1994 PLP 2127 (CLC)

This appeal under section 21 of the Sindh Rented Premises Ordinance, 1979, hereinafter to be called as `Ordinance', is directed against the order dated 28‑3‑1990 passed by the Senior Civil Judge and Rent Controller, Thatta in Rent Application No. 13/1987, whereby appellant is directed to be ejected from the disputed shop and is ordered to deliver its possession to respondent within 60 days. Facts of the case are that respondent Ghulam Mujtaba filed ejectment application under section 15 of the Ordinance against appellant seeking his eviction from shop situated on CS Plot No. 1539 Ward `A', Shahi Bazar, Thatta. The case of the respondent was that he had purchased the disputed shop through registered sale‑deed dated 11‑5‑1987 from the previous owners Abdul Karim and others. He gave a notice under section 18 of the Ordinance to appellant, intimating him regarding acquisition of ownership right in the said shop and also requiring him to vacate the said shop which was purchased by respondent for his own use and occupation. Respondent in his said notice also called upon the appellant to pay rent of the disputed shop from May, 1987 at the rate of Rs.200 per month. The notice was said to have been served on appellant who neither paid rent nor vacated the shop, consequent upon which respondent filed ejectment application on the ground of default in payment of rent and bona fide personal requirement. Appellant filed written statement and challenged the maintainability of the rent case and the jurisdiction of the Court to try the same. The case of the appellant was that the plot over which disputed shop was constructed belonged to Abdul Karim and others but the construction was raised by him and not by previous owners. The bona fide personal requirement and default was denied. Appellant also stated that he was depositing rent in Rent Case No. 1 of 1980 and the previous owners were withdrawing the rent. It was further stated by appellant that he was paying rent to the previous owner at the rate of Rs.40 per month and the demand made by respondent at the rate of Rs.200 per month was illegal. The appellant denied service of notice and therefore, he did not tender rent to respondent but continued depositing same in Rent Case No. 1 of 1980.

3. Respondent filed his affidavit‑in‑evidence and annexed copy of the PTD, copy of the Sale Deed, copy of the City Survey Extract, postal and acknowledgement receipts, notice sent by his Advocate to appellant purportedly under section 18 of the Ordinance. Affidavit‑in‑evidence of Abdul Karim, one of the previous owners was also filed. Appellant filed his own affidavit‑in‑evidence and that of his witness Pir Muhammad. On perusal of the pleadings and the evidence, the learned Rent Controller framed following issues for determination:‑‑ (1) Whether the present application is not maintainable in law? (2) Whether this Court has no jurisdiction to try this case? (3) Whether the notice under section 18 has been served on the opponent? (4) What is the rate of the rent? (5) Whether the opponent has committed wilful default in payment of monthly rent? (6) Whether the applicant requires the tenement in question bona fidely and in good faith for his own business? (7) What should the order be?

4. Issues Nos. 1 and 2 were not pressed by appellant, Issue No. 3 regarding the service of notice under section 18 of the Ordinance was decided against appellant and on Issue No. 4 the learned Rent Controller held that appellant was liable to pay rent at the rate of Rs.40 per month. The Issues regarding default and personal requirement were decided against appellant and in the result, ejectment application was allowed through the impugned order.

