1999CLC 1710 (PLP)

(1) Habibur Rehman Khan v. Mehromal 1993 SCMR 1163, ' (2) Rashid Ahmed v. Ziker 1989 CLC

457. In all fairness it would be proper to refer to some relevant paragraphs of the rent application, written statement and evidence adduced by the parties. The appellant in unequivocal terms has stated in rent application vide para.4 that the rent of the shop in dispute has been paid to the appellant till August, 1992 and he repeatedly asked the father of the respondent, the deceased tenant of the shop to pay rent with effect from September, 1992 and water and conservancy charges outstanding against him. Moreover, he has also stated in the same paragraph that the shop is required for the use and occupation of his son but he failed to do so. In para. 6 also appellant has stated that his son Syed Haider Abbas Rizvi has no business of his own and he intends to start the business in the shop as such the same is required for his bona fide use and occupation in good faith. The para. 4 of the written statement filed by the respondent reads as under‑‑ "That para. (4) of the ejectment application is denied. It is denied that the applicant ever asked the father of the opponent to pay rent w.e.f September, 1992 anti water and conservancy charges as well as demanded to vacate the premises. The opponent's father tendered the rent in favour of applicant through money order for the month of August, 1992 but the applicant refused to accept the same. Then, the opponent's father filed a Miscellaneous Rent Case bearing N0.731 of 1992 in this Honourable Court, and deposited the rent in Court and 44 after his death the opponent has been depositing rent regularly and uptil now he has deposited rent for the month of June, 1994. The opponent never committed default in payment of rent during long standing. The application himself always paid the water and conservancy charges to K. W. and S. B." In para. 6 of his written statement he has stated that firstly the son of the appellant Syed Haider Abbas Rizvi does not require the premises and he is well settled in several businesses and that appellant has several premises to start his, business and have already been running the businesses in different localities. In the affidavit in evidence filed by the appellant he has reiterated the contents of the rent application and he was cross‑examined by the counsel for the respondent. In cross‑examination he has stated in the following terms:‑

It is incorrect to suggest that the facilities of the water and conservancy have not been provided by the applicant to the opponent. It is incorrect to suggest that the shop in question is not required for my son. My said son Syed Haider Abbas is present in Court. It is incorrect to suggest that I did not ask the father of the opponent as well as to the opponent for vacating the shop in question. It is incorrect to suggest that I refused to receive the rent from the opponent. I do not know if the father of opponent sent my rent through money order in the month of August. It is incorrect to suggest that I 'refused the said money order. I do not now if the father of the opponent started depositing rent in M.R.C. l4 No.731 of 1992 in this Court after my said alleged refusal of money order. Mr. Shakeel Ahmed, learned counsel for the respondent has very much emphasised on the point that rent was remitted and in support of his contention Annexures "G" and "G‑1 " were produced and exhibited in evidence by the Court which is the document on which the respondent's counsel has heavily relied upon but in cross‑examination the respondent has stated in the following terms:‑‑

"It is fact that my father has not paid rent to the applicant from September, 1992. Vol. says that my father offered the rent through money order but the same was refused. My father has tried to tender the rent personally to the applicant which he refused. My father has not given any notice to the applicant about refusal of rent

I see Annexure ' G' of my affidavit in evidence and say there is no mention about to whom the money order was sent as well as there is no endorsement about refusal by the applicant by the postal authority. I see Annexure 'G/1' and say it also does not show to whom it was sent besides of that it does not show any endorsement of refusal. It is incorrect to suggest that neither my nor myself have sent the rent through money order. It is fact that my father does not file any money order coupon or money order receipt with my M.R.C. It is fact that I did not produce any money order receipt in this case. It is incorrect to suggest that my father has not‑ given any intimation to the applicant about depositing of rent in M.R.C. Vol. Says I myself has given such information. However, I have no written proof to establish in respect of that. " In this state of affairs of the evidence so adduced by the parties before the learned Rent Controller now I would like to refer to section 10 of the Ordinance which provides as under:‑‑ "Section 10(1).‑‑‑ The rent shall, in the absence of any date fixed in this behalf by mutual agreement between the landlord and tenant, be paid not later than the tenth of the month next 'following the month for which it is due. (2) The rent shall, as far as may be, be paid to the landlord, who shall acknowledge receipt thereof in writing. (3) Where the landlord has refused or avoided to accept the rent, it may be sent to him by postal money order or, be deposited with the Controller within whose jurisdiction the premises is situate. (4) The written acknowledgement, postal money order receipt or receipt of the Controller, as the case may be, shall be produced and accepted in proof of the payment of the rent. " I would like to discuss the case‑law cited by the learned counsel for the appellant: (1) Mst. Toheed Khanam v. Muhammad Shamshad 1980 SCMR

