' This appeal by tenant calls in question an order passed by learned Additional Controller of Rent, Clifton Cantonment, Karachi (hereinafter referred to as 'Rent Controller') ordering ejectment of appellant-tenant on the grounds of default, and personal use by the landlord vide order dated 28- 12-1991 under the Cantonments Rent Restriction Act, 1963 (hereinafter referred to as an Act of 1963).
2. Briefly the facts of the case are that the appellant was inducted as tenant by the late landlord Wing Commander Khalidur Rehman since 1st February, 1975. After his death on 5th October, 1988 the respondent claims that the appellant has not paid the rent since July, 1988 and she further claimed that the premises are required by her for her personal use in good faith and filed such application before the Rent Controller under the Act of 1963 on 12th December, 1989. The appellant resisted the said application for ejectment and stated that the rate of rent is Rs,500 per month now, rent for the month of July, 1988 to 31st December, 1988 was paid by Pay Order, dated 17th July, 1988 which was en cashed by the late landlord in his lifetime. The rent from January, 1989 to June, 1989 was tendered through Pay Order dated 25-1-1989 and sent through registered A/D post but the same was refused. Thus vide money order dated 31-1-1989 the rent was tendered in the name of late landlord but was refused; the rent was sent for the month of January, 1989 again through another money order for Rs,3,000 dated 6-3-1989 for six months but the money order came back with the remarks that landlord died, and then on 5th July, 1989 vide money order for Rs,4,000 was sent to the present respondent which was refused. Thereafter, an application was filed before the Rent Controller seeking permission to deposit the rent before the Rent Controller and initially a sum of Rs,3,500 was deposited, and thereafter, the rent was deposited by the tenant. Personal bona fide need ground was denied as well.
3. The learned Rent Controller framed the following five issues:--
(i) Whether the application as framed is not maintainable in law?
(ii) Whether no relationship of landlord and tenant exists between the applicant and the opponent?
(iii) Whether the opponent has committed default in payment of rent- by failing to pay rent from July, 1988 to November, 1989?
(iv) Whether the applicant bona finely needs the premises for per personal use?
(v) What should the order be?
' The respondent examined herself and her brother-in-law Mr. Habibur Rahman, while the appellant examined himself, Shahid Asghar, Sikandar and Abid Rahim. In addition, the Post Master and Postman of Defence Post Office and Jamshed Ali Kazmi an officer of United Bank Ltd. Were examined. The learned Rent Controller on assessment of evidence came to the conclusion. That the application is maintainable he held that the relationship of landlord and tenant exists between the parties, held further that default has been committed and further stated that premises are needed for the needs of landlady, therefore, allowed the application for ejectment vide impugned order.
4. While assailing the impugned order Mr. Mohsin Tayabally, learned counsel for the appellant contended that in view of the evidence no default has been committed by the appellant; that the premises were let to be used as restaurant and since no notice has been given for two years, therefore, by virtue of proviso to section 17(4) ejectment for bona fide use was not maintainable.
5. Mr. M. Ziauddin Qureshi, learned counsel for the respondent stated that default is provide. The proviso is not applicable. The personal bona fide need is established and, therefore, the impugned order is just and valid and no exceptions are called for.
6. I have given anxious consideration and have gone through the record with the assistance of learned counsel and came to the conclusion that the impugned order does not call for exceptions; as such dismissed the appeal with no order as to costs for reasons to be recorded separately.
These are the reasons for passing such order:
(a) On the issue of default, the respondent in para.4 gave details that the rent was not given since July, 1988. She further stated that the late landlord died on 5th October, 1988 and such intimation of his death was published in daily Dawn but no efforts were made by the tenant to pay the rent.
(b) Against this evidence, the appellant has established on record that the rent for July, 1988 to December, 1988 was tendered through Pay Order duly en cashed by the late landlord in his lifetime.
Such evidence came through the Manager of United Bank Ltd. I would accordingly hold that there is no default for payment of rent from July, 1988 to December, 1988.
(c) However, it remains to be seen whether any default was committed for payment of rent for the month of January, 1989 to November, 1989. From the record it appears that Pay Order dated 25-1- 1989 for Rs,3,000 on Allied Bank Ltd. Was prepared in the name of late landlord and it is alleged that the same was sent but returned with remarks 'refused to receive'. Thereafter, there is money order for Rs,500 being the rent for the month of January, 1989 which was also refused. The money order was sent in the name of late landlord. On 6th March, 1989 another money order for Rs,3,000 was sent in the name of late landlord. This money order came back on 13th March, 1989. The remarks are that 'this gentleman expired, hence returned'. This in my view, is a turning point for default, even if I were to ignore that the respondent did not inform the appellant that the original landlord died.
Thereafter, the rent was tendered in the name of present respondent on 5th July, 1989 through money order, endorsement is made on this money order that the appellant came to know yesterday that the original landlord expired. Such endorsement even the learned counsel conceded is false as the intimation regarding death was received or conveyed to the appellant when money order, dated 6th March, 1989 was returned on 13th March, 1989 with the specific remarks that the addressee expired.
