1989 PLP 247 (CLC)

M. Yazdani v. Mst. Zainab Bai 1984 C L C 2058 rel. K.M. Nadeem for Appellant. Habibur Rahman for Respondent. Date of hearing: 16th October, 1988. By this appeal, the judgment of the Rent Controller, passed in Rent Case No.4900/1983, has been impugned. The facts are that the present respondent Usman Ghani Chippa had previously filed a rent case, being, R.C. No.18SL/1978 against the present appellant. Although the tenant was one Zafaryab Mirza, the brother of the present appellant, who had died before the filing of the said rent case and, therefore, the case was filed against the present appellant. In' that case, the appellant had taken stand that there was no relationship of landlord and tenant, which case lingered on for a period of four years and ultimately parties compromised, whereby, the present appellant accepted to be the tenant and the rent was fixed to be Rs.300 per month, which was to be enhanced by Rs.50 per month every year. Thereafter, the present respondent, on 31‑10‑1983, filed the present rent case on the grounds of default and requirement for bona fide personal use. His case is that after the compromise in the earlier case, whereby the payment of rent was being made through the Advocates, the present appellant failed to make payment of rent and the respondent sent a letter dated 6‑7‑1982, claiming that rent for the months of May, June and July, 1982, was not paid. This letter was replied through the Advocate for the appellant, on 30‑8‑1982, wherein, the Advocate directed the appellant to pay rent directly to the respondent /landlord. The two letters have been produced in evidence. It was further claimed that in spite of above direction, the appellant again committed default by not paying the rent for the months of September and October, before the filing of the rent case. It was also claimed that the respondent was living with his four brothers and family members in a rented house Ct Bohra Pir and he requires the premises for his personal use.

2. The present appellant filed the written objections denying that he had been a defaulter. According to him, he had paid all his rental dues upto the month of October, 1983. As for personal requirement, there was no specific denial of the fact by the appellant, but he claimed that because of the compromise in the previous rent case, wherein also the ground of personal requirement was taken, the landlord could not re‑agitate the same ground and would be deemed to have waived the said ground.

3. I have heard the learned counsel for the parties. Mr. K.M. Nadeem, Advocate, appearing for the present appellant has argued that the said compromise in the earlier 'rent case amounted to an agreement for lease in perpetuity, which provided for the monthly rent and also annual increase in the rent. It would be advantageous to reproduce the terms and conditions of the said contract, which reads as under:‑ "(1) That the opponent accepts the tenancy of the House No. 253, Block No.20, Federal 'B' Area, Karachi, at an agreed monthly rent of Rs.300 commencing from Ist January, 1982 and the opponent admits the applicant to be the owner and Landlord of the said house. (2) That the opponent shall 'pay the monthly rent to the applicant at the rate of Rs.300 per month exclusive of all other charges in advance in each month. (3) That from 1st July 1982 the rate of monthly rent shall be enhanced from Rs.300 to Rs.350 and thereafter it will be increased by another sum of Rs.50 per month beginning from Ist January, 1983, and the applicant Landlord shall have the un‑disputed right to increase the rate of monthly rent by a sum of Rs.50 every year during the continuance of tenancy of the opponent in respect of the said house. (4) That the previous tenant Zafar Yab Mirza, the elder brother of the opponent Yawar Baig has since died anti the opponent Yawar Baig is in sole and exclusive possession of the said house as tenant of the applicant and shall keep the Applicant indemnified against any claim from any side in respect of the tenancy of the said house if lodged by any other legal heirs."

4. Before dealing with the point of default, I would like to point out that as per the terms and conditions of the said compromise, no fixed date for payment of rent has been mentioned, but all that is said is that, it shall be payable in advance in each month. This compromise amounts to an agreement, of tenancy and since no date for payment of rent has been mentioned, I would hold that the rent will be payable in accordance with the terms of section 10(1) of the A Sind Rented Premises Ordinance, 1979 that is, "not later than 10th of the month next following the month for which it is due". Keeping this in view, I will proceed to examine the case of the parties on tht point of default. The two letters dated 6‑7‑1982 by respondent and the reply dated 30‑8‑1982 from the Advocate as referred to above, would clearly show that the tenant has defaulted in payment of rent. As for the default for the months of September/ October, Mr. K.M. Nadeem had argued that the respondent has not mentioned the year. I will point out that in the rent application the respondent has very clearly stated the words "till filing this application", these words clearly show that the year 1983 was meant thereby. Learned counsel for the appellant had drawn my attention to a statement of accounts, filed with the present memorandum of appeal, as Annexure 'B' on which he wanted me to place reliance showing that the payments of rent for the months of September, October and November, 1983 made paid in Advance through .money‑orders. I am afraid I may not rely on this statement, which is only attested by the learned counsel and was not produced in evidence in lower Court to stand a test of cross‑examination nor the said money‑order coupons were produced in the lower Court. However, one statement, Annexure _1G1 was produced in lower Court, which shows that the rent under the said three money‑orders, bearing M.O. No.115, M.O. No.282 and M.O. (no number is mentioned), dated 4‑9‑1983; 13‑10‑1983 and 14‑11‑1983, respectively, was the rent sent for the months of July, August and September, 1983 respectively. This statement not only shows that the respondent had defaulted in payment of rent in due time but also goes ' to belie the above said statement filed with the present memorandum of appeal. Mr. K.M. Nadeem, learned counsel for the appellant, has referred to the written arguments filed by the counsel for the respondent with regard to application under section 16(1) of the Ordinance to show that the payment of rent of September was admitted. In the first instance in view of the above-said money‑order (Statement Annexure 'G') I need not go into this question. However, mere receipt of payment of rent for the month of September would not absolve, the tenant from the liability unless he could show that the said ‑payment was made within due time. Mr. Habibur Rehman, Advocate, appearing for the respondent has also referred to me the contents of paragraph 4 of the written statement filed by the appellant in which he has claimed to have paid the rent upto the month of October, 1983. This fact is also belied by the said. statement 'G' which shows payment of rent for the period upto only September, 1983. The burden to prove the payment of rent within due time was on the appellant and he has miserably failed to prove the same. On the contrary, the very statement produced by him shows that right from January, 1982 till September, 1983, he has always been a defaulter in payment of rent and always delayed the payment for more than two months. I, therefore, hold that the appellant had been regularly wilful defaulter. The finding of the learned Rent Controller is upheld.

