P L D 1996 Karachi 440 (PLP)

This is an appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 (hereinafter called Rent Ordinance J directed against an order dated 23‑9‑1991 passed by learned IVth Senior Civil Judge and Rent Controller, Karachi‑South, in 'Rent Case No.267 of 1988, Mst. Nargis Khartum v. Mrs. Ram Lal whereby an application under section 15 of the Rent Ordinance filed by the respondent/landlady in respect of house No.K‑9‑4‑S‑24‑LY‑

19. Survey No. 19, Juna Kumbharwara, Trampata Road, off Lea Market, Karachi, against the appellant/tenant was allowed as per impugned order hence the present Brief facts of the case are that the respondent/landlady filed eviction application against the appellant/tenant in respect of above said house on the ground that she required the said premises in good faith for herself and for her family as she had been residing in rented flat comprising of two rooms and that the appellant/tenant in spite of service of notice did not tender rent to her from May, 1983 and thereafter and further that appellant/tenant has sublet the premises to several families who have been residing in the. said premises without the consent of respondent/landlady. The appellant/tenant filed written statement wherein she denied all the averments made in the ejectment application and stated that need of the respondent/ landlady ‑was not bona tide and that she has been depositing rent in Miscellaneous Rent Case No.2120 of 1981 and that the notice sent was replied, On the pleadings of parties, learned Rent Controller settled three issues‑ "(1) Whether the applicant requires the property in case for the bona fide use and occupation of herself her husband and her children? (2) Whether the opponent has committed default, (3) Whether opponent sublet the premises?'._ Respondent filed an affidavit‑in‑evidence of Noor Amir her, son and attorney who has produced photo copies of rent receipts, three photocopies of National Identity Card, photo copy of Form B, photo copy of Matriculation Certificate. photo copy of higher secondary certificate, photo copy of provisional certificate, photo copy of notice dated 16‑11‑1987, photo copy of notice dated 26‑7‑1987 photo copy of registered postal receipt. photo copy of A/D receipt, photo copy of registered postal receipt, photo copy of notice dated 8‑9‑1987, photo copy of .notice dated 27‑3‑1986, photo Copy r)f notice dated 54'1986, photo copy of special power of attorney. The appellant/tenant filed affidavit‑in‑evidence of Kheraj son of Ram Lal and produced photo copy of general power of attorney, photo copy of order passed in Rent Case No.2120 of 1981, photo copy of rent receipts deposited in the office of Rent Controller in Rent Case No.267 of 1988. Learned Rent Controller after recording above evidence and hearing teamed counsel for parties, answered first two issues in affirmative while issue No.3 was answered in negative. I have heard Mirza Waqar Hussain, learned counsel for appellant and Mr. Farooq Hashim, learned counsel for respondent and perused the record and 'proceedings of the case and the case‑law cited by the learned counsel for parties. First contention of learned counsel for appellant is that the respondent/landlady has not proved her requirement in good faith and her requirement was based on mala fides as she did not examine herself and her son/attorney could not give particulars of the house where she presently resided. Learned counsel for appellant has taken me through the cross‑examination of the respondents attorney. He has placed reliance upon 1992 SCMR 1153(c) and 1993 CLC 148 in support of his contentions. Next contention of the learned counsel for appellant is that the respondent‑s attorney has himself in the cross examination admitted that the appellant/tenant was regularly depositing rent in Court in Miscellaneous Rent Case No.2120 of 1991 therefore, there could not be said to be default in the payment of rent, hence the findings of learned Rent Controller were erroneous on facts and law. Mr. Farooq Hashim, learned counsel for respondent has argued that the respondent/landlady in her ejectment application paras. 2, 3 and 4 has given all necessary particulars about her bona fide requirements in respect of premises in question and the said contents have been reiterated in para. 3 of affidavit‑in evidence filed by her son and attorney. He has also referred to cross‑examination of the appellant/tenant. He has further argued that bona fide requirement of the premises in dispute has been proved by the respondent/landlady and the appellant/tenant has failed to shake the veracity of the respondent's attorney in the cross‑examination and has also failed to bring any rebutting evidence. He has further contended that appellant/tenant could not bring any evidence in support of alleged forged rent receipt produced by respondent's attorney and further stated that the appellant/tenant should have called the author/landlord of the said alleged forged rent receipt to say that the same were forged but he failed to bring the same in support of his statement. He has further contended that the appellant/tenant has been changing pleas when firstly he took up the defence that the, respondent/landlady was residing in her own house and then took plea that she was residing with her parents, therefore, no reliance could be placed upon the testimony of the appellant/tenant. He has placed reliance upon 1990 CLC 340, 1990 CLC 706, 199

