1989 PLP 1048 (CLC)

4. 1 have heard the learned counsel for the parties and have also gone through the record of the appeal. The respondent has examined himself in support of his cause, while the appellant has examined his father/attorney Tufail Ahmad and also two witnesses namely, Muhammad Abrar and Abdul Razzaq.

5. Admittedly the appellant has not produced any receipt of payment of rent for the period from 8‑8‑1983 to 7‑9‑1983. It is contended by the learned counsel for the appellant that he had paid rent to the respondent, but no receipt was issued by him. Admittedly the respondent had been issuing rent receipts regularly and as such there appears no reason that receipt was not issued. I have no hesitation in agreeing with the learned Rent Controller that the rent for the month of August was not paid by the appellant. With respect to the rent for the months 'of September and October, 1983, the appellant's witness Tufail Ahmed states that he sent the rent by money order. The 'respondent states that he never received the money orders and no postman has been examined to show that the money order was delivered to the respondent. As such the default in payment of rent from ‑8‑8‑1983 to 7‑11‑1983 viz. for three months is proved before the institution of the rent application on 19‑11‑1983.

6. It is submitted by Mr. Raja Khan learned counsel for the appellant that the tenancy agreement for eleven (11) months had expired before the rent for September became due on 7‑10‑1983 and as such it was payable within 60 days after it became due. He, therefore, argued that at the most default within the meaning of Sind Rented Premises Ordinance would be for the month of August, 1983 only because the rent for the period from 8‑9‑1983 to 7‑10‑1983 could be paid up to 7‑12‑1983, .whereas the rent case was filed on 19‑11‑1983. Be that as it may, even if it is held, that there was default for three months, still the total amount of rent due against the appellant was Rs.4,300 as against Rs.5,000 which were admittedly lying as deposit with the respondent under the first tenancy agreement of 1979. Thus the security deposit lying with the respondent was more than the amount of rent due from the appellant. It is submitted by Mr. Raja Khan that under the circumstances this cannot be held as a default for the purpose of ejectment of the appellant. Reliance is placed on PLD 1980 SC

298. In view of the law laid down by their Lordships in the above citation, it is now settled law that after the expiry of agreement the landlord has no right to retain security deposit which would be adjustable to monthly rent due from the tenant. I am, therefore,, of the view that there was no such default on the part of the appellant to make him liable for eviction.

7. Next 1 proceed to examine the personal requirement of the respondent. The main ground of attack of the appellant is that the previous rent application was also moved by the respondent on the same ground. The previous rent application has been produced by D.W. Tufail Ahmad alongwith his affidavit‑in‑evidence. Para.4 of that rent application reads as under:‑ "

4. That the applicant is residing in a rented house and he has no other house of his own in his occupation. The applicant, therefore, requires the premises for his personal bona fide use and convenience. The applicant also served such notice dated 4‑2‑1982 upon the opponent but the opponent has yet not replied." The respondent has repeated this ground verbatim in para. 4 of his present Rent Application. It is submitted by the learned counsel for the appellant that on 7‑10‑1.982 the respondent had given up his right of personal requirement, if any, by entering into a fresh tenancy agreement with the appellant and since that date and before the institution of present rent application, there is nothing on record to show that there was any fresh ground on which the respondent could claim the house for personal requirement. Mr. Aijaz Hakro learned counsel for the respondent submitted, that the respondent had given up the right of personal requirement temporarily for eleven months and not permanently, as the agreement was for eleven months only. This agreement has also been produced along with the rent application. No doubt it is for 11 months. But para 9 of this agreement provides that after expiry of eleven months fresh rent agreement would be executed with the consent of the parties. Thus it is clear that by this rent agreement the respondent had not only given up his right for personal bona fide requirement for eleven months, but he agreed to execute fresh rent agreement after expiry of the said rent agreement. The only ground on which personal requirement was pressed is that the respondent is residing in a rented house and he wants to shift to his own house. This was also the ground taken by the respondent in the previous rent application, which was .later on given up by him by entering into a compromise and fresh rent agreement with the appellant. Thus it cannot be considered as fresh ground for the purpose to justify the personal requirement of the respondent in the present application.

8. It has also clime in evidence, that after institution of the suit the respondent has been ordered to be evicted from the rented house and he also filed appeal against his eviction. The appellant's witness Tufail Ahmed and the two above‑named witnesses have stated, that after the institution of these rent proceedings; the upper portion of the demised premises has also fallen vacant and is in the possession of the respondent. The respondent has denied this averment.

9. The learned counsel for the respondent has argued that the personal requirement of the respondent further stands proved by the fact, that he has been ordered to be ejected. The respondent in his cross‑examination has stated, that the eviction application was filed against him after he filed the present application against the appellant. Be that as it may, this ground or cause of action was not available to the respondent at the time, when he filed the rent application.

10. It is submitted by Mr. Raja Khan learned counsel for the appellant, that admittedly the respondent has no children and there are only two members of family viz. he himself and his wife and as such the upper portion of the house which has fallen vacant, would be enough for their personal requirement, if any.

