1. The appellant being the tenant has filed this appeal challenging the order of the Rent Controller, Thatta, in Rent Case No,7 of 1993 whereby he allowed the ejectment application of the respondent and ordered ejectment of the appellant from the premises in dispute.
2. The brief facts of the case are that the appellant is a tenant of the respondent in respect of a shop situated on Plot No,40/2, Street No,76 Ward 'B' Thatta Town on monthly rent of Rs,800. The tenancy was created by agreement dated 11-1-1989 effective from 1-1-1989. As per clause No,6 of the said agreement vacant possession of premises in dispute was to be handed over to the respondent by the appellant after expiry of the period of agreement, which was for 12 months from 1-1-1989 to 31- 12-1989 but the appellant after expiry of the aforesaid period refused to hand over the vacant possession of the premises in dispute and on the intervention and requests of the Nekmard and relatives allowed the appellant to continue to be a tenant of the premises in dispute for a few months and the appellant started paying rent at the rate of Rs,1,000 per month. Subsequently, the respondent fell ill during the course of which he lost one of his legs as a result of which he became a disabled person incapable of doing any work. He asked the appellant to vacate the premises in dispute as he required the same bona fide and in good faith for his son Rehmatullah for starting some business on which the appellant got annoyed and stopped payment of the monthly rent from December, 1992 till April 1993. It was further stated in the ejetment application that the appellant removed the shutter/door of the shop valued at Rs,2,000 which materially impaired the value and utility of the premises in dispute.
3. The appellant submitted his written reply wherein he stated that the rent was enhanced to Rs,1,000 per month by the respondent. The appellant vehemently denied that the respondent ever asked him to hand over the vacant possession of the premises in dispute on the ground that the same was required by him for use of his son Rahmatullah for starting some business. He also denied to have stopped the payment of rent from December 1992 or to have committed default in payment of rent from December 1992 to April 1993. On the contrary, the appellant submitted that after payment/adjustment of rent till 30-11-1992 a sum of Rs,5,200 belonging to the appellant was held in credit by the respondent as on 1-12-1992 which was more than sufficient to cover the rent for the months of December 1992 to April 1993. Besides, the above a sum of Rs,10,000 as advance deposit was lying with the respondent. The appellant further stated that in April 1993 the respondent asked the appellant to pay rent Rs,2,000 per month to which the appellant did not agree and on his refusal to accept the enhancement in the rent the respondent issued threats of evicting him from the premises in dispute. The appellant also denied the removal of the shutter/door from the premises in dispute and submitted that no cause of action had accrued to the respondent for filing the ejectment application and the same was false, frivolous and without any substance.
4. The Rent Controller on the basis of the pleadings of the parties framed the following issues:-- "(1) Whether the opponent has made will-full default in payment of rent?
5. (2)Whether applicant required the premises for his personal bona fide requirement to settle the business for his son under good faith?
6. (3)Whether applicant is entitled for the relief claimed?"
7. The trial Court on the basis of oral and documentary evidence adduced by the aforesaid parties decided Issues Nos.1 and 2 against the appellant holding him to be a wilful defaulter and further holding that the premises in dispute was required bona fide and in good faith by the respondent for the use of his son for starting some business therein. On the basis of the finding on Issues Nos.1 and 2 the Rent Controller ordered ejectment of the appellant from the premises in dispute allowing him two months to vacate the same and for handing over peaceful possession thereof to the respondent. Feeling aggrieved and dissatisfied with the aforesaid order of the trial Court, the appellant preferred this rent appeal under section 21 of the Sindh Rented Premises Ordinance.
8. I have heard the arguments of Mr. K.B. Bhutto, learned counsel for the appellant and Mr. Kaimuddin A. Kazi, counsel for the respondent and have perused the material on record as well as the case- law cited by the learned counsel for the parties.
