M. IJAZ KHAN Versus SHAHIDA IQBAL QARNI

The appellant has been ordered to be ejected from the demised premises by the learned First Senior Civil Judge and Rent Controller, Karachi (Central) on account of the alleged default committed by him. Ejectment of the appellant was also sought by the respondent on the ground of personal requirement but the same did not find favour with the learned Controller, therefore, the issue was decided against the respondent.

2. Admittedly rent for the months of March, April, May and June, 1991 was paid in a lump sum by a cheque for Rs.5,600 delivered to the respondent by the appellant. Suit for eviction of the appellant was instituted by the respondent in July, 1991. Admittedly at that time the appellant was guilty of technical default in respect of the rent due for the month of March, 1991 as a grace period of 60 days was allowed by section 15 of the Sindh Rented Premises Ordinance to the tenant to tender the rent due to avoid the penal consequences of the said section. However, after filing of the eviction proceedings against the appellant another cheque for R s. 4,200 covering three months rent i.e. July, August and September, 1991 was tendered by the appellant to the respondent. Thereafter, according to the allegations made in the affidavit‑in‑evidence filed on behalf of the respondent, the appellant had failed to pay rent from October, 1991. Consequently, default was committed by him again.

3. Mr. Umar Oureshi, learned counsel for the appellant has argued that sinc6`eviction application was filed in July, 1991, the appellant cannot be penalized for any alleged default made thereafter, because the same would be taken care of by the provisions of section 16 of the Rented Premises Ordinance. According to subsection (1) of section 16, when a case for eviction of the tenant has been filed the Controller has first to determine the arrears of rent due and order the tenant to deposit the same within such period as the Controller may fix in this behalf and he may further direct the tenant to deposit monthly rent regularly on or before the 10th of every month until the final disposal of the case. Subsection (2) of section 16 further indicates that where the tenant has failed to deposit the arrears of rent or he has failed to pay monthly rent as ordered by the Controller under subsection (1) his defence is to be struck off and the landlord is to be put in the possession of the premises. Consequently, according to the learned Counsel, even if the appellant had failed to pay or tender rent within the time specified by section. 15 after the filing of the eviction application he will not be liable for the penal consequences as provided by section 15 notwithstanding the fact that he was in default because after filing of the ejectment application the. matter would be governed by section 16 of the Rent Ordinance. Mr. Hafiz Abdul Baqi has not been able to advance any convincing argument in rebuttal or cite any case‑law on the point. So far as the period referred to in the eviction application is concerned, admittedly the appellant had committed only a technical default for the month of March, 1991. Mr. Umar Ouraishi has placed reliance upon Samiullah v. Mian Muhammad Saleem (1971 SCMR 725) wherein when the landlord had already received rent deposited by the tenant with his consent and when on the date of filing of the eviction application before the Rent Controller, there was no rent outstanding against the tenant, the Supreme Court accepted the tenant's contention that no penal consequences of section 17 of the Cantonment Rent Restriction Act should follow. In Fazal Ahmed v. Muhammad Abdul Shakoor (1981 CLC 793) a learned Single Judge of this Court declined to penalize the tenant for a month's technical default. This case was followed by me in Syed Shahid Ali v. Tanvir Ahmed Farooqui (1988 MLD 2639). Consequently, under the circumstances, of the case, since there has been a technical default of only one month in this case, the appellant should not have been penalized for such default by the learned Controller.

4. Mr. Hafiz Abdul Baqi has also supported the respondent's plea in respect of personal need of the premises by her, as, according to her; she wanted to start an industrial home in the premises but the evidence clearly indicates that she was not the owner of the said premises but she had been authorised only to receive rent‑ on behalf of one Niaz Hussain. No doubt, a person who is authorised to receive rent on behalf of the landlord also falls within the purview of the definition of the term landlord as defined in section 2(f) of the Rented Premises Ordinance but clause (g) of the said section defined "personal use" to mean as "the use of the premises by the owner thereof or his wife (or husband) son or daughter". Consequently, it is only the owner of the premises who can institute ejectment proceedings against a tenant on the ground of personal requirement. Since the respondent B admittedly was not the owner of the premises in question but she had only been authorised to collect rent on behalf of the landlord, no proceedings could be instituted by her against the appellant on the ground of personal requirement. Therefore, in my opinion the learned Controller has rightly decided the issue in respect of personal requirement against the respondent.

5. In the result, this appeal is allowed and the order passed by the learned Controller is set aside. The parties are left to bear their own costs.

H.B.T./M‑1906/K Appeal allowed.