1993CLC412 (PLP)

4. The parties went to trial on the following issues:‑‑ (i) Whether the opponent has committed wilful default in payment of monthly rent as alleged? (ii) Whether the opponent has illegally encroached upon the land and has made unauthorised construction in front of the tenement in question and has affixed shutters in the said unauthorised construction? (iii) Whether due to alleged unauthorised construction the value and utility of the tenement in question has been impaired? (iv) Whether the act of the alleged unauthorised construction in front of the tenement in question is a source of nuisance to the neighbours as alleged? (v) Whether the tenement in question is bona fidely required by the applicant in good faith for his personal need? (vi) What should the order be?

5. The appellant examined himself (P.W.1), and Ansar Ahmad (P.W.2). To rebut this evidence the respondent examined Muhammad Fareed (D.W.1), who is her son/attorney and Muhammad Naseeruddin (D.W.2).

6. On the assessment of evidence available on record the learned Rent Controller decided all the issues against the appellant and consequently dismissed the application filed by him seeking the eviction of the respondent.

7. I have heard Mr. S. Manzar Ahmad, learned counsel for the appellant and Mr. Sultan A. Allana, learned counsel for the respondent. During the course of arguments the learned counsel for the appellant did not press issues Nos. (ii) to (iv), and has confined his arguments to issues Nos. (i) and (v) only.

8. The tenancy is admitted by the respondent who has also not disputed the quantum of rent. The appellant has alleged default in payment of rent with effect from 1‑5‑1980, which position is seriously contested by the respondent. Abdul Razzaque, the respondent as his own witness has testified that the rent was offered to the appellant who refused to receive the same and demanded enhancement of rent. He has further testified that on 6‑7‑1980, the rent was tendered through money order, which was also refused and it was thereafter that the rent was deposited in the office of the Rent Controller which was deposited regularly in M.R.C.No.‑4178 of 1980, till the order under section 16 (1) of the Sindh Rented Premises Ordinance, 1979, was passed. In this way the respondent has pleaded that there as no default in payment of rent at the time when the application for eviction was filed.

9. Since the question of default hinges on the language employed by clause (ii) of subsection (2) of section 15 of the Sindh Rented Premises Ordinance, 1979, it would be convenient to read the material provision, which is in the following terms:‑‑ "15.‑‑(1) . (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) (ii) the tenant has failed to pay rent in respect of the premises in his possession within fifteen days after the expiry of the period fixed by mutual agreement between the tenant and land1brd for payment of the rent, or in the absence of such agreement, within sixty days after the rent has become due for payment:"

10. It is thus apparent that the grace period for payment of rent is fifteen days when the period is fixed by mutual agreement and it is sixty days when there is no such agreement. I have examined the above clause viz. clause (ii) carefully and I cannot find anything in it to support the contention raised on behalf of the respondent that the words ."mutual agreement" denote mutual agreement in writing. The word `mutual' as defined. in Black's Law Dictionary, means common to both parties, interchangeable, reciprocal, each acting in return or correspondence to the other, given and received. Again the word `agreement' as defined in Black's Law Dictionary, means a meeting of two or more minds, a coming together in opinion or determination, the coming together in accord of two minds on a given proposition. In law, a concord of understanding and intention between two or more parties with respect to the effect upon their relative rights and duties, of certain past or future facts or performances. The consent of two or more persons concurring respecting transmission of some property, right, or benefits, with the view of contracting an obligation, a mutual obligation. Reading both these definitions together it is clear that "mutual agreement" need not be in writing. The Court must proceed on the assumption that the legislature meant exactly what it said. It is not within the province of the Court to depart from the plain meaning of the expressions used in the statute. If the intention of the legislature was to qualify the words "mutual agreement" in the manner as hinted by learned counsel for the respondent, it could have used the words in writing in the same manner as were used in section 5 of the Sindh Rented Premises Ordinance, 1979.

11. Notwithstanding with the above conclusion, it must, however, be observed that the appellant has failed to prove that there was any `mutual agreement' between the parties to pay rent in advance. The counterfoils of the receipts were not produced nor any other supporting evidence was adduced to prove about this mutual agreement. Ansar Ahmad (P.W.2) examined by the appellant is also of no help. He speaks about the default in payment of rent for the year 1986, which in fact is not the point in issue. Much capital was sought to be made out from the fact that the respondent has admitted to have offered rent to appellant for the months of May, 1980 and June, 1980 in advance. This admission cannot be read in isolation. Such payment could be made out of abundant caution and is not by itself sufficient to prove the `mutual agreement' about the payment of rent.

12. Abdul Razzaque (D.W.1) has testified about the offer of rent. He has also produced the money order coupon (Exh.8/ A) dated 6‑7‑1980, by which rent for the months of May, June and July, 1980, was remitted, which was, however, refused. His evidence further shows that thereafter the rent was deposited in the office of the Rent Controller. It is, therefore, proved that the respondents made payment in terms of section 10 of the Sindh Rented Premises Ordinance, 1979.

13. Admittedly the respondent is the old tenant of the appellant. There is nothing on record to even suggest that he was irregular in payment of rent. In a case of this nature where the allegation of default is made alongwith other allegations, the Rent Controller must begin with an enquiry as to whether such defaults are coined to lend support to other grounds on which the eviction of a tenant is sought. Such evidence of default should be carefully scrutinised to find out the motive behind it. After all why a person who was regular in payment of rent of more than fifteen years, would stop making payment and that too in respect of a paltry sum of Rs.100 p.m. No exception can, therefore, be taken to finding of Rent Controller on issue of default.

14. The appellant has also sought ejectment of the respondent on the ground that he needs the disputed premises for his bona fide use. No details about his needs are given in para. 6 of the affidavit‑in‑evidence of the appellant. The appellant has also filed ejectment case against another tenant, namely, Mst. Hamida on almost same grounds, which is subject‑matter of FRA No. 517 of 1989. He has, however, not stated a word as to why he wants two shops for his needs. The evidence which has come on record shows that the appellant is doing business in Shop No.B‑139, Kali Market, near Rashidi Masjid, Karachi. There is also no dispute that one Moosa who was his tenant had vacated the shop and this shop was let out to one Ismail who is presently occupying it. The appellant, if really needed the premises for his own use could have occupied the said shop. It appears that the main anxiety of the appellant is to get the rent increased.

15. Bearing in mind the above‑admitted position, coupled with the admitted fact that such shops were fetching Rs.400,000 (Rs. four lacs) as Pugree, I am clear in my mind that no case for personal need is made out by the appellant.

16. In the result the appeal fails and is dismissed with no order as to costs. H.B.T./R‑229/K Appeal dismissed.