1984 PLP 757 (CLC)

(a) Sind Rented Premises Ordinance (XVII of 1979)‑ ‑ S. 21‑West Pakistan Urban Rent Restriction Ordinance (VI of X1959), S, 13‑Rent deed‑Ceasing to operate‑Tenancy, held, cannot be governed by same terms and conditions as given indeed. Muhammad Yousuf v. Abdullah P L D 1980 S C 298 and Ghulam Muhammad and another v. Haji Muhammad Jamil 1982 C L C 1042 rel. (b) Sind Rented Premises Ordinance (XVII of 1979)‑ ‑‑ S. 21‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13‑Default in payment of rent‑After expiry of last renewal of rent deed tenant becoming statutory tenant and default attributed is to be dealt with in accordance with law applicable then‑Period of sixty days not elapsed before ejectment applica tion filed on ground of default in payment of rent‑Ejectment application, held, premature and tenant committed no default. (c) Sind Rented Premises Ordinance (XVII of 1979)‑ ‑‑ S. 21‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. ' 13‑Bona fide personal requirement‑Contention of landlord that his three sons sitting idle and were required to be involved in some work in shop in dispute, going unchallenged and his sworn testimony supported by evidence on oath of his son and his two neighbours‑Tenant failing to. demolish evidence of landlord about personal requirement and admitting that portion of shop occupied by landlord very small‑Ejectment order upheld. (d) Sind Rented Premises Ordinance (XVII of 1979)‑

S. 21‑‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13‑Bona fide personal requirement‑Evidence of landlord, held, most important he being in a. better position to throw light on his genuine, personal need‑Evidence if found in conformity with his plea taken in ejectment application and stands unchallenged, ‑it may be accepted in proof of personal requirement.‑[Evidence]. Muhammad Younus v. Dr. S. Muzammil Ali 1981 C L C 327 ; Muhammad Zaman v. Mahboob Ellahi P L D 1981 Lah. 609 ; Hassan Khan v. Munawar Begum P L D 1976 Kar. 832 and Muhammad Mujibur Rehman Siddiqui v. Abdul Bari and 3 others P L D 1981 Kar, 537 rel. JUDGMENT Aggrieved by the order dated 27th July, 1980 whereby the learned IIIrd Extra‑Joint Civil Judge and Rent Controller, Hyderabad allowed the ejectment application of the respondent directing the appellant to vacate the disputed premises and hand over possession thereof to the respondent within two months of the said order, the appellant, has come up in this appeal. 2. The respondent Qamaruddin filed an ejectment application, on 26th May, 1979, seeking ejectment of the appellant Muhammad Ilyas from the disputed shop bearing No. B/22‑1411 in Shahi Bazar Hyder abad, which was transferred to him by the Settlement Department under P. T. D. No. 20308, dated 31st October, 1970. The shop was let out to the appellant on the terms and conditions mentioned in the rent deed executed by the parties on 13th February, 1974. As the appellant did not vacate the shop on expiry of the agreed period, he was served with two notices by the respondent calling upon him to vacate the shop. However, the respondent could not pursue the action of having the shop vacated owing to his continued illness which bad partially damaged his eye‑sight.. The respondent's case before the learned Rent Controller was that he needed the shop for his personal bona fide use as he intended to set up his own business and involve his three adult sons who were living with him and were unemployed in the said business. It was also alleged by him that the appellant had defaulted in paying the rent from the January, 1979 and that electric charges for the energy consumed by him since November, 1977 were also outstanding against him. The ejectment application was vehemently resisted by the appellant who repudiated the allegation of default in payment of rent and personal requirement of the shop by the respondent. As for the default, he explained that he had paid the rent upto February, 1979 and was in possession of the receipts duly signed by the respondent. It was further stated by him that since he had paid Rs. 620 as the respondent's share of electric charges, he adjusted this amount towards the rent due .for following two months (March and April, 1979) sending the balance of Rs. 380 to the respondent by money order on 24th May, 1979. Before this money order was returned to him undelivered he remitted further sum of Rs. 500 being the rent for the next month (May, 1979) also by money order on 30th May, 1979. On the question of personal requirement he took the plea that the respondent as well as his sons were all engaged either in service or in business and the shop was not needed by them for bona fide personal use. He, however, contended that the ejectment application had been filed only to pressurise him to pay the rent at the enhanced rate and such tactics were employed by the respon dent even against the previous tenant. 3. I have heard the learned counsel for the parties at great length and have also gone through the record of the case. As stated above, the ejectment application was based on two grounds : one, default in payment of rent and two, bona fide personal need of the respondent. By the impugned order the learned Rent Controller decided the issues on both these points in favour of the respondent. Attacking the findings of the learned Rent Controller, the learned counsel for the appellant submitted that they are the result of misreading and misappreciation of the evidence available on the record by the learned lower Court. 