SHER AFGAN Versus Sheikh ANJUM IQBAL

NAZIM HUSSAIN SIDDIQUI, CJ.‑‑ ‑This appeal by leave of this Court is directed against the judgment dated 31‑3‑1996 of a learned Judge in Chambers, High Court of Sindh, Karachi, whereby First Rent Appeal No.393 of 1989 was dismissed and the order of the learned Rent Controller, Karachi East, dated 11‑5‑1989 was maintained.

2. Appellant, Sher Afgan, is the owner and respondent, Sheikh Anjum Iqbal, is the tenant in respect of two shops, situated on plots Nos.23‑24/C, Tariq Road, PECHS Society, Karachi, hereinafter referred to as "the premises", at a consolidated rent of Rs.1350 per month excluding electricity, water and conservancy charges and as per agreements dated 3‑1‑1973/5‑4‑1973 the rent was payable in advance by four quarterly instalments at the intervals of three months viz. on 1st January, 1st April, 1st July and 1st October of each calendar year. The eviction of the respondent was sought on three grounds, (1) default in payment of rent for the months of April, May and June 1978; (2) structural alteration in the premises, thereby adversely affecting its value and utility; and (3) personal bona‑fide requirement. During the course of arguments, the ground of alleged structural alteration in the premises was not pressed.

3. Learned Rent Controller framed the issues having taken into consideration material propositions of law and facts raised by one party and denied by the other and dismissed the eviction application vide judgment dated 11‑5‑1989. Being dissatisfied, the appellant preferred appeal before High Court, which also met the same fate. Hence this appeal.

4. Leave to appeal was granted to consider the following:‑

"(i) Whether rent for the quarter commencing from 1 st April, 1978, was payable in advance and its subsequent deposit in the Court on 10‑7‑1978 constituted default under the law?

(ii) Whether discretion exercised by both the Courts below in condoning the default on above ground as found in affirmative was repugnant to spirit of law and in excess of authority vested in them'?

(iii) Whether Courts below were justified in overlooking the admitted facts that petitioner after receiving education had arrived in Pakistan and being unemployed wanted to start his business?

(iv) Whether landlord could be denied right of personal use of property despite preponderant evidence showing his bona‑fide/ merely because he did not have any previous experience of business?

(v) Whether evidence brought on record had been completely mis read by the two forums below causing miscarriage of justice and what would be its effect'?

(vi) Whether the Courts have failed to evaluate the evidence showing unauthorized structural changes affecting value or utility of the "commercial premises" despite same was vigorously pressed?

5. It is contended on behalf of the appellant that both learned Controller and learned Single Judge of High Court have failed to appreciate the facts in their true perspective with reference to the plea of default in payment of rent and reached wrong conclusion. Learned counsel for the appellant also argued that, in spite of the fact that the respondent in cross‑examination clearly admitted that rent for the period commencing from April 1978 to June 1978 was not paid in time, yet, the Courts below condoned the delay on the grounds, which are not sustainable in law. It is also urged that the ground of personal bona fide requirement was established by irrefutable evidence but both the forums below also turned it down on the flimsy grounds.

6. As against above, learned counsel for the respondent vehemently argued that both‑the grounds were not established and the judgment delivered by learned Rent Controller and affirmed by High Court is perfectly in consonance with the evidence brought on record and no interference is warranted.

7. In order to appreciate the respective contentions of the parties, it would be appropriate to refer the definition of "rent" as appears in section 2(i) of the Sindh Rented Premises Ordinance, 1979. hereinafter referred to as "the Ordinance", and its section 10 relating to "payment of rent", which are as follows:‑

S.2(i) "rent" includes water charges, electricity charges and such other charges which are payable by the tenant but ace unpaid.

S.10. Payment of rent .‑‑‑‑(1) The rent shall, in the absence of any day fixed in this behalf by mutual agreement between the landlord and tenant, be paid not later than the tenth of the month next following the month for which it is due.

(2) The rent shall, as far as may be, be paid to the landlord, who shall acknowledge receipt thereof in writing.

(3) Where the landlord has refused or avoided to accept the rent, it may be sent to him by postal money order, be deposited with the Controller within whose jurisdiction the premises is situate.

(4) The written acknowledgement, postal money order receipt or receipt of the Controller, as the case may be, shall be produced arid accepted in proof of the payment of the rent."

