Briefly stated the facts of the matter are that vide Lease Agreement dated 29th September, 1991 the respondent rented out the premises in question to the appellant being an open plot of land measuring 2775 sq. Yds., on Rashid Minhas Road, F.B. Area, Karachi, for a period of 7 years on a monthly rent of Rs,10,000 for the first three years and to be enhanced thereafter by 10% for each subsequent three-year-period. It was agreed between the parties in the Lease Agreement that the plot in question would be used for a commercial,purpose viz. a marriage garden etc. The appellant also undertook vide Clause 7 of the Lease Agreement to pay for the Electricity, Gas, Water consumption and other charges as levied by the Central/Provincial Authorities from time to time on the business conducted in the rented premises.
2. On 7-11-1996 the respondent filed Rent Case No,43 of 1996 before the learned Senior Civil Judge and Rent Controller (Central), Karachi under section 15 of the Sindh Rented Premises Ordinance, 1979 praying for eviction of the appellant on the ground of personal use as well as default in payment of rent. As regards the default it has been firstly stated by the respondent that the premises were sealed by the KBCA as the use thereof for a commercial purpose was not permissible under the Lease Deed granted to the respondent. However, thereafter upon assurance given by the respondent the premises were desealed. It was then that the appellant failed to tender the enhanced monthly rent of Rs,11,000 and sent money orders at the rate of Rs,10,000 which was refused by the respondent. It has been further stated in the said rent case that even after such refusal by the respondent the appellants failed to deposit rent at the rate of Rs,11,000 per month plus water and conservancy taxes etc., as agreed. It has also been averred by the respondent that the premises was leased out by it without knowledge of the fact that the same could not be utilized for any commercial purpose and hence it was all the more reason that the appellants be evicted from the same. It has also been finally averred that the running of the marriage hall in question has become a source of nuisance and in this connection the respondent had received numerous complaints from neighbours etc. So also it has been maintained that the appellants never paid any water and conservancy charges etc. For all the foregoing reasons it has been prayed that the appellant be evicted from the premises.
3. In the written statement filed by the appellant in R.C. No,643/1996 certain preliminary legal objections have been taken regarding the non-maintainability thereof since the person who had filed it had not been authorized to do so by the landlord/respondent. On merits it has been stated firstly that the .Respondents/landlords are not entitled to any enhancement of 10% after completion of three years of the tenancy. Secondly it is denied that the running of the business by the appellant/lessee is a source of nuisance to any one. It is also disputed that the respondent is entitled to seek ejectment on the ground that it had no, knowledge of KBCA's objection in the matter; default in the payment of rent has also been denied since the agreed amount of Rs,10.000 was offered to the respondent who refused to accept the same and consequently the appellant started depositing such rent vide M.R.C. No,819 of 1994. It has also been averred that the respondent is not entitled to any rent during the period in which the premises remained sealed. The ground of personal use has also been denied since per the appellant the respondent had ample space within which to expend its educational institution etc. Consequently. It has been prayed that the Ejectment Application be dismissed.
4. On the basis of the parties' pleadings, the learned Rent Controller Court framed the following issues:-
(i) Whether the premises are required by the applicant for personal bona fide use?
(ii) Whether the opponent committed any default in respect of payment of monthly rent?
(iii) What should the order be?
5. On behalf of the respondent Mrs. Musarrat Naseer, its Secretary-General, filed her affidavit-in- evidence wherein she has reiterated the contents of the main application as to default as well as personal bona fide need. However, on 27-7-1998 this witness was present in Court but neither the appellants nor their counsel appeared to cross-examine her in which event the latter's side for such cross-examination was closed by the learned Rent Controller as a number of chances had been given for this purpose, to the appellants. Thereafter an Affidavit-in-Evidence was filed by both the appellants who reiterated the contents of the Written Statement. They were cross-examined by the counsel for the respondent. Arguments were heard by the learned Rent Controller, who came to the conclusion that although the ground of personal bona fide need could not be established the ground of default in payment of rent had been proved and hence allowed the ejectment application.
6. By consent on 1-6-2002 CMA 2698/2001 was allowed by myself and money order coupons bearing Nos.1716, 1718 and 1719 were exhibited as Exhs.5/A, 5/B and 5/C respectively.
