1994 PLP 555 (CLC)

These two First Rent Appeals are directed against the order dated 21‑3‑1991 passed by the Second Senior Civil Judge/Rent Controller, Karachi Central whereby two eviction applications filed by the respondent on the grounds of default, personal requirement for family business, subletting, alterations and additions were allowed. The respondent is said to be owner of premises known as Alamgir Restaurant situated on Plot No.6, Sub‑Block `K' of Block No.l, Nazimabad, Karachi and the appellant is tenant in respect thereof at the monthly rent of Rs.550 exclusive of any charges payable in advance before the 5th of each month according to the English calendar. The appellant resisted the applications by filing written statements. The appellant denied the allegations of default, personal requirement, alterations and additions in the demised premises and subletting. The respondent filed his own affidavit‑in‑evidence besides affidavit‑in evidence of Mrs. N.A. Abdullah. The appellant filed affidavit‑in‑evidence in rebuttal. They were cross‑examined by the learned counsel appearing for the respective parties. The learned Controller, on assessment of the evidence adduced by the parties, allowed the eviction applications on the grounds of default, personal requirement and subletting. The ground of alterations and additions was decided against the respondent, that is in the negative. The plea of principle of res judicata was decided as not proved or in the negative. I have heard Mr. Muhammad Anwar Tariq, learned counsel appearing for the appellant and Mr. Altaf K Allana, learned counsel appearing for the respondent. I have carefully considered the arguments submitted by the learned counsel for the parties. I have perused the impugned orders and have gone through the R & P of the case with the assistance of the learned counsel appearing for the parties. The respondent averred in para. 3 of the eviction application that the appellant has illegally sublet the demised premises to some other person without consent of the respondent. The appellant denied this allegation in his written statement. The appellant pleaded that there is no agreement in existence and as such there is no violation of terms and conditions. The respondent has failed to specify, as to the nature of subletting. The respondent stated in his affidavit‑in‑evidence that the appellant has illegally sublet the demised premises without his consent and has also infringed the conditions on which the premises was let out to him. The respondent admitted that he has not disclosed the name of the sublettee in the eviction application or in the affidavit. The appellant has vehemently denied that the demised premises has been sublet by him to anybody and the respondent has failed to bring on record 'the evidence in support of this issue and as such the ground of subletting has been falsely introduced. It is pertinent to note that the appellant admitted in his cross -examination that he has shown a partner in Income Tax Department. He has admitted that he has partnership with different people. He has vehemently stated that presently Muhammad Ayub and Muhammad Dehqan are his partners. To a suggestion, he replied that it is a fact that I have not obtained permission for parting with the possession to partnership firm. It may be observed that it has been proved in fact that the appellant has partnership with different people and he remained more than five months in Iran in the year 1990. It is clear from the evidence that the business is mostly run by his partner without the permission or consent of the respondent. In my humble view, once a landlord proves that somebody else is using the rented premises or running a restaurant either exclusively or jointly with the tenant, the burden of proof shifts on the tenant to explain the relationship with reference to a premises. As it is admitted by the appellant that he has a partner and he has a partnership with different people. He has voluntarily stated that it is a registered partnership. The burden was shifted on him to show that the above partnership did not constitute subletting rights, which burden the appellant has failed to discharge. Then the partnership deed was not produced before the Controller. Clause (iii) of subsection (2) of section 15 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as `the Ordinance') provides that the Controller shall make an order directing the tenant to put the landlord in possession of the premises within such period as may be speed in the order, if he is satisfied that the tenant has, without the written consent of the landlord handed over the possession of the premises to some other person; used the premises for the purpose other than that for which it was let ‑out; infringed the conditions on which the premises was let out. Under this clause, a landlord would be entitled to evict his tenant if he handed over possession of the premises to some other person without the written consent of the landlord. In the instant case, the appellant admits that there is a registered partnership. In that event the burden of proof is on him to explain what are the conditions of partnership, he has to prove that the partners are carrying on business and the partners are not sharing the tenancy rights. Since the partnership deed and the partners have not come forward to subject themselves for cross‑examination, he has failed to explain under what circumstances the partners have been using the restaurant. In my opinion, the Controller could conclude on the basis of the evidence on record that the fact of subletting or parting with the possession has been proved. The appellant has admitted that the, partnership is a registered partnership. He has stated that presently Muhammad Ayub and Muhammad Dehqan are his partners. He has voluntarily stated that this son‑in‑law is also a partner. He has admitted that he has shown partners in Income Tax Department. This shows that account inn respect of profit and loss of partnership was/is maintained by the partners. In this state of evidence the Rent Controller rightly reached the conclusion that the appellant handed over possession of the premises to partnership firm and the firm is running the hotel business. In Manek J. Mobed and others v. Shah Behram and others (PLD 1974 SC 