1989 PLP 2762 (MLD)

(i) That the respondents had categorically admitted that he did not issue any cheque from 10-1-1983 to 11-4-1983 as has been stated at page 29 of the impugned order and hence he was admittedly a defaulter; (ii) the respondent was legally responsible to tender the rent without waiting for the appellants' Chowkidar to collect it from him and cannot be absolved of the consequences resulting from non-payment of rent in time; (iii) the appellant Humayun Latif in his cross-examination has denied the suggestion of his having received the cheque Ex.l/25; (iv) the learned Rent Controller failed to appreciate that the insertion in Ex.1/24 of the words "one letter regarding cheque dated 10-1-83" has been made later on. It was also put to the respondent, Aga Mohsin Jaffri, during his cross-examination although he has repelled it as being incorrect. The respondent had deliberately not produced the relevant cheque book and hence it calls for an adverse inference to be drawn against the respondents.

9. It was next contended by the learned counsel for the appellant that the demised premises was let out to the respondent for office purposes and its use by him as godown for storing books in racks which load the building as designed, cannot withstand and hence it is causing damage to the building.

10. Mr. Amanullah Khan, learned counsel for the respondent, on the contrary, vehemently controverted all the above contentions. He urged that in fact all the witnesses have been cross-examined on the point of personal bona fide need. The business of Mr. Humayun Latif on the 6th floor of the building in question is not his personal business but it is of a duly incorporated company of which the appellants No.3 and 4 are directors. Referring to the above case-law cited by the learned counsel for the appellants, Mr. Amanullah Khan contended that all the said authorities are distinguishable on their own facts and have no relevancy to the facts of the instant case. The learned counsel then contended that the Ejectment Application has not been signed by the appellants No.3 and 4 and hence it was liable to be rejected on that score. This objection, the counsel candidly admitted, has not been taken in the written statement but since it is a legal objection which is borne out from the record, hence it can be raised any time, even at the stage of appeal. He in this behalf relied upon the case of Mst. Rehmat Bai v. Messrs Abid and others 1987 M L D 2818.

11. It was next contended by Mr. Amanullah Khan that the failure to examine the appellants No.3 and 4 for whom the demised premises was allegedly required was fatal to the appellants' case. In support of his above contention he referred to the following cases: (i) Taj Mohammad v. Haji Kazi Taj Mohammad K L R 1983 Civil Cases 220. (ii) Ghulam Mohiuddin v. M.A.Ishaq and others 1980 C L C 241. (iii) Fakhruddin & others v. Mohammad Younus 1986 C L C 821. (iv) Mohammad Shafiq Khan v. Ismat Bi P L D 1962 S C 76. (v) Muhammad Ismail Khan v. Ghulam Mohammad 1982 C L C 1695. Mst. Shirin Asghar, the mother of the appellants No.3 and 4 actually filed her affidavit-in-evidence after the cross-examination of Lateef Hameed and Humayun Latif had been done. She has simply reproduced in her affidavit the contents of paras 5 and 6 of the Ejectment Application. The counsel then, with a view to emphasise that she did not have correct knowledge about the real facts and was not a truthful and reliable witness, referred to certain contradictions in the averments made in the application and the affidavit of Mst. Shirin Asghar she pointed out that in the application it was averred that the appellants No.3 and 4 had trained themselves and have experience of trade garments; whereas the lady in her affidavit has stated that they wanted to complete their education first and to get the necessary training in the field. Further in her cross-examination she first deposed that her said two sons were not doing any business but later on she admitted that they are the Directors in a Limited Company and they are also partners in some business and firms. She then stated "I don't know in how many firms they are partners. My sons are the proprietors of some concerns, but they are not the sole proprietors". She further deposed during her cross-examination "They were taking education as well as training in garment business side by side". This is again in direct conflict with the contents of para 9 of the affidavit-in- evidence of Humayun Latif wherein he had stated that the appellant No.3 had obtained B.Com. Degree and that the appellant No.4 has trained himself in the trade of garments and has experience in the business of garments. She then changed the stand and deposed that her sons wanted to establish office on the first floor of Hameed Chambers. Lastly, she had admitted, the learned counsel so contended that she knew that two floors are in possession of the owners and that on the top floor of the. roof Mr. Humayun has opened a factory and the office. The appellants' failure to disclose that they have many other businesses and premises in their occupation disentitled them to the relief. For this plea he relied on K L R 1983 Civil Cases

220. Mr. Amanullah then relying upon P L D 1973 Note 138 vehemently urged that the law helps the needy and not the greedy. In short, it was urged by Mr. Amanullah that on the basis of the evidence produced by the appellants the learned Rent Controller has rightly answered the issue No.2 in negative.

