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First Rent Appeal No.825'of 1984, decided on 3rd May, 1987.

---S.15--Agreement of tenancy between parties stipulating that no construction be made by tenant without permission of landlord. Raising construction without permission, held, rendered tenant liable to ejectment.

---S.15,.-Tenant continuing to be in occupation of tenement after termination of tenancy period mentioned in agreement--All terms of agreement continue to be binding if not found to be in any manner inconsistent with provisions of Sind Rented Premises Ordinance.

P L D 1980 S C 298; 1980 S C M R 767 and P L D 1984 S C 32 ref.

Muhammad Inayatullah for Appellant.

M.Umar Qureshi for Respondent.

Dates of hearing: 15th and 22nd March, 1987.

This appeal is directed against the judgment of VI Sr. Civil and Rent Controller in R.C.No.2861 of 1982 dated 31-7-1984 whereby the application for ejectment filed by the appellant on the ground of cessation of tenancy, default in rent, raising of unauthorised and construction and personal requirement was dismissed.

The relevant facts are that the premises are Quarter No.2 Block, No.9 Dastgir Colony, Karachi which is on rent with the respondent from 1962. An agreement of tenancy dated 12-2-1980 had bean executed between the parties where the rent was fixed at Rs.450 per month and it was stipulated that the respondent will not make any construction without written permission from the landlord and will not commit any illegal act. The accommodation in quarter was mentioned as three rooms.

On 5-7-1982 the ejectment application was filed, therein non-payment of rent was alleged from December, 1981 and it was alleged that respondent had infringed the conditions on which the quarter was let out and has made unauthorised construction of other rooms on the roof of the quarter. It was also alleged that the appellant had met with an accident and had fractured his leg and has also retired from the Government service and he wants to live in his own quarter as he was living in the quarter of his stepson who had a large family.

It, the written statement the respondent denied the allegations and stated that the rent has been increased from a sum of Rs.70 in 1962 to Rs.300 upto 1980. In February, 1980 the appellant had again asked for enhancement of rent to Rs.450 and the respondent being a cooperative tenant agreed to the same and that the landlord /appellant has not issued receipts since 1965 and refused to receive rent from Nov .1981 and demanded Rs.800 per month and, therefore, the respondent sent rent by money order for Nov.1981 which has also been refused. Then again rent of Dec.1981 was sent by money order but its fate was not known. Thereafter rent was deposited in the court. It was also urged that in Jan. 1982 the appellant had tried to dispossess the respondent forcibly but a stay order was obtained in a suit. It was further alleged that the agreement was renewed after 31-12-1980 by acceptance of rent. It was also alleged that tax had been paid by the respondent on behalf of the appellant amounting to Rs.1216/28 which has not been adjusted towards rent and was outstanding. In respect of construction it was urged that the construction itself will negate the allegations. The personal need was denied to be in good faith or bona fide. The appellant filed his affidavit in evidence and produced the terms of tenancy and stated that the agreement was for eleven months from 1-2-1980. It was clearly stated that only three rooms with amenities on single storey quarter were let out but in October, 1981 the respondent made unauthorised construction on the roof of the quarter. Photographs of the unauthorised construction were also filed. It was also alleged that the notice from Building Control Authority for removal of unauthorised construction had also been received by the appellant and the said notice was filed. It was alleged that the unauthorised construction had endangered the quarter as the foundation and walls of the quarter were not strong enough to bear the load of the upper floor. The affidavit further went on to state that the appellant was seriously injured in a truck accident in June, 1976 and his leg was fractured and he was, therefore, retired from service w.e.f 21-4-1978. The retirement letter was filed. The appellant asserted that he wanted to live in his own quarter as he had no house of his own and that he was living in the quarter of his stepson who had been requesting him to vacate the said quarter. It was also alleged that the respondent had his own house where his son Saleem lives and that his son has also his own house at North Nazimabad.

The appellant denied that he demanded Rs.800 per month as rent. The appellant explained that he lives far away from Dastgir Colony at Malir Extension Colony ands therefore, the respondent had been allowed to deposit the tax in respect of the house on his behalf and that the respondent was fully reimbursed for the same.

In cross the appellant admitted that since 1962 he had been residing with his different relatives. He denied to have refused money order and admitted that he had accepted the money order from Dec.1981. He denied that he triad to evict the respondent by force. He did not know that the respondent was depositing rent in Court but he admitted that respondent had produced rent receipts of Rs.1800 for the deposit of rent in Court from Nov.1981 to Feb.1982. He admitted that he had stated in his affidavit on 11-5-1982 that he has not received the rent from Dec.1981. He denied that there was any pillar in any of the three rooms. He stated that one room on the roof of the big room had been constructed by the respondent. He admitted that the roof of the room was of RCC. He could not say whether that construction would have cost about Rs.25 to 35 thousand. He denied that he himself constructed the first floor in Nov.1979. He also denied that after the construction of first floor, he increased rent from Rs.300 to Rs.450 per month by agreement in Feb.1980. He admitted that the rent prior to agreement was R-s.300. He admitted that the upper floor of the premises was cemented and plastered as shown in the photograph. He stated that Annexure 'D' was sent to him through a messenger. (This notice was from the Building Control Authority). He denied that he had manipulated the notice with KDA.

