P L D 1976 Karachi 1231 (PLP)

3. The Rent Controller remained unimpressed with the landlord's contention that he wanted to expand his clinic and develop it into a full?fledged hospital and that his three children will join him in the profession. He found that none of his children were working with the doctor landlord at the moment; that his son, who was studying in America was not to return for three more years; that his daughters were working elsewhere and it was not- the landlord's case that he was facing shortage of accommodation. The evidence, according to the Rent Controller, did not disclose the pressing need but only a desire to get the premises in question. The Rent Controller also found no merit that the appellant in Second Appeal No. 478 of 1970 had committed default and, accordingly, by a single order dated 18-11-1969 rejected both the applications.

4. In Appeal the learned Additional District Judge, Karachi reversed the order made by the Rent Controller and granted both the applications in terms prayed for. The Appellate Court was impressed by the deposition of the landlord and the correspondence produced by him which according to him showed that the landlord wanted to expand his clinic and have X-Ray, Pathological and Maternity Home sections and that he had got his children educated and wanted them to assist him in the medical profession and develop the clinic in question into a full-fledged hospital. He further held that on account of inadequate accommodation he was greatly handicapped; that his son was to return from U. S. A. in July 1969. The Appellate Court was of the view that it was not necessary for the landlord to prove that his requirements were pressing for it was enough to show that it was bona fide. He further held that when the question of landlord's own use is considered it can be considered in relation to his children also when they are grown up and are shown to be of assistance to him in the profession he is carrying on in the premises. The learned Additional District Judge was further of the view that the requirement of the landlord appeared to be not only for better purpose, namely, for expanding the entire clinic to cover X-Ray, Pathological and Maternity purposes but also for providing work to his son and daughters and the medical profession being in the nature of public service and for public utility, it had to be given preference to the requirement of an individual.

5. Mr. Sharifuddin Pirzada, the learned counsel for the appellant in Second Appeal No. 478 of 1970 made two preliminary submissions which have substantial bearing on the merits of the case. The learned counsel contended that the Rent Ordinance was eclectice in nature and ameliorative in purpose. He referred to the preamble of the Rent Ordinance which is to restrict, in public interest eviction of tenants and that under section 13 (1), a tenant could be evicted only in accordance with the provisions of that section and not otherwise; that the onus was on the landlord to establish that he was entitled to the possession of the premises in occupation of a tenant by bringing himself within exceptions to subsection (1) of section 13 of the Rent Ordinance. The learned counsel went on to argue that a landlord seeking eviction of a non-residential premises must affirmatively prove that he required the premises in good faith for his own use and for the use of his male children and that this heavy burden must be discharged by the landlord. Mr. Ali Ahmad Fazeeel, the learned counsel for the landlord while refraining from challenging this legal position relied on the observations of the Supreme Court of Pakistan in the case of Mohammad Bashir v. Mst. Rehmat Bibi and others (1970 S C M R 478) that- "This question of onus has no important bearing on the case because both the parties have led evidence in support of their case." In the above case the contention of the petitioner was that the onus to prove that respondent No. 1 was not the daughter of one Noor Mohammad son of Sharaf Din was wrongly placed on him. At the trial the petitioner had examined as many as 18 witnesses and the respondent No. 1 had examined 10 witnesses. The three Courts, including the High Court found no inadequacy in the evidence for they after examining the evidence on the whole found the evidence adduced by the respondent No. 1 to be more weighty and credible. The observations of the Supreme Court reproduced above have, therefore, to be understood in this context. Mr. Sharifuddin Pirzada invited my attention to the following observations of the Privy Council in the case of Monaka and others v. Madha Rao and others (AIR 1950 P C 25):- "This disposes of the main question raised in the appeal, but as it has been contended by Mr. Dingle Foot that the learned Judges of the High Court misdirected themselves on the question of onus of proof, their lordships will deal with the argument raised in this connection. Mr. Foot has suggested that the learned Judges misconceived the position when they said that the burden of explaining away the endorsement on the mortgage deed was on the plaintiffs. Inasmuch as all the relevant evidence had been given (so it was said) the case fell within the observations of Lord Dunedin in Robins v. National Trust Co. Ltd. (1927 A C 515 at 520) and 'the Court should have regarded the question of onus of proof as being of no importance." The above observations of the Privy Council were approved by the Supreme Court of Pakistan in the case of Mst. Qaisar Khatoon and 12 others v. Maulvi Abdul Khaliq and another (P L D 1971 S C 334):- "In any event the question of onus of proof has lost its importance now after all the relevant evidence has been adduced and placed on the record (vide Monaka v. Madha Rao A I R 1950 P C 25). The question of the burden of proof becomes material only where the Court finds the evidence so evenly balanced that it can come to no definite conclusion (vide P L D 1948 P C 148). In such an event the rule is that the party on whom the onus lay must fail. This, however is not the case here. for, the evidence is, by no means, evenly balanced."

