MOAZZAMUDDIN BAQAI Versus ABDUL HUSSAIN TAHIR ALI

This appeal under section 21 of the Sind Rented Premises Ordinance, 1979, is directed against the order dated 29‑10‑1984. passed by VIIth Senior Civil Judge and Rent Controller, Karachi, whereby the application for ejectment filed by the appellant against the respondents was dismissed.

2. The appellant is the landlord of commercial premises bearing No.G‑4/S.B‑6/38, Saddar Bazar, Karachi, which is on lease with the respondents at a monthly rent of Rs.100. The assessment of the premises was revised and in consequence thereof the appellant demanded a sum of Rs.525 p.m. as rent, which was refused by the respondents. On 17‑9‑1976, the appellant filed an application for ejectment under section 13 of the Sind Urban Rent Restriction Ordinance, 1959, against the respondents on the grounds of default in payment of rent and personal requirement for the use of his son Muhammad Aslam Baqai who is to be established in life.

3. The respondents disputed the allegation of default. According to them the agreed rate of rent is Rs.100 p.m. The requirement of the premises by the appellant was also quPStioned by the respondents an the following grounds disclosed in para 4 of the written statement:‑

"The opponents vehemently deny that the applicant requires, the demised premises in good faith for the use of his son, as lleged in paragraph 4 of the application. It is respectfully submitted that the applicant having allowed the opponents to spend large sums of money in renovating the shop premises for their business use is estopped from raising the alleged plea and in view of what is stated hereinabove it is submitted that there is no good faith."

(4)The appellant has examined himself (P.W.1), while the respondents have examined Saifuddin (D.W.1) on their behalf.

(5) On the basis of evidence both the oral as well as documentary, the learned Rent Controller decided both the issues against the appellant, hence the present appeal.

6. Admittedly the premises in dispute was transferred to the appellant under the Displaced Persons (Compensation and Rehabilita tion) Act, 1958 (vide Exh.A/1). The relationship of landlord and tenant in respect of a premises which was previously an evacuee property and which has been transferred under the provisions of the above Act to any person, is to be governed by section 30. In such an exigency the person in possession of the premises becomes the tenant of the transferee on the same terms and conditions as to payment of rent or otherwise on which he held it immediately before the transfer. The transferee could, however, demand rent on the basis of latest assessment by Municipal Committee or other authority. The provisions of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, are, however, not attracted in this case. It is not the case of the appellant that the respondents were occupying this premises at the time of its transfer to him. The Rent Note (Exh.A/2) clearly shows that the landlord has handed over vacant possession of the said premises to the tenant in pursuance of this agreement. In such a situation the revision of assessment, if any, has hardly any bearing upon the, quantum of rent agreed by the parties.

7. The appellant has alleged default in payment of rent from March, 1968. Admittedly there is written tenancy agreement between the parties (Exh.A/2). Para No. 2 of this agreement refers to payment of rent in the following words:‑

"That the landlord has agreed to rent out the premises bearing No.SB‑6/38(G‑4) Shahrah‑e‑Iraq, Karachi to the aforestated B tenant on a monthly rent of Rs.100 (Rupees one hundred only) which the tenant will pay to the landlord regularly." Clause (1) of. subsection (2) of section 13 of the Sind Urban Rent Restriction Ordinance, 1959, refers to the ground of default, where; "the tenant has not paid or tendered rent due by him in respect of the building or rented land, within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord, or in the absence of any such agreement within sixty days from the period for which the rent is payable."

8. Since no time was fixed for payment of monthly rent in tenancy agreement the tenant could avail the grace period of sixty days from the time when the rent became due. The rent for the months of March and April 1968, was tendered through money order on 13‑5‑1968 C which the appellant admittedly refused. The rent was sent to the appellant on number of times, through money orders but they were refused and thereafter the rent was deposited in the office of Rent Controller. The appellant has admitted this tender of rent at the rate of Rs.100 p.m. He has simply tried to justify its refusal on the ground that proper rent was not offered.

9. Having regard to the above position, coupled with the fact that property tax amounting to Rs.332.82 was also paid by respondents on behalf of appellant, I am of the view that no default in payment of rent was committed by them.

10. A landlord is entitled to get a non‑residential building in possession of his tenant vacated, if

(a) the landlord requires it in good faith for his own use or for the use of any of his male children;

(b) he or his said child is not occupying any other such building which is suitable for his needs in the same urban area for the purpose of his business; and

(c) he has not vacated such building after the commencement of the Ordinance, viz. Sind Urban Rent Restriction Ordinance, 1959.

11. The appellant requires the premises in dispute for running a DAWAKHANA by his son Muhammad Aslam Baqai. He has developed this case in his cross‑examination in the following words:‑

"My son Aslam Baqai was working in my DAWAKHANA when I filed this case. My son Muhammad Aslam Baqai does not own D any degree or certificate or diploma to run DAWAKHANA. My son does not possess any degree or qualification certificate from TIBB. Voluntarily says, but it is our ancestral profession."

12. Section 24 of the Unani, Ayurvedic and Homoeopathic Practitioners Act, 1965, which was further amended by Unani, Ayurvedic and Homoeopathic Practitioners (Amendment) Ordinance, 1978, lays down that every person who passes the qualifying examination in the Unani or Ayurvedic system of medicine from a recognized institution may apply for registration. Section 37 of the said Act further provides that persons not registered are not allowed to practice TIBB. The object for which the vacant possession of the disputed premises is sought by the appellant is thus illegal, inasmuch as the right to practice TIBB by Muhammad Aslam Baqai will not be recognised by the law. The appellant, therefore, cannot claim possession of the disputed premises for the purpose which is in violation of law.

13. When confronted with this situation, the learned counsel for the appellant submitted that the disputed premises is required for selling Unani medicines and not for practising TIBB. The appellant, however, speaks otherwise. The extract from his cross‑examination which I have reproduced above makes the intention of the appellant clear. In ordinary meaning DAWAKHANA means a dispensary.

14. The learned counsel for the appellant has further contended that a party cannot be allowed to prove a fact which he never alleged in his written statement. Reliance is placed upon the case of Amin Yousuf Nizami v. Rashid Rayon Mills, reported in P L D 1971 Kar. 505, wherein it was observed that the entire case must be stated in the pleadings and the case not pleaded in the written statement, cannot be set up during the course of trial. There can be no cavil with this proposition of law, but the learned counsel for the appellant should have known that the burden of proof plays an important part in deciding a particular issue. The onus of proof that the premises in dispute is required for the purpose which is legal is certainly upon the landlord.

15. On overall appraisement of the entire evidence in the case and on considering the legal position, I am in agreement with the view taken by the learned Rent Controller. The appeal has got no merits and is dismissed accordingly with no costs.

M.B.T./M‑682/K Appeal dismissed .