1992 PLP 482 (CLC)

(2) Whether the opponent No.1 has sublet the premises to the opponent No.2? (3) Whether the applicant& required the disputed premises for their personal bona fide use in good faith? (4) What should the order be? Consequently the ejectment application was allowed as indicated above., Hence this appeal at the instance of the tenants. I have heard Mr. Munawar Ghani, learned counsel for the appellants as well as Mr. Munir-ur-Rehman, learned counsel for respondents I have also carefully perused the entire evidence brought on record from both sides as well as the impugned order. Assailing the impugned order on the issue of default in payment of rent, learned .counsel for the appellants, drew my attention to a cheque of Rs.4,000 issued by the Director of the appellant No.2 in favour of Mrs. Zahida Ishaque, dated 1‑1‑1984 and its counterfoil (pages 139 and. 141), a debit voucher dated 1‑1‑1984 for Rs.4,000 in favour of Mrs. Zahida Isnaque as rent for the month of January, 1984, photo copies of cash book showing the entry of Rs.4,000 towards payment of rent of the demised premises for the month of January 1984, rent receipt dated 3‑3‑1984 issued by the office of the Rent Controller for Rs.12,000 deposited in Miscellaneous Rent Case No.839/84 titled Pakistan Milk Food Manufacturers Ltd. v. Mrs. Zahida Ishaque. The counsel, therefore, contended that in the presence of the documentary evidence it is established that the appellants had made all possible efforts to pay the rent for the month of January, to the respondents and ultimately they deposited the same in the Court of Rent Controller through the aforesaid Miscellaneous Rent Case. That the counsel further drew my attention to 10 debit vouchers (pages 105 to 129) of Millac (Pakistan) Ltd., Karachi showing the payment of rent of the demised premises to Mrs. Zahida Ishaque through cheques. They were received by the respondents as per their signatures appearing on the said vouchers. He also referred to a certificate issued by the Assistant Vice‑President of United Bank Limited dated 1‑10‑1984 which indicates that the appellant No.2 were maintaining their current account with them and that their Payee A/C. Cheques to Mrs. Zahida Ishaque, drawn on the bank, had been duly paid upon presentation thereof through Habib Bank Limited, Karimabad Branch, Karachi. He then contended that there was not an iota of evidence available on record to show that the bills for water‑charges, issued by K.M.C., were ever delivered to appellants for payment and hence the allegation regarding default in payment of water‑charges remained unsubstantiated. it was, according the rate of Rs.150 per month, were by the respondents as per payment vouchers annexed to the said statement. (pages 215 to 219). Regarding subletting of the demised premises by appellant No.1 to appellant No?, Mr. Munawar Ghani, learned counsel for the appellants, again referred to the debit vouchers (pages 105 to 129) and vehemently urged that all these vouchers clearly indicate that the rent was paid by the appellant No.2 through cheque to Mrs. Zahida Ishaque. The respondents having accepted the payment so offered had, according to him, accepted the appellant No.2 also as a co‑tenant of the demised premises which are in possession of both the appellants. The respondents have, by accepting the rent for February, 1980, to December 1983 (as it stands proved from the above referred documentary evidence) have also clearly admitted the appellant No.2 to be their tenant. The respondents by having admitted the rent from the appellant No.2 are estopped from disputing their right as co‑tenant in the premises. No objection was ever made by the respondents to the occupation of the demised premises by the appellant No.2 alongwith appellant No.1 although the respondents have their residence just close to the demised premises. The counsel have urged that no doubt initially the rent agreement was executed only by the appellant No.1 but it was actually taken for the common use of both the sister concerns viz the appellants Nos.1 and

2. Mr. Munawar Ghani, learned counsel for the appellants also vehemently attacked the findings of the learned Rent Controller on the issue of bona fide requirement. In this connection he submitted that there was no evidence available on record to indicate that the respondents had ever run an educational institution in the demised premises. Inviting my attention to the deposition of the witnesses of the respondents, learned counsel for the appellant, submitted that admittedly the respondent No.1 is an estate agent, the respondent No.2 is an employee in a company and the respondents Nos.3 and 4 are medical students. It is thus clearly borne out that the bona fide requirement of the demised premises for the purpose of running an educational institution was absolutely baseless and without any justification