7. In support of the appeal Mr. Zahid Marghoob has firstly submitted that as far as default is concerned the allegation in para.8 for the Ejectment Application describes this period to be from October. 1994 till December 1994 as well as non-payment of water and conservancy charges etc. This has been denied in the Written Statement as for this period the rent had been tendered by money orders which were refused vide Exh.5/A, 5/B and 5/C whereupon it was deposited by the respondent in MRC No,819/1994. In this respect learned counsel has referred to the affidavit-in- evidence of Amanullah Khan Niazi, the appellant No,2 wherein the money order receipts have been produced as Annexures A/1 to A/10. As regards the money orders in question, learned counsel has submitted that they were sent on 30-11-1994 and received back. On 28-12-1994 as refused when the rent was deposited in MRC 819/94. Per learned counsel as the tenancy was a statutory one therefore in terms of section 15(2)(ii) of the Sindh Rented Premises Ordinance, rent was payable within a period of 60 days from the date it was due viz. For October, 1994, it became due on 30-12- 1994, for November, 1994 the due date was 30-1-1995 and for December, 1994 it was 2-3-1995.
Hence the rent deposited on 28-12-1994 for all these three months was within time after refusal on 30-11-1994. Similarly, learned counsel has argued that as regards enhancement of rent after every three years there is no provision in the Tenancy Agreement dated 25-3-1993 which is the second Agreement between the parties; thus the respondent could not press this issue to establish default.
Finally with respect to default in payment of rent learned counsel has submitted that per the statement of Accounts filed with the appeal, in fact, for some months rent has been paid twice, which if taken into account would establish a credit balance in favour of the appellants. Thus there could not be any question of default. In this connection learned counsel has also submitted that a handsome amount of Rs,10,00,000 is lying with the respondent as security deposit which could always be adjusted towards defaulted rent if any. In support of his contentions learned counsel has relied upon Baboo Khan v. Maqbool Ahmad 1984 CLC 2599, Mst. Shabana and another v. Messrs N.P. Cotton Mills (Pvt.) Ltd. 1999 YLR 230, Muntizma Committee, Al-Mustafa Colony (Regd.), Karachi and 3 others v. Director Katchi Abadies, Sindh and 5 others PLD 1992 Karachi 54, Muhammad Siddiq A. Memon v. Messrs Pakistan Milk Food Manufacturers Ltd. 1983 CLC 845, Muhammad Yameen v.
Yousuf Lakhani 1986 CLC 1507, Aminuddin Shaikh v. Mst. Mukhtar Begumr Shaikh 1986 MLD 1784, Tahir Ali Bhai v. Mrs. Naz Perwar 1997 MLD 2283, Altaf Ahmad Khan v. Dr.Muhammad Naseer Akhtar 1991 CLC 1861, Muhammad Masood Bhatti v. Moinuddin Khan 1998 CLC 703, Malik Muhammad Nawaz v. Haji Muhammad Hayat 1996 MLD 1895 and Muhammad Afzal v. Ch. Muhammad Ashraf and another 1989 MLD 2056. Alternatively learned counsel has referred to the deposition of appellant No,1 Muhammad Anwar Azim wherein it has been stated that the premises were sealed from 1-9-1994 to 31-12-1994 and hence the appellants were not obliged to pay any rent for this period at all which is the disputed period. Since the witness has not been cross-examined at all on this score, hence his statement is to be believed. Learned counsel has also submitted that the deposition of appellant No,1 has been supported by appellant No,2 in totality, again there is no cross on the issue of sealing of the rented premises and consequent non payment of rent by the appellants on this account. Similarly, learned counsel has submitted that per the Written Statement as well as the affidavit-in-evidence of both the respondents they were not bound to pay any water and conservancy charges since the water connection was never given to them by the respondent and they were drawing water not from the pipeline but from the well situated in the premises. So also learned counsel has submitted that water and conservancy charges were never demanded from the appellant and neither the share of the appellants water charges was ever determined since there was only one water connection.
8. Next learned counsel has submitted that in the Written Statement a number of objections were taken as to the non-maintainability of the Ejectment Application but no issue has been framed thereon. In this respect learned counsel has pointed out that no authority letter / power of attorney has ever been filed by Mrs. Musarrat Naseer who had signed the Ejectment Application which is a violation of section 19(5) of the Sindh Rented Premises Ordinance, 1979 and hence the Ejectment Application should have-been dismissed summarily. Finally, learned counsel has submitted that although the affidavit-in-evidence of the respondent/landlord has been filed but she was 'never cross-examined and hence the same cannot be considered at all.
