1995 PLP 1971 (MLD)

In the written statement, appellant resisted his eviction and stated that he had deposited rent in the office of Controller with effect from 22‑1‑1978 for the period from August, 1977 up-to-date as the landlord had refused to accept the rent on being tendered. He denied all other allegations including personal requirement of the landlord on the averment that he was residing in his own house with 8 family members and the accommodation being sufficient he did not require the premises for his personal use in good faith. He added that the landlord had got three other houses and this ground was falsely set‑up.

4. On the pleadings of the parties, learned Controller settled the following issues:‑‑‑ (1) Whether the opponent committed wilful default in payment of rent from the month of August, 1977 to December, 1977? (2) Whether the opponent has damaged the suit premises? (3) Whether the premises in question is required by the applicants in good faith for their personal use? (4) Whether the premises is required by the applicants for reconstruction? (5) What should the order be?

5. Both the parties adduced evidence. While the landlord examined himself, his nephew Abdul Khalique and Manzoor Ali Khichi, appellant Abbas Ali examined himself in addition to another witness Arbab Ali Dayo.

6. Upon consideration of relevant evidence and hearing parties' counsel, learned Controller decided all issues against the appellant except issue No.2. Consequently he directed ejectment of the appellant which has been impugned in this appeal.

7. I have heard learned counsel for the parties and gone through the relevant evidence on record.

8. Learned counsel for the appellant firstly contended that learned Controller wrongly decided the issue relating to default because the appellant had no reason to discontinue payment of the rent being an old tenant since 1964. He contended that the appellant had stated on oath that he had offered rent to landlord which was refused on the view that it would be collected later on whereafter the appellant was constrained to deposit rent in the office of Rent Controller, the first deposit being made on 22‑1‑1978. Learned counsel urged that notwithstanding late deposit of the rent for the period from August, :o December, 1977 under the provisions of the repealed West Pakistan Urban Rent Restriction Ordinance, 1959 learned Controller ought to have exercised his discretion in favour of the appellant rather than directing his eviction.

9. Both the counsel conceded that the default in payment of rent relating to the period before coming into force of the 1979 Ordinance, the issue of default would be governed by the provisions of repealed Ordinance 1959. Indeed the provisions of the repealed Ordinance as well as 1979 Ordinance as regards the payment of rent and default are more or less the same except that in the repealed Ordinance apart from payment of rent, words "tender of rent" and word "may" instead of "shall" were used which do not appear in 1979 Ordinance. Be that as it may, there being no written agreement of tenancy between the parties stipulating the date for payment of rent, appellant would be entitled to the grace period of 60 days for payment of rent when it falls due. In this view of the matter, rent for the months of August, September and October would be due for payment within 60 days after the close of the month 7 but in the present case appellant had deposited rent for these months alongwith the rent for November and December, 1977 for the first time on 22‑1‑1978. There was thus a clear default, in deposit of rent for the months of August to October, 1977 within the meaning of the term. Learned counsel for the appellant took pains to persuade this Court that learned Controller having not exercised his discretion in favour of the appellant, default being unintentional, appellate authority would be within its rights to exercise the discretion in favour of the tenant. He relied upon Muhammad Shafi v. Iqbal Ahmad and another (PLD 1965 Lah. 23) in which the view taken was that the expression "Controller may make an order directing the tenant to put the landlord in possession" suggests permissive action by Controller. It was further held that under section 13 (2) of the Ordinance 1959 ordering ejectment of tenant on ground of non‑payment of rent was a matter of discretion with the Controller. In the facts of the reported case learned Single Judge of the Lahore High Court further held that circumstances and evidence being not sufficient for coming to definite finding about non‑payment of rent, doubt has to be resolved in favour of tenant. There is no cavil with the proposition of law laid down in the above judgment but it would depend upon facts of each case whether a wilful default was committed or not.

10. On the other hand, learned counsel for the respondents vehemently contested the argument advanced on behalf of the appellant and contended that the default on the part of a tenant could only be condoned by the Controller when it was shown from the record that the circumstances leading to non‑payment of rent were beyond the control and power of the tenant. In the present case, appellant had failed to explain as to why the rent was not sent by money order and indeed no circumstance was shown to exist for not depositing the rent in the office of the Controller within time. Learned counsel submitted that in the event of a clear‑cut intentional default in payment of rent, appellant cannot be absolved of his duty to pay rent within time which was inexcusable and the Controller has no power to condone the default. He cited Muhammad Siddique v. Seth Harchand Rai and another (PLD 1976 Kar. 966) and Muhammad Ali v. Muhammad Yakoob (1986 CLC 2550).

11. In the first case, dealing with a case of default under the Ordinance, 1959, it was held that tender of rent beyond due date does not wash out default already committed. In the reported case default was not shown to have been caused due to circumstances beyond the control of the tenant and ejectment was upheld. In the second case dealing with issue of default under the 1979 Ordinance, learned Single Judge finding that the tenant had failed to produce any rent receipt or money order coupon to prove tender of rent, held' that the Rent Controller had rightly concluded that tenant had committed default in payment of rent.