12. Turning to Issue of default, Mr. Amanullah submitted that in fact the rent for January 1983 had been duly paid through cheque vide Peon Book Entry at Serial No.33 duly received by Mr. Humayun on 10-1-83. But even if it is held otherwise then too the rent for the month of January, 1983, after allowing the grace period of 60 days, was hardly late by 5 or 6 days when the Ejectment Application was presented on 10-4-1983 and should be condoned. Alternatively, he submitted two-fold contention. Firstly, that even it is held to be a default, it is a technical default and should be resolved in favour of the tenant. In support of his contentions he cited the following authorities (i) P L D 1965 Lah. 23, (ii) 1986 C L C 1758, (iii) 1983 C L C 339 and (iv) 1981 C L C 793.

13. Mr. Amanullah Khan also supported the impugned order on Issue No.3 for the same reasons as are given therein by the learned Rent Controller.

14. Mr. Hasan A. Shaikh exercising the right of reply submitted that if the rent for January had been paid as claimed then the respondent should have asked for the receipt thereof which he did not do. According to him, at the tune of filing the Rent Case against him, the respondent was in arrears of three months' rent inasmuch as according to the terms of tenancy printed on the back side of the Rent Receipts (Exh.28/1 to 28/30) the rent of the last month was payable within 5 days of the succeeding month.

15. From perusal of the impugned order on issue No.2 it is evident that despite having held that it is the prerogative of the landlord to decide as to which of the various premises owned by him would be more suitable for setting up his business and that show rooms can be opened on the first floor as well, the learned Rent Controller has decided this issue against the appellants-landlords on the ground of want of enough proof. It is thus clearly discernible from the impugned order that the learned Rent Controller has not discarded the evidence of Mrs. Shirin Asghar the mother of the appellants No.3 and 4 or for that matter any other evidence adduced on behalf of the appellants in proof of this issue. Hence the contentions of Mr. Hasan A. Shaikh as recorded in paragraph 7(i) and (ii) above do not call for any consideration. It is, therefore, now to be seen as to whether the finding on this issue as recorded by the learned Rent Controller is or is not justified in the light of the evidence brought on record on behalf of the appellants. With that view in end I have examined the evidence of all the three ,witnesses examined on behalf of the appellants, namely, P.W-1 Latif H. Hamid, P.W.2 Humayun Latif and P.W.3 Mrs. Shirin Asghar. The first above-noted witness has said nothing about it in his affidavit-in-evidence. However, during cross-examination in reply to the questions put to him he stated: "Naveed does business in U.S.A. Nadeem has now completed his studies and wants to start the business. Nadeem has just finished the College and he wishes to start the business. Naveed comes to Pakistan 2/3 times a year. He usually remains outside Pakistan. Naveed is doing business since last 5/6 years. Naveed has not settled in U.S.A. nor has got the Green Card. It is incorrect to say that the two shops on the ground floor are more suitable for opening the show room". P.W.2 however, deposed in his affidavit-in-evidence that the appellants No.3 & 4 are genuinely and in good faith in need of the first floor for the purposes of the. establishment of a show room of garments and that first floor is suitable for this purpose which is occupied by the respondent. He further deposed that the appellants No.3 and 4 were advised to complete their education first and to get some training also before entering into business. This witness was extensively cross-examined on the. question of personal bona fide need. I would, for the sake of easy reference, like to reproduce hereinbelow the relevant portion from his deposition during his cross-examination: "We intend to open show room of the garments after getting the vacant possession of the premises. This idea has, however, been deferred. Mr.Nadeem and Mr. Naveed are on business trip to U.K. and U.S.A. now-a-days. They are expected back to Pakistan but I cannot tell the date. That is a confidential matter and I cannot tell the business with which they have gone. They have gone for selling Pakistan goods like handicrafts, garments etc. They have gone in connection with their own personal business as well as with their affiliated companies of which they are Directors/Owners and partners. At present I am not going to disclose as to of which concerns they are the Owners and the Directors and Partners. This is a confidential matter as I feel, therefore, I do not want to disclose it. The business which they are carrying is absolutely legal and they are doing it with the permission of concerned Governments. They are the Director of Private Limited Companies. Their partners are Pak: Nationals. I cannot give the total number of such Companies. It is incorrect to say that I am not disclosing this information, because if I disclose it, we would not be entitled to have these premises vacated for our personal need. Mr. Nadeem had same training under me in the business of garments. Mr. Nadeem has very vast experience about this. He is carrying on the business of garments and their related items. He is carrying on business with partnership with Mr. Nadeem. I have been letting them use my premises for their business purpose and some business they are doing from their homes at Katchi Memon Society. They have just started this business of their own recently within the last one year, In partnership since last few years i.e. 3/4 years. As a representative Naveed for last many years ,say 6/7 years and Nadeem for last one year or so. They are exporting the garments in their partnership capacity ............................................... I am the M.D. of Hamid Limited. There are several other directors. Naveed and Nadeem are also its directors." P.W.3 Mrs. Shirin Asghar, is the mother of the appellants Nos. 3 and

