2003 PLP 449 (YLR)

4. From the divergent pleadings of the parties the learned Rent Controller proceeded to frame the following issues:‑‑‑ (i) Whether the respondent is rent defaulter since January, 1999? OPA (ii) Whether the shops are required by the petitioner for personal bona fide need? OPA (iii) Whether the petition is false and mala fide? OPR (iv) Whether the petitioner is estopped by his conduct to file this petition? OPR (v) Relief.

5. The learned Rent Controller decided Issue No.1 in favour of the appellant/tenant by observing that "the respondent‑tenant has not committed any default in payment of rent". On the question of personal bona fide need the learned Rent Controller concluded that the petitioner has not stated the number of students studying in the school nor produced record of the school to establish that the premises is required for the purpose of school and that the premises of the school is not sufficient, to cater for the needs. Resultantly, the Rent Controller proceeded to dismiss the ejectment petition vide his order, dated 23‑6‑2000.

6. Aggrieved of the order, dated 23‑6‑2000 the respondent‑landlord Chaudhry Sadat Khalid preferred an appeal. Regarding default the learned Additional District Judge found that the respondent deposited rent for the month of February and March, 2000 on 8‑4‑2000. The rent for the month of December, 1999 and January, 2000 was deposited on 11‑2‑2000. Similarly the rent for the month of November 1999 and December, 1992 was deposited after the period as required by the order of the learned Rent Controller, dated 1‑7‑1999, thus, he has become defaulter, within the strict sense of law. The learned Additional District Judge, therefore, reversed the finding on Issue No.1 relating to default. On the question of requirement of the respondent for personal bona fide need the learned Additional District Judge found that the applicant is running school in this building. The respondent has not rebutted the contention of the appellant when he appeared in the witness‑box as P. W .1, he simply stated that the applicant wants to rent out these shops on enhanced rate and these are not required by him. It means, he ha‑ submitted that the applicant is running a school in this building in the absence of any evidence to the contrary. There is no reason to disbelieve the contention of the petitioner. The learned Additional District Judge proceeded‑ to observe that: "In my opinion the petitioner appellant has become successful to establish that these shops form part of the building shown as school is running by him and he needs these shops in good faith for the purpose of school. Therefore, he proceeded to reverse the finding of Issue No.2 and accepted the appeal of the respondent by the impugned order, dated 17‑5‑2001.

7. The learned counsel for the petitioner firstly on the strength of section 13(2)(i) of the Rent Restriction Ordinance contends that the applicant was entitled to pay or deposit rent within 60 days from the period, for which the rent is payable. According to him the respondent in para. No.3 of the ejectment petition, alleged that the appellant has not paid rent since January, 1999. The ejectment petition was filed on 25‑3‑1999. Under the law, the rent for the month of January, 1999, the appellant could legally pay or deposit within 60 days from the date when the rent becomes due thus the filing of the ejectment petition, the period for the payment of rent, was not expired and question of any default does not arise at all in view of section 13, subsection (2)(i) of the Rent Restriction Ordinance. Reliance has been placed on the cases of Mst. Iqbal Begum and 4 others v. Mian Manzoor‑ul‑Islam (1978 SCMR 365).

8. To resolve the real controversy between the parties and the issue, the provision of section 13(2) is relevant which is reproduced here as under:‑‑‑ "The tenant has not paid or tendered rent due by him in respect of the building or rented land, within fifteen days after 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. " Definition of term "tenant" in clause‑C(i) of section 2 of the West Pakistan Urban Rent 'Restriction Ordinance (VI or 1959) includes tenant continuing in possession after determination of tenancy in his favour. This definition, however, does not indicate terms and conditions by which such tenant covenant after determination of tenancy and such tenant holding over after determination of lease must be deemed to be governed by terms and conditions made applicable under agreement to tenancy which had terminated. His case, therefore, falls in first category mentioned is clause (i) of subsection (2) of section

