P L D 1999 Karachi 311 (PLP)

This appeal is directed against the order dated 15th March, 1993 passed by the V4-Senior Civil Judge/Rent Controller, Karachi South whereby ejectment application filed on 31-5-1980 by the appellant under section 15 of the Sindh Rented Premises Ordinance, 1979 was dismissed.

2. Briefly stated the facts of the case, relevant for the purpose of this appeal, are that Iqbal Ahmed, the predecessor-in-interest of present appellants filed an application under section 15 of the SRO, 1979 on 31-5-1980 against Irshad Ali Shah the predecessor-in-interest of the present respondent on the grounds of default in payment of rent and personal bona fide requirement seeking his eviction from the house bearing No.l/1 of A.M. 23 situated in Artillery Maidan, Karachi. The rate of rent was Rs.25.50 and it is the case of applicant/landlord that the tenant Irshad Ali paid rent to him for the months of March, April, May and June, 1973 for which receipt dated 10-4-1973 was duly issued to him and thereafter he paid Rs.150 and Rs.100 by way of bearer cheque and cash respectively for which receipt could not be issued by the applicant as he fell seriously ill while Irshad Ali the opponent did not care to collect the same though he was repeatedly reminded through applicant's son. In this way the opponent/tenant paid full rent up to March, 1974 while the rent paid for the month of April, 1974 was Rs.5.50 short of the rent due. It is alleged that Irshad Ali failed/avoided and neglected to pay or tender the rent to the applicant from May 1974 and onwards, besides the arrears of Rs.5.50 for the month of April, 1974.

3. Prior to this, on 5-9-1975 applicant lqbal Ahmed had filed Rent Case No.3249 of 1975 in the Court of XVI-Civil Judge, Karachi for ejectment of Irshad Ali which was dismissed ex parte on 19-2-1979 against which the applicant preferred Rent Appeal No 199/79 in the Court of District Judge, Karachi. The opponent contested the said appeal and filed his counter-affidavit in which he disclosed that he has filed a Miscellaneous Rent Case No.3712 of 1975 in the Court of learned Rent Controller wherein he has deposited the rent up-to-date with the Narir of the Court. Consequently, Iqbal Ahmed withdrew the said appeal.

4. Regarding the ground of personal bona fide requirement the applicant's case is that his three sons were married but he had to arrange marriage of his other two grown-up sons in near future, as such, he required the premises in good faith for his own occupation aid use as also for the occupation and use of his sons. The applicant further mentioned in the ejectment application that prior to Rent Case No.3249 of 1975 he had filed D W. proceedings and had also filed a rent case which was compromised and the proceedings were dropped.

5. Irshad Ali contested the ejectment proceedings and filed his written statement on 23-7-1980, and while admitting the relationship of landlord at tenant explained that he has been residing to the said house for last 31 yea much before the -applicant purchased it front the Settlement Department Regarding the payment of rent, he took the plea that he had paid rent up February, 1975 but the applicant did not issue rent receipts. According to bin the applicant used to collect rent in lump sum for several months but aft February, 1975 he did not come to collect rent and since the opponent did nt know the address of applicant he filed Miscellaneous Application No.3712/7 for payment of rent and then he deposited the rent up-to-date in the Court Additionally, while completely denying the allegation of default in payment c rent, he pleaded that he had paid Rs.250 to the applicant for his operation and Rs.250 for purchasing sewing machine but the said amount was not adjusted b the applicant towards rent. He did not deny the fact of Rent Case No.1249/7 and Rent Appeal No.199/79. He took the legal plea that no permission was granted to the applicant to file fresh rent case, hence ejectment application was not maintainable and barred by res judicata. As regards the personal bona fide requirement of applicant he denied same and explained that the ejectment proceedings have 'been initiated in order to extort higher rent as the applicant demanded exorbitant increase in rent which was not acceded to by him whereafter the applicant avoided to accept the agreed rent.