9. On the other hand, Mr. Munawar Malik appearing for the respondent has submitted that the appellants' side for cross-examination of the respondent was closed on 27-7-1998 as none was present for this purpose on behalf of the appellant and thereafter the application filed by the appellant for re-opening of the side was similarly dismissed by the learned Rent Controller.
Consequently, learned counsel has submitted that the Respondent/landlord ' s evidence has gone unrebutted and hence has to be taken as the absolute truth.
10. Next learned counsel has submitted that in cross-examination of appellant No,1 Muhammad Anwar Azim he has admitted that he sent money orders on 12-12-1994 whose receipts are Exhs. 5-A, 5-B and 5-C. However, the said receipts do not mention as to whom they were sent and for which purpose and so also there is no endorsement as to refusal at all. In these circumstances, learned counsel has opined that there is no evidence at all on the record to show whether or not the money order had been sent to the respondent in which event the deposit of rent in Court vide M.R.C. No,819 of 1994 is of no avail to the appellant. Next learned counsel has submitted that per clause (8) of the Agreement between the parties the appellant is to pay for water consumption etc. Including electricity, gas and other local charges levied by the Central/Provincial Government on the business of the appellant. However, this was never done and the fact of non-payment has been stated in the Ejectment Application as well as the affidavit-in-evidence of the respondent. Next learned counsel has submitted that the most important ground is the personal bona fide need of the respondent, which has gone unrebutted since the respondent was never cross-examined on this issue. In this regard learned counsel has also submitted that no cross-appeal need to be filed per Ismail v. Sher Bano 1988 SCMR 772. As far as maintainability is concerned learned counsel has submitted that the Rent Agreement has been signed by Mrs. Musarrat Naseer as the General Secretary of the respondent and she has also filed her affidavit-in-evidence in this capacity as per letter of authority dated 29-9-1994 filed alongwith her affidavit-in-evidence. Finally, learned counsel has submitted that the respondent was given notice by KDA to get the Marriage Hall vacated as a result of which the Rent Case was ultimately filed and such fact has been mentioned both in the Eviction Application as well as the Affidavit-in-Evidence.
11. In rebuttal Mr. Zahid Marghoob has submitted that per the Inspection Report dated 10-12-1998 carried out by the learned Rent Controller enough area is available for the expansion of the school premises etc., and hence the ground of personal need has been rightly rejected by him. Secondly, as regards the letter issued by KBCA learned counsel submits that this is no ground for ejectment at all
12. I have heard both the learned counsel and my conclusions are as follows:-- Although the issue of maintainability was not framed by the learned Rent Controller in Rent Case No,643/1996, as both the learned counsel have addressed the same during the course of arguments, I propose to consider it. Per Mr. Zahid Marghoob appearing for the appellant the person who filed the Rent Case did not have any authority at all to do so as neither any letter/board resolution or power of attorney to this effect was produced by her from the respondent-Society.
Learned counsel has submitted that this objection was taken in the Written Statement filed by the appellant before the learned Rent Controller and reiterated in the affidavit-in-evidence filed by the appellants Nos.1 and 2, which has gone unrebutted as the said appellants were not cross- examined on this issue at all. As regard this issue, it would be seen that a letter of authority from the respondent is very much available in the R & P of the learned trial Court at page 69 dated 29-9- 1994 which authorizes Mrs. Musarrat Naseer to file the Ejectment Application etc., as well as to file proceedings before the High Court as well. Similarly, at page 73 of the R&P copy of the Minutes of the Meeting of the respondent Society has been filed, which again entitles Mrs.Musarrat Naseer to file ejectment proceedings as regards the rented premises. In this view of the matter, I am satisfied that Mrs.Musarrat Naseer who is the General Secretary of the respondent-Society had the power and the authority to file the Rent Case before the learned trial Court as well as depose thereto.
13. As regards the issue of personal bona fide use, it would be seen that per settled law where as much has been stated by the landlord on oath, it is to be taken as true unless disbelieved by cogent evidence and sufficient proof to the contrary. In this respect a landlord has to state in his application the material facts which would prima facie show that his personal bona fide need C was in accordance with the law and was made in good faith. The landlord is not required to state the nature of business, which he intends to carry on in the rented premises. Similarly, the landlord has the complete option to choose from any one of the several tenements occupied by the tenants in order to avail of the ground of personal need and this discretion is not assailable except in the rarest case of mala fides. For this proposition of law reference can be made to S.M.