4. Taking up the question of default in payment of rent, it would be seen that the allegation of the respondent; landlord as contained in paras. 6 and 7 of his ejectment application are that the appellant is not only defaulter in payment of rent which he has failed to pay since January, 19',9 but also the electric charges for the energy consumed by him since November, 1977 are in arrears against him. In his written statement the appellant has denied both these charges contending that he is in possession of the receipts indicating that be bad paid the rent upto February, 1979. As regards the period subsequent to February, 1979, his explanation is that as the respondent was unwilling to issue receipts on account of his being under treatment of his eyes, he waited for two months whereafter he sent him rent for the first time by money order on 24th May 1979 after adjusting the amount of Rs. 620 which he had paid on behalf of respondent, being his share of electric charges. He has further stated that before the above money order which was for Rs. 380 was returned to him undelivered, he remitted another sum of Rs. 500 also by money order to the respondent on 30th May, 1979. So far the allegation of default in respect of electric charges is concerned, the appellant's plea is that nothing is due from him on this account as he had cleared the same together with the respondent's share of electric charges (i. e. Rs. 620), which he had, adjusted towards the rent payable to the respondent. 5. Since the respondent /landlord approached the Court for the ejectment of the appellant on 20th May, 1979, alleging that the latter had made default in payment of rent from January, 1979, he meant to say that the arrears for the months of January, February, March and April were outstanding against him. Although the learned Rent Controller has decided the issue of default against the appellant, he held him liable only for the rent dues for the months of March and April. It was sub mitted on behalf of the appellant that he had sent the rent for these months by money order on 24th May, 1979 which was within statutory period of 60 days and consequently he could not be held to have com mitted any default in respect of these months. The learned Rent Controller who rejected this argument took the view that since the tenancy had originally commenced in pursuance of the rent deed, the same had continued in operation even on the expiry of the deed, on the same terms and conditions stipulated in the rent deed. The rent deed which was executed on 13th February, 1974 was to remain in force for initial period of 11 months and was further renewable at the option of the tenant for two periods of 11 months each and thereafter renewable with mutual consent of both the parties for another two terms of 11 months each. Thus, at the expiry of the total of five periods of 11 mouths each, the deed ceased to exist with effect from 13th September, 1978, and was no longer in force during the period in dispute. The learned Rent Controller was not correct in thinking that after the rent deed had ceased to be opera tive, the tenancy continued to be governed by the same terms and conditions as of the said deed. In this connection reference may be made to Muhammad Yousuf v. Abdullah (P L D 1980 S C 298) where it was held :‑‑ "As, in our opinion, the rights and liabilities of the appellant, in the instant case, are governed exclusively by the said Ordi nance, the question of the amount of rent due from him has to be determined in accordance with the provisions of clause (i) of subsection (2) of section 13 of the said Ordinance. Under this clause, a tenant has to pay the rent due from him "within fifteen days of the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement within sixty days from the period for which the rent is payable'. The words 'the agreement of tenancy" mean an agreement which is in force, and not an agreement which has expired and is dead'. 6. The above Supreme Court authority was followed in the Karachi case reported as Ghulam Muhammad and another v. Haji Muhammad Jamil (1982 C L C 1042), Ajmal Mian, J. who decided this case observed :‑ "Since after the expiry of the period mentioned in the tenancy agreement, the appellant had become statutory tenant, the terms and conditions of the tenancy agreement were no longer applicable in view of the judgment given in the case of Muhammad Yousuf v. Abdullah. P L D 1980 S C 298." 7. In view of the legal position clarified in the above‑reported cases, on expiry of the last renewal of the rent deed on 12th September, 1979, the appellant had become statutory tenant and the default attributed to him was to be resolved in the light of the provisions of the rent law then in force. Thus, if the appellant was able to prove that the statutory period of 60 days from the date on which the rent for the month of March, 1979 was due for payment had not expired, before filing of the ejectment application, the application was premature and the appellant could not be held to be defaulter. The rent for the month of March. 