1. This rent appeal is directed against the order dated 23-10-1993 passed by the Additional Controller of Rents, Clifton Cantonment, in Rent Case No,38 of 1992, whereby he allowed the application filed by the respondent against the appellant for his eviction from the shop premises in question and directed the appellant to vacate the premises within sixty days.
2. The respondent as one of the co-owners of the shop situated on Plot No,76-C, 'A' Commercial Area, Phases II and III, Defence Housing Authority, Karachi, filed the aforesaid rent case against the appellant seeking his ejectment from the premises on the grounds that the appellant had failed to pay rent for the premises for the month of February, 1992 and subsequent months and that the premises was required by the respondent for her own use. The case was contested by the appellant and the parties examined themselves in support of their respective cases. Respondent's eviction application was ultimately allowed by the impugned order.
3. The first point urged by Mr. Mumtaz A. Shaikh, the learned counsel for the appellant, was that the eviction application was filed by the respondent before the Additional Controller of Rents who had no jurisdiction to entertain the same, as under section 6-A of the Cantonment Rent Restriction Act every application for eviction under that Act had to be filed with the Controller of Rents and it was then for the Controller either to hear the case himself or to assign it to the Additional Rent Controller.
4. Mr. Muhammad Afzal, the learned counsel for the respondent, denied that the eviction application had been filed with the Additional Rent Controller. He submitted that though in the title of the application the Court mentioned is that of Additional Controller of Rents, that was so, as almost invariably the Controller of Rents assigned the case to the Additional Controller of Rents for trial. He submitted that as a matter of routine eviction applications are accepted only in the office of Controller of Rents and thereafter, it is assigned to the Additional Controller of Rents. In the present case too, he contended, that the application was submitted in the office of the Controller in the normal course who then assigned it to the Additional Controller of Rents, as was evident from the stamp and signature of the Controller in the margin of the first page of the application followed by that of the Additional Controller of Rents to whom the application had been assigned. He submitted that had this objection been raised in the trial Court he would have called for the concerned officer to prove his contention".
5. I agree with the contention of the respondent's counsel that this is a mixed question of law and fact and should have been taken up before the trial Court so that the respondent had opportunity to produce evidence to meet the objection. As the position stands now, it does appear from the stamps and signatures in the margin of the first page of the eviction application that it was first placed before the Controller of Rents and then assigned to the Additional Controller, for, had this not been so there could be no occasion for the Controller to put his stamp and signature on the application.
6. Next it was contended by the appellant's counsel that the appellant had not committed any wilful default in the payment of rent and that rent was offered by him but the respondent herself did not accept the same as she was then very busy in looking after her ailing husband, as such, the rent was sent to her through money order but that too was refused. This, he stated was apparent from respondent's following admissions in her cross-examination:-- "It is correct to suggest that I have been collecting accumulated rents for number of months on numerous occasions in the past." and, "It is correct to suggest that the payment of accumulated rent was due to my involvement in the treatment of my husband till he died on 22-5-1992." and further "I did not receive the money order of rent for the months of February, March, April, 1992."
7. The counsel submitted that it was obvious from above admissions that the accumulation of rent was due to respondent's own failure to accept rent regularly by reason of her remaining busy in connection with her husband's illness. He argued that where default is committed by reason of acts of the landlord or where the landlord creates difficulties in the way of payment of rent by the tenant, the default cannot be considered as wilful and cannot be a ground for eviction. Reliance was placed on the cases of Inayatullah v. Zahoor-ud-Din and another (1987 SCMR 1313) Dost Muhammad v. Mst. Ramzan Bibi and 9 others (1990 MLD 1667).
8. In the first case, it seems that at the time the eviction application was filed the tenant was not in arrears of rent and on evidence the learned Court found that the landlord created difficulties in the way of the tenant, by not accepting the rent, that the landlord failed to prove default, that as soon as the rent was refused by the landlord the tenants started depositing it with the Rent Controller and that there was no element of negligence on the part of the tenant.
9. In the other case, it appears that not only the alleged default in payment of rent had become time- barred but that the said rent had been offered by the tenant but was refused. On the facts of that case the learned Court found that the tenant was not liable to eviction.
10. There is no dispute that rent for the shop was not paid to the respondent after January, 1992, but, the case of the appellant is that rent for the month of February and subsequent months was offered by him to the respondent which she refused to accept and later the rent tendered through money-order too was not accepted, consequently the alleged default being the result of respondent herself creating difficulties in the way of the appellant, she was not entitled to take advantage thereof. In so far as the money order is concerned, it is true that this was refused by the respondent, but, perhaps, no exception can be taken to such refusal as by the time the money- order was admittedly dispatched on 9-6-1992 default had already occurred in respect of rent for the months of February and March, 1992. However, I am unable to agree with the plea that the respondent had admitted in her cross-examination that she refused to accept the rent when tendered personally before it was sent through money-order. The portions of the respondent's cross-examination relied upon by the appellant's counsel in support of the plea do not at all support him. On the contrary, the cross-examination shows that the appellant was not regular in payment of rent and on some occasions accumulated rents were paid but as the respondent was preoccupied in connection with the illness of her husband she "could not notice the deviation in the payment of rent". It was not even suggested to the respondent during her lengthy cross- examination that rent had been offered to her in time but was refused by her. In fact, it appears from the concluding portion of the cross-examination that the suggestion made to her was that under law there would be no default if rent is deposited in Court or remitted by any other mode, to which she replied that, "I am not aware of the legal position there is no default if the tenant deposit the rent in the Court or remits the rent to the landlord by any other mode."