13. If the previous agreement contains stipulation of the date of payment then previous agreement stipulating rent to be paid in advance of first every month and if rent is not paid or tendered within 15 days after the expiry of specific date then the tenant would be deemed to have committed default and could not claim 60 days allowed in case under later part of section 13(2)(i) of the Ordinance ibid. The above said provisions of section 13(2)(i) of the West Pakistan Urban Rent Restriction Ordinance (VI of 1959) came up for interpretation before a Division Bench of this Court in case reported as Muhammad Ashraf v. Muhammad Sharif and 3 others (PLD 1971 Lahore 610) and it has been ruled that "in view of the fact that tenant continuing in possession after the determination of the tenancy does so on terms and conditions empowered for the previous agreement. It is clear that the case falls in first category mentioned in clause (i) of subsection (2) of section 13 of the West Pakistan Urban Rent Restriction Ordinance if the previous agreement contains any stipulation as to the date of payment of rent. When, therefore, if the agreement stipulates then the rent was paid in advance on the first and every month and if it is not so paid or rendered within 15 days after expiry of the specific date a tender would be in default".

9. In the above mentioned case, the parties entered into an agreement of tenancy for 11 months and it was not registered. Since the agreement of tenancy for 11 months does not require registration, therefore, it was held that unregistered document could be used for collateral purpose e.g. ascertaining the mode of payment.

10. Clause (1) of the agreement (Exh. 1‑A) between the parties which stipulates, "that the lesser shall grant and the lessee shall accept a lease of Shop No. NE -2025/3‑11, 12 Chowk Chah Sultan for a period of 11 months from January, 1998 at the monthly rent of Rs.3,900 payable in advance up to the 5th date of each calendar month. The cases relied by the learned counsel for the appellant i.e. Mst. Iqbal Begum and 4 others v. Mian Manzoor‑ul Islam (1978 SCMR 365), Abdur Razzaq v. Mst. Shahida Nasreen and 2 others (1987 CLC 1530) and Haji Noor‑ul‑Hassan v. District Judge, Dera Ismaeel Khan and others (1985 CLC 2620) are not applicable to the facts and circumstances of the present case. Because in case of Mst. Iqbal Begum rent due for four months but tendered for only three months. Tender of rent also made after expiry of sixty days from date when it fell down. It was held that tenant is defaulter in payment of rent and rightly ordered to be ejected. Section 15 of the Sindh Restriction Premises Ordinance (VI of 1979), which is paramateria with section 13 within the meaning of the West Pakistan Urban Rent Restriction Ordinance came up under consideration in the case of Mst. Zarina Khawaja. v. Agha Mahmood Shah (PLD 1988 Supreme Court 190). In the case of Mst. Zarina Khawaja (supra) the case of Muhammad Ashraf v. Muhammad Sharif and 3 others (PLD 1971 Lahore 610) came up for consideration alognwith two other cases decided by the Hon'ble Supreme Court reported as Muhammad Yousuf v. Abdullah (PLD 1980 Supreme Court 298) and Muhammad Younas Maik v. Zahid Irshad (1980 SCMR 184). The concept of holding over in the general law of Transfer of Property Act No. IV of 1882) was accepted as lawful while keeping the terms of an expired agreement alive subject of course of repugnancy with any provision of rent law to the contrary. In particular the covenant as to the advance rent and the day of payment in the expired agreement were informed and thus agreement was continued. In the case of Mst. Zarena Khawaja v. Agha Mahboob Shah (PLD 1988 Supreme Court 190), the Hon'ble Supreme Court, after discussing sections 2 and 13(2) of the Rent Restriction Ordinance ruled that the lost Deed of rent permits of covenant in the agreement alive or expired which are permissible under the general law and not inconsistent with or repugnant with special law, and inforced the same accordingly, whenever it is so required under the law. In addition it also remained operative for other purpose permitted by the general law in the rule and the law that agreement of tenancy although expired would continue in force was again considered in case of Dr. Surraya Mateen and others v. Mst. Akhtar‑un‑Nisa (1995 MLD 456) by the High Court, it was held, "that the agreement of tenancy though expired would continuing force, with liability of tenant to pay rent at the same rate and time. The consequence of non‑payment of rent would, however, be subject to law in force at the relevant time.

