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First Rent Appeal No.864 of 1984, decided on 14th June, 1987.

---S.13--Sind Rented Premises Ordinance (XVII of 1979), S.21 Bona fide personal requirement--Shop--Landlord suppressing fact that he was also in occupation of other business premises and that he was in service--Landlord also had not tried to establish that said other business premises were not suitable for his need--Held, if landlord s conduct was such that he did not take Rent Controller into confidence, nor approached the Court with clean hands and was guilty of suppression of fact, same would reflect and recoil on his bona fides and good faith for establishing his personal need.

---S.13--Sind Rented Premises Ordinance (XVII of 1979), S.21 Personal requirement--Mere desire of landlord to evict his tenant or ground of personal requirement, held, was not sufficient--Landlord was required to discharge his onus and to satisfy that his requirement was based on good faith and bona fides--Finding of Rent Controller against landlord on question of personal requirement based on correct appreciation of material on record--Interference declined.

Fazil Azim and another v. Tariq Mahmood and another P L D 1982 S C 218 ref.

---S.13--Sind Rented Premises Ordinance (XVII of 1979), S.21--Default in payment of rent--Rent Controller, held, was not bound to order eviction in every case in which deft had been proved--Rent Controller had ample discretion which had to be exercised by hire after taking into consideration all factors.

---S.13--Sind Rented Premises Ordinance (XVII of 1979), S.21--Default in payment of rent--Tenant depositing rent with Nazir of Court when he received no reply from landlord who did not care to collect rent within time--Tenant also cleared taxes which were payable by landlord--Only one month's rent remained due and payable by tenant after calculation of rent so deposited--Default of tenant not wilful but due to miscalculations--Landlord unable to show that discretion exercised by Rent Controller in favour of tenant was not properly exercised--Order of Rent Controller dismissing ejectment application, held, was unexceptionable in circumstances.

Fazil Azim and another v. Tariq Mahmood and another P L D 1982 S C 218 ref.

S.Hamid Hussain for Appellant.

Syed Inayat Ali for Respondent.

Date of hearing: 27th April, 1987.

This appeal under section 21 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) is directed against the order dated 31-7-1984 passed by the Xth Senior Civil Judge/Rent Controller, Karachi whereby the eviction application No.1171/77 filed by the appellant was dismissed.

The facts leading to the filing of the above appeal are that the appellant is the owner/landlord of shop constructed on Plot Nos .217-218, Commercial Area, Block-2, P . E. C . H . Society, Karachi, and the respondent is the tenant in respect of the said shop at the monthly rent of Rs.700. The appellant sought eviction of the respondent on the ground of personal requirement and default. The respondent denied both the grounds. The appellant filed his own affidavit-in-evidence in respect of the eviction application. The respondent filed affidavit-in-evidence, of its partner Shamsuddin in rebuttal. They were cross-examined by the learned counsel for the respective parties.

The Controller on the basis of the evidence and the material placed before him dismissed the eviction application. The instant appeal is against the dismissal order.

I have heard the learned counsel for the parties and have perused the impugned order. The appellant averred i-se. para. 3 of his eviction application that "the applicant does not have any job nor any business and requires the said shop reasonably and in good faith to establish his own business". The respondent stated in his written statement that "the applicant is a Zamindar an also owns other immovable Urban and Rural Properties in Karachi and other parts of the country and his bona fides as to personal requirement of the premises are not only doubtful but strongly disputed and he is, put to strict proof thereof." The appellant repeated the same facts in his affidavit-in-evidence.

The appellant also stated that he has no other shop in Karachi or elsewhere in Pakistan. The appellant admitted in his cross-examination that he is in service since August, 1977 in Pakistan Insurance Corporation. The appellant admitted in his cross-examination that he was in service from 1971 to 1974 in State Life Insurance Corporation. The appellant admitted in his cross-examination that in the end of 1580 he constructed 11 rooms on the first floor and he let out only two rooms and the rest are lying vacant. The appellant admitted in his cross-examination that he let out the other portion of the ground floor to the tenant about 2 months back. The appellant admitted in his cross-examination that he let out the portion of the ground floor to the tenant about 2 months back. The appellant admitted in his cross-examination that he has not specified the nature of business which he proposed to do.

