1990 PLP 340 (CLC)

‑‑‑S. 15‑‑‑Rent case, maintainability of‑‑‑Contention of tenant that the property was a valuable one and taken on "pugri" and therefore rent case was not maintainable, repelled as no such clause regarding payment of "pugri" was mentioned in agreement nor such issue was framed by Rent Controller. P L D 1986 Kar. 16 ref. Mohsin Tayebally for Appellant. Z.U. Ahmed for Respondent. Dates of hearing: 29th, 30th August and 3rd September, 1989. Respondent Jamila Latif is the landlady of 4 shops constructed on commercial plot bearing No.172/Y/2, P.E.C.H. Society, Karachi. She is also the owner of the ground floor of premises No.172/Y/2, P.E.C.H. Society, Karachi, while appellant Salim Ahmed Khan is tenant of both the tenements at the monthly rent of Rs.900 and 600 respectively. Mst. Jamila filed 2 separate rent cases. 1n rent case No.1527/79 the default in payment of rent was alleged from October, 1978 till filing of rent case i.e. on 22nd March, 1979. In rent case No.1527/79 the default was claimed for the same period and she has also taken other grounds of personal bona fide requirement and unauthorised construction. The Vth Senior Civil Judge & Rent Controller, Karachi (East), by judgments dated 18‑9‑1985 and 13‑10‑1985 allowed both the rent cases on the ground of default and personal bonafide requirement, but the issue of unauthorised construction has been decided against the respondent landlady. I propose to dispose of both these First Rent Appeals bearing No.541/85 & 566/85 by this single judgment on the ground that in both the rent cases landlady and tenant are same. The common ground of default in both the rent cases for the same period has been taken. The only additional ground in rent case ‑No.1527/79 is of a personal bona fide requirement.

2. Before the Rent Controller in both the cases respondent Mst. Jamila/landlady and appellant Saleem Ahmed have been examined.

3. I have heard Mr. Mohsin Tayyebally for the appellant. It is argued that premises in question are owned by the Government, therefore, in view of the case reported in 1989 S C M R 75 such property is exempted from the provisions of the Rent Restriction Act. He has also referred to a case reported in A I R 1953 S.C. 16. 1t is submitted that the Government of Pakistan has leased out the property to the respondent, therefore, the Rent Controller has no jurisdiction. He has also argued both the cases on merits and submitted that respondent refused to receive the rent, therefore, rent was regularly being deposited in Misc. Rent Application and no default has been committed. In the alternative, it is argued that appellant deposited the rent on 12th January, 1979, therefore, there is no default. The rent of November, was due on 1‑12‑1979, but deposited only 12 days' late, which can be condoned. With regard to personal bona fide requirement, it is argued that respondent is living in his own house comfortably since 1972, therefore, rent case has been filed with mala fide intention. Mr. Mohsin Tayyebally argued that in the rent application, it is averred that default is from October, 1979, whereas the respondent changed her plea in evidence and claimed the default from November, 1979. 1t is submitted that landlady put up her case beyond the pleadings. He has referred to the cases reported in P L D 1985 Karachi 144 and P L D 1984 Karachi

141. He has also cited 1985 M L D 683, 1987 C L C 1391, P L D 1987 Karachi 525, 1987, C L C 539 and 1758. It is argued by Mr. Mohsin Tayyebally that this is a valuable property and taken on pugri, therefore, the rent case is not maintainable in view of P L D 1986 Karachi

16. Mr. Z.U. Ahmed, appearing for the respondent, submitted that property is owned by the respondent and she is entitled to receive the rent from the appellant which is not exempted by the Government, therefore, Rent Controller has got the jurisdiction. It is argued by Mr. Z.U. Ahmed that appellant has proved that rent was never tendered or paid in time. He submitted that requirement has been proved and appellant cannot question the need of the landlord. He has referred to P L D 1985 SC 242, PLD 1984 Karachi 14 and P L D 1988 Karachi

52. It is argued by the learned counsel that there is no inconsistency in the pleadings, but if at all there is some bona fide mistake it could be over looked. He has referred to P L D 1963 SC 553.

4. In the first instance, I would like to deal with the legal issue raised by Mr. Mohsin Tayyebally that property in question is exempted under section 3 of the Sind Rented Premises Ordinance, 1979. This plea was not raised before the Rent Controller, therefore, both the judgments are silent as no evidence to this effect was adduced by the appellant. First time the appellant has annexed Form A of Sub‑Lease and Form‑B of Pakistan Employees Cooperative Housing Society Ltd, by which the property was leased out to the respondent on some conditions for the purpose of developing it and for the construction of buildings etc. There are number of Societies, in which allottees are given lease for 99 years and in the conditions mentioned in Forms A & B, there is nothing to prevent the respondent to let out the premises on rent to tenants. For the convenience, I reproduce section 3 of the Sind Rented Premises Ordinance, 1979 as under :‑ "(1) Notwithstanding anything contained in any law for the time being in force, all premises other than those owned or requisitioned under any law, by or on behalf of the Federal Government or Provincial Government, situated within an urban area, shall be subject to the provisions of this Ordinance; (2) Government may, by notification, exclude any class of premises, or all premises in any area from operation of all or any of the provision, of this ' Ordinance." In a case of KPT reported in 1989 S C M R 75, the property was exempted by the Notification in view of section 3 (2) of the Ordinance. In this case, there is no such Notification, by which the property has been exempted fro the provisions of Sind Rented Premises Ordinance, 1979. Under section 2 (f) the definition of landlord is given, which means the owner of the premises and includes a person, who is for the time being atuthorised or entitled to receive the rent in respect of such premises. The appellant signed tenancy agreement and admitted the respondent to be landlady and rent was being paid to her since last so many years and no such exception has been taken, neither the Government has leased out the property nor the rent has ever been tendered or paid by the appellant to the Society, which is allotted to the Government of Pakistan. Therefore, in my view, this legal ground has no force for the aforesaid reason and it is spelled out thus the Rent Controller has got the jurisdiction.

