Dr. HASSAN FATIMA Versus PAKISTAN RED CRESCENT SOCIETY

MUHAMMAD ALI MAZHAR, J.--- This Civil Petition for leave to appeal is directed against the judgment dated 24.03.2025, passed by the High Court of Sindh at Karachi in C.P. No. S-15/2025 whereby the constitution petition filed by the petitioner was dismissed and the concurrent findings recorded by the Rent Controller and Appellate Court were affirmed.

2. According to the minutiae of the case, the respondent is a statutory body and let out the demised premises to the petitioner. The Rent Case No. 1366/2006 filed earlier by the respondent Society was compromised and on execution of a Memorandum of Understanding (MOU) dated 18.08.2011, the aforesaid rent case was disposed of as withdrawn vide order dated 19.05.2012, passed by the IXth Senior Civil Judge and Rent Controller, Karachi South. Despite the execution of the MOU, the petitioner (tenant) failed to fulfil the commitment as per the terms and conditions of the MOU and continued to neglect the payment of 10% annual increment and the balance of monthly rent from August 2011 to April 2012 at enhanced rate and also failed to pay water and conservancy charges. The landlord/respondent No.1 sent legal notices on 15.08.2016 and 10.10.2016 but the position remained unchanged and default continued. Ultimately, the landlord/respondent No.1 filed a Rent Case No.1295 of 2016 on the ground of default and personal bona fide need to establish a Charitable hospital for the poor and needy persons in collaboration with German Red Cross and British Red Cross.

3. The learned counsel for the petitioner argued that the respondent No.1 had not prayed the relief on the ground of default, but the eviction was asked on the ground of personal bona fide need and even for personal bona fide , nothing was produced to show that any charitable hospital is to be established in collaboration with German Red Cross and British Red Cross. It was further argued that as per the terms and conditions of Indenture of Lease dated 18.02.1984, the petitioner was under obligations to pay rent whereas utilities bills were payable to the concerned departments and Taxes were payable by the landlord. According to the learned counsel, the tenant/petitioner was regularly paying monthly rent and utilities charges without default. He further contended that the earlier Rent Case No.1366 of 2006 was disposed of through settlement by dint of MOU dated 12.04.2012 but the learned courts below, while passing the impugned judgments, came to an erroneous conclusion and considered the MOU dated 18.08.2011, wherein clause (3) was contrary to the offer letter dated 13.08.2011. It was further contended that the Court had failed to consider the evidence recorded wherein a specific denial was made by the tenant/petitioner to the signing of MOU dated 12.04.2012. It was further averred that while deciding the ejectment application, the learned Rent Controller travelled beyond the pleadings and all impugned judgments are based on misreading and non-reading of evidence.

4. The learned counsel for the respondent No.1/tenant argued that all the judgments passed below are based on proper appreciation of evidence. According to the learned counsel, the tenant/petitioner agreed to pay the water and conservancy charges vide registered Lease dated 18.02.1984, but failed to clear the outstanding dues of water and conservancy charges. It was further contended that all the terms and conditions of the registered lease dated 18.02.1984 were binding, however, the rate of rent per square feet as well as 10% increase of revised rent was renegotiated and the MOU dated 18.08.2011 was executed between the parties. It was further averred that the petitioner/tenant failed to prove that they had paid the water and conservancy charges as no paid bill was ever exhibited in evidence. Further, the plea of personal bona fide need of the demised premises was not rebutted nor the same was challenged during cross-examination of the landlord. He further argued that the MOU dated 12.04.2012 is not a credible document whereas MOU dated 18.08.2011 was actually executed between the parties wherein, in addition to increase in the rate of rent, the petitioner also agreed to pay rent with 10% increase for every year, but she committed wilful default.