and has been simply advanced only to harass the appellants, who are well‑established companies. He also submitted that no permission was obtained from the concerned authorities for establishing an education institution in the demised premises. In short, the learned counsel for the appellants vehemently urged that the impugned order passed by the learned Rent Controller is based on misreading of evidence and mis appreciation of facts and circumstances of the ` case. The ejectment application, it was so contended by Mr. Munawar Ghani, was not filed in good faith but it was patently obvious from the record that upon appellants' refusal to agree to enhance the rent, the respondents refused to accept the rent and before filing the ejectment application they tried to evict the appellants through Martial Law Authorities. It was, on the other hand, submitted by Mr. Munirur Rehman, learned counsel for the respondents that the payment of rent for the month of January, 1984 through cheque was not pleaded in the written statement and hence question of tendering the same to the respondents and their refusal to accept the same does not arise. He urged that the appellants have attempted to make improvement in their case at the evidence stage. In his cross‑examination P.W. Muhammad Saleem had clearly admitted that he had put his signatures on the alleged affidavit in the office of the appellants' Advocate and that he had not sworn the same before any competent authority. It was, therefore, according to the learned counsel, not an affidavit and no reliance therefore can be placed on the averments made therein. The payment through cheque was not supported by P.W. Muhammad Sadiq and hence the plea of the payment of rent as canvassed before me is not supported by any evidence on record. At any rate, since no specific plea has been raised in the written statement regarding payment of rent through cheque hence it is to be discarded. The counsel also submitted that if there was any refusal on the part of the respondents to accept the rent for the month of January, 1984 then, as contemplated by section 10(3) of the Ordinance, the appellants should have sent the same through money order. My attention has been drawn to application under section 151, C.P.C. (pages 185 to 187) filed by the appellants praying for an order prohibiting the respondents from withdrawing the rent from the Court which was being deposited by them. It is also submitted that the appellants had filed a snit (Suit No.664/85) in this Court, which is still pending, for declaration that the respondents are not entitled to claim or receive the rent from them due to cancellation of their allotment of amenity plot in question as per K.D.A. order, dated 8‑1‑1984. It was next contended by Mr. Munirur Rehman that the payment of rent should be voluntary and if it is proved by record that rent was not tendered voluntarily but certain hindrances were put in the way of landlord, then tendering of rent was of no legal effect. The appellants have thus, according to him, committed wilful default in payment of rent. In this connection, he cited 2 authorities one from Indian jurisdiction reported in AIR 1964 SC 134 and another of erstwhile High Court of West Pakistan, Karachi Bench, reported in PLD 1967 Karachi

91. Referring to the payment made in the Court through Miscellaneous Rent Case No.839 of 1984, the counsel for the respondents submitted that the rent for the month of January, 1984, which was payable by 10th January, 1984, was admittedly deposited on 3‑3‑1984 and hence the appellants had committed default in the payment of rent for January, 1984 within the meaning of section 15 of the Ordinance. In support of his contention, he placed reliance on an authority reported in 1985 CLC

103. With regard to the default in payment of water‑charges Mr. Munirur Rehman contended that an application for payment of water‑charges was moved by the respondents before the learned Rent Controller on 1‑10‑1984 yet the appellants, despite notice thereof, did not deposit the same until 13‑4‑1987. Mr. Munirur Rehman, therefore, supported the impugned order, whereby the learned Rent Controller has held that the water‑charges was increased from Rs.1,05030 to Rs.1,800 per year and that the appellants did not pay any amount in respect of increased water‑charges, as they could not produce receipt thereof. The learned counsel for the respondents also supported the impugned order on the issue of subletting. In this connection, he drew my attention to clause (d) of para. 2 of the rent agreement, dated 16‑10‑1978, wherein it is stipulated that the respondents/tenants shall not sublet or let to anybody or any party any part or portion of the building and premises thereof. The learned counsel for the respondents also submitted that in para. 2 of their written statement it is clearly admitted that the tenancy of the demised premises was required by the appellant No.1 in their name then it is pleaded that it was for the benefit of both the appellants. The counsel emphasised that it is not so mentioned in the agreement of tenancy. With regard to the place of payment of rent by the appellant No.2 Mr.