1997 PLP 646 (CLC)

Date of hearing: 7th March, 1996. This is a First Rent Appeal filed by appellant Abdul Rauf under section 21 of the Sindh Rented Premises Ordinance, 1979 (hereinafter called the "Ordinance"), against order, dated 25th July, 1993, passed by Vth Senior Civil Judge and Rent Controller, Karachi (East) in Rent Case No.180 of 1990, whereby ejectment application, filed under section 15 of the Ordinance by the appellant was dismissed.

1. The facts giving rise to this appeal, briefly stated, are that the appellant filed the above ejectment application, under section 15 of the Ordinance on the ground of default and personal bona fide use, stating therein that he is owner/landlrod of shop No.3, situated on Plot No.1/382, Main Bazar, Drigh Road, Karachi, and respondent is his tenant at the rate of Rs.130 per month. The respondent has always remained irregular in payment of rent and has committed default from December 1989. The appellant requires bona fidely the said shop for use of his two grown‑up children, as they want to start their business.

2. The respondent filed written statement in which he denied the allegations of the appellant and stated that the appellant had been running "Rauf General Store" at Shop No.l of the same building since 1968. Recently he rented out the said shop on huge Pugree to Ziauddin in the month of January, 1990. The children of the appellant are minors and school‑going, therefore, the requirement of the appellant is not bona fide.

3. Appellant Abdul Rauf filed his affidavit‑in‑evidence. Respondent Shah Nawaz, filed his affidavit and affidavit of his witness Naseem Ahmad Jalali. All these witnesses were cross‑examined by the Advocates of the parties. After the conclusion of the proceedings, learned Rent Controller decided both the grounds of ejectment against the appellant and dismissed the ejectment application on 25th July, 1993, against which the present appeal has been preferred.

4. Learned counsel for the appellant has relied upon the cases of Rahmat Khan v. Mst. Hamida, reported in (1992 MLD 1685), Rahmat Khan v. Abdul Razzaque, reported in (1993 CLC 412), Allah Din v. Habib, reported in (PLD 1982 Supreme Court 465), Khawaja Imran Ahmad v, Noor Ahmad and another, reported in 1992 SCMR 1152 and Haroon Kassam and another v. Azam Suleman Madha, reported in (PLD 1990 Supreme Court 394).

5. Learned counsel for the respondent has relied upon the cases of Mukhtar Ahmad v. Muhammad Saleem Bakhshi, reported in (1991 CLC 1047) and Sir E.H. Jaffar and Sons Ltd. v. Sultan Karam Ali and others, reported in (1995 SCMR 330).

6. On the issue of personal bona fide need the appellant has filed his affidavit‑in‑evidence in which he categorically stated that the said shop is required bona fidely for his use and for the use of his two grown‑up children who wanted to start his business. The respondent's counsel has contended that the appellant has not disclosed as to which business he wants to start and has also not given the source of the funds required for such business. The appellant has also admitted in his cross‑examination that during the pendency of the case, Shop No.2 had become vacant and the same was given to one Waseem on rent. According to the learned counsel since the appellant did not occupy the vacated shop, therefore, his personal need is not genuine and has filed the present application mala fidely as he is interested in Pagri and enhancement of rent. The appellant in his cross‑examination has denied this allegation and has stated that he has not received any Pagri or advance amount from any tenant. In my humble view it is the prerogative of the landlord to decide which shop is required by him for his need. Mere fact that during the pendency of the case one shop was given on rent by the appellant, would not disentitle him from his personal need. It has been observed in the case reported in PLD 1990 Supreme Court 394, as under:‑‑ ?

It is by now the settled law that if the landlord possesses more than one house in the same urban area the choice, as to the house in which he would like to live in, is surely a matter within his prerogative and discretion and the law does not give either to the tenant or the Rent Controller the power to determine where the landlord should personally reside (Sabu Mal v. Kika Ram alias Heman Das, 1973 SCMR 185). Earlier in the case of Nooruddin and others v. Asghar Ali and others (1968 SCMR 1087) a somewhat similar situation was noted inasmuch as another flat in the same building had fallen vacant, which the landlords had let out to another tenant and failed to utilize it for themselves. In the circumstances, it was held that the question as to which portion of the building would suit the landlords better must be left to their discretion and there was nothing unreasonable in the landlords insisting that a particular portion of the building should be made available to them. This view has consistently been followed by us as pointed out by the learned counsel for the respondent, the latest authority being the one reported as Sardar Khan v. Riaz Ahmad and others (1986 SCMR 1981)."