8. It is significant to note that the respondent in his cross examination clearly admitted that the rent of, the premises was to be deposited in advance on 1st of January, 1st of April. 1st of July and 1 st of October, as mentioned earlier. He stated that probably he paid rent as per agreement, the execution thereof has also been admitted clearly. He produced 17 rent receipts viz. Exh‑O/ 18 to O/34 and stated that he could not give the dates of 9 of these receipts. He stated that he did not remember if he paid rent on 1st April or not and that also he could not say that when he paid said rent. During his cross, examination on 15‑10‑1988, he was directed, to produce documents/receipts, showing deposit of rent in Court. On the next date viz. on 14‑1‑1989, when he was further cross‑examined, he stated that he had deposited an amount of Rs.8,100 on 10‑7‑1978. He remained evasive if above rent was for the period from April 1978 to September, 1978. Thus, it is evident that the rent for first quarterly instalment viz. April 1978 was not paid in time. Instead of paying it on or before 1st April 1978, the same was deposited through Misc. Rent Case on 10‑7‑1978, which was far beyond the agreed date. Learned counsel for the respondent submitted that, in fact, the appellant was himself responsible for above default, as he was demanding enhancement in rent, which was not only unreasonable illegal but also contrary to law, and, under the circumstances, the default if any, was rightly condoned by the Courts below. A plea was also taken by learned counsel that demand for water and conserving charges was not justified: firstly, for the reason that water supply was discontinued with effect from 5‑2‑1978 and secondly, the appellant did not bifurcate the charges payable by the respondent. It was also urged that after expiry of tenancy agreement the relationship relating to payment of rent and other charges shall be governed by the provisions of the Ordinance.

9. Perusal of subsection (1) of section 10 of the Ordinance reveals that the rent shall be paid by the tenth of the month next following the month for which it is due in absence of any date fixed by mutual agreement between the parties. It is an admitted position that there is an agreement between the parties, whereby the date of payment of rent has been fixed as indicated above. It being so, the rent was to be paid in terms of the agreement.

10. As per para. 12 of the impugned judgment, the respondent unequivocally admitted in hits cross examination that he never paid water and conservancy charges either to landlord or to the department concerned right from inception of the tenancy. Learned High Court while dealing with above admission of the respondent, held that it was for the reason that appellant did not bifurcate the bill payable by the respondent as well as by the appellant. In fact, it was no ground to withhold the above charges and the respondent could himself determine his share and sent the same to landlord, which was not done. From the definition of rent it is clear that rent includes above charges. Default in payment of such charges, renders the tenant liable to be evicted from the premises in view of inclusion of such charges in rent. In fact, such charges are a part of the rent. The covenants of agreement remain operative in spite of expiry of the agreement, which are permissible under general law and are not in consistent to the special law. For this proposition reference can be made to the case of this Court reported as Mrs. Zarina‑ Khawaja v. Agha Mahboob Shah (PLD 1988 SC 190). In view of above, it is evident that default was committed by the respondent in payment of rent and it was wilful.

11. The plea of personal requirement was turned down by High Court on the grounds that on the date the application for eviction was filed, the appellant was studying in U.S.A. and it could not be reasonably and legitimately anticipated that he would need the premises for running his business on his return from U.S.A. after completing his education in Electronic Engineering; that the circumstances tend to show that the requirement of the premises for personal use was not coupled with good faith; that after expiry of the period of tenancy appellant's father through his letter (Exh.A/5) asked the respondent to increase the rate of rent as rent of similar premises adjacent to the premises in question was comparatively higher. Demand of higher rent by itself would not cast any doubt on the personal bona‑fide requirement where the factum of bona‑fide requirement has been conclusively established. Reference on this point can be made to the case reported as Mst Sairal Bai v. Syed Anisur Rahman (1989 SCMR 1366).

12. It is an admitted position that the appellant came back to Pakistan in August 1987 and that he had appeared as a witness in this matter and was cross‑examined. The appellant, in his affidavit of evidence, stated that he was aged about 26 years and intended to establish his own business. He also stated that he had sufficient means of his own to establish the business and also could obtain monetary assistance from his father. He specifically stated that he was not in occupation of any premises in Karachi or elsewhere in Pakistan to establish his business. Learned counsel for the respondent submitted that now the appellant is employed as an officer of D.M.G. Group and it being so there is no possibility that he would quit the job and start business. It is evident that his personal bona‑fide requirement was established when the case proceeded before the Courts below. Now, it is only a presumption that the appellant, being an officer of D.M.G. Group, would not leave the job for doing the business. A presumption is not a proof. The appellant states that he will start his business in the premises. So this ground was also established and personal bona fide requirement was proved.

13. In consequence, the appeal is allowed and the judgment of Rent Controller dated 11‑5‑1989 and that of High Court dated 31‑3‑1996 are set aside. The respondent is directed to hand over vacant possession of the premises to the appellant within a year from 21‑4‑2004 subject to payment of monthly rent in terms of the agreements. In case of non compliance of above direction, the writ of possession shall be issued against the respondent without notice to him.

14. Above are the reasons for short order announced on 21‑4‑2004.

M.B.A./S‑29/S Appeal allowed