11. Although the challans showing the payment of rent has been produced by the appellant on the record (Exh. R.1 to Exh.R‑14), the challans do not indicate when the rent of January, February and March have been deposited. There is no indication of the fact that the rent for the month of January anti March was offered for payment to the respondent, within fifteen days after expiry of specified date. In his testimony Dr. Kamran Masood (R. W .1) stated that he made an attempt to make the payment of rent but the respondent refused to accept the same anti thereafter he moved an application on 11‑2‑1999 before the learned Rent Controller for deposit of the rent. There is no such application for deposit of the rent on the file nor there is any order of the learned Rent Controller to show that the permission was granted to him to deposit the rent in the Court. The appellant took a contradictory stand regarding the rate of rent before the learned Rent Controller on 1‑7‑1999 when he stated that rate of rent is Rs.2,000 per month which is being deposited by the appellant in the Court.

12. The learned Rent Controller proceeded to pass an order under section 13(6) vide his order, dated 1‑7‑1999 through which the tentative rent was fixed as Rs.3,000 per month. Had the petitioner paid the rent at the agreed rate of Rs.3,900 per month by obtaining the permission on 11‑2‑1999 from the Court of the learned Rent Controller, he would have not disputed the rate of rent with the plea that the rate is Rs.2,000 per month which is being deposited by the appellant. The order, dated 1‑7‑1999 under section 13(6) of the Rent Restriction Ordinance, passed by the learned Rent Controller negates the assertion of the appellant.

13. The second contention of the learned counsel for the appellant is that violation of orders under section 13(6) of the Ordinance No. VI of 1959) could have not been made basis for ascertaining the default. According to him the learned First Appellate Court did not apply the correct while reversing the finding of the learned Rent Controller on Issue No.1. He states that order, dated 1‑7‑1999 under section 13(6) of the Urban Rent Restriction Ordinance is only of tentative nature, and the moment the final order passed. The order passed by the Rent Controller under section 13(6) of the Ordinance No. VI of 1959 becomes infructuous and non‑compliance of the order only should be considered by the learned Rent Controller and not by the First Appellate Court. Since the application for non compliance of the order under section 13(6) of the Ordinance was dismissed by the learned Rent Controller on 4‑5‑2000 which has become final and as the same was not challenged. Therefore, the finding of the First Appellate Court that question of violating under section 13(6) of the Ordinance is erroneous and is not maintainable. Reliance has been placed on the case Abdur Razaq v. Shahida Nasreen (1987 CLC 1350).

14. The appellant was required to deposit the rent of July, 1999 till 15th of the next month. The record would show that the petitioner deposited the rent of September, 1999 on 18‑10‑1999, the rent of December, 1999 on 25‑11‑1999. Similarly the rent of December, 1999 was deposited on 10‑2‑2000 and the rent of February, 2000 was deposited on 8‑4‑2000 and thus violated the order, dated 1‑7‑1999 passed by the learned Rent Controller under section 13(6) of the Rent Restriction Ordinance. The respondent moved an application for striking off the defence of the appellant for violation of the order, dated 1‑7‑1999 passed under section 13(6) of the Rent Restriction Ordinance on 9‑3‑2000. This application was dismissed vide order, dated 4‑5‑2000 by the learned Rent Controller by observing that "the respondent produced copies of the Bank Challan which shows that the respondent is paying from January, 1999 till March, 2000, at the rate of Rs.3,

900. The respondent has paid rent in excess. In these circumstances the defence of the respondent cannot be struck off. The application is without merits and is dismissed".