4. She also claims to be their attorney but could not produce the original Power of Attorney when called upon to do so. This witness has filed her affidavit-in -evidence only in proof of the claim of personal need of the appellants No.3 and

4. However, during her cross-examination she deposed: "Naveed was in U.S.A. for the last six months and that they are not doing any business. They would come back to Pakistan and establish their business. She further stated that "they are directors in Hamid Limited and they are also partners in some business and firms but she did not know in how many firms they are the partners". In reply to yet another question she deposed: "My sons are the proprietors of some concerns but they are not the sole proprietors". She also deposed that "her sons wanted to establish office on the first floor of Hamdi Chambers".

16. It was on the basis of the above-referred evidence that the learned Rent Controller held the case of personal bona fide need of appellants Nos.3 and 4 to be highly doubtful and further observed that "there is no proof enough that these brothers do desire to acquire this premises for their personal use and occupation for operation of the apparel business".

17. On the basis of the above referred contradictory evidence of the appellants' witnesses regarding the issue in hand, the funding of the learned Rent Controller I think, is in no way open to any serious attack. It has been clearly admitted by P.W. Latif M. Hamid that Naveed has been doing business in U.S.A. for the last 5/6 years and he usually remains outside Pakistan. Regarding the other brother (Nadeem) he has deposed on 4-4-84 i.e. after a year of the filing of the ejectment application or which he is also a signatory, that he had in the recent past completed his studies and wanted to start the business. He has thus not supported the case of these two appellants as set up in the application regarding their personal bona fide requirement. The statement made by P.W.2 Humayun Latif in para 8 of his affidavit-in-evidence was also shattered during his cross examination when in reply to a question he deposed: "We intend to open show rooms of the garments after getting the vacant possession of the premises. This idea has, however, been deferred". P.W. 3, Mrs. Shirin Asghar, I find, has controverted the statements of the above two witnesses in certain material aspects. The overall effect of the evidence led on this issue is that the case as set up m the application could not be proved.

18. It may further be observed that the appellants No.3 and 4, as it now transpires from the evidence of the above-said three witnesses, did not disclose all the material facts regarding their business activities and engagements which leads to an inference that had it been as done it would have been detrimental to their claim.

19. For the foregoing reasons I do not feel inclined to interfere with the impugned order on this issue. The appeal, therefore, fails in that behalf.

20. This takes me to the next issue concerning the default in payment of rent, for the period from January, 1983 to April, 1983 at the rate of Rs.1,000 per month. This issue has also been decided, as already stated by the learned Rent Controller in the negative. Here I find it difficult to endorse the finding of the learned Rent Controller. The case of the respondent was that he had paid the rent for the months of January and February 1983 through cheque sent to the appellant vide serial No: 33 of the Peon Book (Ex.1 /24). The rent for the months of March and April 83 was paid through cheque dated 11-4-1983 for Rs.2,000 sent to the appellants through letter dated 11-4-1983 by registered post acknowledgement due. It was refused by the applicants and the same was returned to the respondent undelivered. The learned Rent Controller has placed reliance on the above said entry at Serial No 33 of the peon book which indicated that two letters dated 9-1-1983 and 10-1-1983 had been received by P.W. Humayun Latif. The learned Rent Controller then held: "If the applicants deny to have received the letter of the Respondent dated 10-1-1983 and the cheque, the burden lay on them to so prove. They have failed to disprove the contention of the tenant and, therefore, it is concluded that the letter and the cheque were actually received by Humayun Latif on 10-1-1983". He also stated that the refusal to receive the letter dated 11-4-1983 by the appellants was for the reason that they had instituted the rent application.

