1. ' This is an appeal under section 21 of Sindh Rented Premises Ordinance, 1979 (hereinafter called Rent Ordinance) directed against an order dated 27-9-1992 passed by 1st Senior Civil Judge, and Rent Controller, Karachi West in Rent Case No,193 of 1991 Muhammad Ilyas v. Hussaini whereby an eviction application filed under section 15 of the Rent Ordinance on 20-3-1991 was dismissed, hence this appeal.
2. ' Brief facts of the case are that eviction application for the premises in dispute under section 15 of Rent Ordinance was filed by the appellant/landlord against the respondent/tenant on the grounds
(i) default in non-payment of rent from March, 1991, till filing of eviction application i,e, on 20-3-1991 and (ii) personal requirement in good faith being heart patient, unable to climb on first and second floor of the building. The respondent filed written statement on 30-9-1991 wherein he denied default in the payment of rent and stated that the rent was deposited in rent case No,2491 of 1978 which proceedings ended with the decision in F.R.A. No,28 of 1986 and that he had paid rent in advance till July, 1991. It is also stated that the appellant/landlord earlier also filed eviction Case No,2491 of 1978 on the grounds of default in payment of rent and personal requirement but his said eviction application as well as F.R.A. No,28 of 1996 was dismissed on the ground that the appellant-tenant has got first and second floor of the said building vacated from the tenants namely Mst. Shamim and Abdul Mateen, therefore, his requirement was not in good faith. It has also been stated that besides disputed buildings, the appellant has to other bungalows.
3. ' The appellant/landlord filed affidavit-in-evidence of Muhammad Ilyas who filed photocopy of notice dated 9th January, 1991, Exh.A./1, reply of the said notice, dated 16th January, 1991, Exh.A/2, photocopy of rent receipt, dated 28-1-1990, Exh.A/3, photocopy of the rent receipt, dated 22-7-1990, Exh.A/4, photocopy of rent receipt, dated 15-1-1991, Exh.A/5, photocopy of Exercise Stress Test report dated 11-2-1990 of the appellant.
4. ' The respondent's attorney, Mirza filed affidavit-in-evidence, photocopy of general power of attorney, certified copy of judgment of Eviction Case No,2491 of 1978 Muhammad Ilyas v. Hussain Exh.O/3, certified copy of judgment passed in F.R.A. No,28 of 1996 Muhammad Ilyas v. Hussaini Exh:O/4, certified copy of cross-examination of the appellant in Rent Case No,647 of 1987 Exh.O/5, certified copy of the application of Rent Case No,647 of 1987 for withdrawal of rent moved by Muhammad Ilyas, Exh.O/6, money order coupon, dated 2-5-1991, Exh.O/7, original payment challan in the office of Rent Controller Exh.O/8, made in Rent Case No, 632 of 1991, dated 3-10-1991, four original deposit rent receipts, dated 15-1-1991, 22-7-1991, 28-1-1990 and 18-7-1989 as Exhs.0/9/1 to 0/9/4.
5. ' I have heard learned counsel for parties and perused the record and proceedings of the case.
6. 'Contention, of learned counsel for appellant is that the learned Rent Controller has erred in holding that there was no default in payment of rent, considering that the appellant served the respondent with a notice on 9-1-1991 but despite the service of notice, the respondents continued to deposit rent in rent Case No,2491 of 1978, therefore, the deposit of rent in the said case filed by appellant could not be said to- be legal tender. He further submitted that as a matter of fact when the proceedings of F.R.A. No,28 of 1986 terminated on 12-3-1990, then the respondent should have paid/tendered rent to the appellant and should not have deposited rent in Rent Case No,2491 of 1978. He further submitted that the deposit of rent as per Exh.O/9/3 rent receipt, dated 28-1-1990, Exh.O/9/2, rent receipt, dated 22-7-1990 Exh.O/9/1, rent receipt, dated 15-54991 having been deposited in Rent Case No, 2491 of 1978 after the termination of the rent appeal before the High Court, was not legal tender, therefore, there was a clear cut wilful default on the part of the respondent. However, he stated that so for deposit for rent, dated 28-1-1990 and 22-7-1990 could be treated as due tender as having been deposited prior to service of notice, dated 9-1-1991 but so for deposit of rent, dated 15-1-1991 which was made after the service of notice, could not be considered to be legal tender, therefore, there was wilful default. He further submitted that so far money order which is alleged to have been sent to the appellant was sent on 2-5-1991 after the institution of the eviction proceedings on 20-3-1991, therefore, the said tender of rent would be of no consequence. He has placed reliance upon (i) M/s. Delsec. (Pvt.) Limited v. Syed Basit Ali (PLD 1994 Karachi 451) and (ii) Muhammad Yousaf and another v. Nadimuddin Malik (PLD 1993 Lahore 101) in support of his contention that tenant was legally bound to pay rent after receipt of, the notice. So far the case Mehboob Jewellers and others v. Nur Ahmed (1989 SCMR 1327) cited in the impugned judgment, he submitted that in the cited 'case, the rent amount was already deposited in rent proceedings and that documents of title were not supplied to the tenant by the landlord, therefore, the said circumstances weighed the Rent Controller to hold that it' was a technical default. On the point of personal requirement learned counsel submitted that previous case which finally ended with disposal of F.R.A. No,28 of 1986 by this Court, was also on the personal requirement but it failed because the appellant got first and second floor of the said building vacated for his personal requirement but in the instant eviction application, personal requirement is based on the ground of appellant's heart ailment as he could not climb upstairs to first floor, and second floor being heart patient. He also submitted that Eviction Application No,647 of 1987 filed under section 14 of Rent Ordinance by the appellant was withdrawn, therefore, dismissal as such of the same would be of no consequence. He has submitted that the appellant in his affidavit-in- evidence, Paras. 