1989 PLP 1441 (CLC)

(iii) What should the order be?

5. The appellant has examined himself (P.W.1), while the respondent has examined himself (D.W.1), Muhammad Ibrahim (D.W.2) and Barkat (D.W.3).

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 dismissed the application for ejectment.

7. I have heard Mr. Anwar Ahmad Khokhar learned counsel for the appellant and Mr. Shaukat Ali Jamali, learned counsel for the respondent. I have also examined the record of the case carefully.

8. Admittedly the tenancy is regulated by an agreement (Exh.13). According to this agreement the rent was to be paid to appellant/landlord by 5th of each month against a receipt. The appellant has alleged default from November, 1984 to February, 1985. He has also stated so in his affidavit‑in‑evidence. He has, therefore, discharged the onus which lay upon him. The respondent claims to have paid the rent to appellant for this period in the following manner: (a) By way of adjustment of excess rent charged at Rs.400 P.M., without getting the first floor constructed. (b) By way of adjustment from the security deposit of Rs.10,000 lying with the appellant. (c) By claiming set‑off in respect of Rs.2,500 borrowed by the appellant during the course of business dealings. (d) By making payment of the rent for these months in presence of Muhammad Ibrahim (D.W.2) and Barkat (D.W.3).

9. The plea raised at (b) finds place in para No.2 of the written statement in the following words:‑ "It is submitted that the opponent is old tenant in the rented shop prior to execution of rent agreement dated 20‑9‑1976. Previously rate of rent was Rs.250 P.M. There had been civil litigation between the parties. The applicant had agreed that the rent of the shop would be Rs.250 P.M. and the rent of first floor to be constructed by the applicant, would be Rs.150. The applicant has not yet constructed first floor of the disputed shop and has mala fide been collecting excess rent of Rs.400 P.M., with the undertaking that the same would be adjusted in future."

10. This plea is, however, belied by the respondent himself, when he admits in cross‑examination as under:‑ "It is correct to suggest that applicant reconstructed the disputed shop after demolishing it after sanctioned approved plan. It is correct to suggest that staircase goes from shop on the first floor. The room on the first floor is in my possession and my articles are lying therein."

11. The agreement of tenancy (Exh.13) recites in clear terms that the amount of Rs.10,000 is not to be adjusted towards arrears of rent. The legal position in this regard is well‑settled. The case of Mrs. Zarina Khwaja v. Agha Mahboob Shah, reported in PLD 1988 SC 190, is self‑explanatory.

12. The plea of set‑off raised at point (c) in para.8 was not specifically pleaded in the written statement. It cannot, therefore, be set up at some subsequent stage. Even otherwise the averment made in para. 3 of the written statement is destructive to this plea of adjustment of loan of Rs.2,500 alleged to have been taken by the appellant from the respondent.

13. Lastly an attempt has been made by respondent to prove payment of rent from November, 1984 to February, 1985 to the appellant in presence of Muhammad Ibrahim (D.W.2) and Barkat (D.W.3). It is the case of the respondent that rent for the months of November and December, 1984, was paid in December, 1984, while rent for the months of January and February, 1985, was paid in the month of March, 1985, and on both these occasions Muhammad Ibrahim (D.W.2) and Barkat (D.W.3) were present. This is a pretext which is easy to invent and is always found in the mouth of witnesses who are set up. Quite admittedly the shop of Muhammad Ibrahim (D.W.2) is situated at a distance of about two furlongs from the shop of respondent, but still he was present at the time when both the payments were made by the respondent. It was a lucky coincidence and perhaps one beyond belief for both these witnesses to have arrived at the shop of the respondent exactly at the time when payments were made to the appellant.

14. Admittedly the parties are related to each other. They have got business dealings also, as both are goldsmith by profession. There was, however, previous litigation between the parties and the respondent would not have made payment of rent for four months without obtaining receipts when admittedly he was getting receipts previously in respect of each payment. The tenancy agreement (Exh.13), again speaks of payment of rent of each month against a receipt. All these factors when combined together clearly prove the default committed by the respondent for the aforesaid period.

15. The Rent Ordinances took away the right given to a landlord under the general law of land, namely the Transfer of Property Act, to evict a tenant at his will after serving upon him the requisite notice and gave certain benefits to tenants to which they were not entitled before. Hence in construing their provisions we must keep it in mind the principle that those seeking benefits under the Ordinance must bring themselves in the strictest terms within their provisions. One of such provisions among others is that the benefit of these laws can only be given to a person who discharges his own obligation as a tenant, namely, by payment of rent to the landlord on due time or by depositing the same with the Rent Controller in accordance with the relevant Ordinances. (Refer PLD 1961 Dacca 34, Abdul Hafiz Abdul Nabi v. M. Daud Ali).

16. The respondent having failed to pay or tender rent to the appellant for a period of four months has to face the consequences. The finding of Rent Controller on issue No.l, is, therefore, reversed and is decided in favour of the appellant.

17. The appellant has also sought eviction of his tenant on the ground of personal need. He claimed to be in occupation of a shop owned by his mother Mst. Bashiran on a rent of Rs.800 P.M., and that too was vacated by him on her demand. He has produced two receipts (Exhs. 14 and 15), to prove his tenancy. Admittedly the shop which is said to be the property of Mst. Bashiran was in fact owned by Abdul Lateef, father of the appellant, and after his death it was inherited by his mother Mst. Bashiran. The appellant being the son of Abdul Lateef is also a co‑sharer in this shop. The "tenant" as defined by section 2(j) of the Sind Rented Premises Ordinance, 1979, means any person who undertakes or is bound to pay rent as consideration for the possession or occupation of any premises by him or by any other person on his behalf and include ....:' A co‑owner can occupy the undivided share of other co‑owner on undertaking to pay rent in respect of the share of the co‑owner, but in order to prove the same he must come to Court with clean hands. A glance at the application for ejectment will show that the appellant had even concealed his relationship with Mst. Bashiran who quite admittedly was staying in his house. In order to prove his status as tenant of the shop jointly owned by him, the appellant had to produce convincing evidence including that of his mother. Such evidence is lacking in this case. It appears to be a collusive affair. Where the foundation of an issue is laid through a concocted story, the superstructure built on it must fall on the ground.

18. A number of authorities have been cited from both the sides. Since it is a question of fact in each particular case, whether the evidence produced by the parties is sufficient to. prove a particular issue or not, I do not find it necessary to discuss them.

19. In view of my finding on issue No.1, I allow the appeal and set aside the impugned order directing the respondent to vacate the disputed shop within two months. Since the success is divided, I leave the parties to bear their own costs. H.B.T./A‑533/K Order accordingly.