1994 PLP 1769 (CLC)

(c) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑ ‑‑‑‑S. 15(2)(ii)‑‑‑Personal bona fide need of landlord‑‑‑Landlord had fully established that he had experience in business which he intended to start in premises in dispute‑‑‑Personal bona fide requirement of landlord that he wanted to establish particular business in premises in dispute with the help of his son, had not been challenged by tenants in cross‑examination of landlord‑‑ Desire of landlord to engage himself in business in which he had sufficient experience could not be rejected in absence of any evidence to the contrary‑‑ Landlord was entitled to be put into possession of premises in dispute on ground of personal requirement. Ahmed Mian v. Afzal Book Centre 1991 CLC 2076 and Mst. Razia Khatoon v. Abdul Razaq 1991 CLC 1236 ref. Shaikh Hamid Hassan for Appellants. Azhar Ali Siddiqui for Respondent. Date of hearing: 26th January, 1993. The respondent had sought the eviction on the ground of default in the payment of rent for the period August 1987 to February 1988 and on the ground of personal requirements of respondent's son Shujauddin. The defence taken up by the appellants in their written statement was that rent had been paid for the disputed period and even the receipts had been obtained but they were destroyed when the house of the appellants was burnt in the riots in February 1988 and on the point of personal requirements of the landlord's son it was claimed by the appellants that the landlord was already in possession of many shops and some of them were still lying vacant on the date of the filing of the written statement which was filed on 31‑5‑1989. On the assessment of the evidence led by the parties before him, the learned Rent Controller came to the conclusion that the respondent/landlord was entitled to eviction on both the grounds and vide judgment dated 13‑11‑1991 granted the ejectment application. The appellants/tenants have assailed the impugned judgment on the ground that the learned Rent Controller did not properly assess the evidence brought before him by the parties. Both the learned counsel for the parties have been heard and record perused.

2. Actually, the original tenant was late Mushtaq Hussain, husband of appellant No.l and father of appellant No.2, and it was contended by their learned counsel that successor‑in‑interest of the deceased tenant are not responsible for the default of the original tenant and their predecessor‑in- interest. This proposition appears to be untenable. The successors‑in‑interest of a deceased tenant simply step into the shoes of the latter and they cannot be suffered to say that they would be entitled to all the legal rights to which the deceased tenant was entitled but will not be liable to answer for the liabilities of the deceased tenant. Such a proposition of law would be against all the norms of equity and justice. I, therefore, reject this plea of the learned counsel for the appellant. He had relied upon the judgment in the case of Haji Ahmed Haji Abdur Rehman v. Late Syed Nazir Hussain Shah (PLD 1987 Kar. 603) in support of this proposition but I find that this judgment does not in any way support the view propounded by the learned counsel. I was referred to the first para. at page 607 but all that is stated in this para. is that the practice of collecting rent in lurifip sum was existing between the parties and the landlord had refused to accept the tender of rent through money order and, therefore, it was held that the successors of the deceased tenant were not responsible for the alleged default. As such this judgment is not relevant in the present case. I also note that in the same paragraph reference is made to the case of Zakullah and another v. Safdar and others reported in 1986 SCMR 1873 in which leave to appeal was granted to consider the points whether the legal heirs of the tenant are liable for the default committed by the original tenant and here I may say that, firstly, this Judgment 1986 SCMR 1873 had not been produced before the Court and, therefore, it cannot be stated whether leave to appeal was granted to consider this point and, secondly, grant of leave to appeal does not mean that that the point at issue was decided to the satisfaction of learned counsel for the appellant. Under the circumstances, I reject the contention of the learned counsel that legal heirs and successors‑in‑interest of a deceased tenant are not responsible for the default committed by the tenant; in my view, the legal heirs and successors‑in‑interest of a deceased tenant are responsible for the default committed by the tenant.

