2012 PLP 2695 (YLR)

SALMAN HAMID, J.

Against the concurrent findings of the two courts below, the petitioner has preferred present petition, background of which is that the respondent No.1 in the first instance filed Rent Case No.1418 of 2005; (Rent Case) against the petitioner for his eviction from ground floor consisting of a hall measuring 166 square yards in a building raised and constructed on Plot bearing No.5-A, Mehmoodabad gate, Karachi, known as Tauheed Centre, (Demised Premises) on the grounds of default in payment of rent of March and April, 2005, unauthorized construction/impairment; personal bona fide need and subletting. Rent Case was decided by the VII-Senior Civil Judge and Rent Controller, Karachi, South, (Rent Controller) in favour of respondent No.1 by Order of 27-11-2006, (Order) on the grounds of default, unauthorized construction/impairment and personal bona fide need whereas subletting was decided against him (respondent No.1). Respondent No.1 did not agitate the ground of subletting before higher forum. However, the petitioner assailed Order of the Rent Controller by filing First Rent Appeal No.394 of 2006, (FRA) but to no avail which was dismissed by the I-Additional District Judge, Karachi, South (I-ADJ) by upholding on all three grounds, Order of the Rent Controller.

2. Before the courts below it was argued by the petitioner that though the rent of March and April, 2005 was received by the respondent No.1, receipts were not issued and therefore, the respondent No.1 after sending money order for the month of May, 2005 and its refusal by respondent No.1 started depositing it in MRC No.625 of 2005, (MRC). As to the unauthorised construction/impairment, it was stressed that since there was no prohibition in the Rent Agreement dated January, 2002, (Rent Agreement) as to creation of a tanoor despite the fact that the Demised Premises were let out to run a restaurant, it was understood that tanoor would be constructed and all the excavation that was made in the Demised Premises was in respect thereof by which no impairment had been caused and/or the construction was not unauthorised. It was also raised that by installation of a board/hoarding on Demised Premises no easementary rights of the petitioner had been affected inasmuch as the windows of the house available above the Demised Premises had not been blocked by such hoarding. With regard to personal bona fide need, all that was asserted was that since for whose need the Demised Premises were required did not come forward by way of their evidence, such was not proved and that upon petitioner's demand of 22 square yards from the respondent No.1, available adjacent to the Demised Premises, Rent Case was filed on the grounds of personal need wherein other grounds were also raised.

3. On same lines, as detailed above, learned counsel for the petitioner argued before this court, but added one more argument which was never raised in the Rent Case or in the FRA or even in the petition i.e. that the respondent No.1, under the Sindh Rented Premises Ordinance, 1979, (SRPO) was not entitled to seek ejectment of the respondent No. 1 from the Demised Premises inasmuch as it was used as "a hotel" and by virtue of Clause (h) of section 2 of SRPO, Premises mean, "a building or land let out on rent but does not include a hotel."

