MUHAMMAD SALEEM Versus SHABBIR AHMAD

This appeal is directed against the order of the learned VIth Senior Civil Judge, First Class, Karachi West, dated 27th August, 1986 passed in Rent Case No.386 of 1985, whereby he has allowed the ejectment application made by the respondent and directed the appellant to vacate the shops Nos.1 and 2 on plot No.327 Liaquatabad, Karachi (hereinafter referred to as the demised premises), and hand over its vacant possession to the respondent within thirty days from the date of order.

2. The relevant facts, briefly stated, giving rise to this appeal are these: The 14espondent made an application under Section 15 of the Sind Rented Premises Ordinance, 1979 (for short the Ordinance) for the eviction of the appellant on the grounds of default in payment of rent, personal bona fide use and for materially impairing the value and utility of the demised premises. The appellant contested the said application by filing written statement and denied all the allegations made in the application. He pleaded that in October, 1983 he approached the former landlady Mst. Khatoon‑un‑Nisa for payment of rent but she refused to accept the same without assigning any reason. Consequently, he deposited the same in Court vide Civil Miscellaneous Application No.4602 of 1983. It was in the month of December, 1983, that the appellant received a legal notice under section 18 of the Ordinance dated 8‑12‑1983 from one Akhtar Javed describing himself to be the general attorney of respondent requiring him, (the appellant) to contact him for execution of fresh tenancy agreement for "onwards" payment of monthly rent. On enquiry, the former landlady informed the appellant that she had gifted the property to the respondent. The appellant therefore, remitted the rent to the respondent's general attorney by money order dated 31‑12‑1983 for the month of January, 1983. It was, however, refused by the addressee and hence the appellant deposited the same in Court through Civil Miscellaneous Application 124 of 1984 on 11‑1‑1984 and 5‑4‑1985.

3. An affidavit‑in‑evidence was filed on behalf of the respondent by one Javed Akhtar as Rent Collector, nephew, Perokar and the duly constituted attorney of the respondent, wherein it was, inter alia, deposed that by virtue of an oral gift dated 5‑5‑1981 made by the former landlady Khatoon‑un‑Nisa in favour of the respondent, he became owner and landlord of the demised premises. It was also averred that the name of the respondent was duly mutates in the records of the K.M.C. The other contents of the application were also reiterated in the said affidavit‑in‑evidence.

4. In support of his case the appellant filed his own affidavit‑in‑evidence as well as an affidavit‑in‑evidence of one Muhammad Umer. Out of the pleadings of the parties and on the basis of the evidence led by them, the learned Rent Controller formulated the following points for determination:

(1) Whether opponent has committed default in payment of rent?

(2) Whether the applicant requires the demised premise for his person bona fide use?

(3) Whether the opponent has committed such acts that materially impaired value and utility of the premises?

(4) What should the order be?

(5) He answered the first three above‑noted points in the affirmative and consequently allowed the application as stated above. Hence this appeal.

6. I have heard Mr. Qais Masood Rasheedi, learned counsel for appellant as well as Mr Gharib‑Nawaz Baccawala, learned counsel for the respondent and have also carefully perused the impugned order as well as the material prevalent on the lower Court record and I am clearly of the view that on the point of default the impugned order of learned Rent Controller is unassailable. The learned Rent Controller, in my opinion, has dealt with all of the relevant factual and legal aspects of the case in this behalf in the right prospective and I feel myself in complete agreement with his reasonings and conclusions. After the receipt of the legal notice dated 27th December, 1981 (Exh. 4‑C/1) it was incumbent upon the appellant to have tendered the rent to the respondent. This letter was even admittedly replied to ~ by the appellant. During his cross -examination, the appellant has clearly admitted the receipt of the said notice and of his having replied thereto, vide his letter dated 5th January, 1982 (Exh.4‑D). In his cross‑examination he has further deposed:‑

"As soon as I received a notice from the applicant in December, 1981 verified that whether he is actual owner from previous landlady verbally. It is incorrect to suggest that I did not verify about the ownership of the applicant in respect of the premises in question from previous landlady."