9. I will first take up the issue of default in payment of the rent. The trial Court had held the appellant to be a defaulter in payment of rent for the months of December 1992 to April 1993. The reasons given by the trial Court for its above finding are that as there was no evidence on record to establish the existence of the practice or agreement/acceptance by the respondent of the rent in lump sum for several months after having become due and payable instead of making payments regularly in every month as well as payment of rent for several or particular months in instalments and in the absence of such evidence it could not be held, as contended on behalf of the appellant, that the appellant had been paying the rent regularly in accordance with the provisions of the Sindh Rented Premises Ordinance and was not a defaulter. The above finding of the trial Court to say the least could never have been arrived at on the basis of the evidence adduced by the aforesaid parties. In this connection it is pertinent to note that the applicant/opponent had annexed a statement of account of payments paid from time to time during the period from 8-11- 1991 to 30-11-1992 as Annexure-A, according to which a total sum of Rs,14,200 was paid to the respondent/applicant and out of this amount, a sum of Rs,9,000 was adjusted/appropriated towards the rent up to 30-11-1992 in respect of the premises in dispute. A sum of Rs,52,000 was lying in credit with the respondent/applicant. The appellant/opponent made a specific assertion of this fact in para.6 of his affidavit in evidence but the respondent/applicant did not put any suggestions to the contrary during the course of cross-examination of the appellant/opponent and the above emphatic assertion has gone unchallenged and unrebutted and this fact is to be accepted as true and credible in view of the principle that if a specific assertion made by the witness material to the controversy of the case is not challenged in cross-examination by putting contrary suggestions then the same is to be given full credit and usually accepted as true unless displaced by reliable, cogent and clear evidence as per pronouncement of the Supreme Court in the case of Mst. Nur Jehan Begum v. Syed Mujtaba Ali Naqvi, reported in 1991 SCM R 2300. Reliance is also placed in the case of Luqman v. Yar Muhammad and 3 others, reported in 1985 CLC 2327. In view of the above position it is to be accepted that after adjustment of payment of rent by the appellant/opponent till 30-11-1992, the respondent/applicant was holding in credit a sum of Rs,5,200 which was sufficient to cover the rent for the months of December 1992 to April 1993, which was the alleged period of default. After appropriating/adjustment of the rent due for the months of December 1992 to April 1993, the respondent/applicant would still be holding a credit balance of Rs,200 on behalf of the appellant/opponent. The reasoning advanced by the trial Court that from perusal of said Annexure-A, it transpired that neither the appellant/opponent had paid the rent regularly in each month as he had made payments of lump sum amounts after the rent for several months had become due and was not paid by him or that he had made part payments of the rent instead of the payment of entire agreed rent, which act of the appellant/opponent amounted to a default as he failed to adduce any evidence to establish the existence of practice according to which the respondent/applicant had either consented or agreed to accept rent in lump sum after it had become due or acceptance thereof in instalment or part payment instead of entire agreed rent, is absolutely devoid of force and cannot be sustained in view of the established fact, from the material on record, that a sum of Rs,5,200 was lying in credit with the respondent/applicant after adjustment/payment of rent till 30-11-1992, which was more than the total amount of rent for the default period, i,e, December 1992 to April 1993. Therefore, the allegation that rent was paid in lump sum for several months after it had become due or that it was paid by way of short payments or in instalments is not applicable in respect of the default period. Apart from the above, there is also evidence that a sum of Rs,10,000 was lying in credit with the respondent/applicant by way of advance. Even, if it is to be presumed as suggested by Counsel for the respondent that a sum of Rs,5,200 was not lying in credit with the respondent/applicant, there is no denial of the acceptance of the sum of Rs,10,000 by way of advance payment at the time when the tenancy period was extended by the respondent/applicant allegedly on the advice and intervention of the no nekmard and other people. From the aforestated facts and discussion the only possible conclusion or finding which can be had is that the appellant/opponent did not commit default in payment of rent of the premises in dispute for the alleged period of default from December, 1992 to April 1993. It will be appropriate to refer here to case of M.K. Muhammad and another v. Muhammad Abu Akram (1993 SCM R 200). In this case the Supreme Court pleased to hold that where the landlord was holding amount more than the amount of arrears of rent, which he was not entitled under the law to receive from the tenant, the tenant could not be held to be a defaulter. The trial Court in holding the appellant/opponent to be defaulter had completely over-looked and ignored the aforesaid factual position and the peculiar circumstances of the case and had fallen in error in holding the appellant/opponent to be a defaulter. The above finding cannot be sustained and is set aside. The appelalnt/opponent did not commit any default in payment of rent for the alleged period of default.