(d) The provisions for the ejectment are the ground of default are stated in section 17(2)(i) of the Act of 1963 and such provision of law reads as follows:
(i) the tenant has not paid or tendered the rent to the landlord within fifteen days of the expiry of the time fixed in the agreement of tenancy for payment of rent, or in the absence of such agreement, within sixty days following the period for which the rent is due.
(e) Assuming for the sake of argument that the tenant paid the rent through money order for January in the name of late landlord which was refused. According to the above provision of law, the rent for the month of February, 1989 is due by 1st March, and should be paid within 60 days i,e, up to 1st May, 1989. It was sent on 6th March, 1989. The money order came back with the endorsement that the addressee (the late landlord) died yet no effort was made to tender the rent until 5th July, 1989 and that too with fake and false endorsement that the tenant came to know only yesterday (i,e, on 4th July, 1989) that the original landlord expired as such rent was tendered in the name of the present respondent-landlady. Even Mr. Mohsin Tayabally conceded that the endorsement of appellant regarding information of death of landlord is untrue and not sustainable on record.
(f) However, Mr. Mohsin Tayabally stated that from the office of Defence Authority he came to know that the property was transferred in the name of present landlady as such the rent was sent in her name on 5th July, 1989. From the record I find that the property was transferred in the name of landlady on 24th July, 1989. No document was produced by the tenant which may reveal that the Authorities may have transferred the property in her name which may be the basis of information to the tenant. Such plea urged by Mr. Mohsin Tayabally is not sustainable on any piece of evidence, as such cannot be entertained.
(g) From the record it appears that the respondent and her witness (brother of late landlord) have stated on oath that they informed the tenant that the landlord expired, yet no efforts were made to tender the rent to the respondent. Consequently on the strength of evidence on record I would hold that deliberate default in payment of rent has been committed for which no justification exists, and consequential order of ejectment does not call for any exception.
(h) Reverting to the ground of personal need Mr. Mohsin Tayabally urged that by virtue of proviso to section 17(4) two years' clear notice is required but the same was not given, as such order of ejectment is not sustainable in law. The proviso relied upon reads as follows:-- "(4) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession,--
(a) in the case of a residential building, if--
(i) he requires it in good faith for his own occupation or for the occupation of any member of his family; and
(ii) he or the member of his family, as the case may be, is not occupying any other residential building suitable for his needs at the time, in the Cantonment area concerned or in any local area in the vicinity; thereof, and
(iii) he or the said member has not vacated such a building in the said area or vicinity without sufficient cause after the commencement of this Act; and
(b) in the case of a commercial building, if--
(i) he requires it in good faith for his own use; and
(ii) he is not occupying in the Cantonment area concerned or in any local area in the vicinity thereof in which such building is situated for the purposes of his business any other such building suitable for his needs at the time; and
(iii) has not vacated such a building in the said area or vicinity without sufficient cause after commencement of this Act."
' Provided that where the tenancy is for a specified period agreed upon between the landlord and the tenant, the landlord shall not be entitled to apply under this subsection before the expiry of such period: ' Provided further that when the landlord has obtained possession of a residential or a commercial building under the provisions of sub-clause (a) or subsection (b) he shall not be entitled to apply again for the possession of any other building under that sub-clause, unless the building of which he had previously taken possession has become unsuitable for his needs: ' Provided also that this subsection shall not apply to Serais, hotels, dakbungalows, lodging-houses boarding-houses, residential clubs, restaurants, eating-houses, cafes, refreshment rooms and places of public recreation or resort or premises dealing in sales or production of materials of books of educational and culture values except where the landlord requires any such building to carry on any such business of his own, in which case, he may make an application under this subsection after having served two years' notice on the tenant; but no building which is not, on the commencement of this Act, being used for any of the aforesaid purposes, or has not after such commencement been let out expressly for any such purposes, shall be converted to any such purpose except with the consent, in writing of the landlord." (Underlining is mine).
(i) There is no evidence on record that the premises were let out for such purpose expressly, even in the written statement no such exceptions were pleaded. On the contrary in evidence of appellant partner of appellant's) it has been clearly stated that the tenancy was oral and no agreement between me and deceased landlord Khalilur Rehman was executed."
(j) In view of this categoric statement I would hold that the premises were not expressly let out for the purpose of running restaurant, as such proviso is not attracted.
(k) The respondent in view of her evidence for personal need established on record and also in view of the fact that the proviso to section 17(4) of the Act of 1963 is not attracted and the tenant is not entitled to the two years' notice, I would hold that the impugned order on this score also does not call for any exceptions too.
' No other contention was urged. After the order was passed dismissing the appeal, learned counsel for the appellant sought time to 'hand over the possession. He was granted time till 31st August, 1997 to hand over possession to the respondent landlady and in case of default, the writ of possession shall be issued without notice.