11. Had the rent been offered by the appellant personally in time and refused by the respondents as alleged, there could be no justifiable reason for the inordinate delay in sending money order. As such, it is not possible to agree with the contention that he respondent created difficulties in the way of payment of rent by the appellant. The cases cited by the respondents are clearly distinguishable. On the basis of the material on record in my view, the appellant is liable to be evicted on the ground of default in payment of rent.
12. As to the ground of personal requirement of the respondent, appellant's counsel's submission was that such ground had to be established by cogent evidence and mere desire or even statement on oath that the landlord needed the premises for his own use was not enough for the eviction of the tenant. It was submitted that where the premises was required for business purpose the landlord not only had to disclose the details of the business that he proposed to establish in the premises but had also to how that he had necessary experience in such business and funds for setting up the same. Support for the proposition was sought from the cases of Mukhtar Ahmed v. Muhammad Saleem Bukhari (1991 CLC 1047); Muhammad Aslam v. Muhammad Aslam (1987 CLC 686); Malik Islam Akbar v. Mustafa Hussain (1992 CLC 1753); Messrs Bara Imam Bara Trust v. Messrs Hakim & Co. (1992 CLC 2235); and Muhammad Azizullah v. Abdul Ghaffar (1984 CLC 2837).
13. It was argued that here the respondent landlady failed to make out the ground of personal requirement of the premises for her own use, as she did not produce any evidence about the availability of funds for establishing the proposed business and admitted in her cross-examination that she had neither any business experience nor was skilled in the tailoring work proposed to be carried on in the premises.
14. ' It is not possible to agree to the learned counsel's contention that above criteria would be of general application to be applied in every case where the landlord requires the premises of his own use. I think no hard and fast rule can be laid down with regard to the evidence that the landlord should produce to prove his case of personal requirement of a premises for his own use.
15. May be in a case where huge capital is needed for the setting up of the proposed business, evidence on availability of the requisite funds may be of importance. Similarly, where the work to be carried on in the premises is of technical nature and to be done by the landlord personally, his experience and skill in the work may be relevant. Normally, in a case where the capital required for starting the business is small mere failure to state that the landlord had the necessary funds for the business would not be of much consequence. Likewise where the proposed business is to be of general type, not involving any technical know-how or where the technical work is to be performed by skilled and experienced employees, landlord's lack of experience or skill in the work would not be significant. It was held in the cast of Mst. Saira Bai v. Syed Anisur Rahman (1989 SCMR 1366) that, "Regarding the non-mentioning the nature of the business in application it may be observed that an applicant has to state in his application, the material facts i,e, facts which constitute cause of action. In a case of present nature the applicant has to state those facts which prima facie show that the requirement is according to law, and is made in good faith. This has been so stated in the application. It is not essential as it is not part of the cause of action to state the nature of business which the applicant intends to carry on. Take a case where the applicant states in the application that she requires the shop for her son for carrying on a particular business but lateron pending hearing of the application or after eviction of the tenant, the applicant thinks that the business can no more suitably on profitably be carried on in the shop, the question might arise, could be change the nature of business or not? The choice of doing a particular business also depends on many other factors such as the nature of the locality or the nature of business being carried on in other shops in the neighbourhood. It also depends on the flow of customers and class of people residing in the area. Therefore, if there is any change in circumstances, the nature of business could also be changed. Accordingly, the answer would be that the applicant could change the nature of business with the change of circumstances because in law no restraint or bar is provided.
16. Therefore, the mentioning of the nature of business was not a material fact or so essential that without it the application must fail."
17. Reference may also be made to the case of Hassan Khan v. Mrs. Munawar Begum (PLD 1976 Karachi 832) where the mode of assessing the bona fide requirement of the landlord has been laid down in the following words, that the assertion or claim on oath by the landlord that he required the premises for his personal use, should be accepted by the Rent Controller as bona fide, if such claim or assertion, although by itself may be insufficient, yet is consistent with his averments in the application and is not shaken in cross-examination or disproved in rebuttal."
18. The above opinion was approved by the Supreme Court in the case of Mst. Toheed Khanum v.
19. Muhammad Shamshad (1980 SCMR 593).
20. In the present case, the respondent landlady specifically stated in paras. 4 and 6 of her eviction application that, "4. That the Applicant's husband died on 22-5-1992, as such, she urgently needed the said shop in occupation of the Opponent for her personal use to start her own business of tailoring in the said shop."
21. "6. That the applicant's demand for personal use of the said shop is bona fide and in good faith and she has no intention to let-out the said shop to any other person on higher rent. The Applicant is not occupying any commercial premises inside or outside the Cantonment area or have vacated any such premises.
22. She reiterated the. above averments in her affidavit-in-evidence and remained unshaken in her cross-examination. In reply to a question about her skill in the proposed work she stated that- "That I do not have the skill but I will hire the tailors for the purpose and supervise the same."
23. Respondent's failure to mention anything about the availability of funds for the proposed business is insignificant in the circumstances of the present case, for, having regard to the nature of the proposed business it is obvious that only small capital was required. The upshot of the above discussion is that the respondent landlady has established that she requires the said shop in good faith for her own use, and therefore, the appellant is liable to be ejected therefrom and the respondent is entitled to be put in possession thereof.
24. In the result, this appeal is dismissed and the appellant is directed to handover vacant possession of the said shop to the respondent within 60 days provided the appellant continues to deposit the monthly rent of the premises with the Controller as is being done at present. In case of any delay or default in the deposit of rent or in handing over possession of the shop to the respondent, writ of possession would issue without notice.