6. In the proceedings applicant's son Abrar Ahmed (appellant .No.4) filed an affidavit-in-evidence on which he was cross-examined and in rebuttal opponent Irshad Ali filed his affidavit-in-evidence who was also subjected to cross-examination.

7. On the basis of the pleadings of the parties, -learned Rent Controller framed following points for determination

"(1) Whether the opponent has committed wilful default in the payment of rent, If so, since when:' (2) Whether the premises in question is required by the applicant for their personal bona fide use (3) What should the order be?". 8. ' After examining the evidence on record and hearing the counsel for parties the learned Rent Controller held that neither the opponent had committed wilful default in payment of rent nor the premises were required by the applicant: landlord for his bona fide use, anti dismissed the application.

9. I have heard learned counsel for the parties and perused the record

10. After filing of this appeal respondent Irshad Eli Shah died, therefore its L. Rs were joined as respondents Nos. I to 5.

11. As regards the crucial controversy relating to the point. of default in payment of rent the learned counsel for appellants argued that admittedly the rent has been deposited in Court through Miscellaneous Rent Application No.3712 of 1975 for the period commencing from March 1975, whereas, it is the case of landlord/appellants that the tenant paid rent up to April, 1974 and even the rent for the month of April, 1974 was Rs.5.50 short of rent due and for the intervening period from May. 1974 to February. 1975 there is only assertion of the tenant that he had paid the rent and in fact, no proof has been furnished to prove payment of rent for this period as also for the balance of rent for the month of April, 1974 but the learned Rent Controller without recording a clear and express finding on this point as switched on to the legal point that the landlord is entitled only to claim ejectment on the ground of three years' default which when counted from the date of filing of the instant application commences from 1977, whereas, the tenant has been depositing rent since 1975, therefore. he has not committed any default in payment of rent Learned counsel for the appellants relying on Badruddin v. Muhammad Yousuf 1994 SCMR 1900. Pervaiz Akhtar v. The ADJ, Rawalpindi PLD 1990 SC 681 and Ghulam Iasool v. Muhammad Idrees Qureshi 1989 CLC 279 submitted that the conclusion arrived at by the learned Rent Controller was misconceived in law as the superior Courts have clearly held that landlord was not precluded from seeking ejectment on the basis of time-barred rent. According to him this was a clear case of default in payment of rent. Regarding the alleged payment of Rs.500 as loan to the landlord he submitted that, in the first instance, no evidence could satisfactorily be produced to substantiate this point of fact and at the same time nothing could be brought on record that there was a mutual agreement to adjust such an amount towards rent if at all, such payment is presumed to have been made. On the other hand, the learned. counsel for the respondent submitted that the earlier Rent Appeal No. 199 of 1979 was filed under the provisions of West Pakistan Urban Rent Restriction Ordinance, which was dismissed as withdrawn and since there was no specific permission to file a fresh case, the instant ejectment application was not maintainable. However, he reiterated the stand taken by the tenant/respondents that the rent is being deposited by them hence, the ground of default in payment of rent for the purpose of eviction is not tenable in law as it is time-barred. Referring to the answer given by the appellant's witness, during his cross-examination, he pointed out that Abrar Ahmed son of the applicant, Iqbal Ahmed had stated that he did not know if the tenant paid rent up to 1975 and in view of this version he contended that there , in fact, no denial of payment of rent up to February. 1975.

