1983 PLP 122 (CLC)

(2) . (3) . (4) That the rent of the shop has been mutually agreed at the rate of R.I. 800 p. m. t. e. half of Rs. 400 which the Party of the Second Part shall pay to the Party of the First Part before 5th of each month which shall become due since 4/1978. (5) . (6) That in case the Party of the First Part needs the aforesaid shop for herself or for her children's use, she will give three months' notice to the Party of the second part and the party of the second part on receipt of the notice shall hand over possession without any objection to the party of the first part, In case he avoids the handing over of the possession, he shall be responsible for all the costs. (7) That the party of the first part has not taken any amount as Pughree, or advance or in any other way from the party of the second part. (8) That the party of the second part has incurred Rs. 20,000 over the construction and repair of the shop 1/4 of this amount i. e. Rs. 5,000 the party of the first part has agreed to pay in lump sum. Out of this the party of the second part has already received Rs. 3,500 from the sale of "Malba" of the shop. Now, Rs. 1,500 shall be paid by the party of the second part in lump sum. The balance amount of Rs. 15,000, shall be adjusted in the monthly rent at Rs. 400 p. m. being the half rent. (9) That the party of the second part shall not make any alteration or demolition to the shop." The appellant examined himself and produced previous rent receipts. He also examined Muhammad Mian, as his witness. The learned Controller by the impugned order held that the rent of the premises was Rs. 800 per month and the appellant was a wilful defaulter in payment of the rent. On the additional issue the Controller held that the appellant had infringed the terms of the agreement. He, however, on the issue of personal requirement found against the respondent. Thus on the basis of findings Issues Nos. 1 and 2 and additional issues the Controller ordered the appellant to hand over vacant possession of the shop to the respondent within two months from the date of the Order. Aggrieved by the aforesaid order the appellant, has coma up in this first rent appeal under section 21 of the Sind Rented Premises Ordinance, 1979. The respondent has also filed cross‑objections against the finding of the Controller on the issue of bona fide requirements of the premises. I have heard Mr. Riaz Ahmad learned counsel for the appellant and Mr. Nasiruddin Khan learned counsel for the respondent. It is submitted by the learned counsel for the appellant that the finding of the Controller that the rent of the premises was Rs. 800 per month was erroneous. He further submitted that the Controller erred in holding that the appellant had committed default in payment of the rent and that he had in fringed the terms of tenancy agreement. On the other hand the learned counsel for the respondent urged that the findings of the Controller on the above issues were correct. He, however, urged that the finding of the Controller on the issue of the bona fide require ment of the shop was incorrect. In order to appreciate the respective submission it may be necessary that I should state some relevant facts which are not in controversy, It is admitted by the respondent in paragraph 2 of the application that the monthly rent of the shop was Rs. 500 per month and it was increased to Rs. 800 per month in March, 1978. It is also an admitted fact that after the reconstruction of the shop the parties had executed an agreement on 20th March, 1978, the material terms whereof have already been quoted hereinbefore, which include terms as to enhancement of rent from Rs. 500 to Rs. 800 per month and with regard to adjustment of cost of reconstruction of the shop carried out by the appellant, though, no doubt, this agreement was subsequently disowned by both the parties for their own reasons. It is also not disputed that the appellant has deposited the rent at the rate of Rs. 500 from April, 1978 in Court and if the rent of the premises is Rs. 500 per month then there is no default in payment of the rent as the respondent has claimed the rent at the rate of Rs. 800 per month from April, 1978. Now, taking up the first point namely, what was the rent of the premises, it has already been seen that according to the respondent, as stated in application and also in the rent deed (Exh. 19) the rent of the premises was Rs. 500 per month. However, the respondent has based her claim for enhancement of the rent on oral agreement made in March, 1978. In her examination‑in‑chief she has however, stated that "after 2 days rent deed was executed about the new rate of rent. The second rent deed which was executed in March, 1978, was disowned by me because the opponent bad included therein certain illegal things." Now, on the claim of oral agreement there is only word of the respondent and in support of this claim she has not examined any witness. Haji Moharram who was examined on her behalf has said not a word about this agreement. I am, therefore, of the view that her oral word cannot be accepted. In my opinion, the only agreement for enhancement of the rent was the written agreement but that was on the terms and conditions some of which I have already reproduced hereinbefore, and one of them was that after adjustment of Rs. 5,000 (Rs. 3,500 received by the appellant from the sale of `Malba' and Rs. 1,500 contemplated to be paid by the respondent to the appellant in lump sum by the agreement dated 20‑3‑1978, the balance amount of Rs. 15,000 was agreed to be adjusted in monthly rent at Rs. 400 being half of the monthly rent). I am further of the view, that under the provisions of section 5 (1) of the Sind Urban Rent Restriction Ordinance, 1959, the respondent would have been entitled to receive the agreed rate of Rs. 800 per month due to improvement, but surely on the terms and conditions contained in the agreement dated 20‑3‑1978, Since however, the respondent herself did not base her claim on the agreement she could not claim the rent of the premises at the rate of Rs. 800 per month. Since the appellant has been depositing the rent at Rs. 50, per month in Court since April, 1978, therefore, there was no default on his part. Alternatively, the agreement for enhancement of rent is contained in the agreement dated 20‑3‑1978 which in my opinion, was the only agreement and according to this agreement Rs. 400 per month were to be adjusted out of the monthly rent towards the balance amount of Rs. 15.000 on account of the cost of reconstruction of the shop. In either of the view of the matter there was no default in payment of the rent. I, therefore, reverse the findings of the Controller on Issues Nos. 1 and