6. In yet another recent decision reported in Mst. Khatun v. Malla and others (1974 S C M R 341), the Supreme Court has observed as under:- "It is now well settled that where evidence has been led by both sides and considered, the question of onus loses its importance. Where the whole of the evidence is before the Court and it has no difficulty in arriving at a conclusion, it becomes unnecessary to enter upon a discussion of the question of onus (vide Muhammad Aslam Khan v. Feroze Shah A I R 1932 P C 228) and (Nand Kishwar Bux v. Gopal Bux Rai A I R 1940 P C 93)."

7. In the present case the facts to be proved by the landlord were specially within his knowledge and the landlord will have, therefore, to rely all the more on the strength of his own right and clearance of his own proof and not on the want of right or weakness of proof of his adversary.

8. In the present case, therefore, Mr. Sharifuddin Pirzada, the learned counsel for the appellant-tenant contended that the landlord should have affirmatively proved that the premises in his occupation was inadequate for the purpose of alleged expansion of his clinic and more so, as the tenants had proved that he was in possession of as many as 10 rooms and suggestion made to him in the cross-examination that his existing practice did not justify the alleged expansion. In his application the landlord stated that be had already established a Maternity Home in his portion of the building and desired to extend his dispensary for setting up a laboratory for X-Ray and Pathological examinations and that he required in good faith the premises in occupation of the tenants for his personal use and for the use of his children. In his deposition he stated that he was running his clinic in the name of Khan Clinic and "now I want to expand it for X-Ray Section, Pathological and Maternity Section." It will be noticed that according to the application the landlord had already established a Maternity Home in the portion in his occupation while in the evidence he seeks the premises in occupation of the tenants not only to have X-Ray and Pathological Sections but also Maternity Sections. In his cross-examination he has further admitted that "I have set up four rooms as Maternity Home. I have set it up for my children," and that "I would accommodate my children in the present shop." The children to be accommodated are his two daughters of whom one was House Surgeon in Civil Hospital and the other was receiving Post Graduate Training in Jinnah Hospital, while the third was his son who was then in America and was going to return in July 1969. His own evidence therefore, shows that he does not need any extra room for the purpose of having a Maternity section. No attempt was made to show as to what would be the actual requirement for establishing X-Ray and Pathological Sections or the nature or the area of the existing accommodation except a bare statement that the landlord was greatly handicapped due to shortage of accommodation. What is more important however, is the concession made by Mr. A. A. Fazeel, the learned counsel for the landlord that the landlord was not entitled to seek eviction on the ground that the premises were required for the use of his female children. He did, however, contend that the landlord wanted to expand his own Maternity Home for his own use and the fact that his daughters will join him in this expansion will not detract from the genuine requirements of the landlord. I am afraid the evidence of the doctor referred to above quite clearly gives the impression that the extra accommodation was sought to accommodate his three children who are doctors. Even if I were to assume that the requirement for extra accommodation by the two daughters was in fact the requirement of the doctor landlord, the omission to examine the two daughters who held independent employment was fatal to the landlord's case and more so as it was the tenant's case that the two daughters were unwilling to join the father in the proposed expansion. In this connection Mr. Sharifuddin Pirzada, invited my attention to a case reported in Peer Muhammad v. Haji Abdur Rashid (1968 S C M R 959). In this case the `landlord bad sought the eviction of a tenant on the ground that he required the shop premises in occupation of the tenant in good faith for the occupation of his son. The Rent Controller granted the prayer but in appeal the order was reversed as the landlord had not examined his son, the person for whose use the shop was required. The Supreme Court refused to interfere holding that as it was being seriously contested that the alleged -requirement was bona fide, for the relationship between the petitioner and his son were not cordial and the omission to examine the son, who was alive and available, was in the circumstances fatal to the landlord's case. Mr. Fazeel sought to distinguish this case by reference to a case reported in Qamar Raza Khan v. Mst. Rashida Bagum and others (1970 Law Notes 495). In this case the complaint was that instead of the landlord, who had sought ejectment on the ground of bona fide reconstruction, his attorney had been examined. The Court, however, held that building plans duly certified have been produced and the absence of examining the landlord did not vitiate the finding in favour of the landlord. The other case relied upon by the learned counsel for the landlord is a single Judge decision of the Lahore High Court reported in Haji Ghulam Muhammad v. Ghulam Qadir (P L D 1975 Lah. 200), in which the omission to examine the son was not considered fatal to the landlord's case that he required the premises for his own use and use of his son for it had been proved that the son was not doing any business nor was it denied that he was uneducated. It .was in these circumstances the learned Judge found that it ,was unnecessary to examine the son. In the present case the facts are entirely different. The two daughters are highly educated and are indepen?dently employed and they should have been examined to prove that they are ready and willing to join their father in the proposed expansion of the clinic. It is significant to note that though the landlord doctor, according to his evidence had established a Maternity Home in the portion of the property .in his possession, it is not his case that his two daughters were working with him in this Maternity section. It, therefore. remains an open question ,whether or not the two daughters are ready and willing to join their father in the proposed expansion of his clinic.