12. I have carefully considered these contentions in view of the law laid down by the superior Courts On factual side it is an admitted position that the tenant adopted the course of depositing rent in Court through Miscellaneous Rent Application No.2712/75 for the period commencing from March, 1975, therefore. he was under a legal obligation to furnish trustworthy and substantial proof regarding payment of rent for the earlier period. The landlord has been agitating since the earliest opportunity that the tenant has failed to payment for the period from May, 1974 and onwards and even the rent for April, 1975 was short of Rs.5.50. This fact, he had stated in his earlier application for ejectment of the tenant, which was dismissed ex parte by order dated 19-2-1979. The explanation on behalf of the tenant is that the applicant/landlord used to collect rent in lump sum for several months at his convenience and did not issue rent receipts although he paid rent up to February, 1975. The tenant Irshad Ali stated, in his affidavit, that he did not know the address of applicant, therefore, he filed Miscellaneous Application for depositing of rent bearing No.3712/75 and then rent was deposited in Court. In fact the tenant was required to take steps and tender rent to the landlord which obligation, in the instant case, he has failed to discharge. A plea was taken by the tenant Irshad Ali that he did not know the address of the applicant, therefore, he filed Miscellaneous Application No.3712/75 for deposit of rent, but when he was cross-examined and cornered by the learned advocate for tenant that he did not know about the space and accommodation of the premises where rhc landlord was residing he came out with a clear and uncontrolled version that he has seen himself the house of applicant during the lifetime of lqbal, the original applicant. This indicates that during the lifetime of landlord Iqbal Ahmed he had been to the latter's house, which of course could he for any purpose, but it at least establishes the fact that when he had a reason to go to the house of landlord/appellant he succeeded in locating it and not only that but he was able to see the house from inside, that is why he asserted that the appellants' house contained five rooms and not three. A reasonable inference can be drawn that it is unbelievable that Ir.-had Ali did not know the address or residence of the landlord for the purpose of tendering rent therefore, he filed miscellaneous rent application.

13. Coming to the question whether ejectment could be sought on the basis of time-barred rent, it may suffice to say that the Hon'ble Supreme Court has given a complete answer to it in the cases reported as Pervaiz Akhtar v. A.D.]. PLD 1990 SC 681 and Badruddin v. Muhammad Yousuf 1994 SCMR 1900 In the former case the Hon'ble Supreme Court observed that limitation in personal action bars only the remedy and does not extinguish the right itself and the fact that remedy is barred by the law of limitation does not itself end the right to which remedy relates. It was held that the "rent due" includes time-barred rent and time-barred rent does not preclude landlord for the enforcement of his right for eviction of his tenant on the ground of default. This authority and a single Bench decision of this Court 1989 CLC 279 were referred to in the case reported as 1994 SCMR 1900. Thus, it stands well-settled that the landlord, even on the basis of time-barred rent would be entitled to file ejectment case on the ground of default under section 15 of the Sindh Rented Premises Ordinance, 1979.

14. The learned Rent Controller has, thus, committed a serious error in ignoring the principles laid down by the Hon'ble superior Courts. I am of the considered opinion that the learned Rent Controller was not justified in holding that the landlord/applicant was entitled only to claim ejectment on the ground of three years' default and that ejectment could not be sought on the basis of default in payment of time-barred rent. Consequently, his finding on this point is 'set aside.

15. Primarily, tenant is under an obligation to prove payment of rent but to the instant case, the tenant has failed to furnish, as already observed in this judgment. a reasonable and satisfactory proof to establish payment of rent for the period from May, 1974 to February. 1975 as also Rs.5.50 for the month of April, 1974 he is as such, defaulter in payment of rent and, therefore, liable to C be ejected on the ground of such default. The mere fact that the appellants' witness showed his ignorance about payment of rent, if any, to his father, would not absolve the tenant of his liability to prove such payment through substantial evidence.

16. A technical objection was raised by learned counsel for the respondents that the affidavit-in-evidence was inadmissible in evidence in view of the law laid down in Muhammad Bashir v. Moinuddin (1990 CLC 703), therefore, the sole evidence being the affidavit of Abrar Ahmed he discarded and in consequence thereof it may be held that the appellants failed to produce any evidence at the trial, It has been held in the aforesaid case that since the witnesses who had filed their affidavits had admitted in cross-examination that they never appeared before the Oath Commissioner or before anybody for statement on Oatb, the. affidavits shall be deemed to have not been attested in the appropriate manner and, therefore, the same could not be relied upon as evidence. In this context it is relevant to point out that learned counsel has relied on the version given by Abrar Ahmed in cross-examination which is in the following words:-- .