5. Mr. Jhamat Jethanand, learned Advocate for the appellant, has contended that service of notice under section 18 of the Ordinance was denied by appellant and, therefore, there arose no question of his tendering rent to the respondent which appellant was already depositing in Court in the name of previous owner. It is also contended that the affidavit‑in‑evidence of Abdul Karim, one of the previous owners supporting respondent's case clearly shows that both the respondent and said owners were in league to eject appellant from the disputed shop. The learned Advocate has referred to paragraph 4 of the affidavit‑in‑evidence filed by Abdul Karim, who, although had no concern with the disputed shop after it was sold to respondent, yet he appeared in Court and stated that the opponent was defaulter in payment of rent and that it was demanded, and when they proposed to file ejectment application against appellant he started depositing rent in Court arbitrarily. The contention of the learned Advocate is that even prior to the purchase of the shop by respondent, the appellant/tenant was allegedly a defaulter. It is further argued that the learned Rent Controller has misconstrued the provision of law by holding that appellant was a defaulter inasmuch as even after the filing of the ejectment case against him he did not tender the rent to respondent knowingly that the shop was no more owned by the previous owners. On the point of default learned Advocate referred to Ghulam Akbar v. Abdul Rasheed (1991 CLC 959), where this Court observed that where both parties failed to produce any evidence to prove their respective contentions, the tenant could not be accused of any default in circumstances unless specifically established that rate of rent was Rs.300 per month as claimed by landlord. He then contended that the learned Rent Controller erroneously compared the admitted signature of the appellant with his signature on the postal A/D. receipt and arrived at wrong conclusion that notice under section 18 was duly served on appellant and by not tendering rent thereafter he had incurred the liability of being a defaulter. The contention of the learned Advocate is, that the notice under section 18 of the Ordinance and the postal as. well as A/D. receipt were not duly proved by respondent and in the circumstances drawing any conclusion on the basis of comparison of signatures under Article 84 of the Qanoon‑e‑Shahadat,1984 was unwarranted. In support of this contention, learned Advocate referred to the case of Jan Muhammad v. Abdul Nisar (1991 MLD 1631), where a learned Judge of this Court observed that ordinarily it is necessary that documents if tendered in evidence should be in original rather than in the shape of true photostat copy.