21. A bare perusal of Entry 33 on Peon Book (Exh.l/24) evidently shows that the words "one letter dated 9-1-1983, one letter reg. Rent Cheque dated 10-1 1983" have been inserted later on obviously, as rightly contended by Mr. Hasan A. Shaikh, with mala fide intention to cover up the default. Such a suggestion has been made to the respondent during his cross-examination although he repelled it as being incorrect. The P.W. 2 Humayun Latif and so also the P.W. 1 Latif Hameed have specifically deposed that the said letter was not received by the appellants. During the cross-examination of Latif Hameed it was suggested that the respondent had told him on telephone about the rent for January 1983 but he repelled the said suggestion as being incorrect. He clearly deposed that he had not asked the respondent Agha Mohsin Jafri to send rent through cheque. It is pertinent to note that no such plea was taken in the written statement and hence an effort was made by the respondent to improve the case at the evidence stage, but with no success. Likewise P.W. Humayun Latif repelled the suggestion that his father P.W. Latif Hameed had asked the respondent on 10-1-1983 to send the cheque for the month of January, 1983. He has also denied the receipt of letter Exh.l/23. He has categorically stated that vide Peon Book entry Exh.l/24 he had not received two letters from the Respondent but he had received only one letter. He has also deposed that the second entry has been fabricated by the Respondent to save himself from the consequence of the default.

22. On the basis of the evidence thus prevalent on record there is no escape from the conclusion that the default had been committed in respect of payment of rent for the months of January, 1983 to April, 1983.I would also like to mention that the rent was payable in advance every month as is clearly borne out from the Schedule of payment of rent for the months of July 1980 to December 1982 filed alongwith the written. statement. It clearly shows that the rent for each month had been paid mostly during the first week of that month, i.e. the rent for July, 1980 was paid on 5-7-1980 and that of December 1982 on 8th December 1982. The position of payment in respect of all the months is exactly the same.

23. For the foregoing reasons the impugned order of the learned Rent Controller on this issue is reversed and it is held that the respondent is a defaulter in payment of rent for the aforesaid months. The appeal, therefore, succeeds on this ground.

24. There remains now to be considered only the validity or otherwise of the finding of the learned Rent Controller on above reproduced issue No.3. I have carefully gone through the evidence of the parties concerning this issue and I am of the view that the learned Rent Controller has rightly appraised the evidence of the parties in reaching the conclusion that no damage has been caused to the building by the respondent. In his affidavit-in-evidence, P.W. H. Abdul Latif has deposed that he was afraid that the heavy load of books will damage the first floor resulting in the damage of the whole building. P.W.2 Humayun Latif has also not specifically said that the building has been damaged by the respondent. He has placed reliance on the Certificates issued by architect Allauddin Abdullah Mian, Munshi, the Certificate issued by architect Moinuddin. P.W. Matinuddin architect and engineer in his affidavit-in-evidence has admitted the issuance of certificate on 1-2-1979. He has then stated that in case the load over 27kg. per sq. feet is put ;t may be dangerous and damage may occur to the building. During cross examination he. admitted that the appellants had drafted his affidavit-in-evidence and that he had signed it in his office. The learned Rent Controller has rightly pointed that P.W. Latif Han-iced had admitted that so far no damage had been caused to the building. The allegation regarding the installation of cooler or air -conditioner having caused damage to the building is beyond the pleadings and hence it does not require any consideration. There is, therefore, obviously no good reason for me to disagree with the finding of the learned Rent Controller.

25. In the result, the appeal partially succeeds and is allowed thereby ordering the eviction of the respondent from the demised premises. I would, however, allow the respondent four months' time to vacate the premises and hand over its peaceful possession to the appellant subject to his paying/depositing the monthly rent regularly. The failure to comply with this condition shall render the Respondent liable to be evicted from the demised premises, forthwith without notice. A.A./L-31/K Appeal allowed.