I signed this affidavit in Lachmi Building. There was no one else except my brothers where I signed this affidavit."

17. On a plain reading of the above version, it is clear that the question was confined to only signing of the affidavit and not with regard to other procedural formalities which are essentially followed in completing an affidavit up to the stage of its attestation. According to Black's Law Dictionary (Sixth Edition) an affidavit is a written or printed declaration or statement of facts, made voluntarilv, and confirmed by the oath or affirmation of the part making it, taken before a person having authority to administer such oath or affirmation. Thus signing of the affidavit by the deponent and its attestation by the Commissioner for taking affidavits arc absolutely two distinct features in rendering an affidavit complete in all respects for the purpose of being used in .evidence. The most significant aspect of an affidavit for its completion is that the deponent shall solemnly affirm the contents thereof before the Commissioner for taking affidavits provided that contents of such affidavit within the meaning of Order XIX. Rule 3, C.P.C. shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on' which statements of his belief may be admitted- provided that the grounds thereof are stated. In the present case, if such drawbacks were available in the affidavit the learned counsel cross-examining the witness should have specifically put such suggestion to the deponent that after signing the affidavit it was never sworn before a Commissioner for taking affidavits. For the purpose of deriving any benefit from the cross-examination of a witness on material points of fact, a party should ask specifically unreserved questions directly relevant to the issue. In the instant case, the question has been confined to signing of the affidavit to. which the witness has simply replied that it was signed in the Luxmi Building and since there. was no question about its attestation or swearing no plea can be admitted on behalf of the opponent that affidavit was not duly sworn. The case-law cited by the learned counsel for the respondents, therefore, does not help the case of respondents.

18. With regard to the ground of ejectment on the ground of personal bona fide use the learned counsel relying on Hasan Khan v. Munawar Begum PLD 1976 Kar. 832, Haji Abdul Majid v. Khawaja Kamaluddin 1994 MLD 958 and Saifuddin v. Mst. Sher Bano 1994 CLC 1131 submitted that the appellants/landlord have been able to place such evidence on record to prove that the premises was required for personal bona fide use of the landlord as his two sons were yet to be married while the accommodation available with them was not sufficient. While rebutting these arguments learned counsel for respondents relied on Zamir Ltd. v. Collector of Customs 1984 CLC 530 and submitted that the landlord should come to Court with clean hands. He further pointed out that the appellants' witness Abrar Ahmed submitted in cross-examination that they have the same family members as in the year 1974 and since there is no change in the family, relying on Chuttoo Bhai Panwala v. Mst. Sara Bibi 1984 CLC 1769 he argued that the personal requirement of landlord was not established leading to their ejectment. The appellant's witness Abrar Ahmed has stated in clear terms that there are only three rooms in their house at Landhi and no suggestion has been given to him that rooms of that house are more than three.

19. Abrar Ahmed has stated is his affidavit that they required the premise in question for personal bona fide use of himself, his brother Anwar Ahmed and their mother Mst.Siddiqua Begum as she is living wilts him and Anwar Ahmed is supported by them. As against this, the suggestion given in cross-examination is that the landlotd, 'appellants want to give the premises in question on rent after charging Pugn which, the witness has categorically denied. At the time of arguments learned counsel for the respondents stressed that admittedly to the area of Burns Road there is Pugh system, therefore, intention behind seeking ejectment is to let out the house in question on Pugri. The learned Rent Controller has also given much weight to this contention. It can hardly be conceived that the law would permit to draw such a general conclusion that wherever Pugri system is available the intention behind seeking ejectment would be nothing but to earn Pugri by letting the premises again, after succeeding in eviction of the tenant. The Pugri system has never received legal recognition. Each case is to be scrutinized looking to the exigencies and circumstances which may warrant eviction or otherwise, hence in such areas the cases of landlords cannot be defeated solely on the conjectural assumption that they would ultimately benefit by earning more Pugri, therefore, the ejectment application shall be struck down. The merits of the case and not such technicalities shall form basis of deciding the issues concerning ejectment of tenants.