6. On the point of personal requirement, it has been argued that it was never stated by respondent in the application that he did not own any other shop in the locality and because of a specific allegation by appellant in paras. 7 and 8 of his affidavit‑in‑evidence that respondent owned other shop as w8ll as business, heavy burden lay on the respondent to prove that he did not own any other shop nor was carrying on any business. No suggestion even is given to appellant in cross‑examination to challenge the veracity of his evidence. Thus, according to the learned Advocate, the ground of personal requirement was also not established by the respondent and the finding of the Rent Controller in favour of respondent needs to be set aside. It is also argued that the respondent had not disclosed as to what business he was to start in the disputed premises and thus the respondent had not approached Rent Controller with clean hands and such fact would reflect upon his bona fide. In support of this contention, learned Advocate referred to Malik Muhammad Ramzan v. Messrs (rcneral Iron Store, Sargodha and others (1984 CLC 2418), where it was observed that where the landlord in his petition had not specifically mentioned nature of business he wanted to start and suppressed material facts that he was owner of other commercial premises, such landlord who had not approached Rent Controller with clean hands, his bona fide requirement was held as not established. Reliance is also placed on Suleman Motala v. Turrab Ali (1984 CLC 2469), where it was held by this Court that bona fide personal requirement was an important factor which affects discretion of Rent Controller. It was also held that landlord had to establish his requirement independently but where requirement is merely a colourable device and concealing real object of enhancing rent, bona fide requirement could hardly be established. Reliance is also placed on Muhammad Aslam v. Muhammad Aslam (1987 CLC 686), where it was held by this Court that to evict a tenant and to uproot his business which he had established for more than 25 years, heavy burden would be on landlord to prove his requirement in good faith. It was also held that where landlord requires premises on ground of personal requirement, he would have to prove bona fide requirement first, before any burden to prove in rebuttal could be shifted upon tenant. The learned Advocate then referred to Sultan Press Ltd. v. Muhammad Hassan (PLD 1985 Karachi 624), where this Court held that the landlord has to prove that he requires premises in good faith and mere wish, convenience, whim or fancy of landlord would not be enough to show that he requires the premises in good faith. The learned Advocate also contended that the service of notice under section 18 is mandatory and appellant had specifically denied such service of notice on him. In the circumstances, no default could have been attributed to appellant who was continuously depositing rent in Court and the previous owners were withdrawing such amount‑The contention of the learned Advocate is that the result of the observations of the learned Rent Controller in considering presumption of service of notice ocf appellant by comparing the admitted and disputed signatures itself, did not meet the requirement of law and independent proof for same was needed which never came forth. In support of this contention, learned Advocate referred to Muhammad Siddique v. Muhammad Illyas (1979 CLC 720), Muhammad Nawab and 4 others v. Post‑ master General, Karachi and 2 others (1990 CLC 1708), Mrs. Zulekha v. Mirza Fazal Karim (1987 CLC 695) and Mst. Bismillah Begum v. Fazal Muhammad (1987 CLC 1113). Mr. K.B. Bhutto, learned Advocate for the respondent/landlord, has contended that the notice under section 18 of the Ordinance was despatched of the correct address of the appellant and same was served on him on 1‑9‑1987 but because the appellant denied his signature on postal A/D. receipt, the learned Rent Controller was right in comparing his signature on the receipt with the admitted signature on other documents. Such power vests in Rent Controller under Article 84 of the Qanun‑e‑Shahadat and no illegality was committed by the learned Rent Controller in arriving at a conclusion with regard to service of notice on appellant and holding him a defaulter, as he did not pay rent after service of notice. In support of such contention learned Advocate referred to Ashfaq v. Suleman (1985 CLC 2374), where this Court observed that the requisite notice under section 14 having been despatched through registered post to tenant by landlord which stood corroborated by evidence of postal acknowledgement receipt and no evidence in rebuttal except bare denial by tenant and held that the notice was validly served on tenant. Reliance in this respect is also placed on Mst. Muhammad Nisa v. Anwer Ali (1989 CLC 157) and Israr Ahmed v. Abdul Aziz (1987 CLC 336). It is then argued that even after receiving notice of the ejectment application filed against him, the appellant did not pay rent to the respondent and has thus committed wilful default as held in the case of Basit Yar Khan v. M/s. Pak Craft Emporium and others (1986 CLC 555). Mr. Bhutto next contended that after proper service of notice under section 18 of the Ordinance, the appellant should have paid rent at the rate of Rs.40 per month which, according to him he was paying to the previous owners but he did not pay rent to the respondent and instead continued depositing rent in the name of previous owners. Thus the appellant cannot wriggle out of the default and the finding of Rent Controller, therefore, needs no interference. The last contention of the learned Advocate is that respondent owns no other premises in his name in the locality and the disputed shop was purchased by him for his own bona fide personal use. It is also argued that because respondent has not mentioned in his ejectment application that he did not own other premises in the locality, such would be no ground for presuming mala fide of the respondent or that he did not approach the Rent Controller with clean hands. All that a landlord is required to do is, to prove that the premises in occupation of his tenant for which he seeks tenant's eviction are genuinely required by him bona fide and in good faith. The burden was duly discharged by the respondent by stating on oath that he required the premises for his own use and which if not shaken in cross‑examination had to be accepted by the Rent Controller, as is done in the instant case. 6‑A. I have heard the learned counsel at length, perused the record as well as the case‑law referred. The respondent had proved through evidence that he acquired ownership right of the disputed shop under a sale‑deed, got his name mutated in the City Survey Record and thereafter served the required notice under section 18 of the Ordinance. The service of notice although denied by appellant was duly proved by respondent. The Rent Controller on the basis of oral denial of the appellant regarding service of notice was justified in comparing appellant's signature on A/D receipt with his admitted signature on the written statement and affidavit‑in‑evidence. The conclusion arrived at by the Rent Controller regarding the service of .notice, is unexceptionable. After service of notice the appellant continued depositing rent in the name of previous owners and even after the filing of rent case, he did not pay rent to the respondent. Appellant was thus a defaulter and such issue was rightly resolved by the Rent Controller against appellant. On the ground of bona fide personal requirement, all that has been stated by appellant is that respondent and his relations are big businessmen having so many shops in the town of Thatta. The ownership of property by the relations of respondent would be no ground that may operate as a bar against a landlord who himself does not own I any property in the locality. The burden was on the appellant to show that the respondent in fact owns other premises in the locality or that his requirement thus was neither bona fide nor in good faith. Such evidence in rebuttal has not been adduced by the appellant: No documentary evidence was produced by appellant to show that respondent owned other premises. The finding of the Rent Controller on that issue again is maintained and need no interference. For the aforesaid reasons, the appeal merits no consideration and is dismissed with no order as to costs. The appellant shall vacate the disputed shop within four months from today. AA./M‑1962/K Appeal dismissed.