5. Heard the arguments. According to Clause (g) of Section 2 (Definition Clause) of the Sindh Rented Premises Ordinance 1979 (SRPO) , personal use means the use of the premises by the owner thereof or his wife (or husband), son or daughter. The landlord may apply to evict the tenant from the rented premises on various grounds encapsulated under Section 15 of the SRPO, including the ground of default if the tenant fails to pay rent within fifteen days after the expiry of the period fixed by mutual agreement or in absence of agreement, within sixty days after the rent is due for payment and if the landlord requires the premises also in good faith for his own occupation or use or for the occupation or use of his spouse or any of his children. The record congregates that the ejectment petition was filed by the landlord under Section 15 of the SRPO for personal bona fide need; default in payment of rent with 10% increase every year with effect from July 2012 to November 2016; default in payment of payment of water and conservancy charges with effect from 2001 till October 2016 and also sought the directions against the petitioner for paying outstanding dues of building and Maintenance charges up to November 2016. The learned Rent Controller settled the following points for determination:

Point No.1: Whether the opponent is liable to pay rent of the demised premises at an agreed enhanced rate of 10% every year by virtue of the Memorandum of Understanding dated 18.08.2011?

Point No.2: Whether the opponent has committed wilful default in payment of rent of the demised premises as per MOU dated 18.08.2011?

Point No. 3: Whether the applicant is in bona fide need of the demised premises for its personal use in order to set up the charitable hospital in collaboration with the German and British Red Crescent Society?

Point No.4: Whether the opponent has committed default in payment of water and conservancy charges since 2001 in terms of clause-2 of the lease agreement dated 18.02.1984?

6. Let us first take up the ground of personal need. The landlord asserted that the demised premises is required for establishing a charitable hospital for the poor and needy persons. The reading of evidence adduced before the learned Rent Controller portrays that no specific denial was made to dislodge the plea of bona fide personal need and the statement on oath in this regard remained unrebutted and unshattered despite a lengthy cross-examination conducted on behalf of the petitioner by her advocate. It is now a well-settled exposition of law that while adverting to the plea of personal need, the statement of landlord on oath, if consistent and unwavering vis- -vis the application moved for ejectment of tenant and not shivered or quavered during cross-examination to disprove or confute the plea of bona fide personal need, then obviously nothing remained in the dominion of the tenant to wrangle over the personal need of the landlord. In the case at hand, no evocative endeavours were made to gainsay or naysay the personal bona fide need by means of any substantial evidence by the petitioner/tenant.

7. Hitherto, the jurisprudence laid down by this Court germane to the ground of personal bona fide need of the landlord and the ratio decidendi deducible from the compendium of judgments rendered by this Court reverberate inter alia as under:

1) Consideration like that of the tenant being an old tenant and invested huge amounts on establishment of business, which earned goodwill would be irrelevant.

2) Statement on oath, if consistent with the application and not shaken in cross-examination or disproved in rebuttal, is sufficient to prove that it is bona fide.

3) The suitability by landlord in any one of the available premises entirely depends upon his choice to select as to which of the buildings he/she wishes to use personally or to provide the same to his/her children.

4) Neither any legal requirement exists that landlord in seeking ejectment of tenant from a commercial premises on ground of personal bona fide need must disclose the nature of the business which he intended to start in the premises, nor it necessary for the landlord to prove that he possess experience in the trade or business which he intends to set up in the premises after eviction of his tenant.

5) The statement of landlord on oath if consistent with the application for ejectment and not shaken in cross-examination or disproved in rebuttal was sufficient to prove that such requirement of landlord was bona fide.

6) If the tenant failed to produce evidence in rebuttal to disprove the case of the landlord who had proved its bona fides for personal use or the testimony of witnesses was not shaken in the cross-examination then the personal need of the premises were deemed to have been proved by the landlord.