20. The material on record lends support to the plea of landlord that they honestly need the premises for their personal bona fide use in good faith. On this point it has been held in Fasahat Ali v. Mst.Noor Jehan Begum 1991 CLC 1902 as under:- "In a case involving personal requirement covered by section 15 of the Sindh Rented Premises Ordinance, 1979, a landlord has not merely to establish a case of personal need but has also to show that the requirement or need is an honest or bona fide one. Thus, where a landlord had failed to establish any personal requirement at all there was no necessity to go into the further question whether or not good faith had been established. In cases where, however, the element of personal requirement stood proved the Court could not automatically order eviction unless it further satisfied itself that the requirement was also an honest and bona fide one for even where a requirement had been established the case might fail on good faith not having been so established. "

21. The authorities relied upon by the learned counsel for the appellants also lay down more or less the same principles. In Haji Abdul Majid v. Khawaja Kamaluddin 1994 MLD 958 the following observations were made by this Court with regard to ground of personal bona fide use:- " Now it is settled law that in cafe of personal requirement where owner owns more than one property, the choice as to which premises he would like for his needs lies with the owner/landlord. It is the prerogative of the landlord to choose the premises for his personal requirement. The landlord is the judge of the suitability of the premises for his requirement and the tenant cannot have the option to choose which premises would be suitable, for the landlord. In the present case, the evidence of the respondent is quite consistent to the case set up in the application for ejectment . In these circumstances, I find no grounds for interfering with the orders passed by the Rent Controller." 22 The learned Rent Controller has found fault with the case of landlord/appellants on the ground that they have not examined their brother for whom the premises in question were required for personal bona fide use. He has drawn a conclusion that the landlord had failed to succeed in seeking ejectment in his earlier rent case on the ground of default, therefore, he added the ground of personal bona fide use in order to seek ejectment and then let the premises in question for a higher Pugri. These far-fetched conclusions have been drawn overlooking the size of family of the appellants and their clear assertion that they needed the premises for their bona fide use and in good faith. To sum up, on a careful assessment of the evidence on record I am satisfied that the issue on this point was proved by the appellants in view of affidavit of Abrar Ahmed atone. In view of the foregoing discussion, the authorities cited by the learned counsel for respondents, . do not improve the case of tenant/respondents. The finding of learned Rent Controller on this point is also not tenable and is reversed.

23. As regards the plea that the previous Appeal No.199/79 was dismissed as withdrawn, therefore, no fresh proceedings could be filed by the landlord for ejectment, the learned counsel for the appellant submitted that since the respondent had appeared and stated that rent was deposited up to date through a miscellaneous rent application Iqbal Ahmed withdrew the appeal under a bona fide impression that the rent has been deposited up to date. He contended that a false assertion was made by the respondent to make up the deficiency, therefore, the tenant/respondents should not benefit therefrom, as subsequently it was revealed that the rent was not deposited from May, 1974 and onwards but only from March, 1975 and onwards. The only rebuttal to this argument was that no specific permission was granted to refile the case for ejectment. Secondly this issue was not pressed before the Rent Controller, therefore, neither such point for determination was struck nor a finding could be recorded with regard to maintainability of the rent proceedings. At the appellate stage, such additional - issue would not be permitted. Moreover, the ground of personal use was a new ground therefore; maintainability of the ejectment proceedings need not be questioned. The contention in this context is, therefore, repelled.

24. The upshot 'of the above discussion is that the tenant was liable to eviction on the ground of default in payment of rent for the period from May, 1974 to February, 1975 and also part payment of the rent for April, 1974, and so also on the ground that the appellants needed the premises in question for their bona fide use in good faith. Consequently, the appeal is allowed and the respondents are directed to vacate the premises within 60 days hereof. M.B.A./S-214/K Order accordingly