12. The proposition of law laid down in the cases referred to above is undoubtedly correct but it would appear that each case must be decided on its own facts. In the instant case while the appellant stated that he had offered rent to the landlord who refused to accept the same on the view that he would collect the same later on. On his part landlord denied any offer of rent by the appellant. Explanation 11(b) to section 13(2)of the Ordinance 1959 lays down that rent remitted by money order to the landlord or deposited in the office of the Controller having jurisdiction in the area where the building or rented land is situated, shall be deemed to have been duly tendered. It may be observed that remittance of rent by money order in law has been accepted as one of the recognized modes of tender of rent under the repealed Ordinance. There is not an iota of evidence to indicate as to why the appellant did not care to remit the tent by money order and failing that, to account for the circumstances which compelled him to deposit rent not before 22‑1‑1978. In the absence of any circumstance to show that the appellant was prevented by superior force from depositing the rent within time and the learned Controller having found that the appellant was in default, it is difficult to accept the contrary view advanced on his behalf.

13. On the issue relating to reconstruction of the house for self occupation, learned counsel for the appellant rightly pointed out that section 15(2)(vi) providing a ground for ejectment of a tenant shall be read in conjunction with subsection (4) of the 1979 Ordinance which guarantees re occupation of the building by the old tenant after reconstruction. Learned counsel urged that the landlord having not undertaken to put the appellant in possession of the premises after reconstruction cannot seek eviction of the tenant in law on this ground.

14. Mr. Mohanlal learned counsel for the respondent however submitted that in order to demonstrate his good faith, landlord had obtained approval from the Municipal Committee, Larkana for reconstruction of the building after demolishing the old structure spread over 60 square yards, for his own occupation and that of his family comprising 18 members.

15. There is considerable force in the submission advanced on behalf of the appellant and I am inclined to agree with Mr. Abbasi that the landlord cannot succeed in an ejectment case on the ground of reconstruction unless he undertakes to put the tenant in possession of such area in the new building which does not exceed the area of the old building of which he was in occupation. Faced with this situation, Mr. Mohanlal did not pursue this issue further and submitted that the landlord had a bright case on the ground of personal requirement of the premises for his own occupation in good faith.

16. Adverting to the issue of personal use, there is overwhelming evidence on record to show that the landlord has no other house of his own in Larkana and that he alongwith his family consisting of five sons, two unmarried daughters, three grandsons and four granddaughters had been residing in house bearing C.S. No.2247 Ward `B', Ali Goharabad as licensee of his nephew Abdul Khalique. It is obvious from the evidence of landlord as well as Abdul Khaliq that the latter has been residing in a rented house owned by Inayatullah Shaikh with his large family. It was stated that Abdul Khalique had been insisting the landlord to vacate his house as he required it for the use of his family bona fide. This circumstance is corroborated by the evidence of Abdul Khaliq while there is no reliable evidence to hold that landlord owns three houses at Larkana. In this connection, landlord conceded that his son Ghulam Umar alongwith his wife and six children is residing separately in house bearing C.S. No.2202 Ali Goharabad which was owned by him and his brother Ghulam Hyder.

17. On the other hand, appellant Abbas Ali during his cross‑examination admitted that the landlord has six sons out of whom three are married. In all he has six sons, two daughters, three grandsons and four grand daughters. Excluding Ghulam Umar and Ghulam Hyder with their wives who are living in another house separately from the landlord, there would still be 14 members in his family and the house in dispute measuring only 60 yards would be required by him after demolition and reconstruction thereon. Appellant cannot be heard to say that respondents own another house namely C.S. No. 976 which was neither suggested to the landlord nor his witnesses. For the first time appellant in his evidence produced in extract from Property Register Card Exh.38 in the name of the landlord. Since this document was produced for the first time in evidence by the appellant long after the close of the respondents' evidence, their counsel had moved an‑ application for allowing them to lead evidence in rebuttal which was wrongly declined by the learned Controller. On another application for inspection of the site, learned Controller inspected the D.S. No.976 in presence of the parties and found that it comprised of a big hall which was full of utensils with no amenity provisions like Sui gas, water supply which the landlord has sought ejectment of the appellant for self‑occupation and use of his family members, this ground would continue to be available to his legal heirs i.e. the respondents and the prayer for ejectment on this ground cannot be dismissed on the simple ground that the landlord had expired during the pendency of the ejectment proceedings.

21. Last contention of the appellant that the premises presently in occupation of the respondents, were sufficient for their need as they were residing therein for a period over three decades, must be repelled as held by the Supreme Court time and again and latest in the case of Hashim Khan v. Mujeebur Rahman and others (1995 SCMR 148) in which the view taken was that tenant's contention that landlords being in occupation of rented shop which was more suitable for their use, were precluded to seek ejectment of tenant was of no avail to them as the word building did not extend to cover rented premises but extended only on premises owned by landlord.

22. Even in a case where landlord possesses more than one house in the same urban area, the choice as to the house in which he would like to live himself is surely a matter within his prerogative and discretion and the law does not give either to the tenant or to the Rent Controller the power to p determine where the landlord should personally reside. This was the view taken in Sabu Mal v. Kika Ram (1973 SCMR 185) by the Supreme Court which is sufficient to dismiss the argument advanced on behalf of the appellant.

23. In view of the foregoing discussion, there is no merit in this appeal which is liable to be dismissed. It is accordingly dismissed. Appellant is allowed 90 days' period to put the respondents in vacant possession of the premises failing which a writ of possession shall issue against him without any prior notice. AA./A‑1567/K Appeal dismissed.