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First Appeal from Original Order No. 30 of 1984, decided on 23^rd October, 1985.

‑‑‑Ss. 13 & 15‑‑Ejectment of tenant‑‑Relationship of. landlord and tenant‑‑Landlord in pleading not specifically mentioning that he was claiming to be the landlord as Rent Collector on behalf of and for benefit of his father, the real owner of property in dispute, but gave impression that he himself was owner of same‑‑Denial of relationship of landlord and tenant being result of genuine impression created by pleadings in eviction application, such denial, held, would not be contumacious.

P L D .1974 Lah. 489; 1968 S C M R 793 and 1982 S C M R 1164 ref.

‑‑‑Ss. 13(2)(i) & 15‑‑Ejectment of tenant‑‑Default in payment of rent‑ Mode of payment of rent‑‑In absence of any lease deed executed by parties, ordinary implication of tenancy would be that rent was payable monthly and at end of each calendar month‑‑Extra sixty days provided to pay rent due, held, were to be counted from period for which rent was payable.

Aftab Ahmad v. Mrs. Hazik Hussain P L D 1985 Quetta 108 ref.

‑‑‑‑Ss. 13(3)(ii) & 15‑‑Ejectment of tenant‑‑Personal bona fide requirement‑‑Proof‑‑To establish personal bona fide requirement in respect of premises, landlord should specifically allege and give details about such requirement in ejectment application‑‑Landlord having already got vacated shop just near disputed shop and rented out same on enhanced rent, failed to establish clear personal bona fide requirement‑ Finding of Rent Controller based on evidence on record about failure of landlord to prove bona fide personal requirement, held, was neither arbitrary nor capricious and would not warrant any 'interference.

Azizullah Memon for Appellant.

lftikhar Muhammad for Respondent.

Date of hearing: 30th September, 1985

The appellant has challenged the orders, dated 30‑5‑1985 passed by Miss Baqri, the Civil Judge, Quetta whereby exercising the powers of the Controller under Ordinance V I of 1959 she has dismissed the eviction application filed by the appellant against the respondents herein.

2. The Eviction Application No. 150 of 1982 was filed on or about 8‑12‑1982 and it was claimed therein by the appellant that he is the landlord of the Shop. No. 1‑27/46(37) situate at Circular Road, Quetta and the respondent is tenant at the rental of Rs.75 p.m. The father of the appellant had taken loan which was to be adjusted in rent at the rate of Rs.40 p. m. and the balance of Rs.35 was to be paid. At the time when the eviction application was made a sum of Rs.1,390 was still to be adjusted in rent. It was alleged that the tenant/ respondent was a bad paymaster because he has not paid rent for two months i.e. October and November, 1982. It was also said that "the shop is also required in good faith to the applicant" (para. 3 of the eviction application). The tenant /respondent in his reply statement filed on 3‑3‑1983 admitted the fact that he is occupying the shop in dispute but said that the shop was given to him on rent by Seth Abdul Hasan Mulla Moosap (the father of the present appellant), thus he is tenant of Seth Abdul Rehman and on that basis raised a preliminary objection that "there is no relationship of landlord and tenant between the applicant and the respondent as such the application deserves dismissal. "The assertion of the applicant as contained in para. 2 of the eviction application was replied in this way that the amount of Rs.6,000 received by the father of the appellant was advanced rent as per agreement, dated 30‑3‑1972. Exh.R/1 and according to the terms and conditions of the agreement Seth Abdul Hassan was entitled to receive rent only at Rs.35 p.m. and the remaining Rs.40 were to be adjusted towards rent of the shop. This agreement had been acted upon upto September, 1982 but thereafter, the landlord refused to accept .the rent and the tenant‑respondent therefore, remitted the rent through money order but it was refused. The rent was, therefore, tendered in Court with the permission of the Court. The requirement of personal use and occupation was denied and it was pointed out that the original landlord had another shop very near the shop in question which had been rented out on enahanced rent recently.

The learned Controller on the basis of the preliminary legal objection framed an issue and after recording the evidence of the appellant came to a finding that the shop in fact was originally leased out by the father of the appellant but since the father had authorised the appellant to realize rent on his behalf and the receipts were issued by the applicant, he is entitled to receive rent on behalf of the owner. This the appellant was held to be the landlord in terms of section 2 (c) of the Ordinance VI of 1959 (hereinafter referred to as the Ordinance).

4. On merits the following issues were framed:‑

(1) Whether the respondent has committed default in payment of rent for October and November, 1982

(2) Whether the applicant in good faith requires the shop in question

(3) Relief

The learned Controller while deciding the issue No.1, in the negative came to a finding that in the present case no agreement of tenancy exists and since the cause of action for the non‑payment of rent for October, could arise on 30th December, for November on 30‑1‑1983 the eviction application was without any cause of action on the day it was filed as the rent was deposited on 23‑12‑1982. The agreement R/1 relied by the tenant was admitted by Seth Abdul Hussain (A.W.1) examined in connection with the preliminary issue. The issue No. 2 was also decided against the appellant and while discussing the evidence of the parties recorded a finding that the evidence tendered by the appellant was contradictory and the fact is established that the present appellant is not jobless but has been carrying on the business in a shop alongwith his brother. It was further found by the Controller that the suggestion of the respondent that a shop had fallen vacant that the applicant has obtained Pagri for, that shop which is situated just near the shop in question and rented the same on enhanced rate of rent was not denied. On account of these observations the learned Controller held that "the applicant has failed to prove that he is in good faith in need of shop in question for his personal bona fide use and occupation'. As a consequence of these findings the eviction application was dismissed on 30‑5‑1985.