Nooruddin v. Saga Printers 1998 SCMR 2119, F.K. Irani & Company v. Begum Feroz 1996 SCMR 1178, Saira Bai v. S. Anisur Rehman 1989 SCMR 1366 and Khawaja Imran Ahmad v. Noor Ahmad 1992 SCMR 1152. Applying the foregoing principles to the facts of the present matter, it would be seen that the respondent has clearly stated in para.9 of the Ejectment Application that the rented premises were required for establishing a play ground and additional construction of the school building etc. This wa' reiterated by Mrs. Musarrat Naseer in her affidavit-inevidence in para.6 thereof and also an additional ground was taken that as the entire lease of the respondent was cancelled due to letting out of the premises for the purpose of establishing a marriage lawn etc., it was all the more reason that the appellant/tenant be ejected. This statement on Oath by the witness of the respondent has gone unrebutted as admittedly numerous chances were given by the learned Rent Controller for cross-examination of the witness and eventually the side of the appellant for this purpose was closed and so also an application for recalling of such order was dismissed. In my view, therefore, the respondent had made out a good case for ejection on the basis of bona fide need and hence I would answer this issue accordingly.
14. As regards default in payment of rent, unfortunately the period of default has not been clearly mentioned in the Eviction Application as in para.7 it has been only stated that after desealing of the rented premises the appellant failed to pay the enhanced monthly rent at the rate of Rs,11.000 which was refused by the respondent who then sent money orders at the rate of Rs,10,000 per month instead of Rs,11,000 which were also refused. As per para.8 of the Eviction Application even in M.R.C. 819 of 1994 the rent was deposited at the lower rate of Rs,10,000 per month and so also the respondent failed to deposit the water and conservancy charges etc. In the affidavit-in-evidence filed by Mrs. Musarrat Naseer in para.15 thereof it has been stated that the rent for three months was deposited on 8-12-1994 vide M.R.C. No,819 of 1994 whereas the rented premises were sealed on 26-9-1994 and desealed on 1-12-1994 and hence a default had occurred for which appellants were liable for eviction. As opposed to the stand of the respondent regarding default, the appellants have in the written statement whilst admitting the execution of the rent agreement dated 29th September, 1991 also relied upon subsequent Rent Agreement dated Ist March, 1993 executed for a period of 7 years in the latter of which there is no clause regarding enhancement after every three years. Furthermore, in para.7 of the Written Statement the appellants have maintained that after completion of the first three-year period they voluntarily increased the rent from 10,000 to Rs,11,000 and offered the same to the respondent who refused to accept it whereupon with effect from September, 1995 (should be 1994) the appellants started depositing rent vide M.R.C. 819 of 1994 at the said enhanced rate. The same plea has been taken by the appellant No,1 in his affidavit- inevidence. However, it is notable that vide para.11 of the affidavit-in-evidence of appellant No,2 the plea regarding voluntarily increase in rent has not been taken but to the contrary it has been stated that in view of the expiry of three years' period the rent was raised to Rs,11,000 and this was offered to the respondent and upon refusal thereof with effect from September, 1995 (should be 1994) the said rent was deposited in M.R.C. 819/1994 at the enhanced rate. In cross-examination appellant No,1 has admitted that the Agreement between the parties took place on 29-9-1991, however, he has denied that no rent was paid by the appellant from 1-10-1994 to 30-6-1997. He has admitted that he deposited rent of previous three months in the Court on 12-12-1994. In the cross- examination of appellant No,2, he has again denied that no rent was paid to the respondent from 1-10-1994 to 30-6-1997 and has re-affirmed that the rent for the first time was deposited in Court for the previous three months on 12-12-1994, it is unfortunate that the Rent Agreement between the parties was never exhibited and neither were any of the documents filed alongwith affidavit-in- evidence of the witnesses. , However, from a perusal of the cross-examination of the appellant Nos.1 and 2, it is quite apparent that the parties have relied upon the First Rent Agreement only dated 29-9-1991, a copy of which has been filed in the appeal. Again, it would be noted that the tender of rent vide money order was never substantiated by the appellant before the learned Controller. However, by consent, the receipts issued by the Post Office in this regard were exhibited in the Appeal as Exhs. Nos.5/A, 5/B and 5/C each in the amount of Rs,10,000. Thereafter, a statement was filed by the learned counsel for the appellant attaching the report of the Post Office that the said receipts were, for the money orders sent to Mrs. Rahat Jehangir at S.F.I. Block-19, F.B.