‑Munirur. Rehman submitted that no rent receipt was even issued in favour of the appellant No.2 nor had any rent receipt been produced by them. The premises were thus, according to him, admittedly in possession of appellant No.2 and hence the appellants are liable to be evicted on the ground of subletting as well. In support of his contention, the learned counsel for the respondents placed reliance on (i) PLD 1974 SC 351, (ii) 1985 CLC 1861, and (iii) PLD 1982 SC

79. Lastly, Mr. Munirur Rehman, counsel for the respondents also supported the findings of the learned Rent Controller on the issue of personal bona fide requirement on the same grounds as are assigned by the learned Rent Controller in his order, while answering this issue in the affirmative. Mr. Munawar Ghani, learned counsel for the appellants, exercising his right of reply reiterated the same contentions, which he has made while attacking the impugned order. He submitted that the appellants on their part made every possible effort to pay the rent for the month of January, 1984, but it was on account of the conduct of the respondents themselves that it remained unpaid and the appellants were put to the necessity of depositing it in Court through Rent Miscellaneous Case. With regard to water‑charges, he submitted that at no point of time before filing of the application, the enhancement in the water charges, which was the responsibility of the respondents to pay, was notified to the appellants. On the point of subletting also, the counsel reiterated his contention as earlier made. Having heard the 'arguments of the learned counsel for the parties and after going ' through the record of the case of the Rent Controller and the authorities cited before me, I reached the conclusion that appeal must fail and, consequently, I passed the following short order on 21‑5‑1990:‑‑ "Further arguments heard and concluded. For reasons to follow, the appeal is dismissed. The parties are, however; left to bear their own costs. Since the appellants are carrying their business in the premises, I think it advisable to allow them six months time to vacate .the premises." I, therefore, now proceed to record my reasons therefore. There is no document present on record to indicate that upon respondents' alleged refusal to accept rent of January, 1984 tendered by cheque, the same was sent by postal money‑order or deposited in Court earlier than 3rd of March, 1

184. The law requires, rather casts a duty on the tenant, to pay the rent, firstly, by tendering it to the landlord personally, and if he refuses to accept the same then to send it by postal money‑order or deposit in Court. There was thus no justification for the appellants not to have remitted the rent of January by postal money‑order or to deposit the same in Court within the prescribed period, namely, by or before 15th of January, 1984. It was definitely not done so. Moreover, no attempt was made to pay, or remit, or deposit in Court, the rent for the month of February, P)84 within the prescribed period of 15 days. I am, therefore; of the considered view that the appellants have committed default in payment of rent for the months of January and February, 1984 by not paying or tendering rent within the prescribed period and hence they have been correctly he4d ‑ liable to be evicted on the ground of default notwithstanding subsequent deposit in Court on 3rd of March, 1984. There has been no waiver on the part of the landlord in the instant case. Before proceeding to the next issue, I think, it would be in the fitness of things if a passing reference is made to the circumstances which appear to have led the appellants to commit default in payment of rent of the aforesaid months. Admittedly, the Executive Engineer, Mansoora Division, had issued a notice, dated 8‑1‑1984 for the removal of the unauthorised construction of the plot in question, which was allotted to Messrs Al‑Zohra Education Society for establishment of school. The appellants had thereupon addressed a letter to Mrs. Zahida Ishaque, on 23‑1‑1984 (Exh.4‑K/B) stating, inter alia. that, as per aforesaid letter of the Executive Engineer of K.D.A., the competent authority had already cancelled the allotment of the plot in question and with the cancellation thereof the respondents were no longer the owners of the aforesaid plot. Likewise, the appellants ceased to be their tenants, hence the question of payment of rent of the demised premises did not arise from the month of January, 1984. This line was, later on, also followed by filing Suit No.664/85 for declaration and