1986 PLP 1526 (MLD)

Date of hearing: 10th November 1985. This appeal is directed against the order of the Rent Controller, Karachi, dated 24‑10‑1983, directing the appellant to hand over vacant possession of the premises in question to the respondents within two months from the date of the said order. The appeal was dismissed on 10‑11‑1985 by a short order, the reasons for which were to be recorded later. The reasons areas follows:‑ The facts of the case, are that the appellant was the respondent's tenant in respect of a shop situated at Jetpur Square, Nasir Abad Federal 'B' Area, Karachi at a monthly rent of Rs.200. In May, 1982 the respondent filed an application under section 15 of the Sind Rented Premises Ordinance, 1979 averring therein that the appellant had committed default in payment of rent in respect of the rented premises since January, 1982. It was also averred that the predecessor‑in‑interest of the respondent, namely, Haroon Muhammad Amiwala had died leaving behind the respondents as his legal heirs and that. the shop in question was required by the grown up sons of the respondent No.1 for earning their livelihood as the deceased husband of the respondent No.1 had left behind a large family. It was further averred that the major sons of the respondent No.1 were earning their livelihood by acting as brokers in the market and had no place of their own for doing business, therefore, the shop in question was genuinely bona fide and in good faith required by the respondents for carrying their own business. The appellant filed written‑statement in which the relationship of landlord and tenant between the appellant and the respondents was dewied. The appellant had stated in the written statement that except for Muhammad Yousuf, the respondent No. 3, ‑no such relationship existed between the appellant and the rest of the respondents. As regards default in payment of rent for the months of January and February, 1982, it was stated that rent for those months was paid by him to one Haji Majeed. Motan who used to collect rent on behalf of Muhammad Yousuf. It was further stated that no receipts had been issued by Haji Majeed Motgn in respect of the rent in question. In March, 1982, when the appellant tendered rent for the said month to Haji Majeed Motan and demanded receipts for the months of January and February, 1982, not only that he refused to accept rent for the month of March, from the appellant, but the rent for the month of January and February, 1982 was also returned to the appellant. The appellant also denied in his written statement that the premises in question were required by the respondents for their own personal bona fide needs as according to the appellant, the respondents wanted to let out the premises at enhanced rent. The learned Rent Controller in his order, dated 24‑10‑1983 came to the conclusion that there did exist a relationship of landlord and tenant between the parties, that the premises in question were required by the respondents for bona fide and personal use and that the appellant had committed wilful default in payment of rent to the respondents. First, adverting to the question qua the relationship of landlord and tenant between the parties the definition of the terms "landlord" and "tenant" in section 2 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as "the Ordinance") is pertinent. "Landlord", according to clause (f) means, "the owner of the premises and includes a person who is for the time being authorised or entitled to receive rent in respect of such premises". The word "tenant" has been defined as: "Tenant" means any person who undertakes or is bound to pay rent as consideration for the possession or occupation of any premises by him or by any other person on his behalf and includes. (i) any person who continues to be in possession or occupation of the premises after the termination of his tenancy; (ii) heirs of the tenant in possession or occupation of the premises after the death of the tenant." In the evidence, Muhammad Yousuf, the respondent No.3 has stated that Haroon Muhammad Amiwala who was the respondent's father was the owner of the shop in question. He expired on 8‑10‑1981 leaving behind the present respondents as his legal heirs. It has been further stated by him that the appellant had occupied the premises in question in the year 1974 as a tenant at a monthly rent of Rs.200. In the cross‑examination the respondent reaffirmed that the premises in question were rented out to the appellant by the respondent's father, but further stated that a receipt for advance deposit was issued to the appellant by the respondent himselff'. The respondent also admitted that he used to issue rent receipts to the appellant and that his father never issue rent receipts to him. In his own evidence the appellant has stated that he became the tenant of Muhammad Yousuf in respect of the premises. It is therefore, clear from the evidence, that Haroon Muhammad Amiwala was the owner of the shop in question, the fact, which has not been denied even by the appellant. No doubt, the appellant according to the evidence, was paying rent to the respondent No :3, but in view of the definition of the terms "landlord" and "tenant" in the Ordinance, and the evidence referred to above, it is amply "clear that the relationship of landlord and tenant did exist between the parties. The contention raised on behalf of the appellant, therefore, cannot be accepted. The Rent Controller, under the circumstances has rightly decided this issue in favour of the respondent. The next contention of Mr. Abdul Waheed Kanjoo was that even if the appellant had committed default in payment of rent since January, 1982, the advance deposit of Rs.3,000 which was allegedly lying with the respondents should have been adjusted towards rent for the months of January, February and March, 1982. In this respect the learned counsel placed reliance on P L D 1980 S C