2. As regards the issue of infringement of the terms and conditions, the respondent's case in paragraph 5 of the application is that the appellant was guilty of making alterations in the constructions of the shop without her permission and in contravention of the tenancy agreement. She however, herself has stated therein that she had filed a suit, being Suit No. 107 of 1978, in the Court of Civil Judge and A. C. M., Hyderabad; on that account against the appellant and after obtaining injunction did not pursue the same. It would suffice to say that the agreement dated 20‑3‑1978 though not relied upon by her, is complete answer so far as the breach of the terms and conditions of the agreement dated 28‑5‑1974 (Exh. 19) is concerned as subsequently by the said agreement she acquiesced in the re construction of the shop and waived her right, if any, on account of the breach of the earlier agreement., In my opinion the subsequent disowning of the agreement by her would or could not erase the effect of acquiescence or waiver of the breach of the earlier agreement. Now, so far as the provisions of section 13(2)(iii) of the Sind Urban Rent Restriction Ordinance, 1959, are concerned it would suffice to say that the appellant has Dot committed any act which could be said to be likely to impair materially the value or utility of the shop. By reconstruction of the shop no doubt the value of the shop increased and did not diminish. It was, however, argued by Mr. Nasiruddin Khan that there was no evidence that the value of the shop has increased: Firstly, the argument is misconceived for the burden of proof of the allegation that the value of the shop, after its reconstruction, has materially impaired, was on the respondent and there is no evidence en that point. Secondly, when a more than 30 years old construc tion of the shop is replaced by new construction, the improvement in value in itself may become self‑evident. However, the learned counsel for the respondent submitted that for carrying out reconstruction of the shop written permission was necessary No doubt, in view of the agreement (Exh. 19) for reconstruction of the shop written consent of the respondent was necessary. But in my view, such permission could be granted post facto and the breach of the provisions of section 13(2)(ii)(b) could be waived for the provision is for the sole benefit of landlord and to the case of present nature the question of public policy is also not involved. This in fact was done as soon as the agreement dated 20‑3‑1978 was executed. It was however, argued by Mr. Nasiruddin Khan that this agreement could not be relied upon as it was not exhibited. I am of the view that mere non‑exhibition of the agreement would not be fatal for the respondent herself had annexed a photostat copy of the agreement to the application under section 13 of the Sind Urban Rent Restriction Ordi nance, 1959, and, its genuineness or correctness was or is not in question. Now, taking‑up the cross‑objection filed by the respondent to the finding of the Controller that the respondent failed to prove bona fide requirement of the premises for her son, it may be stated that the main reasons given by the Controller for giving adverse finding to the respondent, were that the son of the respondent was not examined; that the respondent was permanently settled at Shaikhupura; that she had not stated as to what type of business her son would‑start; and that she had not produced any evidence to show that she had funds for starting the business. In this regard it was submitted ‑by Mr. Nasiruddin Khan that examination of the son was not necessary and in support or the submission he relied on M. Muhammad Sharif v. M. S. Sultan (1981 S C M R 844) and Dilshad, Muhammad v. Mst. Zubaida Begun (1981 S C M R 958). In the first named case it was held by the Supreme Court that there was no requirement of 'law that the person for whose benefit the premises was required to be vacated must be produced in support of the ejectment application. However, it was held that all that had to be seen in that case was whether enough evidence has, been produced on record by the applicant to sustain in the finding of requirement of the premises for the personal use of his son and it was held that since both the Courts below had found in favour of the applicant the finding stood concluded by the concurrent finding on question of fact. It may however, be mentioned that the name of the son for whose benefit the premises was mentioned by the applicant in the application. In Dilshad Muhammad v. Mst. Zubaida Begum agreeing with the High Court, again it was held by the Supreme Court that the non‑appearance of the son of the landlady in witness‑box was not fatal to the claim of the respondent, and that the landlady had in the circumstances, amply established that she required the shop in good faith for the use and occupation of her son. However, there cannot be any cavil about the principle laid down by the honourable Judges of the Supreme Court. However, principle will be applicable only when a landlord or landlady has satisfactorily proved the bona fide requirement of the premises for his or her children. In the present case the applicant in paragraph 5 of the application has stated as follows:‑ "That one of the applicant's son is grown up and she wants him to run a business, therefore, she needs the shop for his use." In her evidence on this point she has stated that her second son Zahid Bashir had passed graduation and completed his education and she intended that he should start his business in the disputed shop. She has been supported in this evidence by Haji Mehram. However, the appellant in his deposition has stated that respondent's second son was a student in Engineer ing College, Lahore. Now, the averment made by the respondent in the application as well as her statement in the witness‑box shows that it is only her desire that her son should stmt a business. But she has not said that her son had shown his willingness or had agreed to fulfil her desire. Further, according to her, her second son Zahid for Whom she wanted the shop has had completed his education but according to the appellant the son was then studying in Engineering College. Be that as it may, it is highly doubtful that a student of Engineering College or a graduate from Engineering College would like to start a business in a shop and that too at a far away place from his family residence at Shaikhupura. In the circumstances, in my opinion, the examination of the son as a witness was necessary to prove the bona fide requirement of the shop. Moreover, the; respondent in her application did not give the name of the son for whom she wanted the shop and therefore seems to have kept her option open to name any of her sons subsequently. She had not until the filing of the application, served any notice on the appellant intimating him the need of the shop for his son. These circumstances also go a long way to suggest that the ground of requirement of the shop for her son was added .in the application without there being any bona fide need of the shop. I therefore, agree with the conclusion reached by the Controller that the respondent failed to prove bona fide requirement of the shop for her son. In the result, I allow the appeal and set aside the order of the Controller, and dismiss the cross‑objections, leaving the parties to bear their own costs. S. Q. Appeal allowed.