' This appeal is directed against the order dated 15th March, 1993 passed by the VI-Senior Civil Judge/Rent Controller, Karachi South whereby ejectment application filed on 31-5-1980 by the appellant under section 15 of the Sindh Rented Premises Ordinance, 1979 was dismissed.
2. Briefly stated the facts of the case, relevant for the purpose of this appeal, are that Iqbal Ahmed, the predecessor-in-interest of present appellants filed an application under section 15 of the SRO, 1979 on 31-5-1980 against Irshad Ali Shah the predecessor-in-interest of the present respondent on the grounds of default in payment of rent and personal bona fide requirement seeking his eviction from the house bearing No,1/1 of A.M. 23 situated in Artillery Maidan, Karachi. The rate of rent was Rs,25.50 and it is the case, of applicant/landlord that the tenant Irshad Ali paid rent to him for the months of March, April, May and June, 1973 for which receipt dated 10-4-1973 was duly issued to him and thereafter he paid Rs,150 and Rs,100 by way of bearer cheque and cash respectively for which receipt could not be issued by the applicant as he fell seriously ill while Irshad Ali the opponent did not care to collect the same though he was repeatedly reminded through applicant's son. In this way the opponent/tenant paid full rent up to March, 1974 while the rent paid for the month of April, 1974 was Rs,5.50 short of the rent due. It is alleged that Irshad Ali failed/avoided and neglected to pay or tender the rent to the applicant from May 1974 and onwards, besides the arrears of Rs,5.50 for the month of April, 1974.
3. Prior to this, on 5-9-1975 applicant Iqbal Ahmed had filed Rent Case No,3249 of 1975 in the Court of XVI-Civil Judge, Karachi for ejectment of Irshad Ali which was dismissed ex parte on 19-2-1979 against which the applicant preferred Rent Appeal No,199/79 in the Court of District Judge, Karachi.
The opponent contested the said appeal and filed his counter-affidavit in which he disclosed that he has filed a Miscellaneous Rent Case No,3712 of 1975 in the Court of learned Rent Controller wherein he has deposited the rent up-to-date with the Nazir of the Court. Consequently, Iqbal Ahmed withdrew the said appeal.
4. Regarding the ground of personal bona fide requirement the applicant's case is that his three sons were married but he had to arrange marriage of his other two grown-up sons in near future, as such, he required the premises in good faith for his own occupation and use as also for the occupation and use of his sons. The applicant further mentioned in the ejectment application that prior to Rent Case No,3249 of 1975 he had filed D.W. Proceedings and had also filed a rent case which was compromised and the proceedings were dropped.
5. Irshad Ali contested the ejectment proceedings and filed his written statement on 23-7-1980, and while admitting the relationship of landlord and tenant explained that he has been residing in the said house for last 31 years much before the applicant purchased it from the Settlement Department. Regarding the payment of rent, he took the plea that he had paid rent up to February, 1975 but the applicant did not issue rent receipts. According to him, the applicant used to collect rent in lump sum for several months but after February, 1975 he did not come to collect rent and since the opponent did not know the address of applicant he filed Miscellaenous Application No,3712/75 for payment of rent and then he deposited the rent up-to-date in the Court.
Additionally, while completely denying the allegation of default in payment of rent, he pleaded that he had paid Rs,250 to the applicant for his operation and Rs,250 for purchasing sewing machine but the said amount was not adjusted by the applicant towards rent. He did not deny the fact of Rent Case No,3249/75 and Rent Appeal No,199/79. He took the legal plea that no permission was granted to the applicant to file fresh rent case, hence ejectment application was not maintainable and barred by res judicata. As regards the personal bona fide requirement of applicant he denied same and explained that the ejectment proceedings have been initiated in order to extort higher rent as the applicant demanded exorbitant increase in rent which was not acceded, to by him, whereafter the applicant avoided to accept the agreed rent.
6. In the proceedings applicant's son Abrar Ahmed (appellant No,4) filed an affidavit-in-evidence on which he was cross-examined and in rebuttal opponent Irshad Ali filed his affidavit-in-evidence who was also subjected to cross-examination.
