1. This is an appeal under section 21 of Sindh Rented Premises Ordinance, 1979. (hereinafter called the Rent Ordinance) directed against an order, dated 10-1-1995 passed by learned IV-Senior Civil Judge and Rent Controller, Karachi-Central, in Rent Case No,466 of 1992 (Rehana Jamal and 2 others v. Muhammad Asim) whereby an application under section 15 of Rent Ordinance filed by the appellant on 1-7-1992 was dismissed hence this appeal.
2. Brief facts of the case are that the appellants filed eviction application against the respondent in respect of Shops Nos. 104, 105 situated on Plot No,SE-3, Block "G", North Nazimabad, Karachi, on the grounds (i) that the respondent has committed default in payment of rent since January, 1992 till filing of eviction application on 1-7-1992, and (ii) that appellant No,3 Mst. Ghazala being co-owner of the shop premises required the same for the personal need of her husband viz. Hafiz Mansoor Ahmad in good faith. The respondent filed written statement stating therein that intimation required under section 18 of Rent Ordinance was served upon him on 25-1-1992 and thereafter, compromise was reached between the parties on 19-2-1992 in Rent Cases Nos.721 and 722 of 1991 whereby the respondent paid rent to the appellants of the shop premises from 1-6-1991 to 31-12- 1991 and further respondent was allowed to withdraw the amount of rent deposited in Miscellaneous Rent Application No,661 of 1991 to which the appellant stated no objection but the respondent did not withdraw the said rent amount from the miscellaneous rent application and the appellant avoided to receive the rent, consequently, the respondent deposited rent from January, 1992 to June, 1992 in Miscellaneous Rent Cases Nos.216 and 217 of 1992 in the name of appellants. It has further been stated by the respondent that rent was deposited in M.C. No,661 of 1991 from June, 1991 till June, 1992 as per rent receipts, dated 10-9-1991, 2-10-1991, 16-12-1991, 29-1- 1992 and 10-3-1992. It is also stated that the respondent deposited rent in M.R.C. Nos.216 and 217 of 1992 for the period from July, 1992 to December, 1992 on 25-3-1992 and for the period from January, 1993 to March, 1993 on 10-6-1992 and again rent from April to June, 1993 was deposited on 5-10- 1992 and the respondent had in fact deposited rent in advance, consequently, there was no default in the payment of rent. It is also stated that need of the husband of Appellant No,3 is not in good faith as the said husband Hafiz Mansoor Ahmad has lot of business in various firm which he has established on different places in the city of Karachi and the appellants have many other commercial places vacant and were in possession of the same, hence requirement was not in good faith.
3. The appellant filed an affidavit in evidence of Hafiz Mansoor Ahmad who produced six rent receipts as Exhs. A/1 to A/6, photo copy of gift Exh.A/7, photo copy of power of attorney Exh.A/8, photo copy of notice, dated 19-1-1992 Exh. A/9, and postal and A.D. receipts Exhs. A./10 and A/11, certified copy of compromise in Rent Case No,721 of 1991 Exh.A/12, photo copy of notice, dated 16th April, 1992 from the appellant No,1 Rehana Jamal Exh. A/13, photo copy of reply of the respondent, dated 23-4-1992 Exh.A/14, photo copy of notice, dated 27-4-1992 of the appellant Exh. A/16, photo copy of the reply of notice, dated 3-5-1992 Exh.A/17, photo copies of the assessment order alongwith statements of Hafiz Mansoor Ahmad Exh. A/18 to Exh . A/23 .
4. The respondent/tenant filed his own affidavit-in-evidence and filed Memorandum of Articles of Association Exh. O/3, photo copies of Miscellaneous Rent Applications Nos.216 and 217 of 1992 Exhs.
5. O/4, and O/5, original four rent receipts Exhs. O, O/1, to O/3, photo copies of the payments made in the Court from Exhs. O./4 to O/24, two photo copies of the P.T.-I Exhs. O/25 and O/26, affidavits-in- evidence of Akhtar Shahid, Mazahir Hassan, M.A. Azhar, Syed Muhammad Azeem and Shajre Alam.
6. The deponents who filed the affidavits-in-evidence in the case were cross-examined by the respective adversary counsel for the parties. After recording the above evidence and hearing the learned counsel, impugned order was passed dismissing the eviction application.
