PROVINCE OF SINDH Versus SIKANDAR ALI KHAN

The material facts culminating in this appeal under section 21 of the Sindh Rented Premises Ordinance, 1979, briefly, are that premises bearing C.S. No.9/2, situated in Kasai Mohallah, Shikarpur, is owned by the respondent having purchased the same through registered sale‑deed on 10‑4‑1976. The appellants who are running a Primary School in the said premises were served with the requisite notice dated 18‑6‑1977, sent through Mr. Lai Muhammad Advocate. The failure of the appellants to meet with the demand of respondent led the parties into previous litigation which ultimately resulted into compromise after the appellants promised to vacate the disputed premises within a period of 10/11 months. A dispute then arose between the parties over the quantum of rent, which was referred by appellant No.3 to Executive Engineer, Provincial Building Division, Sukkur for the assessment of rent which was fixed at Rs.1,554 P.M. The appellant No.3 did not accept this rent and asked the respondent to produce rent assessment certificate from Excise and Taxation Department. The Excise and Taxation Department assessed the annual rent at Rs.18,000 i.e. Rs.1,500 P.M. The appellants, however, refused to make payment of rent at this rate. On 17‑6 1982, the respondent filed an application under section 15 of the Sindh Rented Premises Ordinance, 1979, before Rent Controller, Shikarpur, seeking ejectment of appellants on the grounds of default in payment of rent, causing damage to the building and personal requirement.

2. The appellants have controverted the allegations based on facts. According to them the agreed rent was Rs.125 P.M. which they offered to respondent, but he refused to accept the same with effect from August, 1979. It was also pleaded by them that the respondent who is an influential person managed to obtain assessment certificate from Executive Engineer, Provincial Building Division, Sukkur, and Excise and Taxation Department at an exorbitant rent, which under the existing law they were not bound to pay. The need of respondent to occupy the said premises was also questioned.

. On the pleadings of the parties the Rent Controller framed the following issues:

(i) Whether opponents have committed willful default in payment of rent of the disputed premises?

(ii) Whether the applicant requires the disputed premises for his personal bona fide use?

(iii) Whether the opponents have caused damage to the disputed premises?

(iv) What should the order be?

4. The respondent has examined his attorney Noor Ahmed Agha (P.W.1) and A. Aziz (P.W. 2) while the appellants examined Irshad Ali (D.W. 1), and Ghulam Sarwar (D.W. 2).

5. Issue No.3 was not pressed by the respondent, while rest of the issues were decided by Rent Controller, Shikarpur against the appellants. This order dated 23‑5‑1985, by which the appellants were directed to vacate the disputed premises is the subject‑matter of this appeal.

6. The tenancy is admitted by the appellants. The notice sent to appellants on behalf of respondent in terms of section 13‑A of the Sindh Urban Rent Restriction Ordinance, 1959 (since repealed) is on record, which has not been disputed. There was previous litigation between the parties which ended m compromise after the parties entered into an agreement of tenancy. On the face of this admission the contention of Mr. Ali Aslam Jafferi, learned counsel for appellants that no notice as required under section 18 of the Sindh Rented A Premises Ordinance, 1979, was served upon the appellants before tiling the present ejectment proceedings, is devoid of any force. The object underlying the provisions of notice under section 18 of the Sindh Rented Premises Ordinance, 1979, is to enable the tenant to know whom he is to attorn, which is not in dispute in the present case. The cases reported as Mrs. Mariam Ferandes v. State Life Insurance Corporation of Pakistan, Karachi (P L D 1981 Karachi 591), and M.Yakoob v. Ch. Barkat Ali (1982 C L C 500), which are rclied upon on behalf of appellants are, therefore, not attracted in this case.

7. Admittedly the respondent had demanded the rent at the initial stage at the rate of Rs.125 P.M. The copy of earlier ejectment application is on record which confirms this position. Paragraph 2 of the ejectment application, out of which this appeal has arisen is self‑explanatory. Section 7 of the Sindh Rented Premises Ordinance, 1979, provides that no landlord shall charge or‑ receive rent in respect of any premises, at the rate higher than that mutually agreed upon by) the parties. The power to fix fair rent again rests with the Rent Controller and the same cannot be fixed by the Executive Engineer or by the Excise and Taxation Officer. Sections 8 and 9 of the Sindh Rented Premises Ordinance, 1979, are clear on this point. Thus the demand of rent by the respondent at the rate of Rs.1,500 p.m. Had no legal sanctity and the appellants were obliged to pay rent only at the rate of Rs.125 P.M.

