ZUBEDA FAQIR Versus BADRUN NISA
This appeal is directed against the judgment of IVth Senior Civil Judge and Rent Controller, Karachi, dated 4‑3‑1984, whereby the appellant was directed to vacate the premises in her possession on the ground that she had not paid rent from October, 1980 and that the premises were needed for the bona fide use of the landlady and further on the ground that the premises have been converted from residential to commercial use.
2. The relationship was admitted between the parties, but the appellant had taken up the position that the premises having been obtained by her through one Muhammad Karim, she had paid the rent to Muhammad Karim upto March, 1981 and thereafter the rent had been tendered by money‑order because the landlady wanted to increase the rent from Rs. 1,000 to Rs.1,500. The need for personal use was also denied and it was asserted that the premises had been taken for the purposes of residence as well as clinic. Another ground of ejectment taken by the respondent was that there had been alteration and addition made in the premises, which had impaired the utility and material value of the premises. The Rent Controller had however, not granted ejectment on that ground. There is no cross‑appeal filed by the respondent and, therefore, the question of impairing the utility and value of the premises is finally concluded.
3. Mr. Farooq H. Naik had submitted that the appellant had established the authority of Mr. Muhammad Karim, who obtained rent from the appellant and remitted the same to the respondents, but the Rent Controller did not believe the same. He particularly placed reliance upon the affidavit of Mst. Zakia, who is the sister of the present appellant and who is the person through whom even the respondent had admitted that the premises had been rented out. Mst. Zakia had stated that the landlady had asked that the rent should be paid through Muhammad Karim who is an officer in State Bank of Pakistan and the husband of the landlady was also an officer in State Bank. I am of the view that the appellant had hardly any justification of paying the rent to Muhammad Karim, who was an outsider. The admitted position is that the landlady is residing on the first floor and the tenant resides on the ground floor and this being the position, it was just appropriate that the rent should have been paid direct by the tenant to the landlady. This was not done and the position is that Mr. Muhammad Karim had obtained the rent from the appellant and in this respect the appellant had to go to State Bank of Pakistan to pay the rent to Muhammad Karim. The surprising thing is that a receipt of Rs. 7,000 has been produced from Muhammad Karim for the rent of October, 1980 to 6th of April, 1981. This shows that there was no regular receipt issued by Muhammad Karim. The conduct of Muhammad Karim is again surprising that he had issued receipt to the tenant, but on his own part he does not take even a single receipt from landlady and for that matter even from her husband. There is not even a single piece of writing from either the landlady or her husband entitling Muhammad Karim to receive the rent on behalf of the landlady and, therefore, it appears to me that Muhammad Karim appointed himself as Attorney of the landlady without any authority from her or from her husband. He did not obtain any receipt on his part from the landlady and, therefore, his assertion that he had paid the rent to Dr. Zubaida (sic) is completely unjustified and to say the least is unreasonable. Another receipt of 2 8‑1980 issued by Muhammad Karim shows that he had received Rs.9,600 from the tenant @ Rs. 800 per month and he had handed over the same to the landlady. I cannot understand as to what was the purpose of issuing this receipt again to the tenant when on 13th of August, 1979 this very gentleman had issued the receipt of Rs. 9,600 for the same period and for the same amount to the tanant. To say the least, his conduct appears to be rather unwarranted.
4. What is most significant to me in this respect is the money order coupons, which had been produced by the appellant while sending the rent from April, 1981 onward, there is not even a mention by the appellant in these money orders that the rent has been paid to Muhammad Karim and, therefore, the introduction of Muhammad Karim as the recipient of rent on behalf of the landlady is merely an afterthought.
