1989 PLP 662 (CLC)

3. The appellant contested both the grounds of ejectment. According to him the rate of rent was Rs.350 p.m., which was paid to respondent upto August 1982. The rent for the months of September and October 1982, was remitted through money order, but the same was refused. The appellant thereafter deposited the same in the office of Rent Controller. The requirement of the respondent to occupy the disputed premises herself was also challenged.

4. The respondent has examined herself (P.W.1) and Shakil Ahmed (P.W.2) white the appellant has examined himself (D.W.1).

5. The learned Rent Controller formulated the following issues:‑ (1). Whether the opponent is a habitual defaulter" (2) Whether applicant requires the premises for her personal bona fide use? (3) What should the order be?

6. On the assessment of evidence, both oral as well as documentary, the learned Rent Controller decided both the issues against the appellant and consequently directed his ejectment from the demised premises, hence the present appeal.

7. Admittedly there is agreement of tenancy between the parties. According to clause 4 of this agreement (Exh:A/10), the rent was to be paid in advance before 5th of each calendar month. The rent for the month of August 1982, was paid on 10‑9‑1982 vide (Exh.A/12). The appellant claims to have tendered rent for the months of September and October 1982, through money order which was refused vide (Exh.A/13). The money orders were repeated in December 1982 and January 1983, but with the same result. The respondent has disputed this tender of rent. The onus of proof, therefore, shifted to the appellant to show that the money orders were in fact offered to respondent who refused to accept them. There is an essential distinction between burden of proof and onus of proof; burden of proof lies upon the person who has to prove a fact and it never shifts. But the onus of proof shifts having regard to the circumstances of the case and such a shifting of onus is a continuous process. in the evolution of evidence. As observed in Gulzar Begum v. Mst. Sarah Bibi, reported in 1972 S C M R 251, the presumption was rebutted and it was, therefore, obligatory upon the appellant to have examined the postman. Admittedly the postman was not examined to prove the tender of rent within the meanings of subsection (3) of section 10 of the Sind Rented Premises Ordinance, 1979, and consequently there was no payment of rent for the months of September and October 1982, within the grace period.

8. Mr. Mobarik Ahmad, learned counsel for the appellant has, however, contended that after the expiry of (Exh. A/10) the, appellant could pay rent within sixty days after the rent become due. Reliance is placed upon the cases reported as Muhammad Yousuf , v. Abdullah P L D 1980 S C 298; Amir Ali v. Mrs. Alima Ahmed P L D 1981 Kar. 150; Naimat Siddiqui v. Farooq Umer, etc. 1984 C L C 969; Muhammad Kha‑aja v. Abdul Samad Sirajuddin 1986 C L C 1517 and Muhammad YousUf v. Muhammad Saghiruddin Qureshi 1987 C L C

76. The question, whether on termination of an agreement of tenancy when the tenant remains in occupation as of right subject to liability under the Rent Law‑ the terms of agreement become irrelevant for regulating the tenancy, was examined by the Supreme Court in Mrs. Zarina Khawaja v . Agha Mahboob Shah reported in P L D 1988 S C 190; and to B answer this question the Supreme Court considered the implication of various judgments of the Supreme Court including the well known case of Muhammad Yousuf v. Abdullah, referred, to above, which deal with the question of continuance of the terms of agreement of tenancy, after its termination and observed:‑ "We have carefully considered the implication of various judgments of the Supreme Court which deal with the question of continuance of the terms of agreement of tenancy, after its termination. Leaving aside the theoretical possibilities all of them can be interpreted consistently on the following lines: ONE: notwithstanding the enactment of the rent laws the relationship of landlord and tenant would continue to be determined and regulated in accordance with: (a) the general law; and (b) the terms of tenancy between the parties. But subject to a very important condition that in case of repugnancy of either of these two elements to any of the provisions of the rent law the latter shall prevail; meaning thereby that the provisions of the general law and/or the covenants, in the agreement to the contrary, shall have no effect; TWO: during the continuance and subsistence of tenancy, the question of relationship of landlord and tenant, the regulation of that relationship particularly vis‑a‑vis the determination and payment of rent; as also the eviction, shall be governed by the covenants contained in the agreement provided that those covenants do not come in conflict with the provisions of the rent law and in case of conflict the provisions of that law will prevail notwithstanding any term of agreement to the contrary; THREE: after the expiry of the agreement of tenancy the general law of holding over by the tenant has not been repealed or modified by the rent laws except to the extent that it comes in conflict with the provisions of the Rent Restriction Law. On the contrary, it was specifically provided in the definition of a 'tenant' in section 2 of the West Pakistan Urban Rent Restriction Ordinance, 1959, that a tenant would include a tenant continuing in possession after the termination of the tenancy in his favour". The definition of tenant in the present Sind Law also provides that a tenant would include "any person who continues to be in possession or occupation of the premises ,. after the termination of his tenancy". Not only this, the present Sind Law made it more clear when the provisions contained in sections 6 and 15(2)(i) of the Sind Rented Premises Ordinance, 1.979, providing that no tenancy would remain valid beyond the mutually agreed period and that a tenant would be liable to be evicted on termination of such period, were repealed. The obvious reason was that the pre‑existing law before the re‑enactment was kept intact; namely, that the previous tenant arrangements between the parties will continue to operate notwithstanding the termination of the period and will govern the continuance of tenancy as visualised in the definition of y, the tenant holding over. However, notwithstanding the continue operation of the terms of the agreement after the termination , of the agreement; by process of law as aforesaid, its provision whenever they are in conflict with the rent law, shall not be operative. For example, if a special method of eviction of the tenant is provided in the terms of the agreement which are repugnant to the provisions contained in the relevant Rent Restriction law, the latter shall prevail to the extent o repugnancy. Section 15 of the Sind Law is explicit on this point. Same was the position in the repealed Law. Similar would be the case relating to some other situations, for example the determination of the fair rent. Similarly the vice versa position would also be correct. The terms of the so‑called expired agreement which are not repugnant to the rent law shall continue to operate. For example. the rate of rent, the mode of payment thereof including its advance payment or deposit, provision for agreed increase in rent provided it is not after the determination of fair rent, provision for re‑entry of a tenant after he vacates the premises for reconstruction, all covenants which support the conditions in section 15 of the Sind Law and section 13 of the Law repealed by it, and similar other conditions and comments. There is a useful discussion on this aspect in the case of Muhammad Yunus Malik v. Mst. Zahid lrshad 1980 S C M R

