1991 PLP 333 (MLD)

Date of hearing: 12th September, 1990. This appeal under section 21 of the Sindh Rented Premises Ordinance, 1979, is directed against the order dated 15-1-1989, passed by IInd Senior Civil Judge and Rent Controller (Central), Karachi, whereby the appellant was directed to vacate the disputed premises within a period of 30, days.

2. The respondent is the landlord of premises bearing No.133/A Group No. 2, Liaquatabad, Karachi. The appellant is a tenant of respondent in respect of a shop situated in the said premises at a monthly rent of Rs.100. The respondent, who was serving as Inspector, Anti-Corruption Establishment Karachi, retired on 19-2-1985 on attaining the age of superannuation. He, therefore, required the said commercial premises to start business and consequently served the requisite notice to the appellant for vacating it. The refusal of the appellant to vacate the said premises led the parties into this litigation.

3. The appellant resisted his eviction on various grounds. According to him the respondent, who owns other properties having accepted the enhanced rent at the rate of Rs.150 P.M. after the service of notice under section 14 of the Sindh Rented Premises Ordinance, 1979, has abandoned his right to seek eviction on the aforesaid ground.

4. The parties went to trial on the following issues:-- (i) Whether the applicant having retired from the Government service is entitled for the possession of the tenement in question for his need? (ii) What should the order be?

5. To substantiate his case the respondent examined himself (P.W-l.) and then' closed the side. No evidence was adduced on behalf of appellant, although various opportunities were provided to him.

6. On the assessment of evidence, both oral as well as documentary, the learned Rent Controller decided issue No.l against the appellant directing his eviction from demised premises. It is in these circumstances that the present appeal has been filed:

7. During the pendency of this appeal .an application under section 21(3) of the Sindh Rented Premises Ordinance, 1979, for leading additional evidence, was moved on behalf of appellant, which was allowed by my learned brother Imam Ali Kazi. J. on 13-9-1989 with the following direction:-- "I accordingly allow this application with a direction that the Rent Controller concerned shall record the evidence of these two witnesses within two months and return the record to this Court. This appeal shall be fixed for regular hearing immediately after the record is received from the Rent Controller."

8. The appellant, however, did not avail of this opportunity and he failed to examine any witness, although one of the two witnesses, who were to be examined was actually in attendance. The Rent Controller, therefore, returned the record without-recording the statement of any of the witnesses.

9. I have heard Mr. Shafaat Hussain, learned counsel for appellant and Mr. Amin-uz-Zaman, learned counsel for respondent. I have also gone through the record of the case carefully.

10. The fact that the respondent is a retired Government official is not in dispute. The order of Superintendent of Police, Anti-.Corruption Establishment, Karachi, bearing No.SPAC/KAR/E/85/1301-4, dated 19-2-1985, to this effect, is on record. The copy of notice under section 14 of the Sindh Rented Premises Ordinance, 1979, dated 25-8-1985, is also on record. The appellant has admitted the receipt of this notice and he had in fact relied the same through a letter dated 8-9-1985, which is on record.

11. Section 14 of the Sindh Rented Premises Ordinance, 1979, provides a special remedy to the class of "landlords" mentioned therein and in the words of their Lordship of the Supreme Court expressed in Bakhsh Elahi v. Qazi Wasif Ali, reported in 1985 SCMR 291, the object of this section seems to relieve this class of landlords from the rigours of an elaborate inquiry as to the good faith of their plea of requirement of the premises for personal use and to put them in possession thereof in the shortest possible time. The question of `good faith' in relation to section 14 of the Sindh Rented Premises Ordinance, 1979, was also examined by a Division Bench of this Court in the case of M. S. Baroba v. Manzoor Ahmed, reported in PLD 1986 Karachi 407, and was answered as under:-- "Accordingly, we hold that in a case under section 14 of the Sindh Rented Premises Ordinance, 1979, the question of `good faith' or ` bona fides' is not to be looked into, but the Controller has to see that the landlord fulfils the conditions mentioned in section 14, which we have enumerated hereinbefore:'

12. The eviction 'of tenant under section 14 of the Sindh Rented Premises Ordinance, 1979, can be refused only, if-- (i) the landlord has rented out the building after he has retired or attained the age of sixty years or, as the case may be; has become widow or orphan, and, (ii) if he is in occupation of a building owned by him in any locality.

13. The respondent (P.W. 1) as his own witness has testified that he has not rented out any commercial premises after he has retired from service. He has also stated on oath that he is not in occupation of commercial premises in any locality. The evidence of respondent has gone unchallenged and no question was put to him in cross-examination. No evidence was adduced by the appellant in rebuttal. He even failed to avail of the opportunity provided to him by this Court by allowing the application made under section 21(3) of the Sindh Rented Premises Ordinance, 1979. Mr. Shafaat Hussain, learned counsel for appellant has, however, endeavoured to show that by accepting the enhanced rent of Re.150 P.M. after the service of notice under section 14 of the Sindh Rented Premises Ordinance, 1979, the respondent had in fact relet the premises to the appellant, thereby forfeiting his right to seek eviction within the meaning of first proviso to subsection (1) of section 14 of the Sindh Rented Premises Ordinance, 1979. He has placed reliance upon the cases of Dr. Miss

1. Ali Muhammad v. Syed Zakaullah and others, reported in 1982 CLC 1895, and Mst. Birjis Khatoon v. Jabbar Ahmed, reported in 1983 CLC 3066. In the former case the effect. of enhancement of rent with concurrence of parties was considered in relation to section 62 of the Contract Act," 1872, and it was held that this amounted to the novation of original contract. The facts of the reported case are, however, distinguishable. There is nothing on record to show that the respondent had demanded' enhanced rent at any time. The notice sent by him to the appellant under section 14 of the Sindh Rented Premises Ordinance, 1979, is completely? silent on this point. The application for eviction was filed by him soon after the period of two months provided under section 14 elapsed. The unilateral offer by the appellant to enhance rent and the acceptance of money order in this behalf by the respondent at the enhanced rent is not sufficient to prove that the rent was enhanced at the instance of the respondent. Section 62 of the Contract Act, 1872, provides that if the parties to a contract agree to substitute a new contract, for it, or to rescind' or alter it, the original contract need not be performed. Any unilateral enhancement of rent is, therefore, not covered by section 62 of the Contract Act, 1872. Even otherwise any increase in monthly rent will not have an effect of creating new tenancy. The appellant was a tenant prior to the enhancement of rent and he continued to be tenant even after he remitted the enhanced rent at the rate of Rs.150 P.M. through money order. The case of Mst. Birjis Khatoon stands on quite different premises and with all humility I confess that I am unable to follow the reasoning of the learned Judge. The relationship of landlord and tenant comes to an end only after an order of ejectment is executed and not after the same is passed.

14. Mr. Shafaat Hussain, learned counsel for appellant has said everything that he can say on behalf of the appellant, but I am satisfied that this is not a case, which requires any interference. The appeal has got no merits and is dismissed with no order as to costs. Two months? time is, however, allowed to the appellant to vacate the demised premises. H.B.T./Z-141/K?????????????????????????????????????????????????????????????????????? Appeal dismissed.