In further cross the appellant stated that he had retired in May 1978 and at that time he was residing at Drigh Road with relative and friend Abdul Shakoor but he did not remember now his house number. He admitted that both of his stepsons have their own houses. He did not have any issue of his own from his wife. Both the houses of his sons are in Malir Extension Colony. He stated that he has been residing with his eldest son. He further stated that he has been residing in Dizgh Road from 1975 to 1976 and from 1950 'to 1975 he was residing at Airport Old Area and Drigh Road No.3. He admitted that when there was a quarrel between his wife and the wives of his sons, then he had to leave their house and settled in another house. He stated that after the accident he was taken to his son's house and he was living still there. He admitted that his Identity card prepared on 24-4-1974 bore his address of Malir Extension Colony on his permanent address but at present he is residing with his younger son in his house. He admitted that after the accident he did not send any notice to the respondent to vacate the premises and did not do so even after his retirement and that he never sent any notice for personal requirement but added that he had requested the same orally. He denied that meanwhile he had been increasing the rent.

The respondent filed his own affidavit in rebuttal, wherein he stated that he had sent the rent of Nov.1981 through money order which was refused and again he sent rent of December, 1981 by money order and then he deposited Rs.1800 on 6-2-1982 in Court under receipt No.55981 issued by the Nazir which he produced. He stated that the appellant tried to dispossess him forcibly but he filed suit and obtained injunction and that the present application was the result of the failure of the appellant to dispossess him. The appellant demanded Rs.800 and he, on the other hand, demanded Rs.1216 which he had paid towards KMC taxes on behalf of the appellant. He produced the receipts of tax paid by him to KMC and the Government. He stated that he wanted to vacate the premises in October, 1979 as he wanted more accommodation for the marriage of his son but the appellant agreed to construct one big room with bath and the kitchen on the roof of the existing premises with condition to increase the rent from Rs.300 to Rs.450 per month. He asserted that the appellant completed the construction by the end of Jan.1980 whereafter fresh agreement of tenancy was executed on 12-2-1980. He stated that there was no change in the family members of the appellant and in these circumstances the requirement for personal use was not justified and that the appellant could not live alone in such a big house leaving his wife. He also asserted that notice of Karachi Building Control Authority dated 6-3-1983 was creation of, an. evil mind.

In cross-examination he admitted the agreement of tenancy dated 12-2-1980 bearing his signature. He stated that he had sent rent for Dec. on 12th Dec.1981. He admitted that first deposit of rent was made on 6-2-1982. He denied that the bills of taxes paid by him were adjusted towards rent. He denied that he was sending Rs.400 and Rs.50 was being deducted towards tax. He admitted that he did not send any notice to the appellant for adjustment of tax towards rent but mentioned it for the first time in the written statement. He denied the liability to pay water charges.

In further cross he admitted that he was let out three rooms, with bathroom, kitchen and latrine. He denied that he raised the construction unauthorisedly in the room but asserted that it was done by the appellant himself. He denied that construction was raised in 1981 but asserted that it was in 1979-80 when the rent was increased from Rs.300 to Rs450. He admitted that in his written statement he did not state that' he required additional accommodation for his son and the appellant constructed it for him and he increased the rent from Rs.300 to Rs.450. He further admitted that in his suit he had not raised a Plea that the construction on the upper floor was made by the appellant. He admitted that the notice of Building Control Authority had come on his address and he had sent it to the appellant through peon. He asserted that the construction was completed in Feb.1980 and the marriage of his son took place in 1982. He did not disclose to anyone that the construction of upper floor was being made for him. He admitted that the appellant was ill for sometime and had broken his leg and had retired from the Government service. He did not know that appellant resides in the house of his son. He denied that appellant had demanded the house from him for his personal use. He denied that he or his son had any house at North Nazimabad but it was only a plot.