1979 was obviously payable in the beginning of April, 1979 whereas the ejectment application was filed on 26th May, 1979. Thus, the period of 60 days had not elepsed before the ejectment application was filed. Therefore, I am in agreement with the learned counsel for the appellant, that the ejectment application was premature and the appel lant could not be held to have committed any default in payment of the rent. In view of this finding, I do not think it necessary to go into further discussion on the question of default. The respondent has not been able to prove that the appellant was defaulter even in respect of electric charges. On the contrary the appellant is shown to have paid even the respondent's share of electric charges which he adjusted towards the rent due from him. 8. The other ground on which the appellant is sought to be ejected from the disputed premises is that the shop is needed by the respondent his personal bona fide use. In this connection he has taken the plea that his adult sons who are living with him are unemployed and he needs the shop to establish them in business. The appellant who has controverted this plea has stated that the respondent as well as his sons tire all engaged in business and service and hence the shop is not required by them, for personal use. Despite his categorical repudiation of the respondent'7s claim, he was unable to say in course of his cross‑exami nation if the respondent has five sons. Since he does not have this much knowledge he cannot be expected to say if any of his sons is jobless and needs to be rehabilitated. Furthermore, even though the respondent was extensively cross‑examined by the Advocate of the appellant, he was unable to bring out anything from him which may be inconsistent with his plea about number of his children and their being unemployed. The questions that had been put to the respondent were only with regard to the employment of his three sons.‑ He was not asked about engagement of his remaining sons. On the other hand the respondent and his three witnesses including his son Shamimuddin have stated on oath that at least three of the respondents' sons are without any work. Thus, the respondent s plea that his three sons are sitting idle and are required to be involved in some work has gone unchallenged. 9. The learned counsel for the respondent has referred to certain authorities to enforce his arguments relating to the personal requirement of the shop in dispute. He first referred to Muhammad Younus v. Dr. S. Muzammil Ali (1981 C L C 327). It was observed in this case that one of the material pieces of evidence for considering the question as to whether landlord requires the premises in good faith/ bona fide or not, would be the landlord's statement on oath before the Rent Controller. Another case referred to in this connection is of Muhammad Zaman v. Mahboob Elahi (P L D 1981 Lah. 609) wherein it was held :‑‑ "I am of the considered view that while determining whether any particular premises is required by the landlord for personal use fundamental importance should be attached to this state ment of the landlord himself as no one else can better state about the need then the person whose need it is. If I may say so the statement of the landlord in this regard unless established directly to be untruthful is to be taken on its face value." 10. In case of Hassan Khan v. Munawar Begum (P L D 1976 Kar. 832), it was held that the assertion or claim on oath by the landlord that he requires the pre mises for his personal use should be accepted by the Rent Controller as bona fide, if such claim or assertion although by itself may be insuffi cient, yet is consistent with his averments in the application and is not shaken in the cross‑examination or disproved in rebuttal. This authority was followed with approval in the case of Muhammad Mujibur Rehman Siddiqui v. Abdul Bari and 3 others (P L D 1981 Kar. 537). 11. From the above authorities the principle that emerges is that on the point of personal requirement of the premises by the landlord, his own evidence is most important because he is in a better position to throw light on his genuine personal need. In case his evidence is found in confirmity with his pleas taken in the ejectment application and stands unchallenged, it may be accepted in proof of the personal requirement. 12. In the instant case the sworn testimony of the respondent/land lord which is supported by the evidence on oath of his own son and his two neighbours describes his personal need of the shop inasmuch as that he needs the shop for having his three sons who are living with him and are without employment, establishment, in business. This assertion is consistent with the plea taken by the respondent in his ejectment application. As pointed out above the appellant/tenant has not been able to demolish respondent's evidence about his personal requirement He has frankly admitted that he has no knowledge if the respondent has five sons. Also no question has been put to the respondent as to engagement of his two sons. It is also admitted by the appellant that the, portion of the shop in occupation of the respondent is very small one and moreover its doors open in a small lane and not in the Shahi Bazar . Thus, the said portion is not sufficient for the respondent's requirements. 13. In view of above discussion I see no force in the appeal which is dismissed with costs. The appellant shall vacate the premises in dispute and hand over its possession to the respondent/ landlord within two months of this order. M. Y. H. Appeal dismissed.