1986 PLP 561 (CLC)

Date of hearing: 27th October, 1985. This appeal is directed against the order of the VI Senior Civil Judge and Rent Controller, Karachi, dated 30‑8‑1984, directing the appellants to vacate the premises in question within two months from the date of the order and to put the respondents in vacant possession thereof. The facts of the case are, that the appellants Nos. 2, 3 and 4 are the respondents' tenants in respect of Shop No. 1, built on Plot No. 13, Industrial Area Liaqatabad Karachi, since September, 1974. The rent of the premises was Rs. 250 per month which was later enhanced to Rs.300 per month by the previous landlord. The respondent purchased a portion of Plot No. 13 comprising of about 276 square yards from its original landlord on 16‑10‑1980. This plot consisted of two shops, viz. Shop No. 1, which was in possession of the appellants and Shop No. 3 originally had been rented out, but was vacated later by its tenant and its possession handed over to the respondent. Thereafter, the respondent addressed a notice, dated 29‑11‑1980, through their Advocate to Messrs John Traders, informing them that the respondent had purchased the said property from one Khawaja Muhammad Shoaib Rehman and had thus become its landlord and as such the rent for the premises be paid to the respondent. This notice was addressed to Messrs John Traders on an assumption that they were the tenants in respect of Shop No.

1. The addressees were also asked to enter into a fresh tenancy agreement with the respondent on the terms and conditions to be mutually agreed between the parties. This notice was replied by the appellants through their Advocate, and the respondent was informed that the appellants were the tenants in respect of the shop in question at a monthly rent of Rs.300. The respondent was also informed that rent had been paid by the appellants to the previous landlord up to 15th November, 1980 and the rent for the period, from 16‑11‑1980 to 30‑11‑1980 had been sent to the respondent by money order. Thereafter, the respondent addressed another notice, dated 18‑12‑1980, through his advocate, once again to Messrs John Traders, calling upon them to execute a fresh tenancy agreement with the respondent. This notice was followed by another notice, dated 11‑2‑1981 whereby Messrs John Traders were informed for the first time, that the premises in question had been purchased by the respondent, for his own personal requirements and that he was no more interested in renting out the premises. The appellants, however, failed to vacate the premises. Thereafter, the respondent filed an application under section 15 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as 'the Ordinance') against Messrs John Traders, averring therein, that the tenants had committed default in payment of rent, that they had refused to vacate the premises which were required by the respondent in good faith for his personal use and that the respondent wanted to make additions and alterations in the premises. One of the appellants, namely, Nisar Ahmad who was also proprietor of Messrs John Traders, filed written statement on behalf of the later wherein the relationship of landlord and tenant was disputed as according to him the premises had been rented by the original landlord to three persons namely, Nisar Ahmed himself, Muhammad Issa and Masood Ahmed. It was also denied that any default in the payment of rent had been committed or that the premises were required by the respondent in good faith for his own use. Thereafter, the respondent amended his application and the appellants Nos. 2 to 4 were also joined as respondents in the rent application. The learned Rent Controller on the basis of the material placed on record by the respective parties concluded that there did exist a relationship of landlord and tenant between the parties. He also held that the appellants had committed default in the payment of rent. The learned Rent Controller also decided the issue in regard to the respondents' requirement in favour of the latter. The question, whether the respondent required the premises for reconstruction, was however, decided against the respondent. Before this Court. the first contention of Mr. M.M. Beg, the learned counsel for the appellant was, that the conclusion arrived at by the learned Controller in regard to the alleged default committed by the appellant in payment of rent was erroneous. The learned counsel pointed out that the appellants had placed sufficient material before the Rent Controller to establish that rent in respect of the shop was tendered by the appellants well within time and as such the provisions of section 15(2)(ii) of the Ordinance were not attracted. In, order to appreciate the argument, it is necessary to examine the evidence adduced by the parties on the question of default. Although the respondent had alleged in his application before the Rent Controller that the appellants had committed default in the payment of rent since 16‑11‑1981, but the affidavit which was filed by him in evidence, was silent on the point. However, in the cross‑examination the respondent denied the suggestion that the appellants had tendered rent by two money orders, dated 7‑12‑1980 and 1‑1‑1981 for Rs.150 and Rs.450 respectively. The respondent also denied a suggestion made in the cross‑examination that the appellants had deposited rent in respect of had refused to accept the money orders. However, this statement of the respondent was not supported by material on the record as the appellants produced two money orders for Rs.150 and Rs. 450 respectively alongwith their postal receipts to show that the rent had been tendered by the appellants. The appellants also produced a Court receipt, dated 20‑7‑1981 for Rs.450 to show that rent had been deposited by them before the Rent Controller on that date in favour of the respondent. Now, admittedly, the appellants were statutory tenants and there was no agreement fixing the period within which rent was payable, therefore, the provisions of section 15(2)(ii) would be attracted only in case if the rent was not deposited within sixty days after it became due for payment. The money order receipts produced by the appellants in evidence show that rent for fifteen days of November and the whole month of December, 1980, was tendered by two money orders, dated 7‑12‑1980 and 1‑1‑1981 respectively. It is, therefore, not understandable as to how any default had been committed by the appellants. Furthermore, the Court receipt of the Rent Controller further shows, that when the money orders were refused to be accepted by the respondent, the rent was deposited by the appellants before the Rent Controller on 20‑1‑1981. Under such circumstances one fails to understand as to how default was committed by the appellants. The rent, totalling Rs.450 which was