In the first instance, under the aforesaid circumstances the question of the appellant's having continued to pay the rent to the former landlady, Mst. Khatoon‑un‑Nisa did not arise. Secondly, even if it is assumed for the sake of arguments that he did so, it would not absolve him in the least, of the consequences of his failure to pay the rent to the respondent after the receipt of the aforesaid legal notice. The contention of the learned counsel for the appellant that even through the subsequent legal notice dated 8th December, 1983, the appellant was required to pay the rent from `onwards' and that no demand was made to the payment of the arrears of rent, in the context of its contents, is absolutely fallacious. It is clearly discernible from its contents that it was a notice given on behalf of Akhtar Jawed intimating the appellant that the respondent/owner of the demised premises had appointed him as his attorney vide General Power of Attorney dated 28th September, 1983 and asking him `to contact him 'to sign a fresh agreement for onward payment of monthly rent to the said attorney'. I also fail to find any merit in the contention of Mr. Qaiser Masud that the absence of any correspondence for over two years, that is from 27‑12‑981 to 8‑12‑1983 lends support to the case of the appellant. On the contrary, the learned counsel for the respondent has rightly drawn my attention to the facts, firstly, that the averments made‑by the attorney of the respondent in his affidavit-in‑evidence to the effect that the respondent had perused and personally inspected the title deeds of the respondent with respect to the demised premises, were in no manner sought to be challenged during his cross‑examination. And secondly, in none of his subsequent letters addressed by the appellant to the respondent's counsel or his attorney it was mentioned that the demand made by him in his letter dated 5th January, 1982 with regard to supply of title documents etc. had not been complied with.

In view of the above discussions, the finding of the learned Rent Controller on issue No.1 is maintained.

I would now proceed to consider the findings of the learned trial Court on the remaining above‑noted two issues together. It is an undisputed fact that prior to the filing of the ejectment application no communication with regard to any of these two matters was made with the appellant. It is even not mentioned in the application as to what business was proposed to be set up by the respondent and whether he was financially in a position to do so or whether he had any business experience of the line of business he wanted to adopt. Similarly, it is not stated in the application as to what acts had been committed by the appellant, which materially impaired the value of the property and the utility of the demised premises. Before proceeding further, I think, it would be in the fitness of things if I reproduce hereunder the relevant paragraphs from the application; they read as under:‑

(3) "That the Opponent has committed such acts that have materially impaired the value and utility of the demised premises in particular and the building in General.

(4) That the demised premises is reasonably and bona fidely required by the Applicant for his own use and occupation to carry on therein some business to honourably earn RIZQ‑E‑HALAL for himself and for his dependants."

It is also pertinent to note that the ejectment application had been filed by the respondent through his attorney and that the respondent himself is out of Pakistan for the last 8‑10 years, as deposed to by his attorney. The last visit of the respondent to Pakistan was in 1983. During his cross‑examination the attorney of the respondent has candidly admitted that the first contract of the respondent was for two years, which used to be extended. Besides the letters mostly written by the respondent to his attorney subsequent to the filing of the ejectment application, there is no independent reliable evidence available on record to show as to when was the service contract of the appellant with the foreign employer last extended and for what period and whether it was open to the respondent to give up his job. If so on what terms.

It is thus evident from the facts narrated above that no specific case with regard to personal bona fide need was made out in the application at the time when it was made. The subsequent effort made to improve the case by producing the letters of the respondent also remained ineffective inasmuch as even these letters do not disclose the exact nature of business sought to be done by him, nor do they prove the availability of the funds with him to set up the same. So also no statement in his deposition, I do not, therefore, feel inclined to agree with the learned Rent Controller that the respondent has succeeded in making out the case of his personal requirement of the shop in question.

With regard to the point of damage to the property or impairing the value of the demised premises it is sufficient to observe that in this behalf also t4. application as made was also wholly sketchy and perfunctory. No details of the alleged damage done were disclosed in the application. However, during his cross‑examination also the respondent's attorney has not disclosed as to when the alleged act of removal of the wall between the two shops was committed by the appellant. On the basis of such unsatisfactory evidence, I think, the learned Rent Controller was little justified in deciding this issue in the affirmative in favour of the respondent and against the appellant.

Consequently, for the foregoing reasons, I reserve the findings of the learned Rent Controller on the abovenoted points Nos.2 and 3.

In the result, consequent to the maintenance of the impugned order on the point of default, the appeal is dismissed with no order as to costs. Since the appellant is carrying on his business in the demised premises, I would allow him six months' time to vacate the demised premises, subject, however, to his l depositing the agreed monthly rent in the trial Court regularly. His failure to do so would render him liable to be evicted forthwith.

M.Y.H./M‑502/K Appeal dismissed.