Area, Karachi. Learned counsel for the respondent has, however, not consented to have the same exhibited.
15. Upon consideration of the aforementioned documents as well as the deposition of the parties, it would be seen that rent up to September, 1994 has not been disputed and the default is alleged to have occurred for the months of October, November and December, 1994. Per clause 21 of the Rent Agreement dated 29th September, 1991 all objections etc., raised by the concerned authority viz. KDA and KMC would have to be met by the appellants. Consequently, in my view, it cannot be said that no rent was due and payable during the period when the premises remained sealed viz. From 26-9-1994 to 1-12-1994 per the affidavit-in-evidence of the respondents' witness Mrs. Musarrat Naseer. Is . I have no option but to accept this period as being correct since there s nothing on the record at all to indicate anything to the contrary. Per the aforementioned Agreement rent was to be tendered in advance by the 5th of each calendar month. In my view this has not been done for the alleged period of default since the rent was deposited for the first time for this period in M.R.C.
No,819/1994 on 28-12-1994 as there is nothing on the record to show on which date rent for this period was offered to the respondent and when the same was refused. Exhibits 5/A, 5/B and 5/C all dated 30th of November, 1994 are the money order coupons whereby three money orders in the amount of Rs,10,000 have been sent by the appellant No,1 Muhammad Anwar Azeem to one Mrs. Rahat Jehangir but these do not display whether this lady was authorized to receive rent on behalf of the respondent. In any event there is nothing on the record to show whether the said money orders were refused by her. Similarly, no postman was examined in order to verify whether the money orders were refused by the person to whom they were sent. Even if it were assumed that rent was sent by money order on 30-11-1994 refused by the respondent and received back on 28- 12-1994 by the appellant whereafter it was deposited in Court, the fact remains that default has occurred for the months of October and November, 1994, since rent was due by the fifth of the month in advance. Even by adding the fifteen days grace period per section 15(2)(ii) of the Ordinance, the default has been established for these months since the money orders were sent on 30-11-1994. Mr. Zahid Marghoob has urged that rent would only be due upon expiry of 60 days, of the month for which it was due as the tenancy between the parties was a statutory one per section 15(2)(ii) of the Sindh Rented Premises Ordinance. Hence per learned counsel rent for the period of October, 1994 would be due on 30th December, 1994, for November, 1994 on 30th January, 1994 and for December, 1994 on 2nd March, 1995. Consequently as rent was tendered for October, November and December, 1994 on 30-11-1994 vide Exhs. 5/A, 5/B and 5/C and received back by the appellants on 28-12-1994 whereafter it was immediately deposited in M.R.C. 8-9-1994, there would not be any question of default. I am afraid, however, that this argument is misconceived since there is a Rent Agreement between the parties which very clearly stipulates that rent would be payable in advance by the fifth cf each calendar month, hence there is no question of any statutory tenancy.
Even otherwise it would be seen that Clause 17 of the Rent Agreement between the parties clearly stipulates a 10% increase in the monthly rent after completion of three years since the date when the first monthly rent is paid. Admittedly, enhancement in rent was due when the money orders were sent for the sum of Rs,30,000 only on 30-11-1994. So also only this amount was deposited in Court. Since there is a short fall of Rs,1,000 per month both in the tender and deposit of rent, to this extent also default has been established.
16. As regards learned counsel's submission that upon taking of the Accounts per statement filed alongwith the appeal, rent has been paid in advance for the months in question, suffice it to say that this plea was never taken before the learned Rent Controller and cannot be allowed at this stage. Similarly, the security deposit can also not be adjusted against rent as per settled law.
However, as regards the issue of default in payment of water and conservancy charges, my conclusion is that these were never proved by the respondent before the learned Rent Controller as no evidence was led on this aspect of the matter. Consequently, I would hold that no default can be claimed on this score particularly as there was a single water connection in the premises and the share of the appellants was never determined.
17. For the foregoing reasons, this appeal is dismissed alongwith pending applications. The appellants are directed to hand over vacant possession of the rented premises to the respondent within three months from today.