1. ' This appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) has given rise to some intricate questions but when the statutory provisions with which it is concerned are examined the decision does not present much difficulty.
2. ' The appellant a limited company, is the tenant in respect of ground floor on Plot No,WS-1, Blocks 7 and 8 measuring about 380 sq.Yds., Commercial Area, Karachi Cooperative Housing Society at monthly rent of Rs,15,000 in terms of tenancy agreement dated 10-4-1994. It is alleged that the appellant defaulted in payment of water and seweragi charges for the period of tenancy of the appellant. The husband of the landlady is an experienced businessman and has not been able to establish the same for want, of accommodation as such she requires the premises in occupation of the appellant for her personal use and utilisation, thus she is in need of the accommodation to establish her own business which she intends to do through the assistance of her husband and attorney. Therefore, the respondent/landlady filed an application under section 15 of the Ordinance before the Rent Controller seeking the ejectment of the appellant on the aforesaid grounds.
3. ' The appellant has controverted the allegations based on facts that the defence of the appellant as unfolded in the written statement, are as follows:-- ' That the appellant is a tenant in respect of the premises and paying monthly rent after deducting Government withholding tax and has paid Rs,1,00,000 as deposit. The appellant never committed default in payment of rent. The payment of water and sewerage charges are strictly to be proved by the respondent. The appellant paid the rent up to the March, 1997. Thereafter, the landlady extended threat for vacation from the premises. She refused to accept the rent for the month of April, 1997, thereafter the rent was tendered through money order, which was also refused and ultimately, the rent was deposited in M.R.C. No,337 of 1997. The landlady invented a false story for establishing the business with ulterior motive and mala fide intentions.
4. ' The parties went to trial on the following issues:--
(1) Whether the opponent has committed default in payment of water and sewerage charges?
(2) Whether the premises in question is required for the personal use of the applicant?
(3) What should the order be?
5. ' The respondent examined her husband and attorney, Noor Ahmed. Nawab, to rebut the evidence of the respondent, the ppellant examined Anwaar Ahmed Shaikh, its Managing Director.
6. ' On the assessm ent of evidence both oral as well as documentary, the learned Rent Controller decided Issue No,1 against the appellant directing its ejectment from the premises within a period of 60 days. The Issue No,2, was, however, decided against the respondent. It is in these circumstances, that the appellant has filed this appeal, the respondent on receipt of the notice has filed counter-objection to the appeal, thus has assailed the finding of Rent Controller in respect of Issue No,2 also.
7. ' I have heard Ch. Abdul Rashid, learned counsel for the appellant and Mr. Abdul Muqtadir Khan, learned counsel for the respondent. I have also gone through the record of this case carefully.
8. ' Before proceeding with the appeal on merit, I would like to dispose of the two objections raised by the learned counsel for the appellant, which are as follows:-- The evidence adduced by the respondent through affidavit-in-evidence of her attorney is to be excluded from the consideration as the same has not been attested in a proper way and the same cannot be relied upon as. Evidence. The above contention is based on the admission of the respondent's witness, that the affidavit was signed by him in the office of the Advocate.
9. ' Ch. Abdul Rashid, learned counsel for the appellant contended that on the basis of evidence and contended that the affidavit has to be excluded and it would be a case of no evidence and to support his contention, he referred the view taken by learned Single Judge of this Court in Muhammad Bashir v. Din (1990 CLC 703) wherein it was observed that, if the deponent never appeared before the Oath Commissioner or anybody for statement on oath, thus the affidavit was not attested in proper way and the same cannot be relied upon as evidence.
10. ' The learned counsel for the respondent has met with above objection by referring the deposition, wherein the witness was given oath when he was put in witness-box, as such he contended that the infirmity, if any was cured as such, it cannot be excluded from the evidence.
