UNITED BANK LIMITED Versus MUHAMMAD NASEEM KHAN
1. This judgment will dispose of Appeals Nos. 195 and 225 of 1995 which arise from the order dated 26‑2‑1995, passed by learned VIlth Rent Controller, Karachi, South. In Appeal No.195/1995, the appellants United. Bank Limited. have challenged the findings of learned Rent Controller on the point of personal bona fide need recorded in favour of the respondents, while in Appeal No.225/1995, appellants Muhammad Naseem Khan and others, have impugned the order on the point of default. The facts relevant for decision of these appeals are as follows:
2. In these matters the material facts are not in dispute. Appellants Muhammad Naseem Khan and others, hereinafter referred to as the applicants on 11‑4‑1994 had filed Rent Application No.537/1994 against United Bank Limited hereinafter referred to as the opponents, for their eviction from the premises No.G‑5 constructed on plot bearing Survey No.37, Sheet No.M.R‑1‑, Market Quarters, Marriot Road, Karachi on the grounds of default in payment of rent and their personal bona fide need. The opponents are the tenants in said premises since 4th September, 1991 at monthly rent of Rs.15,000 besides other charges. The applicants had purchased said premises through registered sale‑deed dated 24th December, 1992 and the opponents had paid rent to the previous owner up to December, 1993. After purchasing said property, the applicants served a notice under section 18 of the Sindh Rented Premises Ordinance, 1979 hereinafter called the Ordinance upon the opponents informing them about change of ownership and asking them to vacate the premises as the same was required by applicants Muhammad Aziz Khan and Muhammad Fahim Khan for their personal bona fide use. The notice was served upon the opponents on 1‑4‑1993 and they declined to vacate it. It is alleged that instead of paying rent to the applicants from 1st January, 1994 the opponents, without any justification deposited the same in the Court, as such, they committed wilful default.
3. The case of the opponents is that they are tenant in said premises for the last 25 years and that registered Lease Deed in their favour was executed by the previous landlord for 5 years and it was to expire on 31st December, 1995, as such, when the eviction application was filed it was premature. It is also the case of the opponents that according to the agreement, it is within their option to apply for renewal of tenancy for further period, on terms and conditions to be mutually settled by the parties.
4. From the pleadings of the parties, learned Rent Controller settled the following issues:
(1) Whether present application is not maintainable?
(2) Whether there exists relationship of landlord and tenant between the parties?
(3) Whether premises are required by the applicants Muhammad Aziz Khan and Muhammad Fahim Khan in good faith?
(4) Whether opponents have defaulted in payment of rent intentionally?
(5) What should the order be?
5. On assessment of the evidence brought on record learned Rent Controller decided Issues Nos. l, 2 and 3 in favour of the applicants and held that the premises in question was required in good faith for the personal need of applicants Muhammad Aziz Khan and Muhammad Fahtm Khan. For Issue No.4, the finding of the learned Rent Controller is that no default in payment of rent was committed by the opponents. Consequently, he allowed the eviction application and directed the opponents to hand over the vacant possession of said premises to the applicants within 60 days from the date of said order, which has been impugned in these‑appeals. Both the parties are dissatisfied with the impugned order to the extent of findings recorded against them.
6. Appeal No. 195/1995
7. It is contended on behalf of the appellants/opponents that the respondents/applicants are bound by the lease agreement executed between the opponents and the previous owner and the fact that the applicants are not signatory to said agreement is of no significance, as they have stepped into the shoes of the previous owner. Learned counsel also argued that none of the provisions of the Ordinance negates the effects of such agreement and the valuable rights accrued to the opponents cannot be taken away simply on the ground that ownership of the premises has now passed on to the applicants. In support of this contention, learned counsel cited (1) Mrs. Zehra Begum v. Messrs Pakistan Burmah Shell Limited PLD 1984 SC 38 (also published as 1992 SCMR 943), (2) Pakistan Burmah Shell Limited v. Khalil Ahmad and another 1988 MLD 210 (Karachi).