4. Combating the above arguments, learned counsel for the respondent No.1, regarding default, argued that Exhibit 0/10 which was a Money Order would clearly show that rent of March, April and May 2005 was attempted to be tendered to the respondent No.1 and the respondent No.1 on his turn refused to accept same by endorsing on it that since the petitioner had failed to make payment of rent of months of March and April, 2005, rent of May 2005 together with the rents of March and April, 2005 cannot be accepted, whereafter the respondent No.1 started depositing the same in MRC and by such time, the petitioner had already committed default, also evident from the MRC, wherein again it was mentioned in paragraph 4 that the respondent No.1 did not issue rent receipt of March and April 2005. As to the impairment, it was argued that there was no question of permission for creation of tanoor, implied or express, by the respondent No.1 as tanoor was already in existence at the time of Rent Agreement and impairment was made to Demised Premises and/or unauthorised construction was made when tanoor was shifted and large part of the Demises Premises was excavated at which time costly floor tiles had also been removed. Application to police station concerned was also made regarding unauthorised construction and impairment but to no avail as respondent No.1 was Ex-Counsellor and politically well connected. It was also contended that two illegal water connections from front side and one illegal water connection from the backside of the Demised Premises were made and that sewerage line was mixed up with the underground water tank. As to the personal need, it was specifically mentioned that respondent No.1's son and daughter were to commence their own business in the Demised Premises, which was sufficient to show bona fide need coupled with the fact that the respondent No.1 was in occupation of no other building in his own name or ownership where he or his son and daughter could commence business. It was also mentioned that the petitioner was nobody to decide/choose as to whether the personal need was bona fide or not. As to the argument of non-application of SRPO by virtue of the Demised Premises being a hotel, it was mentioned that such argument cannot be raised by the petitioner at this stage as it was not brought up before the two courts below or even before this court when this petition was filed. It was also asserted that even otherwise the argument is lame inasmuch as the MRC which was preferred by the petitioner itself shows that the petitioner was a tenant of the Demised Premises which are being used as "Khan Brothers Restaurant" and that it was the petitioner himself who invoked the jurisdiction of the Rent Controller by preferring MRC which he has now attempted to deny. It was also argued that section 2 (h) of SRPO provides that only 'hotel' is not included in the definition of premises and 'restaurant' is nowhere excluded from the definition of premises. Therefore it was argued that the Rent Case was maintainable. It was next contended that the petitioner cannot for the first time and that too during the course of arguments raise such point when the two courts below examined the entire evidence that was brought on record and this court while exercising constitutional jurisdiction, at best, would look into the evidence already available and see if it was appreciated rightly by the courts below and would not decide if the two courts below on the basis of evidence could have reached to some other conclusion.

5. I have heard learned counsel for the petitioner and respondent No.1 and have perused the record. It is clear from Exh.O/11, (Money Order) that rent for the month of May, 2005 was sent to respondent No.1 which was refused by the respondent No.1 on the ground that the petitioner had by such time committed default in payment of rents for the months of March and April, 2005. Clause 5 of the Tenancy Agreement shows that the tenancy commenced on 1st February, 2002 which was to continue at the will of the parties and therefore, shows that as on the date of filing of the Rent Case, the Rent Agreement was subsisting and therefore, by virtue of Clause 2 thereof respondent No.1 was to make payment of rent in advance by the 10th day of each English calendar month, which it seems from Money Order, (Exh.O/11) was not paid in time and therefore default had been created. As far as impairment/unauthorised construction of the Demised Premises is concerned, though it may be true that nowhere in Rent Agreement it is mentioned that before creation of tanoor or any other addition or alteration to the Demised Premises permission had to be sought, which according to the petitioner was implied permission, at the same time it can be safely concluded that since obtaining of permission was silent per the Tenancy Agreement, substantial addition and alteration is always with the consent and concurrence of the landlord and just cannot be unilateral as was presumed by the respondent No.1, more particularly when the tanoor was already in existence and therefore even implied permission as contemplated by the respondent No.1 was not available. Even if it is accepted that such was the case, (creation of a tanoor) still erection of hoarding and hampering easementary rights of the petitioner and obtaining illegal water connections and mixing of sewerage water in water tank and non maintenance thereof and seepage of water in the foundation shows that the Demised Premises was used unauthorizedly and/or there was unauthorized addition or alteration and impairment to it. Therefore on this account as well the petitioner was liable to be ejected. As to the personal need, again it has come on record that the need of the petitioner was bona fide inasmuch as it was specifically mentioned by the respondent No.1 that his children had to commence business in the Demised Premises and it is also an admitted position on record that no other property for commencement of the business was available with the respondent No.1 and even if such would have not been the case, again the petitioner was nobody to pick and choose for the respondent No.1. Personal need of the petitioner could not be shattered by the respondent No.1 through evidence, cogent or otherwise and therefore, such also goes in favour of the respondent No.1. As to the ground of non-applicability of SRPO to Rent Case, same is preposterous inasmuch as petitioner was running a restaurant and MRC also reflects such position which was filed by the petitioner. Restaurant is not included in the definition of the Premises as given in section 2(h) of SRPO whereby jurisdiction of Rent Controller and/or application of SRPO is ousted. These are the reasons for dismissal of the petition on 29-11-2011. KMZ/M-27/K Petition dismissed.