3. The payment of rent for the disputed period having been denied by the respondent/landlord, the onus shifted upon the appellants to prove the IF payment and the only point to be considered is whether their plea that the receipts had been burnt in the fire which consumed their house is sufficient to l sustain the plea raised by them. In para. 4 of the written statement the appellants had stated that even in the lifetime of the original tenant (late Mushtaq Hussain) his elder son Muhammad Aftab was doing business in the demised shop alongwith his late father and after his death he continued doing business in the shop, now jointly with his mother (appellant No.l). As such, if anyone had any personal knowledge about the payment of rent for the disputed period, apart from late Mushtaq Hussain who is now no more in this world, it is appellant No.2 Muhammad Aftab but I find that he did not examine himself as a witness in support of this plea. Instead, Muhammad Iqbal, brother of appellant No.2, filed his affidavit‑in‑evidence. Obviously, he was not doing business in this shop during the lifetime of his father nor he is doing any business in this shop even now and as such he cannot be expected to have any direct knowledge about the payment of rent for the disputed period and I find force in the argument of learned counsel for the respondent that whatever Muhammad Iqbal stated in his affidivit‑in‑evidence was merely hearsay notwithstanding the fact that he was holding power of attorney on behalf of the appellants. Since the receipts pertained to the shop, it is not clear why they were kept in the house. In the normal course of business, these receipts should have been kept at the shop. The house of the appellants no doubt appears to have been burnt down as F.I.R. Exh.0/3 was recorded at the instance of the State but whereas a list of a number of things are mentioned in the F.I.R., the rent receipts did not find a place in it. I do not find myself inclined to consider the plea of the learned counsel for the appellants that merely because fire had occurred in the house of the appellants, it should be presumed that the receipts had been burnt. Then learned counsel for the appellants argued that under the circumstances of the case the appellants were entitled to the use of discretion in their favour even if the default was proved and he relied on the judgment in the case of Muhammad Younus v. Mst. Hajra Bibi (1989 SCMR 1670). Under the repealed Urban Rent Restriction Ordinance, 1959, the Rent Controller had the discretion to order or not to order the ejectment of a tenant found to have wilfully defaulted in the payment of rent. However, the present law which is Sindh Rented Premises Ordinance, 1979 gives no descretion to the Court and, under it, it is incumbent upon Rent Controller to order eviction of the tenant if default in the payment of rent is established. Moreover, under the 1979 Ordinance the default may only be a default simpliciter because the qualifying adjective "wilful" which was used in the repealed Ordinance is not used in the Sindh Rented Premises Ordinance, 1979. In the reported judgment relied upon by the learned counsel for the appellants, there was default of only over a month and under the peculiar circumstances of that case this default was condoned. However, in the present case default is of full seven months. In this connection, learned counsel for the appellants referred to the following sentence in the cross‑examination of the respondent "I do not know whether in the year 1988 the house of deceased Mushtaq Hussain was set on fire or that Mushtaq Hussain showed me F.I.R. in this respect or requested for re‑issuing the rent receipts from August 1987 to February 1988. It is a fact that due to that incident I have filed the present case". On the basis of the above‑quoted portion of the cross‑examination of the respondent, learned counsel for the appellants argued that the respondent had admitted that the ejectment case was filed by the respondent after he had been informed by the deceased that his house had been burnt and the rent receipts for the disputed period had been destroyed in the fire. I do not agree with the interpretation put by the learned counsel for the appellants on the above‑quoted portion of the cross -examination of the respondent. The respondent had denied the entire case set up by the appellants and, therefore, he simply could not admit that he had filed the rent case after he came to know that the rent receipts had been destroyed in the fire. In all probability the word "not" appears to have been inadvertently left out from the last sentence in the above‑quoted portion of the cross- examination and instead of writing "it is not a fact" learned Rent Controller has inadvertently written "it is fact". This can be the only logical interpretation of the last sentence in the above‑quoted portion of the cross‑examination; otherwise this last sentence would make no sense and would not properly co relate with the earlier portion of the above‑quoted cross‑examination. I am, therefore, of the view that the appellants had failed to show that the rent of the disputed period had been paid. I, therefore, find myself in agreement with the views of the learned Rent Controller and I, therefore, uphold the decision on; the point of default.