for the entire period in question was deposited within sixty days before the Controller. In this respect, one may also refer to the provisions of section 10 of the Ordinance. Subsection (2) of section 10 says, that 'rent shall as far as may be, be paid to the landlord, who shall acknowledge receipt thereof in writing'. Subsection (3) of section 10 then provides that where the landlord has refused or avoided to accept the rent, it may be sent to him by postal money order or be deposited with the Controller. Thereafter subsection (4) of section 10 says that the written acknowledgment, postal money order receipt or receipt of the Controller, as the case may be, shall be produced and accepted in proof of the payment of the rent. Now, when rent was tendered by the appellants by money orders, it was sufficient compliance with the provisions of both subsection (2) and subsection (3) of section 10 of the Ordinance. Since the money orders and the Rent Controller's receipt were produced by the appellants in evidence, they should have been accepted in proof of the payment of rent by the Controller. There is, therefore, clear misreading of evidence by the Rent Controller on the question of default. I accordingly reverse his findings on the point. The next contention of Mr. M.M. Beg, the learned counsel for the appellants was that the respondent had failed to establish that the shop in question was required by him in good faith for his occupation. In this respect, the respondent had averred before the Rent Controller that he was carrying on furniture business in rented premises and was always in need of extra space for storage of furniture. It was further averred by him for such reasons, the respondent purchased property adjacent to his shop comprising of two shops and an open space out of which the shop in dispute was in the appellants' possession. In the first two notices, addressed by the respondent to John Traders, no such demand on the ground of personal requirement‑was made. All that the respondent wanted was, that the tenant may sign a fresh tenancy agreement with him. It was much later that by notice addressed through his Advocate; the respondent asked the tenant to vacate the premises on the ground of his personal requirement alleging that the premises had been purchased by the respondent for his own bona fide requirements. It is clear from this, that the respondent first wanted the tenant to execute a fresh tenancy agreement with him, but it was only when such agreement was not executed that the respondent changed his stand and asked the tenant to handover the possession of the shop to him on account of his personal requirement. If the tenants had acceded to the respondents' original demand and executed a fresh tenancy agreement, then it is not understandable as to how the respondent could have demanded the return of the disputed shop for his personal requirements. Moreover, the two earlier notices sent by the respondent through his Advocate to the appellants also falsify the respondents' earlier version that the premises in question were purchased by him as he required additional accommodation for storing his furniture. Again while filing affidavit in evidence before the Rent Controller, the respondent had nowhere stated that the adjoining premises were purchased by him as he was in need of additional accommodation. What was stated therein by the respondent was, that he was paying heavy rent to the landlord and that he needed the premises for storage of furniture. The respondent also failed to establish whether the rented premises occupied by him were insufficient for his use because his bare statement in this respect cannot be relied upon as sufficient proof. The question, therefore, is whether the respondent has been able to establish his bona fide need or good faith as required by the Ordinance. Section 15, subsection (2) clause (vii) of the Ordinance clearly places the burden on the landlord to establish that the premises are required by him in good faith. That means, that even if the premises are genuinely required by the landlord for his personal occupation, and order under subsection (2) of section 15 directing the tenant to put the landlord in possession of the premises cannot be passed unless the burden placed on the landlord has been successfully discharged by him. That would require evidence that can inspire confidence. If the landlord while giving evidence, is not consistent in his assertions before the Controller, such evidence cannot be relied upon in proof of good faith. The learned counsel for the appellants has relied upon a number of cases on the point, the first being Sultan Press Ltd. v. Muhammad Hasan P L D 1985 Kar. 624, decided by this Court. In that case, my learned brother, Haider Ali Pirzada, J., has held that for considering the true scope of clause (vii) of subsection (2) of section 15, the landlord has to make out a case for his requirement of the premises in good faith and for that purpose, he must place before the Rent Controller all the necessary details which are required for granting relief. It has been further held by him that a mere ipso dixit of the landlord that he requires the premises for his personal occupation or use is not sufficient. The same view was reaffirmed in Syed Anisur Rehman v. Mst. Sara Bai P L D 1985 Kar. 714 and Mst. Farukh Nisa v. Safdar Ahmed and 6 others P L D 1985 Kar.

639. In another case, reported as National Bank of Pakistan v. Wadhu Mal through his legal heirs and 2 others 1985 C L C 1053, it was held that good faith must be proved through facts and circumstances to inspire confidence in the mind of the Controller for exercise of power in favour of the landlord to such a degree as to deprive the tenant of his statutory protection under special law. In Associates Sales Agencies v. The Standard Insurance Company Ltd. 1985 C L C 2419, it was held that merely because the landlord was occupying rented premises, he could not ipso facto obtain ejectment of tenant unless he proved his bona fide requirement. In Mst. Shirin Bai and another v. Messrs Habib Bank Ltd. 1985 C L C 2455, it was held that the landlord in order to establish that he required premises in good faith had to prove bona fides and his good faith could only be spelt out from the circumstances. My views on the point are not different and, therefore, I am clearly of the view that the respondent in the instant case has failed to establish that the premises are required by him in good faith for his personal use. The finding of the Controller on the issue of personal requirement is, therefore, also reversed. For the aforesaid reasons, this appeal is allowed. The order passed by the Rent Controller, dated 30‑8‑1984, is set aside and the ejectment application is dismissed, but the parties are left to bear their own costs. A. A Appeal allowed