11. ' In my view, once the deponent appeared in the witness-box and was given oath, the irregularities stand cured under section 13 of the Oaths Act, which provides that irregularities in swearing the affidavit is merely an irregularity, which will not wipe out the entire evidence. In any event, the respondent's witness has been cross-examined on oath, as such his evidence cannot be excluded on that score. This view gets support from the view taken in Messrs Leather Goods International v.
12. Mst. Aisha Khatoon Sherwani (1986 CLC 3'0). I am unable to persuade myself to subscribe the view of the learned counsel for the appellant that the evidence is to be excluded from the consideration.
13. Second objection taken by the appellant's counsel as to the maintainability of the cross-objection in rent proceedings, such objection is based on view taken by learned single Bench of this Court in Mst. Hameeda Begum v. Mst. Hasan Bano (1991 M LD 776), in the following words:- "The Sindh Rented Premises Ordinance, 1979 is a special law regulating the relationship between landlords and tenants and providing machinery for resolving their disputes in a manner and to the extent provided therein. The right of appeal provided under the Ordinance is defined under section 21 so as to exclude applicability of section 96, C.P.C. What section 21 of the Ordinance, inter alia, contemplates is that a party must be aggrieved by an order of the Controller. If the respondent could show that he was 'aggrieved' by the order whereby one of the two grounds taken by him for ejectment of the appellant was rejected he could have preferred an appeal which he has not done and, therefore, this question cannot be gone into further."
14. ' On the basis of view taken in Hameeda Begum (supra), the learned counsel for the appellant contended that only remedy available to the respondent was to file an appeal under section 21 of the Ordinance, which has not been done, as such the cross-objection is not maintainable.
15. ' The learned counsel for the respondent controverted the plea taken by the learned counsel for the appellant by contending that the cross-objection is permissible in rent proceeding and referred the decision of learned Division Bench of Peshawar High Court in Messrs M. Wahabud-Din & Sons v.
16. The Controller of Rent and 11 others (PLD 1971 Peshawar 236). The facts were that the Controller by his order dated 20-10-1965, holding that although the petitioner was not entitled to the protection against eviction in view of Act XIX of 1963, yet he could not be evicted from the shop for want of proof that respondent No,3 required the same for his bona fide use. Not being satisfied with this order, the petitioner and respondent No,3, both challenged it in the Court of District Judge Peshawar; the former by way of appeal and the latter by filing cross-objections. However, by order dated 10-12-1965 the learned District Judge, after framing certain additional issues, remanded the case to the Controller for fresh disposal with directions that the parties were allowed to adduce evidence in support of their rival contentions. After recording the evidence, the Controller submitted his findings to the learned District Judge. The learned District Judge invited the objections of the parties and thereafter, he heard the counsel for the parties, and as a result allowed the appeal of respondent No,3, by order dated 13-5-1968. The order was challenged inter alia, on the ground that the order of District Judge was without jurisdiction as it makes no mention of the cross-objections.
17. This was dealt with as follows:-- "These objections were filed under section 24(3) of the Rent Act and it is not disputed that by the clear language thereof the learned District Judge was obliged to dispose of these objections. In other words, if it is found that the learned District Judge had failed to apply his mind to these objections then his order would be without jurisdiction and consequently the grievance of the learned counsel would be justified."
18. ' Learned counsel for the respondent further contended that even without filing cross-objection, the respondent can support the order by agitating the grounds which were decided against him by criticizing the finding on such issue and to support his contentions, he referred the cases decided by learned single Bench of this Court in Syed Khadim Abbas Rizvi v. Miss Gohar Fatima (1984 CLC 2449); Shahid-ur-Rahman v. Abdul Ghani (1983 CLC 2020). In former case, the respondent was allowed to support the order of eviction by criticizing the findings on issue decided against him. In later case, it was observed that it is an academic question, which does not require any detailed examination since the respondent could have supported the ejectment even without filing cross- objections on the ground of personal requirement. Wali Muhammad v. Abdul Karim (1984 CLC 2554), wherein similar objection was taken which was repelled and the landlord was allowed to support the order even by raising the issue decided against him.