7. On the basis of the pleadings of the parties, learned Rent Controller framed following points for determination:-- "(1) Whether the opponent has committed wilful default in the payment of rent, If so, since when?
(2) Whether the premises in question is required by the applicant for their personal bona fide use ?
(3) What should the order be?".
8. After examining the evidence on record and hearing the counsel for parties the learned Rent Controller held that neither the opponent had committed wilful default in payment of rent nor the premises were required by the applicant/landlord for his bona fide use, and dismissed the application.
9. I have heard learned counsel for the parties and perused the record.
10. After filing of this appeal respondent Irshad Ali Shah died, therefore, his L.Rs, were joined as respondents Nos.1 to 5.
11. As regards the, crucial controversy relating to the point of default in {{BLUR PAGE}} payment of rent the learned counsel for appellants argued that admittedly-therent has been deposited in Court through Miscellaneous Rent Application No:3712:Of `1975'fee the period commencing from March 1975, whereas, it ,is-. The Usentif lartillefilia0ellatits that the tenant paid rent up to April, 1974 and diffitlie rent ftiftliciiiiiitiref April, 1974 was Rs,5.50 short of rent due andlor theitnerveningiieriod from May, 1974 to Febitary, 1975 there is only. Assertion, cii9i4ienint that he had paid the rent and in fact, no proof hasbeenfuntishedft0 p4Ove' ::pitythent of rent for this period as also for the balance:of rent fon,the April, 1974 but the learned Rent Controller without recording Aelear aittl'i*press finding on this point as switched on to the legal,,point-,:eltatilthe 16idliird is entitled only to claim ejectment miltheground of three years! Default, which when &ranted from the date of filing of the instant application commences front 1977, whereas, the tenant has been depositing rent since 1975, therefore, hasliEiaoinmitted any default in payment of rent. Learned counsel for the appellaiiit relying on Badruddin v. Muhammad Yonsufi,1994 SCM R 1900, Pervaiz Akhtar V. The AD.I, RawalpindiPLD-1990 SC 6gl'and,--C.Ihulain Rasool v. Muhammad Iditet'Qureshi 19894,CLC 279 submitted that the :conclusion arrived at by the-learned Rent Controller was misconceived in lawiias the superior Courts have clearly held tharlandlerd was not-precluded froritSeeking ejectment on the basis of tithe-barred rentAltecording- to himithiC-Xvatil trl t% case of default in payment of,,refiti,it egaidingthealleged.Paylienrof lis.500 as loan to the landlord he submitted that;`m'thtfiiirst insti#6e, 'h0!eOsAehce.,cOuld satisfactorily be; produced to SubStantiate ti,n0qtri't of fatt ancl'q:the same nothing could lierbrought on releord that there agreetnent idiajtist such an amount towards rent if at all, such payment is presutai tolilVe` been made. On the other hand, the learned counsellor thereeposikuUsubmitted that the earlier Rent Appeal No,199 of 1979ivos1iled under usama trapper otWest, Pakistan Urban Rent Restriction Ordinance, which was dismissed as withdrawn and since there was no spedfit tterrithilon` to file a 'TieSli cas4;"iiii hiitant ejectment application was not maintainable.
However, he' reiterated` the stand taken by the tenant/respondents that the rent is being demIstted by them hence; the ground of default in payment of rent for the purpose of eviction is not tenable in law as it is time-barred. Referring to the answer given by the appellant's witness, during his cross-examination; he pointeckoutithat Abrar Ahmed son of the applicant, Iqbal Ahmed had stated that he did not know if the tenant paid rent up to 1975 and in view of this version he contended that there fact, no denial 'of payment of rent tipLre 1975.
