1993 PLP 1815 (CLC)

(ii) Requirement of the respondent for his personal bona tide use.

3. The appellant resisted their eviction. Their defence as unfolded in the written statement is as follows:‑‑ "That as to the contents of paragraph 5 of the application it is submitted that each month the rent of the premises in question was being paid regularly by the opponent to the applicant but from June, 1991 to September, 1991 the applicant avoided to receive the rent from the opponent on the plea that he did not have the printed receipt books and he would receive the rent the moment he received the receipt books from the press. The opponent then on 16‑9‑1991 sent the rent for three months by Money Order which was not accepted by the applicant. The opponent also sent a telegram to the applicant asking him to come and collect the rent and on his failure the monthly rent would be deposited in Court. The opponent ultimately filed Misc. Rent Case No.1866/1991 in this Court and started depositing monthly rent of the premises in question in Court. It is submitted that the applicant with mala fide intentions created this situation."

4. The parties went to trial on the following issues:‑‑ (i) Whether the opponent has committed default in payment of rent? (ii) Whether applicant required said tenement bona fide for personal use? (iii) What should the order be?

5. The respondent tendered his evidence through affidavit (P.W.1). To rebut this evidence the appellant examined their Manager Niaz Ali Behar (D.W.I). On the assessment of evidence available on record the learned Rent Controller (Mrs. Akhtar A. Chaudhry) decided both the issues against the appellant directing their eviction from the demised premises within a period of 30 days. This order dated 13‑9‑1992 is the subject‑matter of the present appeal.

6. I have heard Mr. Hyder Raza Naqvi, learned counsel for the appellant and Mr. S. Zaki Muhammad, learned counsel for the respondent. I have also gone through the record of this case carefully.

7. Admittedly there is no mutual agreement between the parties fixing the date for payment of rent. Section 10(i) of the Sindh Rented Premises Ordinance, 1979, lays down that the rent shall, in the absence of any date fixed in this behalf by mutual agreement between the landlord and tenant, be paid not later than the 10th of the month next following the month for which it is due. Thus the rent for the month of June, 1991 was due by 10‑7‑1971. Clause (ii) of subsection (2) of section 15 of the Sindh Rented Premises Ordinance, 1979, provides a period of sixty days as a grace period to be counted from the date on which the rent has become due for payment. Thus the rent for the month of June, 1991 could have been paid by the appellant on or before 10‑9‑1991. The perusal of the record shows that the rent for the month of June, 1991 was remitted by the appellant to respondent through postal money‑order on 16‑9‑1991 (Exh.0/1). Thus the default in payment of rent for the month of June, 1991, if any, is by six days only.

8. Admittedly the rent was being paid by the appellant to respondent against proper receipts. Niaz Ali Behan (D.W.1) who is the Manager of the Company has stated on oath that he had gone to respondent to tender the rent but the same was not accepted on the ground that the receipt book was exhausted. The appellant had taken this defence in their written statement also. Respondent Abbas (P.W.1) has admitted in his cross‑examination that he possess the counterfoils of the original receipts. The counterfoils were, however, not produced to satisfy this Court that the receipt book was not exhausted as alleged by the appellant.

9. As, indicated in para. 7 ante, the appellant could have tendered the rent to respondent for the month of June, 1991 by 10‑9‑1991. The money‑order (Exh.0/1) was sent on 16‑9‑1991 and consequently, the default, if any, was by six days only. A similar question was examined by this Court in the case of L. Hussain v. Muhammad Nawab and 4 others, reported in PLD 1992 Karachi 307, wherein it was made clear that the word "default" in legal terminology necessarily imports an, element of negligence or fault and means something more than mere non‑compliance. Taking all these factors into consideration, I am of the view that the default, if any, was purely technical and the Rent Controller ought to have exercised her discretion in favour of the appellant. The finding on Issue No.1 is, therefore, reversed.

10. It is also the case of the respondent that he requires the disputed premises for his own use. Para. 5 of the application for ejectment filed by the respondent speaks of this ground in the following words:‑‑-- "That the applicant requires the premises for his bona fide personal use." Abbas, the respondent who has examined himself as (P.W.1) has testified that he requires the, premises for his personal bona fide use. Besides this evidence of one sentence, there is absolutely no evidence in support of this issue. The ground of personal need was examined by this Court in the case of Muslim Commercial Bank Limited, Karachi v. Haji Shaikh Yaqinuddin and 2 others, reported in PLD 1992 Karachi 314 and it was observed:‑‑ "Clause (vii) of subsection (2) of section 15 of the Sindh Rented Premises Ordinance, 1979, empowers the Rent Controller to order the eviction of the tenant, if he is satisfied that the landlord requires the premises in good faith for his own occupation or use or for the occupation or use of his spouse or any of his children. It is, however, necessary to see that the landlord does not under the pretext of his personal requirement, invade the right of the tenant to possess the premises while discharging its contractual/statutory obligations as a tenant. The only restriction which the legislature have placed for the x protection of the rights of the tenant is that the need of the landlord ought to be `bona fide' or in `good faith'. Both these terms are higher terms of ethics‑and morality and the Rent Controller should, therefore satisfy himself as to the good faith of the personal requirement in an objective manner according to the facts and circumstances brought on record. A mere desire or absolute, necessity to occupy or use the premises in possession of a tenant are both erroneous approaches."

11. No tangible evidence was brought on record to substantiate the issue of personal requirement. The evidence which is available on record is vague, sketchy and insufficient. The learned Rent Controller, therefore, erred in arriving at the conclusion that the premises was required .for bona fide personal use of the respondent, when in the application of eviction as well as in his testimony the respondent failed to give cogent reasons and grounds for his requirement. On the contrary she imported certain facts which had no bearing to the issue of personal need while deciding this crucial issue. Therefore, the finding on Issue No.2 cannot be sustained.

12. In the result the impugned order is set aside and the appeal is allowe with no order as to costs. H.B.T./A‑1336/K Appeal allowed.