The Rent Controller held that the tenancy has not ceased to be valid and it has continued after Jan.1981. There is no quarrel on this issue. On issue No.2, whether the opponent is defaulter in payment of rent, the Rent Controller found that he was not a defaulter. The said finding is certainly justified in view of the fact that money order of Dec.1981 was admittedly received by the appellant and thereafter in Feb.1982, the respondent deposited a sum of Rs.1800 towards the rent and further on account of the fact that he had paid about Rs.1200 towards taxes. The allegation of default for the period of Dec.1981 onward was, therefore, not justified. Even the appellant's counsel was not able to seriously challenge the said finding In fact, the appeal was limited only on the ground of personal need and 7 unauthorised construction and on the other points it was definitely observed by the Hon'ble Single Judge admitting the appeal that on other points he had agreed with the Rent Controller.

The other two points of personal requirement and unauthorised construction require consideration. The Rent Controller had hell that the construction was made with the approval of the appellant as the appellant had not raised any protest in October, 1981 or thereafter and moreover it was also stated that the notice sent by the Karachi Building Control Authority in 1983 was managed by the appellant because the original notice had come in the possession of the appellant in spite of the fact that he was residing in Malir while the disputed premises was in Federal 'B' area. The Rent Controller also accepted the suggestion of the respondent that the reason for reconstruction was that the respondent had threatened to vacate the premises if another room for his son's marriage was not constructed. It appears to me that the reasoning of the Rent Controller is quite incorrect. In the first instance the Rent Controller has failed to note the contents of the agreement of tenancy dated 12-2-1980, which showed that there were only three rooms in existence at the premises and the rent of those three rooms was raised to Rs.450 per month. This document completely contradicts the assertion of the respondent that the room had been constructed by the appellant in Jan.1980 and, therefore, the rent had been increased from Rs.300 to Rs.450 per month. His oral assertion is completely denied by the contents of the agreement of tenancy, which he had admitted under his signature. Moreover, in the plaint of Suit No.508/82, filed by the respondent himself against the appellant, the reason of enhancement of rent to Rs.450 is the demand of the landlord to increase the rent and not the reason of construction of an additional room by the landlord, therefore, this plea of the respondent himself negates that there was a construction of additional room by the landlord. Another surprising thing is that in para 5 of the written statement to the ejectment the respondent did not even suggest that the construction the upper room was raised by the landlord himself although the ejectment application had clearly alleged unauthorised construction of room by the respondent on the first floor. It was only in the affidavit of respondent Ewaz Yar Khan that for the first time the plea of construction of the room by the appellant was raised and the reason of enhancement of rent was given to be the said construction of additional room. The clear conclusion is that in Feb.1981, when the agreement took place only three rooms on the ground floor existed and there was no construction on the first floor and the construction was made later by the respondent himself. In fact, the reasoning of the Rent Controller suggests that the construction was made by the respondent but since it was not objected to by the appellant, therefore, he had waived his right to object to .the same. The reasoning is again incorrect because the respondent never took up the position that he had made the construction himself, nor any plea of waiver was raised.

Moreover, the question of waiver is not correctly decided because the appellant had explained that he resides in Malir Extension Colony and, therefore, he had authorised the respondent to pay the taxes and in these circumstances, the visits of the appellant to the premises would be far and few. The other reason that the notice from K.B.C.A. was manipulated by the appellant was again wrong because it was the appellant of course who had produced that letter but while being cross-examined the respondent had admitted in cross-examination that he had received the said letter from K . B . C. A . had passed it on to the appellant. Therefore, the reasoning of the Rent Controller does not appear to be correct.

Thus there is no escape from the fact that it was the respondent himself, who had made the construction as alleged by the appellant and he had done so without taking consent, of the appellant and he had clearly acted in breach of the terms of agreement of tenancy, which did not permit the tenant to raise the construction and the said construction was also raised in contravention of law as the plan for construction was not approved by the K .B .C. A. and they have, therefore rightly taken objection the same in 1983. This action of the respondent in raising the construction had opened the appellant to an action under section 6 of Sind Building Ordinance, 1979.

The answer of Mr. Umer Qureshi, counsel for the respondent, was that according to P L D 1980 S C 298 the agreement of February, 1980 had come to an end in Dec.1980 and, therefore, it was a dead agreement and could not be enforced.

As against that Mr.Inayatullah relied upon 1980 S C M R 767, where it was held that if tenant continues to be in occupation of tenement after termination of tenancy all terms in lease deed continue to be binding.

It is correct that there are observations in P L D 1980 S C 298 to the effect that the agreement of tenancy means an agreement, which is in force and not an agreement, which had expired and is dead, but the agreement in that case was considered to be in breath the provisions of West Pakistan Urban Rent Restriction Ordinance therefore, it was considered to be dead. It was, also observed that case that there may be lease agreements, which are not inconsistent with the provisions of the said Ordinance, but such cases would be the exception rather than the rule It was observed in that case as under:----

"No doubt the parties would have entered into such an agreement but an agreement to renew only some of the terms of a written agreement is not to be lightly inferred, and in any case, it cannot be inferred from the mere tender of rent by the appellant and its acceptance by the respondent, because the parties were bound by' the overriding provisions of the said Ordinance."