References: Messrs Tiger Wire Product Ltd. v. S. Abrar Hussain (1983 SCMR 402); Abdul Razzaq v. Muhammad Aslam (1995 SCMR 201); Rajab Ali v. Darius B. Kandawalla (PLD 1984 Karachi 14); Sabu Mal v. Kika Ram alias Heman Das (1973 SCMR 185); Peerzada Rafiq Ahmad v. Chaudhry Abdul Rehman (1980 SCMR 772); Ishratullah Siddiqui v. Alibhoy (1996 SCMR 1833); Unisam Enterprises v. Bank of Punjab (1999 SCMR 1119); Mehdi Nasir Rizvi v. Muhammad Usman Siddiqui (2000 SCMR 1613); Jehangir Rustom Kakalia v. State Bank of Pakistan (1992 SCMR 1296); Wasim Ahmad Adenwalla v. Shaikh Karim Riaz (1996 SCMR 1055); Shakeel Ahmed and another v. Muhammad Tariq Farogh (2010 SCMR 1925); Mst. Toheed Khanam v. Muhammad Shamshad (1980 SCMR 593); Messrs F. K. Irani & Co. versus Begum Feroze (1996 SCMR 1178); Juma Sher v. Sabz Ali (1997 SCMR 1062); Muhammad Shoaib Alam v. Muhammad Iqbal (2000 SCMR 903) and Messrs Al-Karam Travels (Pvt.) Ltd. v. East West Insurance Co. Ltd (2001 SCMR 688).

8. Besides personal need for establishing a charitable hospital in collaboration with the German and British Red Crescent Society, the landlord also complained about the default in payment of rent and water and conservancy charges. The tenancy for the demised premises came into existence by virtue of the lease deed dated 18.02.1984 and the payment of increase in the rent was agreed through MOU dated 18.08.2011. However, the petitioner asserted that the MOU was mistakenly signed after inserting Clause No. 03 regarding the increase in rent by 10% and she insisted that in fact, the MOU dated 12.04.2012 was executed pursuant to the letter dated 10.04.2004. The petitioner also denied having committed any default in payment of water and conservancy charges and pleaded that all utility charges were being paid to the concerned department without default. The record reflects that the MOU dated 18.08.2011 was executed and duly signed by Kanwar Waseem, Provincial Secretary, Pakistan Red Crescent Society and Dr. Hasan Fatima, Proprietor, Sindh medical Centre, and the MOU was also witnesseth by Dr. Munawar Hassan and S.M. Ikhlaq Ahmed. The gist of evidence demonstrates that the petitioner/tenant in the written statement never denied the signatures on the MOU dated 18.08.2011. Even as per Dr. Munawar Hassan (attorney of the petitioner), one of the witnesses of the said MOU in his testimony did not deny his signatures and signatures of the petitioner on the indenture of MOU, but merely alleged that the actual MOU is dated 12.04.2012 without producing any cogent evidence to disprove the authenticity and validity of the concerned MOU.

9. During his cross-examination, though the attorney of the petitioner uttered that M.O.U dated 12.04.2012 is not fake or fabricated, but he admitted that such MOU was scribed on the Stamp Paper issued on 21.04.2012 and also admitted that the said MOU does not contain signatures of the witnesses, rather the MOU dated 18.08.2011 bears his signature which according to him was signed without going through the contents. Finally, he further admitted that the MOU dated 18.08.2011 bears not only his signature as witness but it was also signed by the petitioner/tenant. The learned Rent Controller as well as the learned Appellate Court after minutely considering the evidence adduced by the parties rightly reached the conclusion that the MOU dated 18.08.2011 was executed between the parties without any doubt or scepticism for increase in the rate of rent, but the petitioner defaulted and failed to pay the rent in terms of Clause (3) of the aforesaid MOU. The plea that the petitioner signed the MOU dated 18.08.2011 without reading is difficult to swallow. It was not the case that the MOU was signed in the midst of rustic or uneducated persons without any independent advice, rather it was executed between educated and prudent persons so it can be hardly believed or presumed that it was signed without reading or without proper application of mind, predominantly when no lawful excuse or justification has been shown why it was signed without vetting the document.

10. So far as the non-payment of water and conservancy charges is concerned, the petitioner/tenant was obligated to remit utility charges pursuant to Clause No.02 of the original lease dated 18.02.1984. Yet again after considering the evidence adduced by the parties, the Rent Controller and the Appellate Court both reached the conclusion that the petitioner failed to discharge the liability of water and conservancy dues since 2007. The letter of the Account Officer of KW&SB, dated 30.06.2007, referred to the deduction of Rs.16,41,688/- only from the medical bill of the Sindh Medical Centre which pertained to the period up to 2001. The petitioner s attorney, during cross-examination, conceded to the failure to produce documentary evidence regarding alleged adjustments and also failed to successfully rebut the default in the payment of dues of water and conservancy charges as claimed by the landlord in the letter dated 17.03.2016.