5. On the point of requirement for personal use by the respondent /landlord, Mr. Abur Rehman, learned counsel for the respondent at the very outset pointed out that in paragraph 6 of the written statement filed by the appellant, he has not denied the factum of the bona fide requirement of the respondent, ' but all that he has agitated is that by virtue of the compromise in the previous rent case, the landlord had given up his claim of personal requirement and ‑that he cannot re‑agitate the same. Mr. Habibur Rehman has further argued that this fact has not been denied that the respondent/ landlord as presently residing in a rented house at Bohra Pir with his four brothers and family and that those premises are not sufficient for their use. It is pointed out. from the cross‑examination of the appellant that he has admitted that he had gone to said rented premises of the respondent 'at Bohra Pir to pay the rent. As far his giving up the plea of personal requirement in the previous case, he has explained that the previous case was filed against the present appellant under wrong impression by the respondent as he thought that after the death of original tenant Zafar Yab, the present appellant being his brother had become the statutory tenant. He further explained that in that case the present appellant delayed the matter for four years and took the plea that there was no relationship of landlord and tenant and it was only under such strenuous circumstances that he was compelled to compromise the said case. However, he has in his affidavit in evidence clearly stated that he required the premises for personal use now as well as he required at the time when earlier rent case was filed. He has also argued that Sind Rented Premises Ordinance did provide for ejectment on the ground of personal use and that the terms and conditions of the compromise in earlier rent case were to have effect only during the existence of tenancy. He contended that there could be no estoppel against law.

6. In answer to the above contentions, Mr. Nadeem appearing for the appellant argued that the respondent now cannot take the plea of personal requirement having admitted in his cross‑examination that he also needed the premises for his own use at the time the previous rent case was filed and also that even in the year 1974, he was residing in the same rented house. I am afraid I cannot agree with this contention of the learned counsel. The respondent in his affidavit‑in‑evidence has stated that he is living at Bohra Pir in a rented house with huge family members which is .not sufficient for him and his family members and his stand could not be shattered in cross‑examination nor any evidence to the effect that he owns or possesses any other house, has been brought on record. Mr. Nadeem has relied on the case of Mst. Noorunnisa v. Qamarul Huda 1988 CLC 1933 in support of his contention that mere word of landlord would not be sufficient. Nobody has disputed this proposition of law, but in the present case there is evidence to show the bona fide requirement of the landlord and also that the said fact has not been denied in the written statement. The Rent Controller on this point has taken pains to discuss the law as laid down by the Superior Courts and Mr. Habibur Rehman, appearing for the respondent has also relied on the same, i.e. the case of Muhammad Younus v. Dr. S. Muzammil Ali 1981 C L C 327, in which Ajmal Mian, J., as he then was, has laid down the principles for determination of personal requirement of landlord in good faith. Amongst these principles, it has been observed that the landlord's statement on oath in conformity with averments in rent application if not shaken in cross‑examination and if not disproved by‑ evidence in rebuttal shall be sufficient to record finding in his. favour. Mr. Habibur Rehman, also relied on the case of M. Yazdani v. Mst. Zainab Bai 1984 C L C 2058, in which Muhammad Zahoorul Haq, J., as he then was, has held that "mere fact that rent had been increased previously, would not mean that premises were not, needed at a subsequent time by landlady for use of herself and of her family."

7. In view of above discussion, I am of the view that the respondent /landlord had proved his case on both. grounds, i.e. defaulter as well as requirement for personal use and I find no substance in the present appeal, which is dismissed with costs. However, the appellant is allowed time of thirty (30) days .to vacate the premises. A.A./Y‑23/K. Appeal dismissed.