1989 PLP 639 (CLC)

For the purposes of this appeal filed under section ‑21 of the Sind Rented Premises Ordinance, 1979, the following statement of facts would suffice:‑

2. The appellant is the landlady of the premises bearing No.F‑89, Block 'F', North Nazimabad Karachi. The respondent is the tenant of half portion on ground floor of the said premises at a monthly rent of Rs.1,650 excluding electricity and gas charges. The respondent is a habitual defaulter and was in arrears from November 1985 to June 1986. The appellant is in occupation of one room tenement situated on 1st floor of the said premises which is not sufficient for her needs and also the needs of her ailing husband and grown up unmarried daughters who require privacy and separate rooms. She, therefore, required the disputed premises in good faith for her personal bona fide use. The appellant has therefore, served the respondent with a legal notice dated 20‑5‑1986, but with no result. On 1‑7‑1986, the appellant filed an application for ejectment against the respondent in the Court of IIIrd Senior Civil Judge and Rent Controller (West), Karachi.

3. The respondent has controverted the allegations based on facts in her written statement filed on 29‑7‑1986. She alleged that the disputed premises is not required by the appellant for her use and the use of her family members. The default in payment of rent was also disputed by her.

4. The appellant has examined herself (P.W,1), her husband Rais Abdul Rehman (P.'W,2), and Abdul Majeed (P.W.3), while the respondent has examined herself (D.W.1).

5. On the pleadings of the parties the learned Rent Controller formulated the following issues:‑ (1) Whether the opponent has defaulted in payment of rent, as alleged? (2) Whether the applicant requires the premises for her own use and the use of her husband bona fide ?

6. On the assessment of the evidence available on record the learned Rent Controller decided both the issues against the appellant and consequently dismissed the application vide order dated 21‑4‑1987. It is against this order that the present appeal has been filed.

7. The appellant has alleged default in payment of rent from the month of November, 1985 to June 1986, at Rs.1,650 per month, amounting to Rs.13,

200. The respondent has disputed this position by stating that this amount was paid to the appellant alongwith water charges vide receipt (Exh.0/1). The appellant has admitted the execution of this receipt, but claims that the same related to payment of water charges and the payment of Rs.11,550 towards house rent was added by the respondent subsequently. The learned Rent Controller rejected this statement of appellant for good reasons, with which I am in agreement and which find place at pages 6 and 7 of the impugned order in the following words:‑ "The contention of the learned Advocate for the applicant that the receipt Exh.0/1, was issued in respect of only water charges amounting to Rs.210 for 7 months and that the details of rent paid have been inserted afterwards cannot be accorded, for the reason, firstly that admittedly at the time, the receipt Exh.0/1, was executed by the applicant, the opponent was in arrears of rent for 7 months and the applicant had sent notice to her for the alleged default. Under these circumstances, it cannot be expected from her to have accepted only the water charges of Rs.210 leaving aside the arrears of rent. Secondly the applicant, in her voluntary statement has stated that the opponent had brought a paper on which some endorsements were made and under which her name was written and that she drew a line under these endorsements and, therefore, wrote a receipt in her own hand, with regard to the bill of electricity. However, she has stated that the words and phrase 'the rent of the house' had been subsequently written. She has produced the photostat copy of that receipt, at Exh.82, the original of which has been produced at Exh.0/1. She has stated that the third row has been written afterwards, meaning thereby that only 1st and second row was available at the time she signed the receipt. She has further stated that the figure 11,760 written against total amount has been written by the opponent. Now, if we go through the contents of the said receipt produced at Exh.0/1, then it transpires that the line, admittedly, drawn by the applicant, under the endorsement covers all the endorsements, pertaining to the details of arrears. The words and phrase appears to be in the hand of the applicant and is in continuance of the other writing. Similarly the amount of Rs.11.760 written against phrase also appears to the naked eye to be in the hand, of the applicant Therefore, it becomes patently clear, that the applicant had received the house rent upto May, 1986, as well as electricity and water charges, under the receipt Now, it does not lie in her mouth to say that the opponent did not pay the rent to her and that she did not receive the arrears under the said receipt, when she has admitted her signature under it."