11. While adverting to the question of default, albeit, the initial burden of proof lies on the landlord who must testify on oath that he has not received the rent for a specific period. Once it is done, the burden is shifted on the tenant to prove affirmatively that the rent was validly paid/tendered and should also produce receipts, bank records or postal money in order to justify the plea of no default on his part. Time and again, the Courts have drawn a fine distinction at the heart of wilful and technical default. A default is considered wilful when it is deliberate, inexorable, unrelenting or contumacious disregard while technical default can be identified such as a negligible delay due to a banking error or where rent was paid or deposited elsewhere with bona fide belief or due to some misunderstanding which, subjective evaluation, is always based on the conduct of the tenant. The tenant may not be penalized with eviction if the default is not found to be wilful but due to some technical error without any ulterior motive. Anyway, the well-timed tender of rent is a legal obligation which cannot be escaped on account of flimsy pleas. Though it is the duty of the Rent Controller to ensure fair trial and due process as enshrined under Article 10A of the Constitution of the Islamic Republic of Pakistan, 1973 and in sync the evidence recorded by the Rent Controller also plays a pivotal role to determine the allegation of default, but in the summary nature proceedings, neither any microscopic examination of evidence to exasperate the objective of quick justice is obligated, nor intricacies or hyper technicalities of the Qanun-e-Shahadat Order 1984 strictly apply to the rent cases to promote dilatory tactics, or prevent the landlord from being deprived of property ad infinitum, but general principles of evidence and cross-examination are applicable to make sure that no party is victimized or prejudiced by uncorroborated contentions.

12. In the present context, it is also ruminated to flick through the meaning of default and wilful articulated in the following lexicons:

1. Black s Law Dictionary (Ninth Edition)

Default (Page 480)

The omission or failure to perform a legal or contractual duty; esp., the failure to pay a debt when due; to be neglectful; to fail to perform a contractual obligation; to fail to appear or answer and to enter a default judgment against a litigant.

Wilful (Page 1737)

Voluntary and intentional, but not necessarily malicious.

2. Oxford Dictionary (Tenth Edition)

Default (Page 405)

To fail to do something that you legally have to do, especially by not paying a debt.

Wilful (Page 1785)

Of a bad or harmful action done deliberately, although the person doing it knows that it is wrong.

3. Collins Dictionary

Default (Page 198)

Failure to do or appear as required; failure to pay money due.

Wilful (Page 865)

Done deliberately or intentionally.

4. Stroud s Judicial Dictionary (Second Edition)

Default (Page 488)

Default, is a purely relative term, just like negligence. It means nothing more, nothing less, than not doing what is reasonable under the circumstances; not doing something which you ought to do, having regard to the relations which you occupy towards the other persons interested in the transaction.

Wilful (Page 2247)

It has been said that the meaning of wilfully is, purposely, without reference to bona fides or collusion. Wilfully means deliberately and intentionally.

5. Webster's Third New International Dictionary, Volume III

Default (Page 590)

To fail to fulfil a contract or agreement, to accept a responsibility; to fail to meet a financial obligation.

Wilful (Page 2617).

Governed by will without yielding to reason or without regard to reason; obstinately or perversely self-willed.

13. The jurisprudence evolved by this Court back and forth for the determination of the question of default in the relationship of landlord and tenant is illuminated by means of the following guiding principles:

1. The word "default" in legal terminology necessarily imports an element of negligence or fault and means something more than mere non-compliance.

2. To establish default one must show that the non-compliance has been due to some avoidable cause, for, a person ought not to be made liable for a failure due to some cause for which he is, in no way, responsible or which was beyond his control.