351), it was held that person holding tenancy rights in his name but subsequently assigning them to a firm or private limited company consisting of his family members, cannot be said in circumstances that no change had taken place in status of tenant or not one of subletting or assignment of tenancy rights. In Abdul Hamid v. Mrs. Parveen Faredoon and 8 others (PLD 1983 Karachi 168), it was held that the landlord succeeded in proving subletting of disputed premises by tenant without his consent and therefore the Controller rightly ordered eviction of the tenant. In another case reported in 1991 CLC 1942, a learned single Judge after referring to the above decisions, held that the Controller had committed no error in holding it to be a case‑of subletting for the reason that the premises was being used by a partnership firm since 1980 and therefore there was clear subletting by the opponent and upheld the order of the Rent Controller on the ground of subletting of premises and dismissed F.RA. No.248/1991 with no orders as to costs. The respondent averred in his eviction application that the appellant has committed default in payment of rent of the demised premises. The appellant has vehemently denied that he has committed default. The respondent has stated in his affidavit‑in‑evidence that as per Nazir's report in Misc. Rent Case No.5171 of 1980 under Ledger No.29/77 and 0288/83, the appellant has neglected to deposit the rent for the months of December 1982, September 1983 and November and December 1984, January 1985; as such the appellant has rendered himself liable to be evicted from the demised premises. The appellant has stated in his affidavit that he has regularly deposited rent in Misc. R.A.No.5171/80 at the rate of Rs.550. The allegation of default is baseless. I have perused the Nazir's report. It clearly shows that the appellant has not deposited rent for the months of December, 1982, September 1983, November and December 19$4 and January 1985. I have perused money‑order coupons dated 12‑11‑1984, 13‑12‑1984 and 2‑1‑1985. He has also produced photostat copy of Ledger entry No.288 issued by Nazir. A perusal thereof would show that in the right hand corner `September 1983' is written. The receipt is absolutely blank. The money‑order coupon dated 2‑1‑1985 does not show that it was received by the respondent. It appears that the respondent averred that the appellant has failed to pay rent for five months. The appellant has produced one photostat copy of receipt issued by the Nazir and three money‑order coupons. Out of three money‑order coupons, the respondent received for two months. Still rent for two months remains to be paid. In Allah Din v. Habib (PLD 1982 SC 465), it was held at page 468 as follows:‑‑ "It is no doubt correct to say that the initial burden of proof lies upon the landlord to establish that the tenant has not paid or tendered rent due by him, as required by section 13(2)(i) of the Sindh Urban Rent Restriction Ordinance, 1959, but it must be appreciated that non payment of rent is a negative fact, therefore, if the landlord appears in Court and states on oath that he has not received the rent for a certain period, it would be sufficient to discharge the burden that lies under the law upon him and the onus will then shift to the tenant to prove affirmatively that he had paid or tendered the rent for the period in question." Applying the principle laid down in the above case to the facts of the case, it is clear to me that upon asserting in the evidence that he had not received the rent for the disputed period, the respondent had successfully discharged the burden of proof and the onus was shifted to the appellant. The respondent stated that he had not received the rent and the appellant deposed that he had paid the rent but no receipts were produced, the issue could only be decided on the ground that the tenant had failed to discharge onus to prove the factum of payment. It seems that the Controller has rightly come to the conclusion that the appellant committed default. I. accordingly uphold the order of Controller on this ground also. The respondent averred in eviction application that he intends to do business in the demised premises, which will be run by his family which being suitable for the purposes of business. The appellant has stated in his written statement that the ground has been taken for ulterior motives. He has further stated that the respondent has in his possession major portion of the Plot No.l‑K/6 and adjacent to the rented premises there are 3‑4 shops which are at present in possession of the respondent. The respondent has stated in his affidavit‑in‑evidence that he intends to do business in the above premises through his family members, which being suitable premises for the same. In para. 7 of the affidavit he has stated that it is _. vehemently denied that the area of plot No.l‑K/6 in his possession is sufficient for furniture business. The respondent has admitted in his cross‑examination that he is doing furniture business on the 1st floor. He has admitted in his cross‑examination that there are 4‑5 shops used for the purpose of furniture and 3 shops are also' being used as production unit and one shop for office. He has stated that his wife and son are partners in his business of furniture. The case of the respondent is that he requires the premises in good faith for his personal bona fide use as he intends to establish a furniture show room on the premises which is suitable from commercial point of view of show room purposes. The respondent examined his wife on this issue who‑has clearly stated that the premises is required in good faith for running show room of furniture which is suitable business. The wife of the respondent replied to a question that she has a joint business with her husband in the name and style of M/s. Associated Furnitures. She is a partner in business with her husband Her son is also partner in business with them. The appellant reiterated the same facts in his affidavit‑in‑evidence as stated in written statement. It is pertinent to note that the appellant has taken two pleas in his affidavit‑in‑evidence namely that the respondent has also constructed the upper floor wherein the furniture business is carried on. The other issue in earlier eviction was decided against