11. Mr. Aijaz Ali Hakro learned counsel for the respondent has contended that it is the right of the landlord to choose any tenement for personal residence, and neither the appellant nor the Rent Controller has got any right to dictate him in which house to reside. 12. 1 need not go into this discussion as neither there is enough evidence on record to show, that the upper portion of the premises is lying vacant, nor was the respondent given any opportunity to show, as to why the said premises if vacant, was not sufficient or convenient for him. Neither the respondent has pleaded in the pleadings, that he is being ejected or has been ejected by his landlord and, therefore, he requires the house for his own need, nor is it pleaded by the appellant in the pleadings, that the upper portion of the house has fallen vacant and that is sufficient for personal requirement of the respondent. Under the circumstances I do not want to comment on both these averments, even if correct, because this cause of action, if any, accrued to the respondent after these proceedings, which he may, if he so desires, take in any future proceedings of eviction which the appellant, if he so desires can resist on the ground that the upper portion of the premises is lying vacant. Only after the parties have led sufficient evidence on these two averments, the Rent Controller would be in a position to decide as to whether the respondent still required the house for bona fide needs. In the present proceedings suffice it to say, that no fresh: cause of action had accrued to the respondent, after the compromise in the previous rent application, to invoke the discretion of Rent Controller for eviction of the appellant on the ground that the landlord required the house for personal requirement.

13. Next I come to the question of the third ground that the tenancy under the agreement has expired. At the relevant time when this tenancy agreement was entered into and when it expired, Section 15 of the Sind Rented Premises Ordinance provided that:‑ "

15. Application to Controller. (1) Where a landlord seeks to evict the tenant otherwise than in accordance with section 14, he shall make such application to the Controller. (2) The Controller shall make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in the order, if he is satisfied that:‑ (i) the tenancy has ceased to be valid under section 6:‑ (ii) (iii) (iv) . (v) (vi) (vii) (3) . "

6. Tenure of tenancy.‑No tenancy shall, at a time, be valid beyond such period as the landlord and tenant have, by mutual agreement, fixed before or after the commencement of the tenancy. Section 5(1), which i,, also relevant, is reproduced as under:‑ "

5. Agreement between landlord and tenant.‑‑(1) The agreement by which a landlord lets out any premises to a tenant shall be in writing and if such agreement is not compulsorily registerable under any law for the time being in force it shall be attested by, signed by, and sealed with the seal of, the Controller within whose jurisdiction the premises is situate or, any Civil Judge or First Class Magistrate."

14. The provisions under clause (i) of S.15(2) and of section 6, have subsequently been repealed by Sind Ordinance IV of 1984, but the cause of action, if any under these provisions had accrued to, D the respondent during the subsistence of the provisions. As such the subsequent repeal of the provisions would not take away his right. However, under section 5 of the Ordinance such agreement had to be attested by the Rent Controller or a Magistrate Ist Class. Under clause (1) of section 15 certain rights of the tenant have been taken away and as such this provision would be considered to be a penal provision and would have to be strictly construed. Therefore, agreement on the basis of which a landlord can seek eviction of the E tenant, would be an agreement entered into strictly in accordance[ with the procedure laid down in section 5 of the Ordinance. Reliance; is placed on 1984 M L D 1 wherein a learned single Judge of this Court has held as under: ‑ "If a landlord seeks ejectment on the ground that the tenancy has ceased to be valid due to efflux of the agreed period, he must first establish that the agreement of tenancy is in the manner provided by section 5(1). In this regard sections 5, 6 and 15(2)(1,) have to be read together. The agreement ‑in section 6 directly refers to the agreement mentioned in section 5(1). Therefore, unless the agreement on the basis of which section 15(2)(1) is pressed into service is in accordance with section 5(1) of the Ordinance, the landlord will not be entitled to seek ejectment on the ground that time fixed in the agreement has expired, and, therefore, the tenancy has ceased to be valid. Section 6 cannot be read in. isolation with section

5. The power to eject a tenant under section 15(2)(:) is restricted to agreements made in accordance with section 5, and to no other agreement. Such restriction is contemplated by the legislature otherwise there was no necessity for providing a method for making an agreement and declaring such tenancy as invalid after the expiry of the agreed period. Unless the contents of such agreement are admitted by the tenant a certified copy of the registered deed or the original should be produced before the Controller. Once section 5 has been complied with the Controller has to determine whether in terms of such agreement the period has expired and the tenancy ceased to exist."

15. In the instant case, admitted agreement was not attested by the Rent Controller or any other authority :mentioned in section 5 of the Ordinance. Mr. Aijaz Ali Hakro learned counsel for the respondent has contended, that this agreement is mentioned. in the compromise application moved by the parties before Rent Controller in the earlier rent case and, therefore, it would be deemed to be under section 5 of the Ordinance. No doubt it is mentioned in the compromise application, that the parties have entered into a fresh agreement, but only one term of this rent agreement is mentioned in the compromise application, which is enhancement of rent from Rs.1,200 to Rs.1,450 p.m. Therefore, this agreement specially for the purpose of eviction on the ground of expiration of period of tenancy, cannot be considered as an agreement envisaged under section 5 of the Ordinance. The language of section 5 is very clear and unambiguous. If the law requires certain act to be done in a particular way, it has to be done as enjoined by the law and by no other method. Under the circumstances, in my opinion, this ground is also not available to the respondent. For the aforesaid reasons, I allow this appeal and set aside the order of eviction passed by the learned Rent Controller. However, this order will not prejudice the rights of parties, if any, if the respondent moves fresh application on the ,round, that he has been evicted from the rented premises. M. Y.H./S‑299/K Appeal allowed.