injunction against the respondents in the month of October, 1985. The plaint of suit is available at pages 195 to 209 of the R.C.'s record. A declaration was prayed in this suit to the effect that the respondents are not entitled to claim or receive rent from the appellants due to cancellation of their allotment of amenity plot in question vide K.DA.'s above referred letter, dated 8‑1‑1984; and also Injunction was prayed for against them from entering demised premises in possession of the appellants. In so far as the alleged default in payment of water‑charges is concerned there I find that under the terms of the agreement, the appellants were liable to pay the water‑charges only to the extent of increased amount. There is no evidence available on record to show that prior to the filing of the ejectment application, the increase in water‑charges to be borne by the appellants was ever notified to them. During the pendency of the ejectment application, however, for the first time, a statement of water‑charges account was filed, but this statement also did not disclose specifically the amount of enhancement separately. The order of the learned Rent Controller in this behalf is, therefore, reversed. While deciding the issue of subletting in favour of the respondents, the learned Rent Controller has held:‑‑ "I have perused the tenancy agreement, wherein the opponent No.1 is shown as the party and there is no name of opponent No.2. The burden to prove the issue was to be discharged by the opponents for which they have miserably failed and it has been established that opponent No.1 has sublet the rented premises to the opponent No. 2 without the permission of the applicant which is in contravention of section 15(iii), hence this point is answered in affirmative." Here also I find it difficult to agree with the learned Rent Controller, as no evidence is available on record to establish that the appellant No.1 has let the demised premises and conferred or assigned its exclusive possession or enjoyment upon the appellant No.2. No such suggestion was even made to the witnesses of the appellants during their cross‑examination. On the contrary, in the ejectment application the respondents themselves mentioned the address of the appellant to be of the demised premises; and the service of the notice was duly effected on it at the given address. Under the aforesaid facts and circumstances of the case, no subletting of the demised ,premises by the appellant No.1 to the appellant No.2 is proved. I am of the opinion that a lessee, who retains the legal and physical possession of the demised premises to himself but simply allows some person also to use the demised premises, cannot be held to have sublet the premises. In order to create a sub‑lease, the right to exclusive possession and enjoyment of property should be conferred or assigned upon the sub‑lease. In this view of the matter, the appellant No. 1 cannot be said to have committed breach of the agreement of tenancy in respect of subletting thereby giving a right to the respondents to seek its eviction on that ground‑ The finding of the learned Rent Controller on this issue is, therefore, reversed and the i appeal is allowed. Now I take the third issue, which concerns the demised premises being required in good faith by the respondents for their own occupation or use. The learned Rent Controller has, as already stated, answered this issue also in affirmative. Here also I find it difficult to endorse the finding of the learned Rent Controller, in the light of the evidence available on record. The learneu counsel for the appellants has rightly urged that the respondent No.1 is engaged in the business of Estate Agency and the respondent No.2 is an employee of company. The respondents Nos. 3 and 4 are admittedly medical students. They have no previous experience and at least it has not been so deposed by the witness examined on behalf of the respondents, that the respondents are experienced educationists. No permission to establish an educational institution has been sought for. No evidence, what to say of convincing evidence, has been led to establish that the respondents are in a position to establish and run an educational institution. The mere fact that at one time Messrs Al‑Zohra Educational Society was running educational institution in the demised premises would not by itself prove the fact that the respondents' alleged requirements for the said purpose was genuine and bona fide. There is no evidence on record to prove that the demised premises are required by the respondents for their personal bona fide use as stated in the application. It is not the case of the respondents that their mother will open and run the school. The appeal, is, therefore, allowed p on this issue as well and the finding of the learned Rent Controller is reversed. H.B.T./P‑213/K Appeal dismissed.