3. The word default should mean an act done in breach of a duty or in disregard of an order or direction.

4. The word default necessarily implies an element of negligence.

5. Default would seem to embrace every failure by the defendant to perform his contract unless prevented by superior force over which he had no control. It would depend upon the circumstances of each case whether a tenant has committed default or not. A tenant who is coming to deposit the money on 4th of the month met with a serious accident with the result that he became unconscious and regained his senses on the 6th cannot be said to have committed default.

6. The petitioners have failed to show that the default was due to causes beyond their control or due to unavoidable circumstances, it is clear that the default has to be regarded as wilful, thus attracting the penalty prescribed in the said section.

7. The initial burden of proof lies upon the landlord to establish that the tenant has not paid or tendered rent due by him as required Sind Urban rent Restriction Ordinance, 1959, but it must be appreciated that non-payment of rent is a negative fact, therefore, if the landlord appears in Court and states on oath that he has not received the rent for a certain period, it would be sufficient to discharge the burden that lies under the law upon him and the onus will then shift to the tenant to prove affirmatively that he had paid or tendered the rent for the period in question.

8. Despite acquiring knowledge about the change of ownership, the tenant avoided/neglected/refused to pay the rent to the new owner rather he continued to deposit the rent amount in the name of previous landlady in the Court of the Rent Controller Karachi which constituted a wilful default on the part of tenant.

9. The Rent Tribunal cannot be required to adhere strictly to all the principles of the law of evidence codified in the Qanun-e-Shahadat or to any special provisions introduced therein that amend general principles of the law of evidence.

10. While adjudicating upon civil rights and obligations in eviction proceedings, a Rent Tribunal should invoke and apply only those general principles of the law of evidence codified in the Qanun-e-Shahadat that are necessary to give effect to the fundamental right of the parties under Article 10A of the Constitution; it need not apply all the principles or any special provisions enacted in the Qanun-e-Shahadat. This distinction is rooted in the summary nature of rent proceedings, which are designed to resolve disputes expeditiously and without the procedural formalities of regular civil trials.

11. The general principles of evidence such as the burden of proof, relevance of evidence, and the right to cross-examine must nevertheless apply to safeguard the constitutional right to a fair trial. However, the relaxation of detailed evidentiary rules, such as strict compliance with the formal proof of documents or the exclusion of hearsay evidence, is justified by the need to maintain the efficiency and accessibility of rent proceedings.

Reference: Ghulam Muhammad v. Safder Ali (PLD 1967 SC 530); Mst. Shah Jehan v. Mst. Mukti (PLD 1963 Karachi 777); Muhammad Hassan Khan and others v. Mirza Abdul Hamid (1981 SCMR 799); Allah Din v. Habib (PLD 1982 SC 465); Alay Javed Zaidi v. Habibullah and others (2024 SCMR 781) and Zafar Iqbal and another v. Syed Riaz Hussain Shah and others (2025 SCMR 690).

14. As a matter of fact, the terms and conditions jotted down in the registered tenancy/lease deed or even an unregistered tenancy agreement have the binding effect and even on its expiry, neither the tenancy is automatically abrogated, nor does it come to an end but by fiction of law, the tenant becomes a statutory tenant and is bound by the rent laws applicable in the tenancy. Here, to the extent of the rate of rent or increase, the MOU was executed between the parties which is in fact a partial novation agreed with certain modified conditions in continuation of the lease deed of the tenement. By and large, the expression novation of contract draws attention to a legal process whereby a subsisting contract, from top to bottom, steps into the shoes of a new contract, switching one party with a new party with the consent of the original parties plus the new one for repositioning of all rights and obligations which gives rise to an altogether new contract, extinguishing the old one. At the same time, this doctrine also applies to the subsisting contract for partial novation between the same parties with some varied or altered terms and condition or conditions for modifying or amending the earlier one, therefore in the present case, the partial novation was reached as a consequence of the MOU with consensus ad idem, hence it was enforceable in its full force and the petitioner could not wriggle out of it instead of honouring the commitment of payment of rent pursuant to the condition agreed in the MOU dated 18.08.2011.