8. Admittedly there is agreement of tenancy `between the parties, which is on record (Exh.A/1). According to clause (1) of this agreement the tenancy was valid for eleven months commencing from 15th April, 1981. Under clause (10) the agreement could be renewed for eleven months by mutual consent of the parties. There is, however, no indication on record that the period of tenancy was extended at any time. The agreement had, therefore, expired when the present application for ejectment was filed. The validity of such agreement was examined by the Supreme Court of Pakistan in the case of Mrs. Zarina Khwaja v. Agha Mahboob Shah P L D 1988 SC 190, and the following question was formulated "Whether on termination of an agreement of tenancy when the tenant remains in occupation as of right subject to liability under the Rent Restriction Law, the terms of agreement become irrelevant for regulating the tenancy?" The Honourable Judges of the Supreme Court after considering all the available authorities on the subject including the weil‑known case of Muhammad Yousuf v. Abdullah, reported in P L D 1980 SC 298, answered the above point in the following words: "Thus, it can safely be said that the rent laws permit all covenants in agreements, alive or expired, which, are permissible under the general law and not inconsistent with or repugnant to that special law; and enforces the same accordingly whenever it is so required under the law. In addition, they also remain operative for other purposes permitted by the general law."

9. According to clause (6) of the agreement (Exh.A/1), the tenant was bound to pay rent to the landlady by 10th of each month. If the agreement stipulates the payment of rent by a certain date, then the rent becomes due on that day, and the law allows a grace period of fifteen days for its payment. Therefore, the payment of rent made by the respondent for the month of November 1985 to March 1986, A was long after the due date. Even if it is accepted that there was no valid agreement of tenancy subsisting between the parties and the law allowed a grace period of sixty days to the respondent, there was still default in payment of rent. The respondent hag tried to meet this situation by making the following statement in her cross examination:‑ "Voluntarily states that during that period, the applicant was not present in Karachi. It is correct that the daughters of Mst. Mumtaz Sultana used to take education in Karachi during those days. I did not offer the rent to the daughters of the applicant, who were studying in Karachi, because the applicant herself had asked me to pay rent to her, when she comes here, whereas her other daughter, Mst. Rukhsana, whom I used to pay rent after her marriage has left for abroad. It is correct that I did not send rent, by money order to Mrs. Mumtaz Sultana. It is also correct that I did not send theent for seven months, i.e. from November 1985 to May 1986, by pay order or deposited into her bank account, nor did deposit the rent in the Court during this period."

10. The non‑payment of rent for a period of seven months within time is thus admitted by the respondent herself. The plea that the rent was not rendered by her on the direction of the appellan It herself did not find place in the written statement filed ..by the respondent. No question about this direction was put to appellant in her cross‑examination. The explanation put forward by the respondent in her cross‑examination, therefore, appears to be after thought. Section 10 of the Sind Rented Premises Ordinance, 1979, prescribes the mode of payment of rent. As observed in Baboo Khan v. Maqbool Ahmad, reported in 1984 C L C 2599, by Fakhruddin H. Shaikh, J. that the plea of tenant to the effect that he could not trace the landlord to pay him rent has got no force, because in such case he could deposit the rent in the office of Rent Controller. In the case of Abdul Majeed v. Ibrahim, reported in 1984 C L C 1596, my brother Nasir Aslam Zahid, J. laid down the following guiding principles for ejectment on the ground of default in payment of rent:‑ "(i) It is duty of tenant to pay rent regularly even if it is not demanded by the landlord. (11) Tender or deposit of rent prior to filing of ejectment application does not condone default already committed. (iii) Negligence of tenant in committing default in payment of rent cannot be condoned (iv) Even if higher rent is demanded by landlord the tenant is liable to pay or tender due rent, and (v) In a particular case, although there may be a technical default, ejectment may not be ordered if there is no default or negligence or, the part of the tenant, and his conduct can be equated with that of a reasonable man."

11. I am in respectable agreement with the above view. The respondent was negligent in performing her part of obligation and she should thank herself for its consequences.