10. Coming to the issue of personal requirement, the respondent had filed his affidavit in evidence wherein he reiterated the facts narrated in his ejectment application. During the Course of his cross-examination, he admitted that there was another shop adjacent to the premises in dispute wherein business of sweet meat was being run by one Ramzan who subsequently expired and the business was being carried on by his children who had conveyed to the respondent their willingness to vacate the shop whenever it was so demanded by him. This fact had neither been mentioned by the respondent in his ejectment application nor in his affidavit-in-evidence. If the tenants of the other shop had given an undertaking of vacating the shop as and when so demanded by the respondent, the question would arise as to why the respondent did not ask the tenants of the other shop to vacate and hand over the possession of the shop to him for use by his son Rahmatullah for carrying on some business and why he insisted to have the vacant possession of the premises in dispute after vacating the appellant there from. It is also pertinent to note that the respondent neither in his ejectment application nor in his affidavit-in-evidence made a reference as to what business was intended to be undertaken by his son Rahmatullah in the premises in dispute. The respondent did not examine Rahmatullah on whose behalf he was seeking evication of the appellant from the premises in dispute but examined his another son Hamidullah.
11. In his affidavit-in-evidence Hamidullah stated that he was unemployed and asked the appellant to vacate the premises in dispute as the same was required for starting some business to be run by him with the help of his younger brothers. In his cross-examination he stated that he wanted to run a hotel in the premises in dispute. He also admitted that his father owned another shop adjacent to the premises in dispute which was smaller than the premises in dispute and its possession was with the children of Ramzan Mithaiwalla, who was the original tenant and has expired. From the above evidence, it is borne about that neither the respondent has mentioned any specific business which was intended to be started by his son Rahmattulalh in the premises in dispute, nor as to for which of his sons the premises in dispute was required by him. Failure to mention or describe the nature of business to be started does not render the ground personal requirement as mala fide or non-existent as has been held by this Court in the case of M/s. Ibrahim Agencies v. M/s. Panorama Enterprises Ltd., reported in 1997 M LD 3035. However, this omission together with other factors and circumstances does raise a doubt with regard to the bona fide and good faith of the respondent.
12. According to the respondent his son Rahmatullah was jobless and roaming idle as such the premises in dispute was required for him so as to enable him to start some business. This version was, contradicted by another son of the respondent namely Hameedullah, who was examined in the trial Court and stated that he was jobless and not earning so as to meet the expenses of his family as such the premises in dispute was required by him for starting some business together with his younger brothers. The respondent has thus failed to establish as to for which son the premises in dispute is required by him. It is also in evidence that the premises in dispute measures about 200 sq. ft. (13' x 15'), whereas the other shop in possession of the children of Ramzan Methaiwalla measures about 400 sq. ft (30' x 13'). Thus, the other shop owned by the respondent, is almost twice the size of the premises in dispute. The learned counsel for the appellant submitted that the area of 200 sq. ft. was too small for running of hotel business as stated by the learned counsel for the respondent. He further submitted that it would be impossible to run a hotel in a shop of 200 sq. ft. and that the other shop measuring 400 sq.ft would have been much more suitable and appropriate for hotel business as it would have provided sufficient space to make room for cooking space/installation of a kitchen for preparation of food items as well as installation of even keeping crockery and cutlery etc. The learned counsel for the respondent was unable to give any convicting or satisfactory answer to the above arguments except that it was the discretion of the respondent to choose the property which he wanted to have for his personal use and law did not impose any restriction on his choice or discretion. There is no dispute with regard to the above proposition and the right of the landlord to choose the property which he wants to acquire for his personal bona fide requirement. However, in