593. In this case the appellant let out shop to the respondent at the monthly rent of Rs.65 for a period of two years, subsequently the shop was extended and some improvements were made which led to the increase of rent to Rs.95 per month. The period of the lease was not extended but the respondent continued to occupy the shop as a tenant. In 1967, the appellant filed ejectment application on the ground of personal need and default which was dismissed by the Rent Controller, appeal against the dismissal order of the Rent Controller was also filed but the same was also rejected. Appellant, therefore, again filed an ejectment application on the ground that she needed it for her personal use as she wanted to run a business in the shop through her major son considering the meagre income of her husband. Respondent contested the application on the ground that her requirement was not bona fide as she had been demanding higher rent and further he pleaded that it was barred under the rule of res judicata. The result was that rent application was rejected, the appellant filed first rent appeal which was also dismissed and the second appeal filed by the appellant before this Court was also dismissed on the ground that appellant did not bona fide require the disputed premises. Their Lordships of the Supreme Court after assessing the. evidence so recorded observed that there was no dispute that the husband of the appellant had no other income except his meagre salary which was insufficient to maintain a large family. Their Lordships also found that it was also brought on the record that the husband of the appellant was in a position to draw from his Provident Fund a loan sufficient to start a small business like the one stated, by his son. Their Lordships were also of the opinion that there was no reason to discredit the assertion of the son that his mother had 5 Tolas of gold ornaments which could also provide some financial assistance in starting the business. In this state of affairs appeal of the appellant was allowed and respondent was directed to hand over vacant possession of the shop to the appellant.

2. Muhammad Yaqoob v Abdullah and another 1983 CLC 2216 In this matter it was held that money order coupon not bearing any endorsement of refusal nor stamp of post office, plea of tender of rent rightly disbelieved by the Rent Controller.

3. Syed Khadim Abbas Rizvi v . Miss Gohar Fatima 1984 CLC 2449. In this case also a learned Single Judge of this Court observed that letter of postal authorities clearly showing that money order was returned with endorsement refused, as to who actually refused to accept amount of money order left unexplained. In view of landlord's denial burden lay on tenant to examine postman concerned to prove his contention that landlord had refused to accept money order.

4. Muhammad Amin v. Ghulam Muhammad Dossal 1987 CLC 1777. In this case rule laid down is that where receipt of disputed rent of premises, allegedly remitted by tenant through money order was expressly, denied by landlord, such receipt thereof, should be proved by tenant by confronting landlord with signatures on receipt or by comparing his signatures with some admitted signature payment of such remitted amount was to be proved by tenant by examining postman concerned and tenant having failed to do so there was no escape from conclusion that tenant had failed to prove payment of disputed rent to landlord.

5. Abdul Karim v. Abdul Karim 1992 SCMR 1300. In this case it was laid `down by their Lordships of the Supreme Court that objection of technical nature that landlord did not mention in ejectment application that he had no other shop would not disentitle him to claim ejectment on the ground, since claim of landlord right from the beginning was that shop in question was needed for his sons and not for himself.

6. Muhammad Yasin v. Ali Muhammad 1996 CLC

221. The observation of a learned Judge was to the effect that landlord seeking ejectment of tenant on ground of personal bona‑ fide need, had in his evidence categorically and emphatically stated that he required shop in question for bona fide personal use of his elder son who was grown up and jobless and wanted to start his own independent business.