4. The second ground on which the eviction of the appellants has been allowed is the personal requirements of Shujauddin, son of the respondent. It was stated by the respondent in para. 9 of the ejectment application that he wanted to start his own business of carpet in the said premises with the help of his son Shujauddin. The bona fides of the requirements of the respondent do not appear to have been challenged in the cross‑examination of the respondent. However, it was argued by the learned counsel for the appellants that the respondent was already in possession of three shops, one being I situated at Tariq Road and two shops m the same building. As far the Tariq Road shop, learned counsel referred me to the following admission by the respondent in his cross‑examination "it is a fact that my son Saleem Chishti is running a photostat shop at Tariq Road". I fail to see how the above‑noted `admission' proves that the Tariq Road shop is in possession of the respondent. In the first instant, the Tariq Road shop is not owned by the respondent as he had so stated in the very next‑.sentence in his cross‑examination and the appellants have led no evidence to show that the said shop was the property of the respondent. Secondly, the said shop is in possession of another son of the respondent who is doing some business therein and even if this shop belonged to the respondent, it would not prevent him from seeking the eviction of the appellants on the ground that he required the demised shop for himself running a carpet business with the help of his another son Shujauddin. As for the other two shops allegedly in possession of the respondent, it was argued by the learned counsel for the appellant that a relative of the respondent by the name of Irfan was doing typing work in another shop in the same building where the demised shop was located and, therefore, this shop should be deemed to be in the possession of the respondent. I do not agree with this logic of the argument of the learned counsel. In this regard I was referred to another portion of the cross‑examination of the respondent wherein the respondent had denied that Shop No: 20/3‑D, Nursery Commercial Area PECHS, Karachi, was in his possession but had added that it was in possession of his sister's son Imran who was doing typing business in it but was not paying any rent to him because he was his relative. This hardly amounts to showing that this shop is in possession of the respondent. Learned counsel for the appellants did not refer to any third shop allegedly in possession of the respondent. After going through the evidence on the point, I am of the view that the respondent is not in possession of any shop.

5. As for the bona fides of the requirements of the respondent, he had stated in para. 8 of his ejectment application that even in the past he was doing the business of carpet under the name and style of M/s. Radiant Carpet Corporation and that he was doing this business in the demised shop itself which he had later on rented out to the deceased Mushtaq Hussain. In support of this plea he had placed on record a Letter‑Head of Radiant Carpet Corporation which gives the address of the demised premises (Exh.F/1). Learned counsel for the appellants relied on two judgments to show that under the circumstances of the case the respondent was not entitled to be put into possession of the demised shop on the basis of his personal requirements. These judgments are in the cases of Ahmed Mian v Afzal Book Centre (1991 CLC 2076) and Mst. Razia Khatoon v. Abdul Razaq (1991 CLC 1236). I fail to see how these judgments are relevant in the present case. In the first judgment I was referred to the last para. at page 2079 (side marked `D') but here it is stated that "the learned counsel for the appellant informed that the possession of one of the shops has been delivered to the appellant in execution proceedings. The appellant has given a bald statement, shorn of all the necessary ingredients which could establish bona fides of the requirement. The learned Rent Controller has, therefore, rightly refused to grant eviction on the mere ipsidixit of the appellant". These observations are of hardly any relevancy to the present case. In the above‑noted second judgment, the facts were that out of the two adjacent shops, one was already got vacated by the landlord while the other was also claimed by him for personal requirement of his son and yet, while one shop was already available to him and no further details had been brought on record to justify the requirements of yet another shop and, therefore, the bona fides of the personal requirement were rejected. This judgment is also totally irrelevant in the present context. The respondent has not got vacated any adjacent shop and he is not in possession of any shop whatever. As I have already noted above, the personal requirements of the respondent, that he wanted to establish carpet business in the demised shop with the help of his son Shujauddin, had not been challenged in the cross examination of the respondent. As would appear from the Letter Head E Exh.F/1 the respondent had already been carrying on carpet business in the demised premises himself. He thus has experience in the carpet business and his desire to engage himself in this business cannot be rejected in the absence of any evidence to the contrary. I am, therefore, of the view that the respondent is entitled to be put into possession of the demised shop on the ground of personal requirement as well and the findings of the learned Rent Controller in this regard are also upheld.

6. In view of the above discussion the appeal fails and is dismissed. The appellants are, however, allowed four months' time to put the respondents into possession of the demised shop. The parties are left to bear their own costs. H.B.T./R‑238/K Appeal dismissed,