9. Finally, Mr. Sharifuddin Pirzada made a grievance of the fact that the son for whose use the landlord had sought the accommodation in possession .of the tenants has not yet returned though in the evidence the landlord's case was that he would return by July 1969. Admittedly, the son has not returned though over six years have passed since July 1969. Mr. Fazeel sought to -rely on an additional affidavit filed by the landlord that the reason is lack of accommodation for the son to join his father's clinic. He relied on two letters dated 14-9-1972 and 2-1-1976 from the son to the father regarding his return. These documents, however, are poor substitutes for evidence and the contents of the letters remain unproved for, they are untested by cross-examination. The affidavit of the landlord has to be ignored for he has not made himself available for cross-examination.

10. Lastly, Mr. Fazeel, the learned counsel for the landlord relying on two decisions in the case of Messrs Amir Din Allah Ditta v. Seth Adamji Abdullah and others (1969 S C M R 131) and Muhammad Siddique v. Mistri Muhammad Aslam (P L D 1975 Lah. 308) contended that the tenants were sufficiently protected if the landlord fails to occupy and use the premises for the purpose alleged by him, under the penal provisions contained in subsection (4) of section 13 of the Rent Ordinance. The contention has no force for the Supreme Court ha 8 authoritatively held that the aforesaid penal provisions do not relieve the landlord of the basic onus on him to prove affirmatively that he does require the premises for his bona fide requirement or that of his male child (See Dr. A. R. Khan v. Muhammad Ishaque (1972SCMR437).

11. I am therefore, of the view that the learned Appellate Court has not properly appreciated and at times ignored the material evidence on record nor has he given valid reasons for coming to the conclusion that the premises in occupation of the tenants were required by the landlord bona fide for his personal use or use of his male child.

12. The result is that Second Appeal No. 478 of 1970 succeeds and is allowed with cost.

13. In Second Appeal No. 479 of 1970 the additional ground against the tenants is default in payment of rent, which was set out in paragraphs 3 and 4 of the application as follows : "

3. That the opponent deposited a sum Rs. 13,000.00 as advance rent which was agreed to be adjusted at the rate of Rs. 100 per month towards the monthly rent and promised to pay Rs. 50 per month to the applicant towards the agreed rate of rent but he did not comply with the terms of the agreement and failed to pay the balance of Rs. 50 from 1-4-1960 to 30-4-1960 and thereafter execution proceedings were taken out against him and thereafter Suit No. 578 of 1960 was filed in the Small Causes Court, Karachi for the recovery ?f balance at the rate of Rs. 50 per month and a very little amount was recovered r through the process of the Court.

4. That after calculating and accounting for and adjusting the said advance of Rs. 13,000 at the rate of Rs. 150 per month the total advance amount stood consumed towards the rent more than two years ago. The opponent, in spite of repeated requests and demands, has failed, neglected and/or refused to pay the said arrears till today."