15. Incontrovertibly, if the indenture of the MOU only outlines or contours a general understanding as a roadmap which expresses broad goals for reciprocal pursuits in early-stage negotiations for a future formal contract, then generally, it is considered a non-binding document. Sometimes parties unequivocally incorporate a non-binding clause in the MOU with the condition of its actualization, subject to a definitive forming of a final form of contract. In contrast, it is binding when it encompasses indispensable constituents of an agreement including an offer, acceptance and consideration, agreed to be binding and create legal obligations and commitments, rather than merely delineating future plans. The actual binding nature hinges on the complexion of agreed covenants by means of consensus ad idem ( a fundamental principle of contract connoting "meeting of the minds ") regardless of the taxonomy of the indenture as MOU. What is material is the intention and phraseology of terms and conditions for deciphering the pith and substance, whether it creates a formal and legally enforceable agreement with completeness on the issue agreed upon. The MOU, on the basis of which the earlier rent case was compromised, does not demonstrate any dearth of articulacy, apparent mistake, or miscommunication which could prevent consensus ad idem for potentially voiding or violating the agreed terms of the MOU by the petitioner/tenant.

16. The learned counsel for the petitioner further articulated that the landlord rather than claiming water and conservancy charges in terms of Clause-2 of the lease agreement for the demised premises, unjustifiably lodged the claim for the whole building which contention was outrightly rebutted by the learned counsel for the respondent/landlord and he clarified that the default for unpaid dues is only confined to the tenement in possession of the petitioner and not for the whole building. The learned counsel for the petitioner also cited the judgment of Karachi Properties Investment Company (Pvt) Ltd v. Habib Carpets (Pvt) Limited (2024 SCMR 1354) and argued that the landlord also prayed for directions for the payment of outstanding dues for building and maintenance charges. Let us first clarify that the Rent Controller did settle only four points for determination in his ejectment order which did not include the alleged claim of building maintenance charges. So far as the dictum laid down by this Court in the case of Karachi Properties (supra), while considering the definition of rent provided under Section 2 (i) of the SRPO, one of us while speaking for the bench held that, had the condition of making payment for any monthly maintenance charges been jotted down and agreed between the parties, then of course, that could be considered a binding agreement and the tenant/respondent could not get rid of it without payment and obviously, in the event of default, that cause of action would have been available to the landlord to seek ejectment on the ground of default, including the non-payment of maintenance charges, but where no such condition was incorporated in any lease/tenancy agreement, the expression such other charges which are payable by the tenant will not come into field automatically or mechanically to rescue the landlord unless and until the condition of making payment for such charges is itemized in the agreement with proper details.

17. The learned counsel for the petitioner contended that the landlord sought the ejectment to let out the premises on higher rent. This noteworthy segment has already been considered with exhaustive and in-depth discussion by one of us in the case of Mst. Parveen Ara v. Muhammad Hanif and others (PLD 2025 SC 612) , wherein it was held that Section 15-A of the SRPO was added on 21.01.1980, vide Sindh Ordinance No. II of 1980, and its forthright reading conveys that while securing and safeguarding the rights of the landlord/owner in the genuine and pressing need of the premises for personal need, the legislature, in order to dispel and dissipate false and dishonest claims of personal need shorn of good faith, has also laid down a mandatory condition for deterrence with penal consequences that if the landlord, who has obtained the possession for personal need, relets the building or premises to any person other than the previous tenant or puts it to a use other than personal use within one year of such possession, he shall be punishable with fine which shall not exceed one year's rent of the building of the premises, as the case may be, payable immediately before the possession was so obtained and the tenant who has been evicted may apply to the Controller for an order directing that he shall be restored to possession of the building or the premises, as the case may be, and the Controller shall make an order accordingly. In view of this potent remedy, the apprehension of the petitioner s counsel at this stage is ill-founded and unjustified. However, if the premises in question are not utilized for personal use or re-let then the petitioner/tenant shall have every right to invoke the remedy provided under Section 15-A of the SRPO for restoration of possession with penalty.

18. This Civil Petition was dismissed vide short order dated 23.12.2025. Above are the reasons.

MH/H-2/SC Petition dismissed.