HABIB AHMAD BHAI Versus ALLAH NOOR

1. This appeal is directed against the order dated 18‑8‑1990, passed by the learned IIIrd Senior Civil Judge and Rent Controller, Hyderabad, directing the appellant to vacate shop facing main road situated at Commercial Plot No. 181, Unit 11, Latifabad, Hyderabad within two months from the date of the order.

2. Briefly, the facts of the case are that the appellant is a tenant in respect of the said shop at rent of Rs. 233 per month payable in advance to the respondents landlords vide agreement dated 17‑12‑1)88. The respondents have sought ejectment of the appellant under section 15 of the Sindh Rented Premises Ordinance, 1979 from the said shop on the grounds of default in payment of rent and personal bona fide requirement of respondent No.2, namely, Wazir. It was alleged that the appellant had defaulted in payment of rent from March, 1989 upto May, 1989. As to the personal bona tide requirement, it was ‑ averred that the health of respondent No. I has deteriorated and does not permit him to sell vegetables on a hand driven Thela from street to street, so he wanted to start his business of selling vegetables at the shop premises.

3. The appellant, in his written statement, has denied both the grounds of ejectment taken by the respondents. It was contended by him that the respondents had received rent for the said period from the appellant, but failed to issue receipts to him. With regard to the personal requirement of the respondents it was contended that the respondents do not require the shop for respondent No.1 and their object is to rent it out on enhanced rent. :;,

4. It was contended by Mr. Kazi Munawar Ali, learned counsel for the appellant, that the impugned judgment is bad both in respect of personal bona fide requirement and default in payment of rent. It was maintained by him that the respondents could not have filed ejectment application against the appellant on the ground of personal requirement before the expiry of the tenancy agreement as admittedly the agreement was for a period of 11 months beginning from December, 1988, whereas the ejectment application was filed after eight months. In support reliance was placed on Zarina Khawaja's case PLD 1988 SC 190. As to the question of default, learned counsel argued that the respondent failed to issue receipts for the period for which reliable evidence has been adduced by the appellant. In any case, it was urged that default in payment of rent for a few months must be condoned by the Court as the appellant is an old tenant and under the circumstances discretion ought to have been exercised by the learned Controller in favour of the appellant.

5. Mr. Raja Khan, learned counsel for the respondent, on the other hand, urged before me that a landlord despite an agreement for a fixed period is entitled to evict his tenant prior to the period and even if cause of action accrued to the landlord during the pendency of ejectment application or the same was premature when fled, it was maintainable, because result on merit would not have been different. Reliance was placed on PLD 1978 Supreme Court 220; 1984 CLC 2527 and 1986 CLC 693. Further it was urged by Mr. Raja Khan that no such plea was raised , by the appellant in his written statement and he cannot be allowed to agitate this objection at the appellate stage. In support of his contention reliance was placed on 1982 SCMR 204; PLD 1972 Kar. 507; and PLD 1976 Karachi 836.

6. The facts of Zarina Khawaja's case PLD 1988 SC 1990 are clearly distinguishable from the facts of this case. In that case neither the ejectment proceedings on personal ground were filed during the subsistance of tenancy agreement nor such a plea in the context was raised at the appellate stage. Hence it is inapplicable here. It is also an admitted position which is candidly conceded by Mr. Kazi Munawar Ali, learned counsel for the appellant that this legal objection was not raised by the appellant in his written statement. Accordingly my view is that the appellant cannot be permitted to raise it in appeal.

7. With regard to default in payment of rent, it is for the appellant to prove payment of rent for the period in question. The appellant was required to pay rent in advance in terms of clause (4) of agreement dated 17‑12‑1988 which state as follows:‑

8. "4. That the tenant shall pay Rs.235 (Rupees Two hundred thirty‑five only) per month as monthly rent of demised premises in advance on 1st of every English calendar month without fail, to the landlords against receipt to be issued by the landlords. No rent shall be treated as paid without a valid receipt to be issued by the landlords or any one of them."

9. `In view of express provision in the said para that "no rent shall be treated as paid without a valid receipt to be issued by the landlords or any one of them" the appellant was expected to be extra vigilant while making payment of rent to the respondents. The evidence adduced by the appellant does not inspire confidence in the face of express provisions contained in the said clause (4) or otherwise in view of the settled position that heavy onus lies on the shoulders of the tenant to prove payment of rent. Hence I find no merit in the appeal which is hereby dismissed with direction to the appellant to quit and hand over vacant possession of the shop within two months hereof.

10. A.A./H‑328/T Appeal dismissed.