184. We scolding answer the 4th question in the negative and hold that the terms of an expired agreement as such, continue in operation to the extent then are not repugnant to the Rent Law. Indeed same could be the position with an expired agreement also it needs to be clarified that the four judgments of this Court reported in 1980 Law Journals and one in 1985, though seemingly containing some elements requiring further explanation, are not mutually exclusive. They are in the cases of Muhammad Yousuf P L D 1980 SC 298; Muhammad Yunus Malik 1980 S C M R 184; Alif Din 1980 SCMR 767; Mirza Abdul Aziz Beg 1980 SCMR 834 and Sheikh Abdus Sattar PLP 1985 SC

148. One case of 1981 viz., Muhammad Baqar Qureshi v.Mst. Razia Begum 1981 SCMR 18 may also be included. In the first case the concept of holding over in the general law of Transfer of Property Act (No.IV of 1882) was accepted, as lawful vehicle of keeping the terms of an expired agreement alive subject of course to repugnancy with any provision of the rent law and to the contrary. In particular, the covenants as to advance rent and date of payment in the expired agreement were enforced and thus, the agreement was continued. Sameis the position in the third case. In both of them. Muhammad Ashraf v. Muhammad Sharif P

1. D 1971 Lah. 610, a case of Lahore High Court, was approved. In the second case though the tenancy, after expiry of the agreement, was termed as 'statutory' and holding over concept was kept excluded but the terms of tenancy as to rate of rent were nevertheless taken from the so‑called expired agreement. Its naming as "statutory rent" was not meant to obliterate its source being the same agreement. And, it is important to emphasise, that at page 306 the possibility of expired agreements having terms not inconsistent with the rent law, has been visualised, though stated to be exceptional. Thus, such terms, would continue to operate. We may add that in the ultimate analysis such tenancies which are controlled by rent law are in any case composite; having both statutory and mutually agreed terms; and, when an expired agreement is kept alive, this composite nature does not change, though law of holding over is added to the rent law and the agreement. The fourth case recognises advance rent and security deposit as possible subjects of an agreement enforced by the rent law. The fifth case goes in line with the third case and not beyond it but in a different context. The remaining cases also do not change the position. 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 that law. In addition, they also remain operative for other purposes permitted by the general law. The fourth question is answered in the negative."

9. Mr. Mobarik Ahmed, learned counsel for the appellant has, however, submitted that the authority cited as Mrs. Zarina Khawaja v. Agha Mehboob Shah, is by three judges of the Honourable Supreme Court, while that of Muhammad Yousuf v. Abdullah, is by five Judges of the Honourable Supreme Court (Four Judges, out of whom Dr Nasim Hasan Shah, J dissenting. lie is, therefore, of the view that the earlier decision has to be followed. In following a decision of the Supreme Court, however, it is the ratio decidendi of such decisions that matters If the ratio decide of an earlier decision of their Lordships of the Supreme Court is expressly or impliedly abandoned' or dissented from in a subsequent decision of Their Lordships, the earlier decision should be treated as obsolete. If the Court cannot l consistently follow both the decisions, the later of the two decisions should be followed. (Godavari Lakshminarasamma v. Rama. A I RI 1950 Madras 680.