5. Mr. Azizullah Memon, the learned counsel for the appellant has urged the following grounds:‑

(a) That after having held the respondent as tenant the eviction order should have been passed as the respondent had denied the relationship of tenant and landlord.

(b) That since as per conditions printed on the back of the receipts the rent was payable on each month by the 13th day of the succeeding month there was default of payment of rent for October and November, 1982. This aspect of the case has not been correctly appreciated by the Controller and the findings thus recorded on issue regarding default is erroneous.

(c) That the personal bona fide need of the appellant has been established. The finding recorded to the contrary is illegal.

6. Mr. Memon in support of the ground (A) has placed reliance on cases reported (i) P L D 1974 Lah. 489, 1968 S C M R 793 and 1982 SCMR 1164.

These authorities lay down that a person who does not acknowledge the relationship of landlord and tenant between the parties has no right to plead after finding in this regard against him for any further enquiry, and he is estopped by his conduct to plead his defence and the denial results in forfeiture of tenancy.‑There is no cavil with the proposition of law enunciated in the cited cases but the question for consideration is whether the plea raised by the respondent can be termed as contumacious in the circumstances of the case. The appellant in the pleadings nowhere had alleged that he was claiming to be a landlord as a Rent Collector on behalf of and for the benefit of his father but gave impression that he was owner of the premises. The receipts which were produced in the evidence were no doubt signed by him but the receipts also showed that the property belongs to his father which position still subsists. No intimation whatsoever was given by the original owner that he has transferred the shop to the appellant, The rents are sometimes issued and signed by "Karindas" of the property owners. In such circumstances the plea was raised that the property belonged to Seth Abdul Hassan and from whom it was obtained on rent by the respondent and this was not incorrect. Even the present appellant had said in the eviction application that his father (the owner) has obtained loan from the respondent, which amount admittedly was advance rent given by the respondent in respect of the shop in question. I. therefore, concur with the view taken by the Controller that the denim of the respondent was not contumacious but under a genuine impression created in the mind of the respondent by the pleadings contained in para. 1 of the Eviction Application. The contention of Mr. Memon, therefore, is repelled.

7. There is no lease deed executed by the parties. The agreement, Exh . R / 1 though executed does not specify that the rent was to be paid by 10th of succeeding month. The printed condition on the receipts Exh.A/1 were not pleaded in the eviction application nor it has been established on record that these conditions were made known to the respondent when the tenancy had begun. The ordinary implication of tenancy therefore, is that the rent is payable monthly and the rent was payable at the end of each calendar month and as laid down in section 13(2) of the Ordinance the cause of action could accrue only if the tenant has not paid or tendered rent due by him within 60 days from the period for which the rent is payable. It has been pointed out by this Court in Aftab Ahmed v. Mrs. Hazik Hussain P L D 198 Quetta 108 that these sixty days were to be counted from the period for which the rent is payable. These extra sixty days were allowed from the period the rent is payable. In the case of monthly tenancy the period for which the rent is payable is the whole month, not each day of the month. In view of the above the finding of the learned Controller that default of rent for October and November, 1982 could not furnish the appellant with any cause of action is unassailable. The fact is borne out by the record that the respondent has remitted the rent through money order and on the refusal of the landlord it was tendered in Court much before the respondent was served with the notice of this eviction application. In the circumstances of the case, it is simply ridiculous to say that the respondent who has paid Rs.6,000 as advanced rent when the tenancy started and a sum of Rs.1,390 admittedly was yet to be adjusted in rent is a bad paymaster.

8. It is by now well‑established that it is not enough to say that the landlord requires the premises in good faith. It is necessary for the landlord to specifically allege and give such details in the application and unless it is done the tenant cannot be expected to meet the case of the landlord and landlord is required to prove facts which go to prove his requirement and the requirement has to be reasonable and bona fide. In para. 4 of the eviction it has only been said that "the shop is also required in good faith to the applicant. The learned Controller, it appears from the judgment, in conscious of these legal requirements and has expressed that the appellant has not made it clear for which purpose he requires the shop in question. It is in evidence that one shop just near the shop in question had fallen vacant and that was rented out on the enhanced rent. The finding that the appellant has failed to prove that he is in good faith in need of the shop in question for his personal bona fide use and occupation is correctly arrived at. The approach of the Controller and the treatment of the case and the analysis of the evidence on record is neither arbitrary nor capricious and does not warrant any interference.

For the above reasons, the appeal fails and is accordingly dismissed. The parties shall bear their own costs.

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