296. Before this plea is examined, it may first be determined whether any default in the payment of rent as alleged by the respondents was committed by the appellant. The respondent No.3 in his evidence has alleged failure on the part of the appellant to pay rent to the respondents after December, 1981. According to the respondent, he visited the shop of the appellant to collect rent but the appellant failed to pay rent to him. A legal notice sent in this respect to the appellant by the respondent on 5‑4‑1982 also remained unanswered. The plea taken by the appellant in his evidence, however, was that he had paid rent for the months of January and February, 1982 to one Haji Majeed Motan who used to collect rent on behalf of the landlord but in the month of March, 1982 when the appellant went to pay rent for the said month and collect receipts or the rent paid by him. Haji Majeed Motan returned the rent and informed the appellant that the respondent Muhammad Yousuf had refused to accept the same. According to the appellant he tried to pay rent directly to the said respondent but he with mala fide intention avoided and refused to accept the same. Thereafter, the appellant deposited the rent with the Rent Controller after filing Case No.1837 of 1983 in that behalf. The appellant has failed to produce any rent receipts for the months of January and February, 1982 although in his cross‑examination he has admitted that he had such receipts in his possession. In any case his defence is that rent for the said months was paid to Haji Majeed Motan who was the Rent Collector of the respondents. Since the respondents have denied to have received any rent for the months of January and February, 1982, it was necessary for the appellant to have examined Hap Majeed Motan as a witness. Since the appellant failed to do so, his version in regard to the payment of rent for the months of January and February, 1982, is not supported by any other evidence. The only receipt produced by the appellant before the Rent Controller was the one, dated 18‑4‑1982 showing payment of rent by him for the period from January to April, 1982. The rent for the said period, according to the appellant, was deposited by him with the Rent Controller in Case No.1837 of 1983. Since no evidence has been produced by the appellant to show that rent for the disputed months was either tendered to the respondents or deposited with the Controller within the period as contemplated by section 15(2)(ii) of the of the Controller in respect of default in payment maintained. The contention of Mr. Abdul Waheed Kanjoo that Rs.3,000 sai to be lying in deposit with the landlord should have been adjuste first by the respondents cannot be accepted. Although, the appellan has filed a photo copy of a receipt, dated 26‑11‑1974 which shows that Rs.3,000 were received as fixed deposit against rent of the shop i question by the landlord, but no evidence has been adduced by the appellant to the effect that such amount continued to remain in deposit with the landlord even at the time the default is alleged to have been committed by the appellant. Muhammad Yousuf, the respondent No. who examined himself as a witness should at least have been cross -examined on the point. The appellant, therefore, has failed to established that the said amount of Rs.3,000 was still lying in fixed deposit with the landlords. Reliance has been placed by Mr. Abdul Waheed Kan' on the Supreme Court case reference to which has been made earlier, but in that case there was no dispute about the amount lying in fixed deposit with the landlord. On the basis of that the Supreme Court concluded that since after expiry of the rent agreement the amount left in deposit with the landlord was still lying with him, no default had been committed by the tenant. The facts of the instant case are, therefore, distinguishable. No evidence was brought before the Rent Controller by the appellant to show that such amount had not bee already adjusted towards rent by the respondents or their predecessor, the burden of proof for which was on the appellant. In view of thi the argument of Mr. Abdul Waheed Kanjoo in respect of the fixed deposit cannot be accepted. The last contention of Mr. Abdul Waheed Kanjoo was that the respondents had failed to discharge the burden placed by the Legislature on them, viz. to prove that the shop in question was required by them in good faith for their personal needs. According to the evidence adduced by the respondents on the point, the deceased Haroon Muhammad Amiwala was the only earning member of the family and after his demise the premises were required by his sons, the respondents in this appeal for their own business. It has also come in evidence that the said respondents were earning their livelihood by acting as brokers in the market and had no place of their own, to do business. The appellant has not been able to shake this plea of the respondents. The only plea taken by him in his affidavit was, that the respondents wanted to relet the premises on Pugree. In the written statement, however, he had stated that the respondents wanted to relet the premises at enhanced rent. Whatever be the case, the appellant has failed to meet the respondent's plea with any convincing evidence on the point. Under the circumstances, the finding of the Controller on the question of personal requirement is also maintained. For the aforesaid reasons; this appeal is dismissed, The appellant shall however hand over vacant possession of the premises in question to the respondent after four months from 10‑11‑1985 as earlier ordered. A.A ‑‑‑‑‑ Appeal dismissed.