12. The learned Rent Controller has also given an allowance of Rs.9,000 lying deposited with the appellant as "security deposit", while determining the question of default. Clause (2) of the agreement of tenancy (Exh.A/1), is relevant in this behalf, which reads as follows: ‑ "That the tenant has deposited a sum of Rs.9,000 (Rs.nine thousand only) which will be treated as fixed deposit refundable to the tenant at the time of entire vacation of the said portion." 12‑A . The question of the 'use' of 'security deposit' was also examined in the case of Mrs. Zarina Khwaja v. Agha Mahboob Shah referred to in para 8 ante, by the Supreme Court and the following. observations were made:‑ "The provision in the expired agreement, regarding security deposit for protecting the landlord's interest, if otherwise lawful under the general law, cannot be varied under the rent law and has to be applied for the purpose provided in the agreement and not otherwise."

13. In somewhat similar circumstances the Supreme Court held:‑ "The security deposit in this case is to be applied by the landlord, according to the, terms quoted earlier, to compensate himself at the time of the tenant handing over possession to him, for unpaid rent and/or damages caused by the tenant to the property at any time. Its application by the High Court for absolving the tenant‑respondent from liability to make a deposit under sections 16(2) and old 13(6) is in impermissible and unlawful. The default remained intact notwithstanding the security deposit."

14. In view of the above factual and legal position, the' finding of learned Rent Controller on issue No.l, cannot be sustained.

15. The appellant has examined herself (P.W.1), her husband Rais Abdul Rehman (P.W.2) and Abdul Majeed (P.W.3) on issue No.2. The appellant as her own witness has stated on oath that the ground floor in occupation of the respondent is required by her, her ailing husband and grown up daughters for their own use. She has produced test reports and certificates (Exhs.A/3, A/4/1, A/4/2: A/4,3, A/5, A/6, A/7, A/8, A/9, A/10, A/11, A/12, A/13, A/14, A/16, A/17, A/18, A/19, A/20, A/21, A/22, A/23, A/24, A/25, A/26, A/27, A/28, A/29, A/31, A/32, A/33, A/34, A/35, A/36, A/37, ,4/38, A/39, A/40, A/41, A/42, A/43, A/44, A/45, A/46, A/47, A/48, A/49, A/50. A/51, A /52, A /53, A /54, A /55, A /56, A !57, A/58, A /59, A /60. A /61. A/62 and A/63), to prove that she is a diabetic and a heart patient. She had symptoms of hypertension and had undergone a major surgery. Exh.63, further shows that she was advised complete bed rest for a period of three months. There is also evidence on record (Exhs.A/66 to A/81) to prove that Rais Abdul Rehman, the husband of the appellant is a heart patient and he required complete rest with no tension. The factum of illness is not seriously disputed by the respondent. Abdul Majeed (P.W.3) has testified about the major operation of the appellant. He had in fact provided shelter to the appellant and her family members as she was unable to climb upstairs. Nothing has been brought and but in the cross‑examination to shake his evidence. The learned Rent Controller discarded this overwhelming evidence for the simple reason that the appellant had rented out one hall situated on ground floor prior to the filing of this application for ejectment, which according to him disentitled her from seeking the ejectment of the respondent. He also read the provisions of section 13(3) (a) (1) of the Sind Urban Rent Restriction Ordinance, 1959 (since repealed) in clause (vii) of subsection (2) of section 15 of the Sind Rented Premises Ordinance, 1979, which lays down that a landlady has only to establish that she requires the premises in good faith. The appellant has assigned two reasons for letting out this hall in the year 1986, firstly that according to private FAISLA this portion was given to her step‑son Rais Maqsood Ahmad who leased it out to the school, and secondly that the same was not sufficient to meet the requirements. There is nothing on record to prove it otherwise. Suitability and sufficiency of accommodation for the landlady canot be determined by the tenant. There is clear evidence on ‑record to prove that the appellant, her husband and grown up unmarried daughters are forced to reside in one‑roomed accommodation with no privacy. In my view, there could not be a more appropriate case for the ejectment of a tenant on the ground of personal requirement. than the one under consideration. The finding of the learned Rent Controller on issue No.2, is also reversed.

16. In the result the appeal is allowed with no order as to costs. The respondent is, however, allowed two months' time to vacate the demised premises. H.B,T./M‑654/K Appeal allowed.