1989 PLP 4581 (MLD)

(c) Sind Rented Premises Ordinance (XVII of 1979)

Ss 15 & 21--Personal requirement--Landlord requiring godown let out to tenant for carrying on business of shoe-making which he and his son had been doing at home--Both landlord and his son in their evidence consistently maintained that they required premises for the purpose--Trend of cross examination of landlord and his son suggested that he was already in occupation examination shop where he carried on his business but it was denied by him and no evidence was led in rebuttal--Held, neither there was any requirement m law, that landlord seeking eviction of tenant from commercial premises was required to state in his application nature of business likely to be set up in disputed premises nor any adverse inference could be drawn against him for his failure to mention the details--Ejectment of tenant rightly ordered. Ejaz Ali Hakro for Appellant. Raja Khan for Respondent. Date of hearing: 4th December, 1988. This appeal under section 21 (1) of Sind Rented Premises Ordinance, 1979 is filed by the tenant/ appellant against the order of eviction of Rent Controller No. 4 Hyderabad dated 23-5-1985 in Rent Case No. 525 of 1982. The respondent filed the above rent application under Section 15 of the Sind Rented Premises Ordinance 1979, against the appellant alleging default in payment of rent from August, 1978 to November, 1982. He also pleaded personal and bona fide requirement of the premises for himself as well as for his son. The Rent Controller answered both the issues in favour of respondent and granted the ejectment application. Mr. Ejaz Ali Hakro, the learned counsel for the appellant contended that in so for ground of default was concerned it could, not be said to have been established against the appellant as admittedly the rent application was filed by the respondent after about a period of 4 years of the alleged default. It is also contended by the learned counsel that in such circumstances the respondent caught to have served a notice on the appellant before institution of the rent case. It is urged that there is sufficient evidence on record to establish that ever-since the appellant occupied the premises, he regularly paid rent to respondent but the latter never issued any receipt for the rent and as such the issue of default should have been decided in favour of appellant. With regard to personal and bona ride requirement of premises pleaded by the respondent, the learned counsel contended that the evidence on record did not prove the same. It is contended by the learned counsel that the premises occupied by the appellant in a godown whereas the appellant pleaded his requirement for a shop. It is also contended by the learned counsel that the fact that the respondent in his application failed to disclose the details and nature of business intended to be set up in premises reflected adversely on the bona ride of the respondent and such the rent controller should have refused to grant the application on this ground. The learned counsel for the respondent on the other hand supported the order of Rent Controller and contended that before institution of the Rent Case, a notice was duly served on the appellant requesting him to pay the arrears of rent and to vacate the premises as the same was required by the respondent for his and his son's personal and bona ride needs but to spite of service of notice he failed to pay the rent or vacate the premises. It is also contended by the learned counsel that plea of appellant that no receipts were issued to appellant for the rent recovered by the respondent is false oil its face as the tenancy in the case was governed under a written agreement between the parties which clearly provided that all payments of rent will be against receipts. The Rent Controller. it is accordingly urged, rightly held that appellant as a defaulter in payment of rent Regarding plea of personal and bona fide requirement, the learned counsel urged, that the evidence led by the respondent on this issue was not only, consistent with the averments made in the application but the: evidence could nut be shaken at all in the cross-examination, and no evidence in rebuttal was produced by the appellant to disprove the case of respondent. After hearing the learned counsel for the parties I am of the view that there is no merit in this appeal. It is an admitted position in the case that the premises were let out to the appellant under a written agreement of tenancy. The agreement is produced in evidence as Ex. 15 para 2 of the agreement reads as follows:- "That the rent is fixed at Rs. 300 per month (Rupees three hundred only) which shall be paid by the tenant on the Ist of every month and obtain receipt failing which he shall liable to ejected lawfully." It is clearly provided in the above clause of tenancy agreement that the rent will be paid against receipt. In these circumstances the contention of the appellant that rent was paid without obtaining any receipt could not be accepted. There is no assertion by the appellant that the above term of the tenancy agreement was modified by the parties subsequently by mutual consent. Apart from it the respondent in his evidence produced copy of the legal notice dated 6-11-1982 served on the appellant before institution of the rent case in which he called upon the appellant to pay the arrears of rent amounting to Rs. 15,300 but he failed to rely the same. No doubt the appellant denied receipt of this notice but this denial of appellant was rightly disbelieved by the Rent Controller in view of the postal acknowledgement receipt Exs. 11/1 and 11/2 and the evidence of postman concerned (Ex. 27) who categorically stated on oath that he personally knew the appellant and served the notice on him and obtained his signature on the acknowledgement card. In these circumstances the Rent Controller rightly held the appellant defaulter in payment of rent. However, with regard to default in payment of electric charges and water charges, the learned counsel rightly pointed out that evidence on accord did not establish any default on the part of appellant. On the issue of personal requirement both the respondent/applicant and his son in their evidence consistently maintained that presently they are making shoe boxes at their house and that they need the godown in possession of appellant to run this business as it is most suitable for their business. The trend of cross-examination of respondent and his son suggested at that respondent was already in occupation of a shop where he is carrying on his business but it was denied and no evidence in rebuttal was brought to prove that respondent or his sons were already in occupation of any other business premises. Similarly it was also suggested in cross-examination that respondent also owned other premises in the same urban area but this suggestion was also denied and no evidence was produced by the appellant to prove this assertion. The learned counsel for the appellant also contended that the respondent had failed to disclose the nature of business intended to be set up in the premises in his application which reflected adversely on his bona fides. Neither there is any such requirement in law that the landlord seeking eviction of tenant from a commercial premises is required to state the nature of the business likely to be set up in the premises in his application nor any adverse inference can be drawn against him for his failure to mention these details in his eviction application. No case for interference is made out. The appeal is accordingly dismissed but the appellant is allowed four months from today to vacate the premises. M.Y.H./A-521 /K Appeal dismissed.