1. CLC 80, 1991 CLC Note 196 page 152, 1995 MLD 1471, 1993 MLD 2558, 1991 SCMR 1434, 1991 CLC 1884 and 1993 CLC 662 in support of his contentions. On the point of default, learned counsel for respondent has argued that the appellant/tenant was sent a notice to tender rent to the respondent/landlady but in spite of service of notice he continued to deposit rent with the Rent Controller hence there would be no tender within the meaning of section 10 of the Rent Ordinance. He has placed reliance upon. 1992 CLC 735 and 1992 CLC 2495 in support of his contentions. The respondent/landlady in paras,. 2, 3 and 4 of ejectment application has given the details about her personal requirement of the premises in dispute and the said averments have been reiterated in para. 3 of affidavit‑in‑evidence of her son Noor Amir. The veracity of Noor Amir son and attorney of the respondent could not be shaken. There has been even no suggestion in the cross examination of Noor Amir by the learned counsel for the appellant that the respondent was residing in her own house which was sufficient for her needs and further appellant has not challenged what has been stated in para. 3 of affidavit in‑evidence of Noor Amir. The appellant/tenant in the cross‑examination stated .hat he did not know if the disputed premises was on 137 sq. yds. and the flat in which respondent/landlady was residing would be hardly oil 50 sq. ft. The rent receipts produced by the respondent would show that she was residing in rented, that premises, and respondent's evidence would show that the said flat was insufficient for the need of six members of respondent's family. There is no rebutting evidence to the evidence adduced by the respondent/landlady Main contention of the learned counsel for appellant is that as the respondent's attorney showed his ignorance about the premises in which respondent was residing before filing of this ejectment case and also after filing of this case,, therefore, the personal need was tainted with mala fide. In fact, perusal of the cross‑examination of the attorney of the respondent would show that the respondent/landlady has been residing since 1980 in rented flat' premises, therefore, said statement made could not be said to be one which would make he personal requirement of the respondent/landlady as tainted with mala fides. The facts of Khawaja Imran Ahmad's ‑case 1992 SCMR 1553 are quite different, and, distinguishable to the facts of instant case as in the cited case, the Rent controller had allowed the ejectment of the tenant on the ground of bona fide requirement of the landlord but in appeal before the High Court, the decision ‑as reversed on the ground that landlord did not disclose with, regard to the business sought to be carried in the shop premises nor he Specifically mentioned about the. availability of the requisite funds, to set up any new business in the shop. However, the said decision of High Court. was reversed in appeal and ejectment was allowed in favour of landlord. Next case is of Abdul Majeed 1993 CLC 148 wherein learned Judge in Chambers observed:‑‑ "From this definition, it is implied that the demand for possession of the demised premises must be honestly made. Honesty is a state of mind, and is therefore, a phys ological fact capable of proof or disproof only by evidence or conduct. The word bona fides would also appear to mean the same as good faith. Mala fides conversely means in 'bad faith'." In the instant case, evidence adduced by the respondent/landlady has not been shown to be one which could be said to be dishonest or mala fide or in bad faith. There is nothing on record to prove that the need or requirement of the respondent/landlady is not based on good faith. On the other side, counsel for respondent has placed reliance upon Salim Ahmad Khan's.case 1990 CLC 340 wherein learned Judge in Chambers held at page 344 that "where the landlady has shown that her family consisted of seven children and the accommodation in her occupation was insufficient for his need, personal bona fide need of landlady 'stood proved. " In Mst. Iqbal Bano's case 1990 CLC 706 learned Judge in chambers held that where the landlady by her own evidence has proved that accommodation in her possession was insufficient to meet her growing demand and she was not owning any other house and when tenant did not produce any evidence to prove mala fides against landlady the law did not place any fetter upon choice of a landlady to use her own premises and in the said circumstances landlady was held to be entitled to possession on the ground of personal requirement. In the case of Vishindas and another 1991 C LC Note 196 page 152 learned Judge in Chambers has observed that when the landlord has proved that his family consisted of six grown up children and the accommodation presently in his possession was not sufficient for the need of his family and tenant was not asked for increase of rent. The landlady was held to be entitled to possession. In Adeel Usmani's case 1993 MLD 2558 learned Judge in Chambers has observed at page 2561 that landlord has. to show that he required the premises in good faith for his own occupation or use or for the occupation