15. It is well‑settled law that the appeal is the continuation of the original proceeding of the Civil Court. The Appellate Court has the same powers which are enjoyed by the Court of original jurisdiction. The appellant as found earlier in preceding paragraph has committed default in payment of rent and also violated the order under section 13(6) o the Rent Restriction Ordinance passed on 1‑7‑1999 by the learned Rent Controller. An application was moved by the landlord to strike off the defence of the tenant by exercising the jurisdiction vested in the Court. The application was rejected. The order of the rejection of the application is not appealable. The question arises whether the Appellate Court has the jurisdiction to pass the order of striking off the defence. In case of Ghulam Yasin v. Bakhshu Mal (PLD 1973 Karachi 228) it has been observed, that "power conferred on Controller to strike off defence under. section 13(6) is available to Appellate Authority under section 15(1)(c). This was also earlier view of the Lahore High Court, Lahore while deciding the case reported in the case of Muhammad Hussain and another v. Mehraj Din and another (PLD 1965 Lahore 179), where the Court refused to strike off defence despite of the non‑compliance by party with order regarding deposit of earlier rent and it was held that the Appellate Authority is competent to pass correct order striking off the defence. In case reported as Syed Haji Abdus Samad v. Ghulam Rasul and others (1988 SCMR 1832), in which the Rent Controller accepted explanation of tenant and dismissed the application of respondent‑landlord for striking off the defence of tenant but High Court allowed the appeal of landlord and consequently defence of tenant was struck off and he was directed to vacate the premises. In the Supreme Court the case was remanded to decide the same on merits and the controversy was resolved in favour of the proposition that the Appellate Court has the power to strike off the defence if there is violation of order under section 13(6) of Ordinance. The learned Rent Controller has not exercised the jurisdiction vested in him under the law to strike off the defence of the appellant. In this view of the matter, the Appellate Court rightly observed that the order, dated 1‑7‑1999 under section 13(6) of the Rent Restriction Ordinance has been violated and the appellant has committed default in payment of rent, therefore, he proceeded to record the finding against the appellant".

16. The third contention of the learned counsel for the petitioner is that on the question of bona fide personal need by the respondent, the learned counsel states that respondent appeared in the witness‑box and stated on oath that he required the disputed premises for his personal bona fide need. His testimony has not been shaken in the cross examination which has to be accepted by the learned Rent Controller in view of the Judgment of the Hon'ble Supreme Court reported in the PLD 1997 Supreme Court

564. Further contends that the protection of section 13(4) of the Rent Restriction Ordinance is available to the appellant and the possession can be restored to the appellant in case, the premises is not occupied by the respondent after its vacation.

17. The respondent‑landlord appeared in Court and made a statement on oath that the shops are required by him for personal bona fide need. It has been proved on the record that the respondent is running a school in this building. These shops form part of the building wherein the school building is being run by the respondent. He needs these shops in good faith for the purpose of school. His statement on oath has not been shaken in cross‑examination. In case reported as National Development Finance Corporation, Shahrah‑e‑Quaid‑i‑Azam, Lahore v. Shaikh Naseem‑ul‑Din and 4 others (PLD 1997 Supreme Court 564), while discussion made of proof it has been ruled that: "Evidence of landlord on point of bona fide personal requirement was not inconsistent with averments in application and was not shaken in cross‑examination or disproved in rebuttal. Landlord's assertion of claim (of bona fide requirements) made on oath deserved to be accepted as bona fide. High Court had, thus, correctly found that landlord had been able to prove requirement of premises in question, for his bona fide personal use. Leave to appeal was refused in circumstances. " Even otherwise protection of section 13(4) of the Rent Restriction Ordinance is available on the violation. The possession can be restored to the appellant in case the premises is not occupied by the respondent after its vacation.

18. For what has been discussed above, I maintain the finding of the learned First Appellate Court on Issue No.2, and observe that the shops are required by the respondent landlord for the personal bona fide needs. As far as Issue No. 1 is concerned, the respondent has been able to prove the default.

19. Resultantly this appeal fails which is dismissed with costs. Since the appellant is running a clinic in the shops in dispute, therefore, the appellant is allowed four months' time from today for vacation of the disputed premises. S.A.K./K‑190/L Appeal dismissed.