922 of 1987 and that Annexures "C", "D" and "E" were not the rent receipts for the month of March, 1987 and Annexures "F", "G" and "H" were not rent receipts for April, 1987. He has stated that respondents' account was closed on 19-4-1987. He has stated that pay-slips issued by the appellants/tenants Habib Bank were deposited in the respondents' aforesaid Account No.93-O and pay-slips were not deposited in the account as the account was closed. He has admitted that Annexure "G" pay-slip of 20-4-1987 the amount shown in it has not been credited by the respondents/landlords as per bank record the same has been shown still outstanding. He has admitted that amounts shown in this case have not been received by the respondents/landlords from their account and it was outstanding therein. Voluntarily stated that bank has paid this amount and it was the responsibility of the respondents either to encash this amount from this account or not. He has stated that appellants/tenants have paid rent to the respondents by way of pay-slip but amount was outstanding in bank record because the respondents had not submitted the pay-slip for encashment of that amount.
19. Section 10 of the Sindh Rented Premises Ordinance runs:-- "10. Payment of rent.-- (1) 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 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 premises 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."
20. The above provision of law prescribes the mode of payment whereby in absence of any mutual agreement between landlord and tenant rent shall be paid not later than 10th of next following month for which the rent is due and the same shall be paid to the landlord who shall acknowledge the receipt of the same in writing but where the landlord has refused or avoided to accept the rent, it be sent by postal money order or be deposited with the Controller having jurisdiction in respect of the premises. There is no such mode of payment of rent by pay-slips as has been followed by the appellants/tenants Habib Bank Limited. However, if it was the practice then practice should have been established by the appellants/tenants but the same has also not been established by the evidence on record. Besides there is no proof of the payment of rent for the months of March and April, 1987 having been made to the respondents/landlords. The appellants/tenants have filed a photo copy of voucher prepared by their office but there is nothing to show that this amount of voucher dated 31-3-1987 was credited in the account of the respondents/landlords. I may further point out that voucher of pay slips Nos.966935 and 966936 dated 31-3-1987 has been filed in Rent Case No. 979/88 the copy of the same has also been filed in Rent Case No.978 of 1988 when the premises in two rent cases are quite different and belonged to different landlords. It is not possible that on the basis same one voucher showing the same number of pay-slips of same date and same amount, the rent for March and April, 1987 in respect of two different tenements could be paid to two different landlords. In addition to the above, the said voucher would not prove itself the payment of rent having been made to the landlord. It would not be out of place to state that only one photostat copy of counterfoil of' pay-slip No.966935 dated 31-3-1987 for the sum of Rs.1,500 only has been filed. No counterfoil of pay-slip No.966940 dated 20-4-1987 as stated in para.6(ii) of affidavit-in-evidence of Shaikh Saeed Ahmad Attorney of appellants' bank has been filed or produced in this case. The required bank statement of the respondents/landlords should have been produced to show that the amount stated in the voucher was credited in the account of the respondents/landlords which the appellants/tenants Habib Bank Limited have failed to produce.
21. There appears to be something wrong with the appellants/tenants bank that they have failed to produce relevant receipt and pay--slip in respect of each case separately. Money-order coupon has been filed but no money order postal receipt has been filed to show that rent for the month of May, 1987 was, tendered to the respondents/landlords. There is nothing on record to show that the rent was refused by the respondents/landlords. No postman has been examined nor any certificate of refusal has been brought on record from the Postal Department to prove the fact of refusal of money order for the month of May, 1987. Admittedly, in this case there is no evidence at all for the payment or tender of rent for the months of March and April, 1987. The appellants/tenants themselves state that they have made deposit of rent for the months from May to August, 1987 on 4-7-1987 as per photo copy at page 119 of the R&P of this case whereby an amount of Rs.6,000 was deposited. As per photo copy of lease deed dated 15-2-1969 in para. 2, advance rent for a period of five years amounting to Rs.90,000 from 1-5-1967 was paid at the rate of Rs.1,500 per month out of which an amount of Rs.750 was to be adjusted from the total advance every month while the remaining sum of Rs.750 of monthly rent was to be paid per month before the 10th of every month. As per para. 5 of the lease deed balance amount of Rs.750 for monthly rent was to be paid on or before the 10th of every month. After the expiry of ten years lease period, the monthly rent in view of lease deed was also payable before the 10th of every month after the same has become due which would mean that rent for the month of May, 1987 was to be paid by 10th of June, 1987 as per terms of deed which term being not inconsistent with the provisions of Rent Ordinance, 1979 would continue to operate even after the expiry of lease. Reference is made to Mrs. Zarina Khawaja v. Agha Mahboob Shah PLD 1988 SC 190 and Syed Asghar A.I imam v. Muhammad A.I PLD 1988 SC 228.
22. 1985 CLC 1429 wherein learned Judge in chambers at page 143 held:-- "The legal position that emerges from the above authorities is that in the case of ejectment filed under the Rent Ordinance, the successful ply clot go in appeal in respect of the points decided against such party, as the said party cannot be regarded to have been aggrieved by the order of the Rent Controller within the meaning of the said Ordinance. There is no provision in the Rent Ordinance enabling such party to file cross-objections with regard to the decision of the Rent controller on the points decided against the said party. However, the said party can agitate the points decided against him in course of hearing of the appeal filed by the aggrieved party, while supporting the order passed in its favour."
23. Accordingly, I have considered the arguments of Miss mehrunnisa, learned counsel for the respondents in appeal filed by the appellants/tenants in F.R.A. No-573 of 1992. In view of my findings on both the issues, Appeal No.573 of 1992 is dismissed, so also F.R.A. No.601 of 1992 is dismissed being incompetent in view of the observations made above. Accordingly, appellants/ tenants Habib Limited are directed to hand over vacant possession of the premises in question to the respondents/landlords within 120 days from the date of passing of this order subject to deposit of rent for the said period.