7. Messrs F.K. Irani & Co. v. Begum Feroze 1996 SCMR 1178. In this case their Lordships of the Supreme Court on the personal bona fide need of the landlord have held that merely because the husband of landlady had 62 shops in one area and 21 shops in another would not disentitle her to apply for ejectment on the ground of personal requirement of her son as it is for a landlord/landlady to select as to which of the buildings he/she wishes to use personally or to provide the same to his/her children. In this very case also it has further been held that statement of landlord on oath if consistent with the application for ejectment and not shaken in cross‑examination or disproved in rebuttal is sufficient to prove that requirement of landlord is bona fide. Now I would like to discuss the case‑law cited by the learned counsel for the respondent:

1. Habibur Rehman Khan v. Mehromal 1993 SCMR 1163. Facts of this tease are that appellant/landlord presented rent case in, the Court of First Senior Civil Judge and Rent Controller (East), Karachi seeking eviction of the respondent tenant on the ground of sub‑letting by tenant to Hotel Plaza, default in payment of rent from November, 1975 till filing of the rent case, nuisance as premises were being used for promotion of prostitution and impairing value and utility of the premises. Tenant Mehromal filed written statement admitting that he was tenant at monthly rent of Rs.2,500 while he denied other allegations. It was stated in the written statement that premises were commercial in nature as provided in tenancy agreement and before letting out to the tenant previously premises were being run in the name of Society Hotel and Bar. Default was denied with assertion that landlord stopped accepting rent from November. 1975 with intention of enhancing the rent. Landlord was requested by letter, dated 9‑12‑1975 to accept the rent. It was further stated that rent was being tendered by the tenant through his attorney and the copy of the power of attorney was also sent to the landlord. Landlord refused to accept the rent, on refusal of the landlord, rent of three months was sent to him through money order which was also not accepted. Finally tenant started depositing rent in the Court in Miscellaneous Rent Case No.978 of 1976. In this background of the matter ejectment application was allowed. Appeal filed before this Court was accepted and order of the eviction was set aside, the landlord filed leave to appeal before the Supreme Court and their Lordships of the Supreme Court after considering the various averments of the parties and examining/analysing the evidence so recorded the leave to appeal was dismissed and eviction of the respondent/tenant was declined with the following observations:‑‑

"Landlord is not justified to refuse rent tendered through modes permitted by law. In such case, tenant would not be guilty of wilful default in case of refusal by landlord to accept rent tendered through legal modes."

2. Rashid Ahmed v. Ziker 1989 CLC

475. In this case a learned Judge of this Court after considering the full facts of the case with regard to the default in payment of rent and its proof, observed that landlord while collecting rent from tenant demanded rent at a rate higher than agreed rate, but tenant insisted to pay agreed rent and refused to pay rent at higher rate. Tenant on refusal on the part of landlord to accept usual rent, sent the rent by money order and on refusal of landlord to receive same, tenant started depositing rent in Court. In view of the averments of the parties in the application, written statement as well as evidence adduced by the parties before the Rent Controller which has been reproduced and discussed here in the earlier part of this judgment the contention of the respondent that rent was tendered to the appellant which was refused by him thereafter, the same was sent to the appellant through money order which was also refused by the appellant and thereafter, respondent started depositing rent in the Miscellaneous Rent Case. In the written statement as well as in the evidence it has not been proved that rent was ever tendered by the respondent to the landlord and on his refusal the same was remitted to him through money order. The assertion of the respondent in cross‑examination clearly shows that the rent was not remitted to him by money order. The respondent on his own accord without serving prior notice about the deposit of rent in the Miscellaneous Rent Case does not absolve him from his legal duty in offering the rent and remitting rent to the landlord as prescribed under section 10 of the Ordinance. The personal bona fide use of the shop for his son is also established by the appellant through the cogent and convincing evidence which has also gone unrebutted. The case‑law cited by Mr. S.M. Akhtar Rizvi, learned counsel for the appellant is relevant to the facts of the present case whereas the case‑law referred to by Mr. Shakeel learned counsel for the respondent in view of the above facts and circumstances in my humble opinion is not helpful rather it supports the contention of the appellant. For the facts circumstances and case‑law referred to and discussed hereinabove I am of the considered opinion that appellant has established his case that the demised shop is required for the personal bona fide use of his son. On account of default also the appellant has proved that respondent is a willful defaulter in payment of rent. The total sum up of the above discussion is that appeal is allowed and impugned order of the Rent Controller is hereby set aside keeping in view the old tenancy, however, respondent is allowed six months' time to hand over the vacant and peaceful possession of the demised premises to the appellant landlord, in case of failure on the part of respondent in handing over the possession, Rent Controller shall issue writ of possession without notice. On 2‑2‑1999 after hearing the parties by short order appeal was allowed and above are the reasons for the same. Q. M. H. /M. A. K./S‑203 /K Order accordingly.