the respondent which was upheld uptil the last Court of ultimate jurisdiction. To a suggestion in cross‑examination, he replied that it is incorrect to suggest that the case premises is required by the respondent for his personal bona fide use of his children. To another question, he replied that it is incorrect to suggest that the respondent intends to open a furniture show room in the premises. In M.K. Muhammad and another v. Muhammad Abu Bakar (1993 SCMR 200), it was held at page 207 as under:‑ "As regards personal requirement, we find that nothing concrete has been brought out by the appellants in the cross‑examination of the respondent to reflect adversely on the credibility of the respondent's evidence as to the bona fide requirement. The plea taken by the appellant that the respondent was running a poultry farm in Islamabad, remained unproved. Similarly, the appellant's second plea that Ghulam Nabi was running the shop which was owned by the respondent, remained unproved. There is a concurrent finding of the two Courts which is supported by the evidence on record. We would, therefore, maintain the above finding." In the instant case, the evidence of the respondent and his wife as regards bona fide requirement of premises ,remains unrebutted. It seems that the Controller has rightly held that the respondent has established bona fide requirement for the premises in question. The finding on this issue is maintained. Mr. Anwar Tariq raised plea of res judicata in his written arguments as well as in his own submission. The plea of res judicata was considered by the Hon'ble Supreme Court in the case of Ch. Fayyaz Akbar v. Messrs Delite House Ltd. (PLD 1988 SC 76). After referring to decision in Wasi Ahmad Rizvi v. Federation of Pakistan (PLD 1982 SC 20), it was held:‑ "It has been stated that such cases are where an issue of fact has been judicially determined in a final manner between the parties by a tribunal having jurisdiction, concurrent or exclusive, in the matter and the same issue comes directly in question in subsequent proceedings between the same parties (this is sometimes known as cause of action estoppel). The principle which the doctrine of res judicata has been applied in the category of cases aforementioned, is that all suits are based upon a cause of action and upon judgment being pronounced, the cause of action merges into the judgment and thereafter the same cause of action cannot sustain a second suit, for that no longer exists, unless the cause of action is fresh or recurring one. It is important to note that it is the ground of the decision that operates as res judicata, and a decree without a judgment will, therefore, not be res judicata." The question now is whether the facts and circumstances of this case satisfy the above principle. It is an admitted position that the respondent had filed Rent Case No.3674 of 1976 against the appellant on the grounds of default for the period from April 1976 to August 1977, subletting the premises to one Ali Akbar and requiring the premises for personal need. The appellant denied the allegation of default, subletting and personal requirement. The eviction application was dismissed. The respondent went in appeal which also met the same fate. The Special leave to appeal was also declined by the Hon'ble Supreme Court. I have perused the judgment dated 22‑10‑1984 in that appeal and also the dismissal order of the Hon'ble Supreme Court. A perusal thereof would show that the ground of default was in respect of April 1976 to August 1976, whereas in the present case, it is of a different period. The plea of res judicata is not applicable to the ground of default. The second ground is personal requirement. It was observed in the earlier case that there can be no better denial of the claim made by the appellant. The appellant himself has made vague claim without giving any particular of his personal requirement. It was further observed:‑‑ "The appellant is carrying on business and. if he wants to open a show room in this shop then he has to satisfactorily explain how the existing premises is not sufficient for his business. Unless such explanation is given, mere statement that he wants the disputed premises will only be his desire and not. a bona fide need. Considering the case from this point of view, the appellant has failed to explain the reasons for which he wants to occupy the disputed premises. Since long he has been manufacturing furniture and selling it but has not stated whether he has any show room or not. He has not given definite particulars of the accommodation in his possession which would have helped in determining whether he has sufficient space for his show room or not. In these circumstances, the appellant has failed to establish that he requires the disputed premises for his bona fide requirement." In the instant case, the respondent has stated the reasons for requiring the premises in question. He has stated that he was not running furniture business but was running raw furniture business prior to 1976 and now he is running furniture business in the name of Associate Furniture in the family partnership business between himself, his wife and his son and further stated that this is a registered firm. The respondent's wife .has filed affidavit in support of the. eviction application and has fully supported the personal requirement. She has stated that the premises in their possession is not sufficient. The respondent has stated that he is having workshop of furniture on the first floor and office on the ground floor and he does not have any commercial place in his possession. According to him, the premises in question is suitable for show room of furniture business due to its location. The earlier application was also filed on the ground of subletting to one Ali Akbar. This eviction application has been filed on the ground that the premises has been handed over to a partnership firm. The appellant himself has admitted that he is carrying on furniture business and the firm is a registered firm. I am of the humble opinion that the cause in the present application is different one. For the reasons stated above, the appeals are dismissed but there will be no orders as to cost. The appellant is allowed six months time to vacate the premises. H.B.T./H‑372/K Appeals dismissed.