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12. I have carefully -considered these contentions inivititOofitheflatcAltitt- down by the superior Courts. On factual side it is an admitted position:that the tenant adopted the course of depositing rent in Court'ilirOtigh MisCellaneeus Rent..Applicatiop Noi;27i102/75 for the, period commencing, fromoMorch, 1975, A therefore, he was'under a legal obligation to furnish trustworthy and- substantial proof regarding payment of rent for the earlier period. The landlord has been agitating 'Since the earliest opportunity. That) the tenant, havfailed ft-Wpaykreni for {{BLUR PAGE}} {{PAGE BLUR}} thepesiod from May, J:974 and onwards and even the rent for April, 1975 was tg.Rs,5.50. This fact, he had statFdin his earlier application for ejectment of the tenant, which was dismissed ex parte by order dated 19-2-1979. The explanation on behalf of the tenant is that the applicant/landlord used to collect renvilf,lurrip sumrfelr several months; -Whis,convenience and didnot (issue 'rent teteirks)altholigh he paid < rent up to,febrilaryi,i1W.5. The tenant Arshad Ali statekin hisaffidayit,,That he did not; know: of applicant, therefore, he 'filed Miscellaneous ApplicatiOntflar depoSiting of rent bearing No:3712/75 and then rent was deposited in Court. In fact:thelenant was required to take steps and; tender: rent
13. Coming to the question whether ejectment could be sought on PLD 1990 SC 681 and ifaikiddin v.
Nit atrlmad I otistif 199CS('l 900. In the,former basettlte41%,11119,14ppome:-Cgttrtpbseryed that lirnit*Op in personal action bars only, thetretbedy and does not extinguish the right itself and the fact that remedy is barred by the law of limitation does not itself eud the right to which)rernedy relates. It was held, that the "rent due" inclhdes4ipte-barred rent and time-barred rent does not:preclude landlord for the,ehlfbrcement of his right for evict* of his tenant on,the groundof default. ThAlanthoriz and a sin& clqiion of this,Court 1989 CLC127,?,yvere referred t9A,thg cw,reported 0:1afifil994 tIC,MR190(1,,liTkus, it stands ,w0Irsettled that the latidlbrd,eyen On thebasi.Of tishelharr*rolwould beAntitled,to file ejectment case on*.Groundt, of default underoserAign,15 pf the 4ift3r1h Rented Premises Qrdiwce, 1979.
A 14 `Thefekifigdi Rent Controller'tas, thus, cortihilited a serious error in ighoriiig'iggiiiiikfttles laid down by"ttli Hon'ble suOriii&COUrts. I ant'of the lconsidered Opt that the'114arnedlAt Controller wii)Oatistified to 4td1Qtng !That the landlord/apticant Was en only to claim bidettnent 'bn thellindidrbf in() Tit; ttrA,Ipini no up:-.1x..) W ..)411f,itwuroi ii,ko ?Id to '.7)10:11, {{PAGE BLUR}} three years' default and that ejectment could not be sought on the basis of default in payment of time-barred rent. Consequently, his finding on this point is set aside.
15. Primarily, tenant is under an obligation to prove payment of rent but in the instant case, the tenant has failed to furnish, as already observed in this judgment. a reasonable and satisfactory proof to establish payment of rent for the period from May, 1974 to February, 1975 as also Rs,5.50 for the month of April, 1974 he is as such, defaulter in payment of rent and, therefore, liable to be ejected on the ground of such default. The mere fact that the appellants' witness showed his ignorance about payment of rent, if any, to his father, would not absolve the tenant of his liability to prove such payment through substantial evidence.
16. A technical objection was raised by learned counsel for the respondents that the affidavit-in- evidence was inadmissible in evidence in view of the law laid down in Muhammad Bashir v.
Moinuddin (1990 CLC 703), therefore, the sole evidence being the affidavit of Abrar Ahmed be discarded and in consequence thereof it may be held that the appellants failed to produce any evidence at the trial. It has been held in the aforesaid case that since the witnesses who had filed their affidavits had admitted in cross-examination that they never appeared before the Oath Commissioner or before anybody for statement on Oath, the, affidavits shall be deemed to have not been attested in the appropriate manner and, therefore, the same could not be relied upon as evidence. In this context it is relevant to point out that learned counsel has relied on the version given by Abrar Ahmed in cross-examination which is in the following words:- " I signed this affidavit in Lachmi Building. There was no one else except my brothers where I signed this affidavit."
