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First Rent Appeal No. 90 of 1983, decided on 23rd January, 1984.

‑‑Ss. 15 & 21‑ Ejectment‑ Personal requirement‑ Landlord withdrawing his previous application for ejectment filed on ground of default of rent without showing cogent reason for withdrawal Landlord not showing what new ground emerged which prompted him to file fresh ejectment application‑Tenant's case being that present ejectment application was moved to put pressure to increase rent‑Finding of Rent Controller that landlord has no case on ground of personal requirement being in consonance with evidence on record‑Ejectment application not allowed.

‑‑Ss. 6 & 21‑Tenure of tenancy‑Landlord accepting rent for more than one year after expiry of tenancy agreement‑Section 6, held, cannot be pressed into service.

Muhammad Saleh v. Muhammad Shafi 1982 S C M R 33 ref.

Muhammad Yousif v. Abdullah P L D 1980 S C 298 ; Kanyal Lal v. Muhammad Ismail 1982 C L C 1106 and Abdul Naeem v. Ghulam Moinud din 1983 C L C 925 rel.

‑‑Ss. 15 & 21‑Ejectment proceedings‑New grounds‑Cannot be fished out during process of prosecuting case without amending rent application and without getting issue framed.

Naimuddin v. S. M. Ahmed Abdul Rehman 1983 C L C 1378 rel.

Muhammad Aslam Bhutto for Appellant.

Addul Naseer for Respondent.

Date of hearing : 23rd January, 1984.

This appeal is against the order, dated 3rd October, 1983 passed by the learned Rent Controller, Sukkur, in R. A. No. 7/ 2 dismissing the present appellant's above application for ejectment, which was filed on the ground of default, breach of the terms of .tenancy, personal require ment and the expiry of the tenancy, agreement. The above a plication was resisted by the respondent. The learned Rent Controller framed the following five issues :‑

(I) Whether the opponent has committed default in payment of rent

(2) Whether premises are required by the applicant for personal bona fide use

(3) Whether the opponent has violated the terms and conditions of rent note and has caused damage to the property

(4) Whether the tenancy ceased to be valid

(5) What should the order be

The appellant examined herself whereas the respondent examined himself and one witness Aziz Ahmed. The learned Rent Controller after hearing the parties dismissed the above rent application by the aforesaid order, dated 3rd October, 1983. The appellant being aggrieved by the above order has filed the present appeal.

2. Mr. Muhammad Aslam Bhutto, the learned counsel for the appellant does not press the grounds of default and the breach of the terms of tenancy. However, he has urged and pressed the following contentions :‑

(i) That the personal requirement was proved.

(ii) That since the tenancy agreement was for a period of 11 months commencing from January, 1980 upto 30th November, 1980, and as the same was cancelled by a notice, dated 6th January, 1981 the respondent was liable to be ejected.

(iii) That the premises were used for other purpose than for what the same were let out.

3. As regard the above first contention, Mr. Bhutto has invited my attention to the fact that the appellant is a widow and is putting up with her mother, and therefore, it has been contended that personal require ment of the appellant stands proved as this factum was not challenged. It is an admitted position that the appellant had filed R. A. No. 127/79. which was withdrawn on the basis of compromise, dated 26th February, 1980, whereby the rent of the premises was increased. According to Mr, Muhammad Aslam Bhutto from Rs. 400 to Rs. 500 per month, whereas according to Mr. Abdul Naeem from Rs. 330 to 500. In her cross- examination, the appellant has admitted that the previous rent application was also filed on the ground of personal requirement, which was compromised on the basis of enhancement of rent. However, it has been contended by Mr. Bhutto that this admission is not correct as factually the previous rent application was filed on the ground of default, It will suffice to observe that a copy of the previous application was not brought on the file of the lower Court by the appellant. Be that as it may, the fact remains that the opponent had withdrawn the previous rent application for ejectment on 26th February, 1980 after getting the rent enhanced, whereas the present application was filed on 21st September, 1982. In this view of the matter, the appellant in order to prove he bona fide was obliged to bring on record some cogent reason, which prompted her not to press her previous application for ejectment and also to show that since the withdrawal of the previous rent application for ejectment on 6th February, 1980 upto 21st September, 1982 i. e. the date of filing of the present application, some new situation has developed, which necessitated filing of the present application. It is the case of the application order to put view the conclusion arrived at by the learned Rent Controller on the issue of personal requirement seems to be in consonance with the evidence on record.