7 to 9, has given details and particulars about his personal requirement, Exercise Stress Test Report Exh.A/6 proved that the appellant was heart patient and. Was unable to climb upstairs, therefore, he needed the ground floor premises for his residential use and mere fact that it was being used as a shop premises would not alter the character of the said building. In support he has placed reliance upon (i) Abdul Aziz Burney v. Muhammad Ayub Khan and three others (1994 CLC 551) and (ii) Syed Amjad Ali Shah v. Lqbal Ahmad Faruqi and others (PLD 1985 SC 242). He further Submitted that appellant is an aged person of more than sixty years, therefore, his need for grounds floor premises is genuine and in goodfaith. He has placed reliance upon Shamsuddin v.
7. Hussain Khan (1989 CLC 947).
8. ' Learned counsel for respondent has submitted that the respondent was depositing rent in the name of appellant in the previous proceedings between the same parties, therefore, the cases cited by the counsel for appellant have no application to the facts of instant case. He has submitted that the respondent has been depositing rent in advance and rent deposited on 28-1- 1990 pertained to rent from February, 1990 to July, 1990 and rent receipt, dated 22-7-1990 pertained to the period from August, 1990 to January, 1991 and rent receipt, dated 15-1-1991 pertained to period from February, 1991 to. July, 1991 whereas the appellant filed eviction application on 20-3- 1991, therefore, on the date when the eviction application was filed the respondent was not defaulter in the payment of rent. In addition to the above, he submitted that even if the receipt, dated 15-1-1991 is excluded from consideration in respect of payment of rent then also the rent receipt, dated 22-7-1990 being rent into January, 1991, there would be no default in the payment of rent as there was no agreement between the parties and the rent for February and March, 1991 would be payable within seventy days within the meaning of section 15(2)(ii) read with section 10 of Rent Ordinance. He has submitted- that at the most the default would be Technical default which would not call for the penalty provided under section 15(2)(ii) of Rent Ordinance. He has placed reliance upon (i) Major (Retd) A.S.K. Samai v. Lt.-Col. (Retd.) A. Hussain and another (1987 SCMR 1013; (ii) A. Hussain v. Muhammad Nawab and four others (PLD 1992 Kar. 307); (iii) Abdullah v.
9. Hasan Abbas (1985 CLC 892); (iv) Mst. Begum Jan v. Abdul Rasool (1984 CLC 755); (v) Muhammad Atique v. Muhammad Hanif Khan (1993 MLD 871) and (vi) Muhammad Atique v. Muhammad Hanif Khan (1996 SCMR 1260). He submitted that the respondent made attempts for tender of rent but it was refused therefore, he continued to deposit rent in the previous proceedings between the parties. On the point of personal requirement he submitted that the appellant has dragged the respondent/tenant since 1978 on the similar ground of default in payment of rent and personal requirement. He has submitted that Eviction Application No,2491 of 1978 was filed and then a Rent Case No,647 of 1987 was filed under section 14 of the Rent Ordinance but it was withdrawn though in the said case proceedings the evidence was also recorded. He has submitted that the appellant has suppressed the facts in respect of the personal requirement and failed to disclose the accommodation of the two bungalows, one of which was owned by his mother and one by his deceased father. In support he has placed reliance upon (i) Abdul Aziz v. Ali Muhammad (PLD 1979 Note 135 Page 97) and (ii) Muhammad Yousuf and another v. Muhammad Ibrahim Khandwani (PLD 1991 Kar. 226) and also stated that married daughter could not be said to be member of family and that even if default is proved the discretion is not to be exercised arbitrary but judiciously. He also submitted that there is no medical evidence to support the heart ailment of the appellant as the S.T. Report is a photocopy and the author of it is not examined to prove the contents and his signature, therefore, would not be admissible as evidence, therefore, the alleged ailment of appellant is not proved. He further submitted that mere statement of the appellant that the property in question was required by him in good faith would not be itself sufficient. He has referred to (i) Mst. Sharifan Bibi v. District Judge, Bahawalpur and two others (1988 CLC 1835); (ii) Ahmed Mian v. Afzal Book Centre (1991 CC 2076) (iii) M.D. Tahir, Advocate, Lahore High Court through Registrar (1994 SCMR 1507) and (iv) Faqir Muhammad and others v. Mst Muhammad Bibi and others (PLD 1991 SC 590).