of lice of his spouse or any of his children, and the prerogative vested in the landlord select premises for himself and tenant could not be allowed to impose his will upon the landlord. In Nikhat Riaz's case 1991 SCMR 1434 their Lordships of Supreme Court have observed that it is now well‑settled that the fact that the landlord is occupying other rented premises or is living with relatives is no ground to disentitle him from occupying his own premises. In Syed‑Aqil Ali's case 1991 CLC 1884 learned Judge in Chambers has held at page 1886 that it was not necessary to examine persons for whom premises in question were ‑required. in Muhammad Shaheen's case 1993 CLC 662 learned Judge in Chambers has held that it was the prerogative of the landlady and not the degire of the tenant which should prevail and in the circumstances of the case eviction of tenant on the ground of personal bona fide need of the landlady was ordered. In view of aforesaid evidence and case‑law the contention of learned counsel for appellant that respondent/landlady has not proved in good faith her B requirement in respect of premises has no merit and substance. Next contention of learned counsel for appellant/tenant. is that as the respondent's attorney in the cross‑examination has admitted that the appellant/tenant has been regularly depositing rent in Misc' . Rent Case No.21N at 1981 therefore, there was no default. In this respect learned counsel has placed reliance upon N.oor Muhammad v. Mehdi PLD 19 1 91 SC 711 in support of his contention. The facts of cited case are quite different and distinguishable to the facts of instant case as in the cited case the order under section 160) of Rent Ordinance was passed but it was not complied with and the defence was taken that rent was deposited in some other miscellaneous case. therefore, default if any technical in nature and the rent was said to have been deposited in terms of the order passed under section 16(l) of Rent Ordinance. The facts of instant case are, that the appellant/tenant was c‑11‑d upon by notice dated 27‑3‑1986 to pay the entire arrears of rent from May, 1983 and thereafter, but the appellant/tenant replied that he has been depositing rent in Miscellaenous Rent Case No.2151 of 1981 and again another notice dated 8‑9‑1987 was served upon appellant/tenant to pay rent directly to respondent/landlady regularly but neither original tenant Ram Lal nor his legal heirs tendered rent in terms of section 10 of Rent Ordinance. Learned counsel for appellant has not disputed or denied the services of notice in which demand for payment of rent was made from the appellant/tenant and has also not denied that rent was not tendered to the respondent/landlady but stated that same was deposited in office of Rent Controller. It has also not been stated by the learned counsel for appellant that rent was tendered to respondent /I anti lady at least after service of notice by the respondent/landlady. Provision of section. 10 has provided the mode of payment of rent where under rent could be deposited with the Rent Controller only after the same is refused by the landlord/landlady but in, the instant case the appellant/tenant has not said that the ‑ rent was ever refused by the respondent/landlady, therefore. it was incumbent upon appellants to‑ tender rent directly to the respondent/landlady and if she would have refused then the rent could have been sent by money order and if the money order would have been refused then the rent could have been deposited in the office of Rent Controller. In the instant case it would appear from the evidence that in spite of demand of payment of rent by the respondent/landlady,' the appellants/tenants continued to deposit rent in the office of Rent Controller in order to pass hardship and difficulties to the landlady which in law could not be termed to be due tender in law. Reference is made to Feroze Ahmed‑v. Mst. Zehra Khatoon 1992 CLC 735 wherein learned Judge in Chambers has held that appellant had started to deposit rent in the office of Rent Controller Without any justification with a view to create problems for the landlord. Such deposit did not constitute valid tender of, rent. In Munawar Hasan v. 'Badiul Hussain 1992 CLC 2495 learned Judge in ‑ chambers has held that tenant was under obligation to offer rent to landlord and ,only in case. of his refusal to accept the same tenant could have resorted to other modes of payment, i.e. remittance through ‑money order or deposit in Court of Rent Controller. Admittedly, the appellant/tenant did not tender rent as provided under the law therefore the appellants committed default in the payment of rent from the last notice dated 8‑9‑1987 till filing of ejectment application on 15‑2‑1988 and ‑thereafter till the appellant started depositing rent in Rent Case No.267 of 1987. In view of aforesaid reasonings and case law, I do not find substance in the contention of learned counsel for appellants that the appellants were not defaulter in the payment of rent. Accordingly, I do not find any merit and substance in the appeal which is hereby dismissed. However, the appellants are directed to hand over the possession of the premises to the respondent/landlady within a period of sixty days subject to payment of rent for the said period. H.B.T./R‑10/K Appeal dismissed.