199﷓3CLC481 (PLP)

(2) Syed Aknad Ali Shah v. Iqbal Farooqi (PLD 1985 SC 242). (3) Syed Azhar Imam Rizvi v. Saleha Khatoon (1985 SCMR 24). In reply to the above submissions, the learned Advocate for the respondent urged that the finding of the learned Rent Controller on the above issue is in consonance with the evidence on record and the relevant law and no exception can be taken to the reasons given by the learned Rent Controller for arriving at the said finding. fie submitted that the appellant had failed to prove service of notice of the change of the ownership, on the respondent. He contended that the rent deposited by the respondent in favour of previous owner is valid tender and alternatively if it is to be considered as default, it is only technical default and not wilful. He lastly urged that even if the rent is decided to be Rs.22 per month, there is no default, in view of the quantum of amount deposited by the respondent in Court. He relied on (1989 SCMR 1327) Mehboob Jewellers and others v. Nur Muhammad.

6. The learned Controller had decided the above issue in favour of the respondent, as he formed the opinion, on the basis of material on record, that the appellant had failed to establish that the respondent had knowledge of the gift made in appellant's favour and the service of notice under section 18 of the Sindh Rented Premises Ordinance, 1979 on the respondent. The respondent after service of notice of the eviction proceedings continued to deposit rent in the Misc. Rent Case in favour of the previous owner until the order dated 2‑4‑1988 was passed by the learned Controller. In his written statement he denied the relationship of landlord and tenant between the parties. In his evidence he persisted to assert that he did not know that the demised premises had been gifted to the appellant, in spite of the fact that the appellant had already brought on record the fact that the registered Deed of Declaration of Gift was executed by his sister in his favour. The fact that the respondent was aware of the transfer of the property in favour of the appellant is found established on reading of the cross examination of the respondent wherein he denied the suggestion that he had not tendered the rent to the appellant and voluntarily deposed that the rent was sent to the appellant through money order which was refused. Nothing more is needed to conclude that the respondent was fully aware of the change of ownership, either because of the said notice of the appellant or otherwise. The respondent however did not produced any documents to establish the tender of rent by money order. In the case of Muhammad Yousuf v. Merajuddin (1986 SCMR 751) the Hon'ble Supreme Court, referring to its earlier dicta in the cases of Syed Azhar Imam Rizvi v. Mst. Salima Khatoon (supra) and Muhammad Siddique v. Mst. Sharifan and another (Law Notes 1969 SC 78) held the tenant to be liable to eviction, when he failed to pay rent even after institution of eviction application, notice whereof was served on the tenant, which was treated as substantial compliance of section 13‑A of the repealed Ordinance VI of 1959. In so far as the case of Mehboob Jewellers and others (supra), which has been relied upon by the learned counsel for the respondent, is concerned, the sane is distinguishable. In the aforesaid case, the tenant had deposited the rent in favour of the previous owner, before he could be informed and shown the transfer documents. Under these circumstances the Supreme Court held that the default was purely technical one, which ought to have been condoned. The finding of the learned Controller, on the issue of default is, therefore, reversed and it is held that the respondent had committed wilfull default in payment of rent.