8. In Mrs. Zehra Begum's case, the registered Lease Deed initially was for 10 years with option for renewal in all for 30 years. It was held that the Ordinance could not override the terms of such Lease Deed. Further, it was observed that, in view of a valid subsisting contract between the parties, the appellants could not invoke the ground of personal requirement and it being so the eviction application was dismissed, as premature. Hon'ble Supreme Court in this matter also observed as follows:
9. "Section 5 enjoins the tenancy agreements to be in writing, and to be authenticated either by registration of the deed or by its attestation, by the signature and seal of the designated authorities. The validity of tenancy agreements has been recognised by section 6 and its expiry or its ceasing to be valid, made a ground independently of every other ground, sufficient to obtain eviction of the tenant, section 7 authorises the landlord to charge the mutually agreed rent till such time as fair rent is not got of fixed from the Controller on an application by either party. ? The provisions of the Ordinance permit freedom of contract based on equality of bargaining power in both parties. It formalises the contract. It does not profess to protect any one class against the other. In this view of the matter if at the time of entering into lease agreement in 1965 the landlord knew that he was bartering away his personal need under the law then in force for a period of thirty years, he cannot under the statutory provision made in the Ordinance turn back to repudiate the term of the agreement. In the first place the Ordinance keeps alive the contract, lends its continued validity and force and professes to protect as much the right of the tenant as that of the landlord, referable always to a valid subsisting contract. In the second place even if there was such a right available under the law (for arguments sake but not as a fact) it stood waived because it is not a part of public policy, but of a personal privilege which the landlord could forego for a valuable consideration."
10. In the case of Pakistan Burmah Shell Limited relying upon the aforesaid judgment of the Supreme Court a learned Single Judge of this Court on this point observed as follows:
11. "Section 15 enumerates the grounds contained in section 15(2) (11) to (vii) on which the landlord can get the tenant evicted. As already stated above, the question of eviction would come into picture only on the expiry of the period mentioned in the registered lease deed. So long as the contractual period of tenancy is subsisting the question of the landlord evicting the tenants from the premises does not arise."
12. As against above, learned counsel for the applicants submitted that personal need of the landlords is not subject to said lease agreement and on the contrary section 15, subsection (2) (vii) of the Ordinance overrides the terms and conditions of the lease agreement and in case of conflict between the two the provisions of the Ordinance would prevail.
13. It is an admitted position that the opponents are in possession of the premises and said lease deed was valid for 5 years from the date of its execution. It is also an admitted fact that said lease deed provides that the tenancy could be renewed on the expiry of the period at the option of the lessee for further period on the terms of the lessee or on the terms and conditions to be mutually agreed upon between the parties. In view of these conditions, the lease could not be determined simply at the option of the applicants. The covenants of the lease deeds are not in conflict with the provisions of the Ordinance. The applicants had purchased said property with knowledge of legal rights vested in the opponents by virtue of said lease deed. Relying upon the principle laid down by the Hon'ble Supreme Court in the abovequoted matter, I hold that the eviction application against the opponents was premature.
14. Accordingly, I allow Appeal No. 195 of 1995 with no order as to cost and set aside the findings of the learned Rent Controller on the point of personal bona fide need.
15. Anneal No.225/1995
16. It. is an admitted fact that up to 31st December, 1993 opponents/respondents had paid rent, as per terms of the agreement, to the previous landlord and from 1st January, 1994 they had deposited the same in the Court, as per MRC No.1649/1993. It is also an admitted fact that on 1st March, 1993, the appellants/applicants had sent a letter to the opponents and its para. 3 is as follows:
17. "Since you have paid the rent up to December, 1993 you are requested to vacate the premises within three months from the date of this letter. The advance payment for the unexpired period will be returned to you. "
18. Mr. Rahmat Elahi, learned counsel for the applicants contended that, as per section 10 of the Ordinance, they (opponents) were required to pay rent to the landlord and only in case of his refusal they could deposit the same in the Court. Learned counsel argued since without any justification straightaway the opponents had deposited rent in Court they had committed wilful default in payment of rent. On this point reliance is placed on the case of Akbar Ali and 4 others v. Mst. Hameeda Sahaf 1993 CLC 290. In this case, it was observed by a learned Single Judge of this Court that, as per section 10 of the Ordinance, it is the duty of the tenant to tender rent directly to landlord and in case he avoids to accept it, then he could send the same through money order or deposit in Court. Above principle is not applicable to this case. It is evident from the applicants' letter dated 1‑3‑1993 that they had insisted the opponents to vacate the premises within three months and even in clear terms informed the latter that the advance payment of the unexpired period, would be returned to them. When they made their intention clear to return the advance rent it could not be expected from them that they would have accepted the current and the future rent. In these circumstances, the opponents were justified in depositing the rent in Court. No default in payment of rent was committed by them. Accordingly, I do not find any merit in Appeal No.225/1995 and the same is dismissed with no order as to costs.
19. In consequence, the Rent Application No.537/1994 filed before learned Rent Controller also stands dismissed with no order as to costs.
20. H.B.T./U‑7/K ????????????????????????????????????????????????????????????????????????????????????? Order accordingly