14. The tenant's reply was that in the first instance the agreement arrived at on 1-8-1957, was that the tenant will advance to the landlord a sum of Rs. 13,000 to be adjusted against monthly rent of Rs. 150 at the rate of Rs. 100 per month, and the balance amount of Rs. 30 to be paid every month. Accordingly, the tenant paid Rs. 13,000 on 1-8-1957 against receipt (Exh. 5/9), which acknowledged advance rent at Rs. 100 per month from 1-8-1957 to 31-5-1968. However, after a few days the landlord again approached the tenant and represented to him that Rs. 13,000 was insufficient and demanded another sum of Rs. 4,000 which was advanced by the tenant on 12-8-1957, against receipt (Exh. D/2). This further sum of Rs. 4,000.00 (the receipt Exh. D/2 does not so recite) was to be adjusted against the balance rent of Rs. 50 and as such no rent would be payable by the tenant for another 61 years, when the total sum of Rs. 17,000.00 would stand exhausted. And thus there was no default. The tenant admitted that he had notwithstanding this arrangement, paid voluntarily and through Court process rent at Rs. 50 per month but only because he had misplaced the receipt of Rs.4,

000. The landlord admitted the two receipts of Rs. 13,000.00 and Rs. 4,000.C0 respectively but his case was that he received Rs. 4,OC0.00 on 12-8-1957 and gave to the tenant a Kutcha receipt and the balance of Rs. 9,000.00 was paid to him on 4-9-1957 when he gave the tenant a consolidated pucca printed receipt of Rs. 13,000.00 dated 1-8-1957, being the date on which the tenancy was to begin. The landlord asked the tenant to return the kutcha receipt of Rs. 4,000.00 but he said that he had misplaced it. Admittedly, the receipt dated 1-8-1957 for Rs. 13.000.00 was received by the tenant on 4-9-1957 for 13,000.00 was received by the tenant on 4-9-1957 for its counterfoil is signed by him and under the endorsement "received" he gave the date 4-9-1957. The Rent Controller found in favour of the tenant holding that "it was highly unbelievable that the landlord issued a receipt of Rs. 13,000 without getting a single pie and when actual payment was made on 12.8-1957 then issued another receipt for Rs. 4,000 00" and that if the landlord "had already issued the receipt then there was no idea in again issuing the receipt for the same amount."- The Appellate Court believed the landlord's version and held that `a sum of Rs. 13,000.00 only had been paid by the tenant. He referred to the landlord's several proceedings? civil suit and Distress Warrants-for recovery of rent at Rs. 50 per month, and the tenant's failure to mention the additional payment of Rs. 4,000.00 and submitting to a decree for arrears of rent at Rs. 50 per month for the periods alleged by the landlord. He did not believe the tenant's. version that he had misplaced the receipt for Rs. 4,000.00. There was sufficient material on record to enable the lower Appellate Court to come to a finding that the tenant's version that he had paid Rs. 17,000.00 was false. The Rent Controller had ignored the fact that the receipt for Rs. 13,000.00 was not delivered to the tenant until 4-9-1957 and that the receipt notwithstanding the payment of Rs.4,000.00 by the tenant on 12-8-1957 and the alleged agreement that it will go towards future adjust?ment at Rs. 50 per month, went on to recite that advance payment of rent had been received from 1-8-1957 to 3!-5-1968 at Rs. 1t 0 per month. He also ignored that in continuous litigation between the parties since 1960-61 it was never the tenant's case that he bad paid Rs. 17,000.00 to the landlord. it was the tenant's case that the lost receipt of Rs. 4,000.00 was found by his father, the appellant in Appeal No. 478 of 1970, while the tenant was in U. K. in the year 1967, but significantly the father was asked no such question. As was pointed out by Mr. Fazeel, the tenant was admittedly in Pakistan on 1-2-1968 and by that time he must have been informed by his father about the receipt of Rs. 5,000.00 but all the same the tenant in Miscellaneous Rent Application No. 5 of 1968 dated 1-2-1968 admitted that he was in arrears of rent for the period 1-11-1957 to 31-3-1959 and from 1-4-1960 to 31-4-1960 and sought permission to deposit the rent in Court. This deposit was in fact C relied upon by Mr. A. Rauf. the learned counsel for the tenant in support of this alternative contention that the tenant had not committed any default but this deposit is of no avail to the tenant and will not exonerate the default committed by him in terms of section 13 (2) (i) of the Rent Ordinance. See 1972 S C M R 262.

15. The result is that the finding of fact arrived at by the First Appellate Court that the tenant had committed wilful default accords with the evidence on record. The Second Appeal No. 479 of 1970 fails on this ground and is dismissed with cost. The tenant will have one month's time to vacate the premises. S. Q.? ???????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? ????????????????? Order accordingly.