10. Respectfully following the decision reported as Mrs. Zarina Khawaja v. Agha Mehboob Shah P L D 1988 SC 190, I am of the considered view that the appellant committed default in payment of rent for the months of September and October, 1982. Even if a grace period of sixty days is allowed to the appellant, then too he was in arrears for one month at the time when he deposited the arrears of rent in the office of Rent Controller as the rent for the month of September was to be paid before 5th September, 1982. It will not be out of place to mention here that the appellant was a chronic defaulter, which is evident from the following extract of his cross‑examination It is correct to say that from May 1979 upto November, 1979, paid Rs.2,170 in lump sum as rent for the disputed premises. It is also correct that from January and February, 1980. paid Rs.700 as rent in lump sum. It is correct to suggested that paid Rs.2,100 in lump sum as rent for the month March, 1980 to August, 1980.It is also correct that from October, 1980 to February 1981, I paid Rs.1,750 in lump sum It is also correct that I paid Rs.1,050 for the month from March, 1981 to May, 1981 in lump sum. It is correct that said rent for the month from June and July, 1982 in lump sum. On 20‑1‑1983 I deposited an amount of Rs.2,800 in Court as rent for the month of September, 1982 to April 1983."

11. Once the tenant has committed default by not paying or tendering rent within the prescribed period he would be liable to be ejected notwithstanding subsequent payment of accumulated rent No exception to the finding of learned Rent Controller, on issue No.l, therefore, can be taken.

12. The respondent has claimed the possession of the disputed house on the ground that the same was required by her for her personal bona fide use. According to her statement she was residing with her six children aged between 9 and 22 yeas in two‑roomed house. Admittedly the respondent is a well‑to‑do lady. She was staying in Saudi Arabia when this premises was rented out to the appellant by her father. She has now returned back to Pakistan and wants the, :? possession of disputed premises for a comfortable living. The appellant has challenged the bona fides of the respondent on two‑fold grounds firstly that she was interested to get the rent enhanced, and secondly the premises in her occupation are sufficient to accommodate her' family, specially when two of her children are her step‑son and daughter who are presently residing in Saudi Arabia. A demand for higher rent by itself does not cast any doubt, about the personal bona fide requirement, if the same is independently proved. There, may be different reasons for making a demand of increased rent not connected with the personal bona fide requirements. Clause (vii) of subsection (2) of section 15 of the Sind Rented Premises Ordinance. 1979, empowers the Rent Controller to put the landlady in possession of the premises, if she requires the same in good faith for her own occupation or use or for the occupation or use of her spouse or any of her children. It is the case of the respondent that she requires the disputed premises for her own occupation and the occupation of her six children including step‑son. The words "own occupation" or "for herself" cover a case of a landlady wanting a house for a joint family. In considering the requirement the Court ought to take into consideration the fact that there are other persons residing with her iii present premises and whom she does not wish to turn into the streets. This view gets support from the case of Abdul Salam Akhtar v. Dr. Najam Pervaiz, reported in 1976 SCMR 52, in which the following observations were made by the Supreme Court:‑ "We are unable to agree for the personal needs, of the landlord would include the need of those dependent upon him. In the present case even the personal need of the landlord is there in addition to the need of the brother. Hence it cannot be said that the eviction is required only for the need of the brother, who is not covered by the definition of "own occupation" or who did not come within the category of dependants."

13. As observed in Adam Ali Hassan Ali v. Mst. Rubab Bai reported 2n P L D 1965 Karachi 408, the expression "for his own occupation is to be construed liberally and must be interpreted to include not only need of family, dependents and persons. essential for such occupation but also all other genuine requirements of landlady. For these reasons, and with respect I am unable to share the views expressed by my brother Tanzilur Rehman, J, in unreported judgment in F‑R‑A. No.17' of 1986. when he states that "children" means real children and not step children.

14. A point which was touched upon during arguments by the learned counsel for appellant may now be dealt with. It is. contended that the ground floor of the said premises was got vacated by the respondent during the pendency of these proceedings, and she has ', therefore, sufficient accommodation to live a comfortable life, This argument is effectively answered in Rajab Ali v. Darius B. Kandawalla H and another, reported in P L D 1984 Karachi 14, in which it was held that suitability or` sufficiency of accommodation for landlady cannot' be determined by the tenant. In this connection reference may be, made to the authority of Supreme Court reported as M/s. Tiger Wire Product Ltd. v. Abrar Hussain 1983 S C M R 402, wherein it was held.‑‑ As to whether the respondent /landlord is showing extravagance for occupying the house which is owned by him is not such a circumstance to which the tenant can object."

15. For the aforesaid reasons, I am in complete agreement with the view taken by learned Rent Controller in as well‑considered order. The appeal has got no merits and is accordingly dismissed with no costs. The appellant is allowed two months' time to vacate the demised premises. H. B. T./T‑44/K Appeal dismissed.