7. The learned Controller decided the issue of bona fide requirement against the appellant for the reasons (a) the demised premises is residential unit and (b) the appellant had not disclosed the particulars of the business intended to be run by the appellant and his son in the demised premises. The reliance was placed by the learned Controller on the following cases:‑‑ (1) Walumal v. Muhammad Moosa (1986 CLC 1831). (2) Anisur Rehman v. Mst. Sharifa Khatoon and another (1986 CLC 448). (3) Akhlaq‑un‑Nabi v. Nawab Ahmad Shamsi and 6 others (1986 CLC 1100). The learned Advocate for the appellant has contended that so far as the Sindh Rented Premises Ordinance, 1979 is concerned, it does not make any distinction between the residential and non‑residential "premises" or "building" and as such it is immaterial whether the premises in question is a shop or not. He placed reliance on the case of Abdul Malik v. Haji Ejaz Ahmad (1985 SCMR 1555). The learned Advocate for the respondent submitted that the premises in question is a residential unit and, therefore, no eviction can be ordered on the ground of its requirement for business purpose. It was next contended by him that the appellant has not given any particulars with regard to the alleged bona fide requirement and he has not even disclosed the business which he and his son intended to do in the shop in question. In the above case of Abdul 'Malik the Hon'ble Supreme Court compared the provisions of section 15(2)(vii) and section 13(3)(a)(ii) of the West Pakistan Urban Rent Restriction Ordinance, 1959 and observed that there is a marked distinction between the provisions of the two statutes. In the said case, the premises was let out under a written agreement for commercial purposes and the ground of personal requirement was urged stating that the said premises were required for residential purposes. The refusal by the High Court to evict the tenant was reversed by the Supreme Court. In view of the principle laid down in the case of Abdul Malik, the dispute, whether the premises in question is a residential unit or shop, has lost its importance. The Sindh Rented Premises Ordinance, 1979 does not make any distinction between residential and non‑residential premises. The result is that under the Sindh Rented Premises Ordinance (XVII of 1979) a landlord can maintain eviction application in respect of residential premises, required by him in good faith for commercial purposes and vice versa. Even otherwise the appellant has relied upon the record of Excise and Taxation Department wherein the demised premises is recorded as shop and the said entry has not been rebutted by any other documentary evidence. With regard to the second reason that prevailed with the learned Controller, the learned counsel for the appellant has relied on the cases of Mst. Tauheed Khanum v. Muhammad Shamshad (1980 SCMR 593), Mst. Sara Bai v. Anis‑ur‑Rahman (1989 SCMR 1366) and Mohibullah & Company v. Bahauddin (1990 SCMR 1070). The learned counsel for the respondent has referred to the case of Mukhtar Ahmed v. Muhammad Saleem Bakhshi (1991 CLC 1047) in which the learned Single Judge of this Court has observed that in a case where a landlord makes up his mind to start the business, after he has let out a commercial premises, he will be required to give full particulars of his proposed business, availability of the capital that may be needed for the purpose, experience and knowledge of the business and such details that a Court can come to the conclusion that it is needed bona fide for the use of the landlord and in absence of such details it will not be possible for the Rent Controller to record such a finding. The learned counsel for the appellant has relied on the aforesaid cases of Sara Bai, Mst. Tauheed Khanum and Nlohibullah, wherein the Hon'ble Supreme Court has held that it is not necessary that the landlord should disclose the nature of business which he intended to do in the premises in question. In the case of Sara Bai, their Lordships have observed that the landlord has to state in his application, the material facts, i.e. the facts which constitute cause of action. In a case of such nature the landlord has to state those facts which prima facie show that the requirement is according to law and is made in good faith. If this has been so stated in the application, it is neither essential, nor it is part of the cause of action to state the nature of business which the appellant intends to carryon. Their Lordships have then observed:‑‑ "Take a case where the applicant states in the application that she requires the shop for her son for carrying on a particular business but later on pending hearing of the application or after eviction of the tenant, the applicant thinks that the business can no more suitably and profitably be carried on in the shop, the question might arise; could he change the nature of business or not? The choice of doing a particular business also depends on many other factors such as the nature of the locality or the nature of business being carried on an other shops in the neighbourhood. It also depends on the flow of customers and class of people residing in the area. Therefore, if there is any change in circumstances, the nature of business could also be changed. Accordingly, the answer would be that the applicant could change the nature of business with the change of circumstances because in law no restraint or bar is provided. Therefore, the