a case where the landlord owns more than one premises in the same area of locality then he has to mention this fact in his pleadings and give cogent and satisfactory reasons for his choice of the particular premises which he wants to have for his personal bona fide requirement. Furthermore, in view of the fact that the other premises being bigger would be more suitable, proper and spacious for/the business which was to be undertaken therein, and the tenant therein has agreed to vacate the same and hand over vacant possession therefor to the respondent as and when so demanded by the respondent, why the respondent chosed to eject the appellant from the premises in dispute and insisted on vacating him. In the case of M/s. Ibrahim Agencies v. M/s. Panorama Enterprises Ltd. (supra) this Court observed that withholding of information about landlords occupation of another premises in the same building, in the first instance, and then failing to explain as to why premises already in his occupation was not suitable for his needs, would cast serious doubts on his bona fide. Another factor which also adversely reflects on the bona fides and good faith of the respondent is that besides the ground of personal bona fide requirement, the respondent had also taken the ground of default in payment of rent as well as damaging the property and impairing its value and utility.
13. The ground with regard to impairing the value and utility of the shop in dispute was given up and not pressed by the respondent as no issue to this effect was framed by the trial Court. Apparently it would appear that the issue with regard to imparing the value and utility of the premises in dispute was given up and not pressed as there was no substance in the ground and the same was raised solely for the purpose of adding to the grounds for seeking ejectment, without therc being any truth or substance in it. The ground with regard to the commission of wilful default by the appellant has already been held by me to be a false and frivolous ground without there being an iota of truth and was raised solely with a view to seek ejectment of the appellant at any cost and on any ground.
14. Another aspect which also damages the case of the respondent with regard to requirement of the premises in dispute for his personal bona fide requirement in good faith is the averment made by the appellant that the , respondent was seeking his ejectment from the premises in dispute solely as he refused to increase the rent of premises in dispute from Rs,1,000 to Rs,2,000 per month as desired by the respondent. In this context, it is pointed out that the appellant in his written reply as well as in his affidavit in evidence unequivocally and emphatically stated that the respondent asked him to increase the rent from Rs,1,000 to Rs,2,000 and on his refusal to agree to his said desire he filed the aforesaid ejectment application. This assertion of the appellant was neither denied by the respondent in his affidavit-in-evidence nor suggestions to the contrary were put to the appellant in his cross-examination and the same has gone unchallenged and unrebutted resultantly it is to be accepted as true and it very adversely offects the case of the respondent with regard to the ground that - the premises in dispute was required by him for his personal requirement bona fide and in good faith, On the ground that if a witness deposes to a fact in examination-in-chief and the authenticity of such fact is not questioned or challenged in cross- examination, the logal presumption would be that said fact has been admitted by the party against whom the same was made. For the above reliance is placed on the cases of: (i) Mst. Nur Jehan Begum v. Syed Mujitaba Aali Naqvi, (supra); (ii) Luqman v. Yar Muhammad (supra); and (iii)
15. Kaleem Ahmad and others v. The State reported in PLD 1993 Kar. 13.
16. In the circumstances, the respondent has failed to establish that the premises in dispute is required by him for his personal bona fide requirement and in good faith for the use of his son and the finding of the trial Court in holding that the respondent has succeeded in establishing his personal bona fide requirement in respect of the premises in dispute cannot be sustained.
17. From the material on record the appellant can neither be held to be a defaulter in payment of rent for the alleged period nor the porsonal bona fide requirement of the respondent in respect of the premises in dispute can be established and the ejectment application filed by the respondent warrants dismissal.
18. By a short order dated 24-9-1997, this appeal was allowed and the ejectment application was dismissed for reasons to be recorded later. The above are the reasons for the same.