4. Reverting to the second contention of Mr. Bhutto that since the tenancy period bad expired on 30th November, 1980, particular , in view of the service of a notice upon the respondent upon expiry of the above period, the respondent was liable to be ejected. In support of his above contention he has referred to section 6 of the Sind Rented premsis Ordinance, 1979 (hereinafter referred to as the Ordinance). In this regard it may be pertinent to refer to sections 5 and 6 of the Ordinance which read as follows :‑

"5. Agreement between landlord and tenant.‑(1) The agreement by which a landlord lets out any premises to a tenant shall any writing and if such agreement is not compulsorily remittable under any law for the time being in force, it shall tie attested by and sealing with the seal, of the Controller within those jurisdiction the premises is situate or, any Civil Judge of Class Magistrate.

(2) Where any agreement by which a landlord lets out any premises tenant is compulsorily registrable under any law for the tin,1 being in force, a certified copy of the registered deed and where agreement is not so registrable, the original deed duly attested under subsection (1), shall be produced and accepted in proof of the relationship of the landlord and tenant

Provided that nothing in this section shall affect any agreement, between the landlord and tenant immediately before coming into force of this Ordinance.

6. Tenure of tenancy.‑No tenancy shall at a time, be valid beyond such period as the landlord and tenant, have, by mutual agreement fixed before or after the commencement of the tenancy Provided that nothing in this section shall affect any existing immediately before coming into force of this Ordinance."

It may be noticed that section 5 provides the manner of execution of a tenancy agreement which does not require registration, whereas section 6 provides that by mutual agreement there can tenancy for a specific period. However, the proviso to the above section provides that the above section would not affect the existing tea immediately prior to the enforcement of the Ordinance.

It has been contended by Mr. Abdul Naeem, learned counsel respondent that since the respondent was the tenant of the tenement question since 1975, section 6 of the Ordinance is not applicable present case.

It may be observed that apart from the fact that the tenancy agreement in question was not executed in the manner provided for in the above‑quoted section 5 of the Ordinance and, therefore, it is moot; point whether the above section 6 can be pressed into service, additional ; an admitted position that after the expiry of the previous agreement November, 1980, the appellant continued to accept the rent upto December, 1980. Muhammad Aslam Bhutto that the acceptance of rent by the appellant after service of the notice, dated 6th January, 1980 does not amount to waiver. In support of the above submission, he has referred to the case of Muhammad Saleh v. Muhammad Shafi (1982SCMR33), in which a Division Bench of the Hon'ble Supreme Court while declining to grant leave to appeal observed that delay in filing of an application for striking of defence cannot be construed as a waiver. The above case has no application to the instant case. In this regard, it may be pertinent to refer to the case of Muhammad Yousif v. Abdullah (PLDI980SC298), the case of Kanyal Lal v. Muhammad Ismail (1982 C L C 1106) and the case of Abdul Naeem v. Ghulam Moinuddin (1983 C L C 925) in which inter alia it was held that on the expiry of the period of the tenancy the tenant becomes a statutory tenant and the terms and conditions of the expired tenancy cease to be applicable. Since admittedly the appellant accepted the rent for more than one year after the expiry of the above tenancy agreement, In my view section 6 of the Ordinance cannot be pressed into service.

5. Adverting to the above last contention it may be observed that it is an admitted position that the ejectment application does not contain any ground for ejectment on account of alleged conversion of the use of the tenement and, therefore, no issue was framed on the above ground. However, it has been contended by Mr. Muhammad Aslam Bhutto that since the above breach was discovered after the filing of the written statement and the affidavit in evidence filed by the respondent, the appellant is entitled to press into service the above ground without amending the rent application. In support of the above submission, he has referred to the case of Naimuddin v. S. M. Ahmed Abdul Rehman (1983 C L C 1378), in which according to him it has been laid down that even in the absence of raising of an express ground of default, a Rent Controller can grant ejectment on the above ground if default has been proved. The above case does not lay down a broad proposition that without expressly pleading in a rent application every sort of ground can be pressed into service. I am of the view that a party cannot fish out a new ground during the process of prosecuting the case without amending the rent application and without getting an issue framed. It may be pointed out that the appellant was free to file an amendment application on discover ing the aforesaid fresh ground or could have filed a fresh rent application if in fact it was a fresh ground discovered.

6. For the aforesaid reasons the appeal is dismissed with no order as to costs.

M. Y, H. Appeal dismissed.

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