mentioning of the nature of business was not a material fact or so essential that without it the application must fail." Following erudite observations in the case of Mst. Ghulam Fatima and 3 others v. Noor Hussain (1991 SCMR 1959) are enlightening and educative: "The pleadings may in a given case consist, of facts on which cause of action is based, of law which recognises such cause of action and the material on which that cause of action can be sustained. With regard to facts forming the basis of the cause of action, the view taken by the High Court is correct. However, with regard to the law and the material on which the cause of action is to be sustained, there is no such commitment, finality or binding effect. The party can itself show that the law referred to by it is incorrect or that the evidence which it wants to lead, it will not lead but substitute it by some other". In view of the above pronouncements by the Hon'ble Supreme Court, if I may say so with great respect of learned Judges, who decided the aforesaid cases of Anisur Rehman, Akhlaqueun Nabi and Mukhtar Ahmad, in so far as they lay down that a landlord is required by law to state in his application the nature of the business intended to be done by him, is not good law. The case of Walumal (supra) does not advance the case of the respondent, as it was a case of no evidence on the issue of personal bona fide requirement, which is evident from the following observations of the learned Judge: "The Rent Controller granted eviction application on the ground of personal and bona fide requirement for the reason that respondent No.l was living in a rented premises. Respondent No.l either in his application or in affidavit of evidence did not say a word to that effect. No doubt in his cross‑examination he denied the suggestion that he was living in his own house and stated that he was living in a rented house but this statement of the respondent No‑1 in the cross examination could not be treated as substantive evidence of the fact that he was living in the rented premises as he omitted to mention the same in his examination‑in‑chief. The appellant in his affidavit‑in‑evidence has specifically stated that he requires the demised shop for his personal use bona fide and in good faith as he wants to do business therein alongwith his son Abdullah. He has further deposed that he is a retired person and has no source of livelihood lie is supported in such assertion by his sister Mst. Kazmia Begum and other two witnesses examined by him. The statement of the appellant or his witnesses was not challenged in the cross‑examination. The appellant and his witnesses were not shaken in the cross‑examination and on the contrary it has come in cross‑examination that the son of the appellant is also jobless and before that he was acquiring education. The respondent in his affidavit‑in‑evidence did not deny the fact that the appellant and his son are jobless, although he generally denied that the shop was required by the appellant for his bona fide use and occupation and it was also generally alleged that the appellant owned and possessed various properties, but no particulars of such properties were disclosed. The respondent and his two witnesses Riazuddin and Abdul Wahab also did not deny the fact that the appellant and his son are jobless.The witnesses of the respondent did not go even as far as to deny the fact that the respondent and his son required the shop in question for their bona fide use and occupation, although these witnesses have deposed that the demised premises is not a shop and is being used by the respondent for the purpose of his residence. In view of the above circumstances the requirement of the demised shop is held to be bona fide and in good faith.

8. With regard to quantum of rent, the case of the appellant is that the premises was assessed by the Excise & Taxation Department at the rate of Rs.22 per month. It may be pointed out that the property in question was an evacuee, property which was transferred by the Settlement Authorities to Mst. Kazmia Begum. In Karachi Division the assessment carried out by the Excise & Taxation Department in respect of the urban immovable properties, for the purpose of levy of property tax, is adopted by Karachi Metropolitan Corporation for the purpose of levy of its taxes. Under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act XXVIII of 1958, the occupants of the evacuee properties are under an obligation to pay the rent at the rate assessed by the local authorities. Thus the respondent, being the tenant in respect of the evacuee property, was bound by the aforesaid assessment and pay the rent at the rate of Rs.22 per month. The respondent's father was fully aware of such obligation and it was for this reason that he had challenged the aforesaid assessment carried out by the Excise & Taxation Department in the year 1968, by way of appeal. The appeal was dismissed and the assessment at the aforesaid rate was maintained by order dated 24‑10‑1970. 1, therefore, allow this appeal, set aside and reverse the order of the learned Rent Controller and grant the eviction application filed by the appellant. The respondent is granted 4 months' time to hand over the possession of the premises in question to the appellant and in case of his failure to do so, he‑will not be entitled to notice of the execution application, if filed by the appellant. H.B.T./A‑1309/K Appeal allowed.