7. I have heard learned counsel for the parties and perused the record and proceedings of the case.
8. Contention of learned counsel for the appellants is that the learned Rent Controller has erred in holding that the respondent was not defaulter in respect of payment of rent from January, 1992 till the filing of eviction application. He has submitted that notice of intimation under section 18 of Rent Ordinance was received by the respondent on 25-1-1992 and under the law he was to tender rent within thirty days from the date of receipt and as required by section, 15(2)(ii) of Rent Ordinance, the rent for the month of January, 1992 was to be paid by 9th of April, 1992 while rent for the month of February, 1992 was to be paid by 9th of May, 1992, rent for the month of March, 1992 was to be paid by 9th June, 1992 and- rent for the month of April, 1992 was to be paid by 9th July, 1992, rent for the month of May, 1992 was to be paid by 9th August, 1992 and rent for the month of June, 1992 was to be paid by 9th September, 1992 and rent for the month of July, 1992 was to be paid by 9th October, 1992 but the respondent deposited rent in Miscellaneous Rent Case No,661 of 1991 till June, 1992 and from July, 1992 he deposited rent in Miscellaneous Rent Cases Nos.216 and 217 of 1992 on 25-3-1992 and the rent in Miscellaneous Rent Case No,661 of 1991 was deposited in the name of one Gulzar and not in the name of appellants, therefore, rent so deposited would not be legal tender. He further submitted that even after the service of intimation, the respondent went on depositing rent in the name of one Gulzar, the husband of Mst. Shama the sister of the present appellants and previous landlady in the Eviction Applications Nos.721 and 722 of 1991. He also submitted that the deposit of rent in Miscellaneous Rent Cases Nos.216 and 217 of 1992 directly in the office of Rent Controller was not due tender as no rent was tendered to the appellant in person and was also not sent through postal money order prior to the deposit of rent in the office of Rent Controller as required by section 10 of Rent Ordinance. He has placed reliance upon (i) Bahadur Khan and others v. Choudry Muhammad Hussain and others 1991 SCM R 429, (ii) Muhammad Ashraf v. Abdul Hameed and others 1982 SCMR 237, (iii) Ghulam Samdani v. Abdul Hameed 1992 SCM R 1170 and (iv)
9. Munawar Hasan v. Badiul Hasan 1992 CLC 2495.
10. Next contention of the learned counsel for the appellants is that the learned Rent Controller has erred in holding that the appellants have not been able to prove their personal requirement in good faith and submitted that the appellants have no concern with the Property SE-8 so also other properties being not in occupation and possession of the appellants, would not negate the personal requirement in good faith of the appellants. He has further submitted that it was the prerogative of the landlord to have any one of the shop premises and the tenant cannot object to the said right. He further submitted that statement of the appellants made in the eviction application is consistent with the affidavitin-evidence and his testimony could not be shaken. He has placed reliance upon (i) Qamruddin through his legal heirs v. Hakim Mahmood Khan 1988 SCM R 819, (ii) Muhammad Sharif v. Nisar Ahmad and others 1988 SCM R 1587, (iii) Haroon Kasam and others v. Azam Suleman Madha PLD 1990 SC 394, (iv) Messrs F.K. Irani & Co. v. Begum Feroze 1996 SCM R 1178, (v) Abdul Karim v. Abdul Karim 1992 SCM R 1300, (vi) Muhammad Bashir v.
11. Sakhawat Hussain 1991 SCM R 846, (vii) Jehawgir Rustom Kaklia v. State Bank of Pakistan 1992 SCM R 1296 and (viii) Messrs A.B. Sons Limited v. Messrs Eastern Express Limited 1989 M LD 956.
12. Contention of learned counsel for respondent is that on the date of filing of eviction application on 1-7-1992, rent for the months of January, 1992 to March, 1992 was due for payment to the appellants as the rent for the month of April, 1992 would have become due on 9th July, 1992 i,e, after filing of eviction application viz. 1-7-1992 but the respondent on one hand deposited rent in Miscellaneous Rent Case No,661 of 1991 till June, 1992 though in the name of one Gulzar the husband of Shama the sister of the appellants who was previous co-owner/landlady of premises as mentioned in Eviction Applications Nos.721 of 1991 and 722 of 1991, when the said Gulzar used to collect rent from the tenants and as per compromise made in the said eviction applications, the appellants knew that the rent was deposited for the shop premises in Miscellaneous Rent Case No,661 of 1991 wherein appellants consented that the rent may be withdrawn by the respondent and on the other hand soon after the refusal of the appellants to receive rent for the disputed period, rent was deposited in Miscellaneous Rent Cases Nos.216 and 217 of 1992 in the name of present appellants amounting to Rs,2,400 plus Rs,3,750 on 24-3-1992 as per Exhs. O/9 and O/17 in advance though stated to be rent from July, 1992 to December, 1992 in respect of both shop premises but on the date viz. 1-7- 1992 filing of eviction application the rent till March, 1992 was due and an amount of Rs,2,400 plus Rs,3,750 deposited in Miscellaneous Rent Cases Nos.216 and 217 of 1992 on 25-3-1992 could be adjusted towards the rent for the period from January, 1992 to June, 1992 then there would be no default for the months from January, 1992 till filing of eviction application on 1-7-1992. He further submitted that under section 10 of Rent Ordinance there is no bar to deposit of rent in the office of Rent Controller after the refusal by the landlord/landlady before tender of rent through postal money order. He also submitted that the eviction application filed by the present appellants is not maintainable as the property is a joint property and has not been partitioned as the need of the spouse of appellant No,3 could not be a personal need of the remaining two appellants within the meaning of section 2(g) of the Rent Ordinance. He lastly contended that the appellants have failed to prove the requirement in good faith considering that said Hafiz Mansoor has lot of running business and number of other properties in his possession considering also that the appellants have not brought any evidence to say that the shops lying vacant were not suitable to his requirements. He has placed reliance upon (i) Abid Masood and others v. Dilshad Khan 1995 SCM R 146, (ii) Abdul Kadir and others v. Muhammad Yaqoob 1991 SCM R 1029 and (iii) Inayat Ali Shah v.