19. From the above cases, the principles deducible is that the party can support the order even on issue which has been decided against him without filing any cross-objection. Therefore, the objection taken by the appellant's counsel that the respondent cannot support the order in respect of the issue decided against her through the cross objection is not tenable. The respondent can urge the point of personal requirement in appeal preferred by the appellant.
20. ' Reverting to the merit of the appeal, the learned counsel for the appellant contended that the finding of the learned Rent Controller is not sustainable as the appellant has not received the bill as such he cannot be saddled with the default. He further contended that bill for the water and conservancy charges produced dated 27-9-1997 was subsequent to the eviction application, which was filed on 1-7-1997, as such the learned Rent Controller has erred in deciding the issue of default against the appellant. He further contended that the landlord has not bifurcated the bills pertaining to the tenement in occupation of the appellant, nor the bill was paid to him for payment as such the finding of default is liable to be reversed and has referred the case of Badaruddin v.
21. Muhammad Yousaf 1994 SCM R 1900. There is no dispute that water D and conservancy charges are rent in terms clause (i) of section 2 of the Ordinance, which defines the rent includes water charges, electricity charges and such other charges, which are payable by the tenant but are unpaid. It is also admitted that appellant was inducted as tenant in premises under tenancy agreement dated 10-4-1994 and in terms of clause 13 and the appellant's liability was to pay all the demand and the charges for the consumption of gas, water and electricity during the existence and subsistence of the tenancy. It is the case of the respondent that the appellant has not paid the water and conservancy charges and the same is due. The question which requires consideration whether the water and conservancy charges were payable to the landlord or to the concerned department. In this regard, the clause 13 of the tenancy agreement would be relevant, which is as follows:-- "13. That the tenant shall be liable and exclusively responsible to separately and distinctly bear, defray and clear all the demand and charges for the consumption of Gas, Water, Electricity during the existence and subsistence of the tenancy."
22. ' The perusal of the above clause would show that it was the responsibility of the tenant to pay the charges to the department concerned and not to the landlord.
23. ' In Badruddin v. Muhammad Yousaf 1994. SCMR 1990 it was held that "if under the terms of tenancy a tenant is liable to pay directly the electricity and/or gas charges to the company concerned and there is no inability on his part to pay the same to the landlord, in that event, the landlord cannot press into service the ground of default on the basis of non-payment of electricity and/or gas charges, though he may be entitled to press into service the breach of the term of the tenancy for seeking ejectment if on account of default in payment of electricity and/or gas charges, the company concerned disconnects the supply and thereby impairs the utility and value of the demised premises.
24. In the present case, the charges for the consumption of the utilities such as water, gas and electricity were payable directly to the concerned agency and not to the landlord, it is the responsibility of the tenant to pay the same directly. The ground of default in payment of utilities could be taken by the landlord if on account of non-payment, the utilities have been disconnected thereby, impairing the utility and value of the premises. Following the rule laid down in Badruddin (supra), in my view, the respondent cannot press into service the ground of default on the basis of nonpayment of .Water charges, which was to be paid directly to the concerned department unless on account of nonpayment, the utilities were disconnected thereby impairing the utility and value of the tenant in terms of section 15(2), sub-clause (iv). Therefore, the finding is not sustainable.