5. Since the authority of Muhammad Karim to obtain the rent on behalf of the landlady is found to be completely missing and the appellant does not claim that she had paid rent to the landlady and the allegation of the landlady in application was that rent had not been paid from October, 1980 onwards, it A appears to be sufficient to establish that rent has not been paid by the appellant to the landlady from October, 1980. The agreed rent at this time was Rs. 1,000 per month and, therefore, the appellant was in arrears of rent from October, 1980 to March, 1981 when the application was filed on 9‑5‑1981 and, therefore, her ejectment on this ground was justified. I may also note that there was an allegation that Rs. 6,000 had been paid to the landlady as advance rent, but n receipt for the same has been produced from her and, therefore, the same doe not appear really to have been paid. Again the statement of Muhammad Karim t, that effect is that the same amount is paid to the landlady. It has been stated b every one that it had been paid to the landlady, but the same had been denied b the landlady and there is no receipt in respect of that payment. The statement o the landlady has to be accepted as correct as no receipt from her has bees produced. Rs.6,000 was sufficiently large amount and it could not have been paid without obtaining a receipt for it.
6. The question of personal requirement of the ground floor by the landlady is sufficiently proved from the certificate of the Doctor, produced in respect of the ailment of her husband, but this would have at the most allowed to the landlady to exchange the ground floor premises with tenant and the tenant/appellant could have been directed to go up stairs. I do not rind the need for additional accommodation for the landlady because no such plea had been taken in para.8 of the application. Even in the affidavit of Mrs. Badrun‑Nisa such requirement for additional accommodation had not been alleged. Moreover, it has not been shown as to how many rooms were in occupation of the respondent and what was the additional need for her, therefore, there was no justification of giving additional accommodation to her. The Rent Controller would have been, I however, completely justified, if he had directed the exchange of the premises between the appellant and the respondent. I would, therefore, decide the issue of the personal requirement in the manner as I have indicated above and not that the additional ground floor of the whole building should be made available to the respondent.
7. In respect of the change of use of the premises I am inclined to believe' the statement of the appellant that she had taken the premises any way for the purposes of residence as well as clinic. There is no agreement in writing in respect of use of the premises, and therefore, one has to rely upon the evidence of either of the parties. I do not find any protest in writing having been lodged by the respondent in respect of the change of the nature of the premises and, therefore, I am of the view that there was no justification for the Rent Controller to allow the ejectment on the ground of change in the use of the premises. Merely because the premises is situated in a residential locality, it does not mean that the same cannot be used for the purpose of a Doctor's Clinic or for that purpose a J maternity home. There is a document‑A on the record which shows that the appellant was having a clinic in the name of "Aqsa Clinic" at the relevant premises ` in 1975. As I have noted earlier that there was no protest ever made in writing by the respondent in respect of the conversion of the use of the premises and the respondent has even in her affidavit taken the position that she made a protest in 1976 verbally, then she made a protest in 1978 verbally, but she did nothing to eject the appellant when she had not complied with the requirement of the protest. It appears to me that verbal protest plea has been advanced in order to meet the objection of the tenant that she had been using premises from the very beginning for her clinic. Verbal protest was, therefore, an afterthought and hence the finding that there was change in use of the premises from residential to commercial was not correct. The terms of the tenancy not being available in writing, it was hardly possible for the respondent to allege the change in the use p of the premises. I am, therefore, of the view that the ejectment on the point of change in use of the premises was not justified and the appellant should succeed on that ground.
8. However, as a result of the Finding in respect of default having been established, the appeal has to fail as a whole and the order of ejectment has to be maintained. I, therefore, dismiss the appeal as a whole subject to what has been found earlier.
9. Mr. Farooq H. Naik has made a request that the appellant should be allowed sufficient time to vacate the premises as otherwise she would be very hard hit as she is using the premises for the residence as well as for the clinic.
Mr. Iqbal Afridi has been graceful to agree to that position. 1, therefore, allow 8 months' time to vacate the premises subject to the deposit of Rs. 1,000 per month as rent regularly. In case the rent is deposited regularly by the appellant, the writ of possession would be issued against him without any notice after 8 months from today, but in case of default in payment of rent, the writ of ejectment will be issued earlier.
A.A./Z‑128/K Appeal dismissed.