17. On a plain reading of the above version, it is clear that the question was confined to only signing of the affidavit and not with regard to other procedural formalities which are essentially followed in completing an affidavit up to the stage of its attestation. According to Black's Law Dictionary (Sixth Edition) an affidavit is a written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before a person having authority to administer such oath or affirmation. Thus signing of the affidavit by the deponent and its attestation by the Commissioner for taking affidavits are absolutely two distinct features in rendering an affidavit complete in all respects for the purpose of being used in evidence. The most significant aspect of an affidavit for its completion is that the deponent shall solemnly affirm the contents thereof before the Commissioner for taking affidavits provided that contents of such affidavit within the meaning of Order XIX, Rule 3, C.P.C. Shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted: provided that the grounds thereof are stated. In the present case, if such drawbacks were available in the affidavit the learned counsel cross- examining the witness should have specifically put such suggestion to the deponent that after signing the affidavit it was never sworn before a Commissioner for taking affidavits. For the purpose of deriving any benefit from the cross-examination of a witness on material points of fact, a party should ask specifically unreserved questions directly relevant to the issue. In the instant case, the question has been confined to signing of the affidavit to which the witness has simply replied that it was signed in the Luxmi Building and since there was no question about its attestation or swearing no plea can be admitted on behalf of the opponent that affidavit was not duly sworn. The case-law cited by the learned counsel for the respondents, therefore, does not help the case of respondents.
18. With regard to the ground of ejectment on the ground of personal bona fide use the learned counsel relying on Hasan Khan v. Munawar Begum PLD 1976 Kar. 832, Haji Abdul Majid v. Khawaja Kamaluddin 1994 M LD 958 and Saifuddin v. Mst. Sher Bano 1994 CLC 1131 submitted that the appellants/landlord have been able to place such evidence on record to prove that the premises was required for personal bona fide use of the landlord as his two sons were yet to be married while the accommodation available with them was not sufficient. While rebutting these arguments learned counsel for respondents relied on Zamir Ltd. v. Collector of Customs 1984 CLC 530 and submitted that the landlord should come to Court with clean hands. He further pointed out that the appellants' witness Abrar Ahmed submitted in cross-examination that they have the same family members as in the year 1974 and since there is no change in the family, relying on Chuttoo Bhai Panwala v. Mst. Sara Bibi 1984 CLC 1769 he argued that the personal requirement of landlord was ndt establis.Hed leading to their ejectment. The appellant's witness Abrar Ahmed has stated in clear terms that there are only three rooms in their house at Landhi and no suggestion has been given to him that rooms of that house are more than three.
19. Abrar Ahmed has stated in his affidavit that they required the premises in question for personal bona fide use of himself, his brother Anwar Ahmed and their mother Mst.Siddiqua Begum as she is living with him and Anwar Ahmed is supported by them. As against this, the suggestion given in cross-examination is that the landlord/appellants want to give the premises in question on rent after charging Pugri which, the witness has categorically denied. At the time of arguments learned counsel for the respondents stressed that admittedly in the area of Burns Road there is Pugri system, therefore, intention behind seeking ejectment is to let out the house in question on Pugri.