25. Reverting to the issue of personal bona fide requirement the learned Rent Controller has non- suited the respondent on this issue by taking the view that the respondent/landlady has failed to state the nature of intended business. In my view, the non-suiting of the respondent for want of disclosure of nature of business, which she intends to carry in the disputed premises is against the settled view. This question was considered by the Supreme Court in cases of Mst. Toheed Khanam v. Muhammad Shamshad (1980 SCM R 593) and Mst. Saira Bai v. Syed Anisur Rehman (1989 SCM R 1366). I may usefully borrow the terse observation of Naimuddin, J. (as he then was) made in the latter citation in the following words:-- "Regarding the non-mentioning the nature of the business in application it may be observed that an applicant has to state in his application, the material facts, i,e, facts which constitute case of action. In a case of present naturecthe applicant has to state those facts which prima facie, show that the requirement is according to law and is made in good faith. This has been so stated in the application. It is not essential as it is not part of the cause of action to state the nature of business which the applicant intends to carry on. Take a case where the applicant states in the application that she requires the shop for her son for carrying on a particular business but later on pending hearing of the application or after eviction of the tenant, the applicant thinks that the business can no more suitably and profitably by carried on in the shop, the question might arise; could he change the nature of business or not? The choice of doing a particular business also depends on many other factors such as the nature of the locality or the nature of business being carried on in other shops in the neighbourhood. It also depends on the flow of customers and class of people residing in the area. Therefore, if there is any change in circumstances, the nature of business could also be changed. Accordingly, the answer would be that the applicant could change the nature of business with the change of circumstances because in law no restraint or bar is provided.
26. Therefore, the mentioning of the nature of business was not a material fact or so essential without it the application must fail.
27. ' In any case, there is authority of this Court in the case of Mst. Toheed Khanum v. Muhammad Shamshad (1980 SCM R 593) wherein in similar point was raised and it was observed as follows:-- ' 'Again the High Court fell into an error when it placed undue reliance on the fact that the nature of the business was not stated in the application...'
28. ' Further, as mentioned hereinbefore, it was unambiguously stated by the applicant that she requires the shop, in good faith, for use and occupation of her son and her son, in his deposition, has in clear terms, stated that he would carry on the business of paints in the shop. Therefore, this objection has no force and ought not have been given any weight by the High Court."
29. ' In Messrs F.K. Irani & Co. v. Begum Feroze (1996 SCM R 1178), it was observed that on the issue of personal need, statement on oath, if consistent with the application and not shaken in cross- examination or disproved in rebuttal is sufficient to prove that it is a bona fide. Applying this test, I am of the view that the respondent has been consistent and the evidence produced is not in conflict or inconsistent with the ejectment application. No evidence in rebuttal has been produced to shake the testimony nor in cross-examination the witnesses have shown any infirmity to discredit it. The above observation is supported by the material on record.
30. ' The respondent's attorney has sated in respect of the personal bona fide need, in his affidavit, that he is from business community and have decades long business experience and he is not in occupation of any business premises and unable to do and continue his business and as -.Lich the applicant needs the premises for the business which she will start through him in the premises occupied by the opponent. In cross, he has admitted that now-a-days, he is not doing anything, he was previously worked as broker of about 15 to 20 years. In April, 1994 he was in business of brokerage in the field of medicines. The appellant has admitted that applicant's attorney is a businessm an and lie is unaware if applicant also owns another building for running her personal business. The above evidence is consistence with the application. (para. 3) that husband of the landlady is an experienced businessman but has not been able to establish the same for want of accommodation as such the applicant requires the premises in occupation of the opponent for her personal use and 'ailisation in the manner that she is in need of accommodation to establish her own business which she is capable to do through the assistance of her husband and attorney.
31. ' The learned counsel for the appellant contended that the attorney of the appellant has admitted that first and second floor was lying vacant, which were let out about two months prior to his examination, on the above admission the learned counsel contends that the requirement of the landlord is not a bona tide one. This plea could have some force, if the appellant could have established that first and second floor was owned by her. The attorney of the respondent has stated that the entire building was owned by him and the same was gifted by him to his wife, dauehters and son, as such the plea is not available, the ground Nor is under the ownership of the respondent as evident from the issuance of separate water and conservancy charges bill. Floor wise. Therefore, the Point No,2 is decided in favour of the respondent.
32. ' In the light of the above discussion, the finding of the learned Rent Controller on Issue No,1 is not sustainable and is reversed. The impugned order is maintained on the basis of finding on Issue No,2 recorded by me. Consequently, the appeal is dismissed, however, with no order as to costs.