10. ' Learned counsel for appellant in reply submitted that the E.S.T. Report was not objected before the Trial Court, therefore, objection cannot be entertained in this appeal and further initial onus to prove good faith was upon the appellant which he discharged but the respondent could not rebut the evidence of the appellant, therefore, good faith stood proved.
11. ' So far the default in payment of rent, the only contention is that the respondent has made deposit in the previous eviction application No,2491 of 1978 between the same parties even after termination of the proceedings in F.R.A. No,28 of 1986 and after the service of notice on 9-1-1991, therefore, there was wilful default in payment of rent. Admitted position is that the notice was sent by the appellant to the respondent on 9-1-1991 which in the ordinary course would have been delivered within couple of days after 9th January, 1991 but before the said date the receipt of the notice, the respondent had made deposit of rent till January, 1991 as per receipt dated 22-7-1990 and rent was deposited from August, 1990 to January, 1991 which fact is corroborated by the respondent in his affidavit-in-evidence and the said fact has not been challenged in the cross- examination by the counsel for the appellant as well as before this Court. In the circumstances on the date when eviction application was filed viz. On 20-3-1991, rent till January, 1991 was paid and there could not be said to be default for February and March, 1991 as it could not be made payable by 20-3-1991 in view of the provisions of section 15(2) (ii) of Rent Ordinance. In the circumstances, contention of learned counsel for appellant that there has been default on the part of respondent has no merit consequently no exception could be taken to the finding of learned Rent Controller.
12. ' Next contention of learned counsel for the appellant is that the appellant is suffering from heart ailment, therefore, his requirement for the ground floor premises is in good faith. The appellant in the affidavit-in-evidence has stated in paras. 7 to 9 about his personal requirement on the ground of his ailment of heart as well as on the ground that the accommodation with him was not sufficient for him, his wife and his son and one daughter Mst. Nelofar. It is also admitted position that previously also the appellant had tried his best to get the respondent evicted on the ground of personal requirement in R.C. No,2491 of 1978 which ultimately ended in dismissal of his F.R.A. No,28 of 1986 and thereafter, his Eviction Application No,647 of 1987 under section 14 of Rent Ordinance was also dismissed as withdrawn. Now an impression has been given by adding the cause of ailment of heart of appellant as ground to entitle him to have the eviction of the respondent. The appellant in the affidavit-in-evidence has stated that he has to climb 57 stairs for going to the office and another 42 stairs for going to his home which caused stress upon his heart. The appellant has asked for eviction of respondent on the ground that he required the said disputed premises for his residential purposes. In my view there cannot be 42 steps of the stairs to reach the first floor premises as it would at the most be not more than 20 steps to reach the first floor of the premises from the ground floor when the appellant could cover 57 steps to reach his office then twenty steps to reach first floor of house would not cause any kind of problem for appellant. No explanation or justification could be given by the learned counsel for the appellant as to how the appellant as per his statement was going to office after climbing 57 steps of staircase. Besides above, photocopy of certificate in respect of E.S. Test without its author being examined is of no evidentiary value and of no consequence to prove the ailment of heart of the appellant. Mere fact that no objection was taken at the time of the proceedings before the Rent Controller would not make the documents admissible in evidence which otherwise cannot be admissible as evidence under the law, because no case as required under Articles 75 and 76 of Qanoon-e-Shahadat was made out which could entitle the appellant to produce the photocopy as secondary piece of evidence because neither the original is said to be in possession of the respondent nor it has been said that it has been lost or that it could not be produced without unreasonable delay or under any other ground permissible by the provisions of law. Perusal of this photocopy of test report does not convince this Court that the appellant was a serious patient of heart ailment that he could not climb upto first floor of premises. It has been observed that even after by-pass operation, the patient climb stairs and the climbing of stairs has not been considered dangerous to the health of the patient. The appellant failed to prove good faith for personal requirement of the disputed premises whereas the respondent has successfully rebutted the evidence of the appellant.
13. ' I do not find in the circumstances any substance in the contention of learned counsel for appellant hence no, exception could be taken, to the said finding of learned Rent Controller.
14. Accordingly appeal is dismissed.