7. In the above reported case the landlord had let out 20 flats in a building owned by him which had fallen vacant from time to time and had failed to occupy any of them, but in spite of that it was held that it is choice of the landlord as to in which house he would like to live. In the present case also the tenant has failed to prove any mala fide of the appellant, therefore, in my humble view the need of the appellant is genuine as he wants to start his own business in the shop in question with the help of his two grown‑up sons. The finding of the learned Rent Controller is, therefore, not correct on this issue.

8. On the issue of default the appellant has stated in the ejectment application as well as in his affidavit‑in‑evidence that the respondent has been always irregular in payment of rent on the due dates i.e. on or before 5th of each due month. He had warned the respondent to pay the rent in time. According to him the respondent has failed to pay the rent with effect from December, 1989. The respondent in his affidavit‑in‑evidence has denied the allegation of the appellant and has stated that he had never committed default in payment of rent and it was the appellant who used to issue the receipts late although the rent was always paid in time. According to him the rent for the month of December, 1989 was paid to the appellant vide Receipt No.22 dated 5‑1‑1990 and thereafter the appellant did not turn to collect the rent for the month of January, 1990 onwards, therefore, the rent was remitted for two months on 10‑3‑1990 and 18‑3‑1990 through money order, but the same was refused, therefore, he started depositing rent in Miscellaneous Rent Case No.200 of 1990. The respondent's counsel had got produced four rent receipts in cross‑examination of the appellant as Exhs.A‑1 to A‑

4. The appellant admitted three receipts, but he denied to have issued the last receipt i.e. Exh.A‑

4. I have compared all these receipts and the signatures of the appellant and have come to this conclusion that Receipt No‑22 (Exh. A‑4) bears the signature of the appellant and is genuine receipt, by which he had received the rent up to December, 1989.

9. Admittedly there is no written agreement of tenancy between the parties and the rent receipts filed in the Court show that the rent was always paid on or before 5th of each calendar month when the rent had become due. In the ejectment application as well as in the affidavit‑in‑evidence the appellant has specifically asserted that there was mutual agreement between the parties and the rent was payable on or before 5th of each due month. This fact has not been denied by the respondent, but on the contrary he has stated that the appellant has always been collecting rent regularly on due dates, but he never issued receipts on the dates when the rent was paid to him. This contention of the respondent is not correct as the rent receipts produced by him as Exhs. A‑1 to A‑4 through the appellant show that the rent of August 1989 was paid on 4‑9‑1989, October, 1989 on 5‑11‑1989, November, 1989 on 5‑12‑1989 and December, 1989 on 5‑12‑1990, which proves that there was a mutual agreement between the parties and the rent was payable on or before 5th of each month when the rent had become due. According to section 15(2)(ii) of the Ordinance, grace period for payment of rent is 15 days when the period has been fixed by mutual agreement and it is 60 days when there is no such agreement. Mutual agreement does not mean that it should be necessarily in writing. It can be an oral agreement and this fact has not been denied by the respondent that there was a mutual agreement between him and the appellant regarding the mode of payment of rent. In view of this position the grace period as stated above is 15 days that means the rent for the month of January, 1990 was due on 5th February, 1990, the grace period is given then it will become due on 20th February, 1990, but admittedly the rent has been sent through money order on 10th March, 1990. The explanation of the respondent/tenant that the appellant had not come to collect rent has got no force as it is the duty of the tenant to pay the rent within time. For the reasons I am of the opinion that wilful default has been committed by the respondent.

10. For the above discussion and reasons I reverse both the findings of the learned Rent Controller and allow the ejectment application filed by the appellant under section 15 of the Sindh Rented Premises Ordinance, 1979. The appeal is accordingly allowed with no order as to costs. The respondent is directed to hand over the vacant and peaceful possession of Shop No.3, in house No.1/382, Main Bazar, Drigh Colony, Karachi, to the appellant within a period of four months from the date of this order. H.B.T./A‑40/K ?????????????????????????????????????????????????????????????????????????????????? Appeal allowed.