8. Under the existing law it is the duty of the tenant to pay or tender rent to landlord within time. This liability continues even if the landlord demands an excessive or exorbitant rate of rent. It does not absolve the tenant to pay or tender the agreed rent. The evidence which has come on record shows that no serious effort was made by the appellants or any one of them to tender rent to respondent at the rate of Rs.125 P.M. and even if the evidence of Irshad Ali (D.W.1) is taken on face value it does not absolve the appellants from' consequences. Section 10 of the Sindh Rented Premises Ordinance, 1979, lays down the procedure to be adopted by a tenant when the landlord refuses or' avoids to accept the rent. It provides as follows:‑

" Payment of rent.‑‑ (1) The rent shall, in the absence of any date 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 or, be deposited with the Controller within whose jurisdiction the premises is situated.

(4) The written acknowledgement, postal money order receipt or receipt of the Controller, as the case may be, shall be produced and accepted in proof of the payment of the rent: Provided that nothing contained in this section shall apply in the cases pending before the Controller on the commencement of this Ordinance."

9. Admittedly the appellants did not remit the rent to respondent at any time through money orders. They also made no effort to deposit the same in the office of Rent Controller. They are, therefore, defaulters within the meanings of section 15 (2) (ii) of the Sindh Rented Premises Ordinance, 1979. I am fortified in my view by the case reported as Pakistan Art Emporium Shop No.C/6 v. Palace n Hotel, Karachi (1989 C L C 34). No exception can, therefore, be taken to the finding of learned Rent Controller on issue No.1.

10. A point which was touched upon during arguments by Mr. Ali Aslam Jafferi, learned counsel for the appellants may now be dealt with. It is contended that the title of the respondent in respect of disputed premises is in cloud as the Evacuee Trust Board have re‑opened this issue. The learned counsel should have known that the answer to a similar contention was provided by the Supreme Court in the case of Malik Wahid Bakhsh v. Mst. Fazal Bibi and others reported in 1985 S C M R 1256, in the following words:

"Moreover, the question whether the property was evacuee trust or not was a matter between the Department and Mst. Fa7al Bibi and even if it was such property it was open to the Chairman of the Evacuee Trust Property Board to validate the transfer under section 10 of the Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975). Considering the circumstances of the case and the conduct of the petitioner, we are satisfied that the refusal by the High Court to grant a writ against the order of his ejectment is not liable to interference by this Court."

11. Clause (vii) of subsection (2) of section 15 of the Sindh Rented Premises Ordinance, 1979, empowers the Rent Controller to order eviction of a tenant, if he is satisfied that the landlord requires the premises in good faith for his own 1E occupation or use or for the occupation or use of his spouse or any of his children. The respondent has sought the eviction of appellants on this ground in para 10 of his application made under section 15 of the Sindh Rented Premises Ordinance, 1979, which reads as follows:

"That the applicant requires the building for his personal bona fide use and he after necessary alterations and developments will use the premises for his residential purposes."

12. The respondent has not stepped into the witness box to substantiate his averments. Noor Ahmed Agha (P.W.1), who is the attorney of respondent has simply shown the requirements of the respondent without placing all the details on record. Admittedly the respondent is in occupation of other premises which belong to him. In such a situation it was necessary on his part to have proved that the said premises do not cater his needs. Even the details of the family members are not disclosed by the respondent to find out if the premises already in occupation of the respondent are not sufficient to accommodate him and his 1, family members. The demand of possession of the premises must be honestly made and the landlord cannot get the premises vacated simply because he wants it. In my view much more cogent and convincing evidence was required in support of this issue. The cases reported as Sultan Safdar Khan v. Syed Muhammad Raza (1984 C L C 2340), and Mushtaq Ahmad Khan v. Khawaja Mustafa‑ul‑Hasan (1984 C L C 3093), which are cited by M.H.J. Ghumro, learned counsel for respondent are distinguishable. I would, therefore, decide issue No.2, in favour of the appellants.

13. In the result the appeal is dismissed, but since the success is divided I leave the parties to bear their own costs. The appellants are, however, allowed two months time to vacate the demised premises,

A.A/P‑146/K Appeal dismissed.