13. Anwar Hussain 1995 CLC 1906.
14. It is admitted position that the respondents deposited an amount of Rs,2,400 plus Rs,3,750 as per Exhs. O/9 and 0/17 on 25-3-1992. There is nothing in the payment challah as to for which period the said amount of rent was deposited but the respondent has stated in the written statement as well as in affidavit-in-evidence that it was rent for period from July, 1992 till December, 1992 which rent in fact was not due on the date viz. 25-3-1992 when the said amount of rent was deposited. In the circumstances, an amount of advance rent so deposited could be treated as a rent for the period from January, 1992 till June; 1992, therefore, there could not be said to be any default in the payment of rent on the date of filing eviction application. In the circumstances, the contention of learned counsel for appellants has no merit consequently no exception could be taken to the finding of Rent Controller that there was no default in the payment of rent by the respondent.
15. So far personal requirement of the spouse viz. the Hafiz Mansoor of the appellant No,3, the appellants in the eviction application in paras.9, 10 and 11 have given details stating that the said shop premises is required by Hafiz Mansoor to establish his own independent business of ready- made garments which facts have been reiterated in the affidavit-in-evidence, however, in the cross-examination he has stated that:-- "It is correct the shops on which I used to sit is a hardware shop and I have 18% share in the shop.
16. The accommodation to the said shop is 200 sq. ft. and we are tenant of this shop. The number of building is M.R.1/1996.. my firm is the owner of said building and it has been occupied by the tenants .. my firm is owner of building 1/64. I am partner of hardware business. It is correct that I used to pay income-tax as partner of Messrs Hardware. I am doing business in the said shop since 1969.. I have 20% share. It is correct that in Property No,6/23 shops are there but no shop is in my possession. It is correct that I am owner of R.C. No,12/1987 to the extent of 20%. It is correct that in R.C. No,12/1987 there are shops, one of the shops is in my possession. R.C. No,12/1988 are in my possession to the extent of 20% share and all shops are occupied. It is correct that I am co-owner of 14.82 share in Maliko. I am sleeping partner in Maliko. It is correct that the terms with my brothers are good. I want to do separate business from my brothers... It is correct that Ghazala appellant No,3 is owner of other properties also. It is correct to suggest that the Shop No,1 was ordered to be vacated... I have share of 14.82 as co-owner in Maliko and I am also partner. Voluntarily says I am partner in the said plot. It is correct to suggest that Plot No,D-3, Block 11, F.B. Area, is in his possession as resident and residing in the said plot... I have no knowledge of Plot No,SE-8, Shop B-38, which was vacated by Naeem and then let out to Babu Bhemji in March, 1992. I have no knowledge whether shops Nos.154 and 155 lying vacant are opposite to Haideri Sari Emporium and Gulab Sari Emporium. I have not stated that my business of hardware is going in loss."
17. The respondent/tenant in the written statement in paras. 5-A and 5-B has given list of properties owned and possessed by the appellants and same fact have been reiterated in paras. 4 to 6 of affidavit-in-evidence. The respondent's witnesses Akhtar Hussain, M.A. Asghar; Syed Muhammad Azam and Shajre Alam in paras. 3, 4, 5 and 6 of affidavit-in-evidence have corroborated the version of the respondent. The trend of replies in the cross-examination of the appellants' attorney would show that he has suppressed material facts in respect of properties owned by him and in his possession mala fide. On assessm ent of the evidence, it would appear that the appellants' attorney has been carrying on lot of business in different firms and was in possession to the extent of his share in the said properties. All the respondent's witnesses corroborate the version of the respondent. The veracity of the appellants' attorney is shaken and his evidence is not confidence inspiring whereas the evidence of the respondent and his witnesses is consistent with their statements made in the affidavits and their veracity could not be shaken. It would appear that the appellants have been hunting for some ground to seek eviction of respondent at all costs with mala fide and ulterior motives.
18. Under the circumstances, I do not find substance in the contentions of learned counsel for the appellants, consequently, no exception could be taken to the findings of learned Rent Controller.