In fact, in the present case before me the continuance of the agreement of tenancy dated 12-2-1980 and its conditions, as contained in pars. 1 of the ejectment application, were not as such denied in paras 1 and 2 of the written statement and Para 2 of the said written statement appears impliedly to have accepted the said continuance by stating that contents of Para 2 do not require any reply as the contents of agreement, if produced by the applicant, shall speak for itself. It is, therefore, clear that the continuance of the conditions of that agreement is not denied, but it is only the interpretation of the contents of that agreement, which is being questioned .by the respondent. In these circumstances, it would be more appropriate in follow to this case 1980 S C M R 767 (771), which is also a judgment of the Supreme Court itself. At this stage I must also note that in P L D 1984 S C 32, the Supreme Court had noted the above two cited judgments and with reference to the facts of that case, the Supreme Court had observed that whether it is the law laid down in Muhammad Yousif's case in P L D 1980 S C 298, which is applied or that laid down in Altaf Din's case in 1980 S C M R 767, the tenant admittedly was in default in the payment of rent. It, therefore, appears to me that both the above cited judgments of the Supreme Court have been held to be binding and applicable and, therefore, anyone of these judgments, which is taken to be relevant by the Court in the circumstances of its particular facts can be referred to for the decision.

The terms of agreement of 19-2-1980 between the parties that no construction shall be made by the tenant without permission of the landlord and that the tenant will not commit any illegal act, were, therefore, binding upon the respondent as they are not found to be in any manner inconsistent with the provisions of Sind Rented Premises Ordinance, 1979. The respondent had, therefore rendered himself liable to ejectment by raising the construction without permission from the appellant and he had further committed the illegality of making the construction without sanction of plan by K . B . C . A . He is, therefore, liable to be ejected and the appeal, therefore succeeds on this ground.

The question of personal requirement by the appellant is not free from difficulty. The identity card that was produced by the appellant shows that he had his permanent residence at Malir Extension on 24-4-1974. He had met with an accident on 5-6-1976 and it is his own case that from the hospital he went to the house of his stepson and is living there since then. He had retired on 1-4-1978 from service, but in spite of that accident he did not demand the premises from the respondent and on the other hand even after about 2 years from his retirement and 4 years of accident in Feb.1980, he extended the lease of the premises in favour of the respondent for a term of 11 months on enhanced rent which was continued thereafter and he never demanded in writing the vacant physical possession of the premises from the respondent on the basis of personal need, but he says that he simply made oral demand in that regard. The oral demand has to be disregarded in view of the continuance of the tenancy in February, 1980. It, therefore, appears to me that there was hardly any bona fide need of the appellant for his personal residence in the premises. It is of course a wish of the appellant to live in his own house, but apart from that he had not established as to why he needs the premises in 1982 when he did not express any need of the same after he had met with an accident in 1976 and when he was retired in 1978 and it was only in the ejectment application filed by him in July, 1982 that the demand for personal residence was made for the first time. The ground of personal requirement was based in the affidavit of evidence by the appellant only on the basis of accident in 1876 and retirement on 21-4-1978 and in the said affidavit there was no reason given that he wanted to live in his own house because there were family differences cropping up between him and the wife of his stepson. In Tact it appears to me that he had been living quite happily with his step son and his wife having no other issue from the appellant himself would probably like to continue with her son in such an old age and, therefore, the question of personal requirement is hardly established particularly when even after retirement in 1978 he extended the lease of the house in favour of the respondent. The two stepson being resident of Malir Extension Colony it would really be difficult for the appellant and particularly his wife to reside several miles away from them in Dastgir Colony. The family dispute, which is referred to by him in his cross-examination is restricted to the position that when there used to be quarrel between his wife and the wife of his son then he had to leave their house and settle in some other house, but admittedly he has been living with his stepson from 1974 and he had shown their address as his permanent address and he had not given the address of any other person with whom he lived during this period and, therefore, there is hardly any justification for personal residence.

The net result is that the appeal is allowed only on the point of unauthorised construction having been raised by the respondent while it is dismissed on other grounds. However, in view of the difficulty in securing residential accommodation in the city and particularly in view of the fact that the respondent had spent a good deal of money on the construction of the room, I would allow the respondent 10 months' time to vacate the premises, if he continues "to deposit the rent in Court regularly. After 10 months from today, direct writ of possession without notice to the respondent will be issued against the respondent. Such writ can be issued earlier in case of default in payment of rent.

K . B . A . / R-17 / K Appeal accepted.

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