5. Now I come to the merits. In both the rent cases Mst. Jamila Fatima Lateef stated in her affidavit‑in‑evidence that appellant has failed to pay the rent from November, 1978, therefore, he is liable to be ejected. She was cross examined and it was put to her that she accepted the rent for the month of November, 1978, but receipt was not issued, she denied that suggestion. In her cross‑examination the respondent produced a money‑order coupon showing that rent was tendered on 6‑2‑1979 that is also after a long delay. This position is not denied by the appellant. The rent was being tendered and receipts were being issued. This point is not disputed, but appellant, in affidavit‑in‑evidence, stated that he wanted to give rent personally, which was refused, therefore, he started sending rent by money‑order, which was not accepted. Finally, he moved the miscellaneous rent application and he started depositing the rent. He has also stated that he paid the rent till November, 1978 and possessed all the receipts but the respondent has not issued a receipt for the month of November, 1978. He has stated in rent case No.1526/79 that respondent refused to receive the rent from December, 1978. He has stated that respondent started to enhance the rent from Rs.600 to Rs.1000 per month. The same was not acceptable to him. From the above evidence, it is an admitted position that receipt of the payment of rent for the month of November is not available on the record and there is only word of the appellant, which could hardly been believed, when there was all along the practice that receipts are being issued from time to time. Not only this that there is no evidence on record that rent of December, 1978, January, 1979 was ever tendered by way of money‑order or any attempt was made to make such payments. From the record, it is proved that rent of November was never paid in time. There remains only question whether the appellant is entitled to get the relief by way of condonation of delay in payment of rent for the month of November, 1978. This delay is in spite of all the benefits of 60 days as given to the statutory tenants that was sufficient time to make the payments of the rent regularly every month to her in this case. The rent of November was not paid as due on Ist December, 1978 thereafter he availed of 60 days and could have deposited or tendered the rent on 1‑2‑1979, which he failed to do. There is no justification on record for more time. I am of the view that Rent Controller has rightly came to the conclusion that there is a default in payment of rent for the month of November, 1978, in both the rent cases. So far discrepancy in the rent application is concerned, it is immaterial as respondent in her affidavit in evidence frankly admitted that rent of October, 1978 was paid. Appellant cannot get the benefit as he also failed to pay the rent for November, December and January, which period is also included in the rent application, therefore, I do not agree with the arguments of Mr. Mohsin Tayyebally.

6. The ground of personal bona fide requirement has been taken in rent case No.1527/79. In the rent application, it is averred by Mst. Jamila Lateef that she has 7 children out of which 2 are minors and the premises occupied by her are not sufficient therefore, the disputed premises are bona fide required for her personal use and use of her children as well as her husband. In written statement, it is stated by the appellant that originally house was single storeyed, when it was rented out, but recently husband of the respondent according to his requirement raised the construction and shifted the family on the first floor, therefore, the demand of personal use is based on mala fide intention just to enhance the rent. In the written statement the numbers of family members of the respondent have not been disputed. In affidavit‑in‑evidence, the respondent stated that she has 5 major daughters, 2 sons aged 17 and 14 years and accommodation for their occupation is not sufficient. In cross‑examination, she has admitted that at the time of retirement of her husband, they were 10 family members. She has also stated that her husband has expired and one daughter has been married. The appellant has taken the same plea in the affidavit‑in‑evidence that respondents's family shifted to newly constructed upper storey of the demised premises and on the same ground an application under section 14 of the Sind Rented Premises Ordinance, 1979 was filed, which was dismissed. In cross‑examination, she has stated that there are 3 rooms, one drawing and dining, which is in the occupation of the respondent. The Rent Controller has discussed the evidence of the appellant as well as respondent in detail and has rightly come to the conclusion ` that accommodation in possession of the respondent is not sufficient to C accommodate her 7 children. Learned counsel for the respondent has referred to P L D 1985 SC 242 and P L D 1984 Karachi 14 and submitted that tenant cannot question the need of the landlord and suitability of the landlord cannot be determined by the tenant. I am of the view that personal bona fide requirement has been proved and there appears to be no mala fides. Earlier rent case under section 14 as appears from the record, was dismissed in the year 1982 and there is no bar to file fresh case.

7. The appellant is tenant of the premises in both the rent cases by way of an agreement. There is no such clause regarding payment of pugri nor such issue was framed by the Rent Controller. Had it been so it should have beep mentioned in the agreement.

8. For the reasons stated above, both the appeals No.541/85 and 566/85 are dismissed by this single judgment. Z.S./S‑510/K Appeals dismissed.