The learned Rent Controller has also given much weight to this contention. It can hardly be conceived that the law would permit to draw such a general conclusion that wherever Pugri system is available the intention behind seeking ejectment would {{Page Blur}} lbeinothing but to earnPug,vi by letting the. Premises again, after succeeding in evittionOf the tenant.- The Pugri tystem has never received legal recognition. =Each case is to be scrutinized looking to the exigencies- and tittainstances which may -Warram eviction' or Otherwise, hence in such areas thecases of landlords cannot-,bei -defeated ;solerrikto: the conjectural assumptioit- 'that'sthey'-would ultimately:)benefit by;-earning more Pugri, therefOre; the ejectment !Application 'shall-he struck down. The merits of the -case and not such iteehnicalities shall 'form basis of deciding the issues concerning ejectment of !Tenants. - - nvr 101 .!9.i.1(f9,: ,Iftz Si' ;iv&o 20, The :material on -record lends support to the plea of landlord that they honestly need:the premises!Fortheir' personal. Bona fide use in good On this point it has been held in Fasahat Ali v. Mst.Noor Jehan Begum 1991-CLC.1902 as under:- 617, alq ' "In a case involving-personal reittfirettitinficOVered- by section 15 of the Sindh Retnednitteilittes- Orditiattee; ti IiiiidlOrd'hisifat merely to di establiiIt' a case of personal 'Aided 'but has also te show thitt.'-'the !Sit P','(,tticiiiireitteitt or need is an 'hOrtett 'or- bona fide one.- Thus; wheree-a Owl ktildtbfid'had',failed. To establiah tiriy personal requirentent at all there ZEW fillWas no necessity to go into:the further question Whether or not 'good faith had-Wen- established In'tises where, however, the element of 301 petional requirement stood proved the Court could not automatically order eviction unless it further Satisfied itself that the requirement was V:16.1 'alki-artlionest and bona fide onefOr 'even where a requirement had been ettablithed the case nribtatliPiOn good faith not having been so ;f v f4fiti Aiii i?`011eiliffl 3fr-'
7;21-.q.z3The,authoritiesertiliet-upon by the learned' counsel for the appellants also lay ;doWn:more orlon the` same principles. In Abdul Majid v. Khawaja Katnaluddiri 1994 M1A :058 the -followin&bservations' were made by this Court with regard to ground of personal bona fide use:- ?5'6'111' ..SIFirti' IS Set4ld-1AW'that in case of personal requirement olere brit; owner owns more than onepropetti, the 'choice as to which premiiistte b"Ris(hatild'ilike for his needs lies with the owner/landlord. It is the of the' landlord to' choose the premises for his periOnal reqUireinent.' The laNiord islibejudge or the suitability of the premises t j'r: for his requireitietit-itn'd the' reliant- t-annot" hiVe the option to choose '541 d Witietepremises would be suitable for the the present case, thelek4dence of the respondent is quite conSisteiito* the case set up in the application for ejectMent. In these circumstances, I find no grounds' '' for interfering with the orders passed by the Rent Controller." tsrli 11-'2,2. The learned Rent Controller has found fault with the case of {{PAGE BLUR}} landlord/appellants on the ground that they have not examined their brother for whom the premises in question were required for personal bona fide use He has drawn a conclusion that the landlord had failed to succeed in seeking ejectment in his earlier rent case on the ground of default, therefore, he added the ground of personal bona fide use in order to seek ejectment and then let the premises in question for a higher Pugri. These far-fetched conclusions have been drawn overlooking the size of family of the appellants and their clear assertion that they needed the premises for their bona fide use and in good faith. To sum up, on a careful assessment of the evidence on record I am satisfied that the issue on this point was proved by the appellants in view of affidavit of Abrar Ahmed alone. In view of the foregoing discussion, the authorities cited by the learned counsel for respondents, do not improve the case of tenant/respondents. The finding of learned Rent Controller on this point is also not tenable and is reversed.
23. As regards the plea that the previous Appeal No,199/79 was dismissed as withdrawn, therefore, no fresh proceedings could be filed by the landlord for ejectment, the learned counsel for the appellant submitted that since the respondent had appeared and stated that rent was deposited up to date through a miscellaneous rent application Iqbal Ahmed withdrew the appeal under a bona fide impression that the rent has been deposited up to date. He contended that a false assertion was made by the respondent to make up the deficiency, therefore, the tenant/respondents should not benefit therefrom, as subsequently it was revealed that the rent was not deposited from May, 1974 and onwards but only from March, 1975 and onwards. The only rebuttal to this argument was that no specific permission was granted to refile the case for ejectment. Secondly this issue was not pressed before the Rent Controller, therefore, neither such point for determination was struck nor a finding could be recorded with regard to maintainability of the rent proceedings. At the appellate stage, such additional issue would not be permitted.
Moreover, the ground of personal use was a new ground therefore, maintainability of the ejectment proceedings need not be questioned. The contention in this context is, therefore, repelled.
24. The upshot 'of the above discussion is that the tenant was liable to eviction on the ground of default in payment of rent for the period from May, 1974 to February, 1975 and also part payment of the rent for April, 1974, and so also on the ground that the appellants needed the premises in question for their bona fide use in good faith. Consequently, the appeal is allowed and the respondents are directed to vacate the premises within 60 days hereof.