As against the above evidence, the partner of the respondent stated that the accommodation in occupation and use of the appellant is vastly in excess of his requirements and much above his status. The partner of the respondent to a question in cross-examination replied that he has seen the rooms on the first floor. The partner denied the suggestion that these rooms cannot be used as show-rooms.

I have carefully read the evidence. The Controller held that the appellant had failed to substantiate his bona fide requirement for the shop in dispute. In order to reach this conclusion, the Controller was influenced by the consideration firstly that the appellant is in service of Pakistan Insurance Corporation and secondly the appellant in his eviction application and in his affidavit-in-evidence did not disclose that he was in occupation of another portion on the ground floor at the time of institution of the rent case. Thirdly the appellant admitted in his cross-examination that in the end of 1980 he constructed 11 rooms on the first floor, out of which two rooms he let out to tenants. The appellant did not prove that the portion the ground floor which was let out two or three months prior to his cross -examination and the nine rooms on the first floor which mere already in his possession were not suitable for his need. The manner in which this disclosure was made led the Controller to believe that he was guilty of suppression of important fact and thus had not approached the Controller with clean hands.

The learned counsel appearing for the appellant has contended that the learned Controller has misdirected himself in law inasmuch as the mere fact that a landlord possessed more than one business premises in the same building was no circumstance to be construed against him as the choice was with the landlord as to which premises were required by him for his personal use or occupation. He has further supplemented this argument by submitting that if a person was in possession of more than one premises in the same building or urban area, it was not for the Controller to determine as to which of the premises should be occupied by him.

The argument is devoid of force in the instant case what they learned Controller has done is not that he has tried to interfere with the choice of the landlord as to which premises he wishes, to occupy but in order to construe whether the need of the landlord was bona fide, and in good faith, he has taken into consideration the circumstances that in the eviction application as well as in the affidavit-in-evidence he had suppressed the fact that he was also in occupation of other business premises on the ground floor and he was in the service of Pakistan Insurance Corporation since August, 1977 and also not tried to establish that such other business premises were not suitable for his need. I think the view of the Controller is sound. Inasmuch as if the conduct of the appellant is such he does not take the Controller into confidence nor approaches him with clean hands and is guilty of suppression of facts, then this conduct of the landlord will reflect and recoil on his bona fides and good faith for establishing his personal need.

It is well-established legal position that a mere desire of a landlord to evict his tenant on the ground of personal requirement has never been considered to be sufficient for the purpose. A landlord is required to discharge his onus and to satisfy that his requirement was based on good faith and was bona fide. I have not felt persuaded to interfere with the finding of the Controller which appears to proceed on correct appreciation of the material placed before him.

The learned counsel has placed reliance on the case of Fazil Azim and another v. Tariq Mahmood and another P L D 1982 S C 218. The dictum laid down in the above case is not applicable to the facts of the case. The appellant filed eviction on 6-4-1977. According to him he was in service since August 1977. The affidavit-in-evidence was filed on 5-3-1984 but he had suppressed this fact from the Controller. The submission of the learned counsel is that the theory of temporary employment will not be applicable to the facts of this case.

The appellant also sought eviction of the appellant on the ground of default. The appellant averred in his eviction application that the respondent is a defaulter and he had committed default in payment of rent from 1-12-1975 to 30-4-1977 amounting to Rs.11,900 and was liable to eviction. The respondent denied this allegation and stated that the appellant had himself failed to accept the rent as the appellant could not be contacted at the last postal address given by him. The other plea was that he was depositing rent with the Nazir in Misc. R.C.No.3921/76. The appellant admitted in his cross- examination that he received rent vide Ext.l/1 for the period commencing from 1-2-1975 to 30-11-1975. The appellant admitted the respondent started depositing rent in Misc. rent case and he was withdrawing the same. The respondent deposited Rs.4,631 with the Excise and Taxation Officer and the balance amount was deposited in Misc. R.C. No.3921/76.

It is an admitted position that the respondent received notice dated 23-2-1976 from the Excise and Taxation Officer. The amount of Rs.4,631 was tendered by the respondent. The respondent started depositing rent in Misc. Rent Case. The respondent deposited Rs.970 on 6-10-1976. The total comes to Rs.5,600 while the respondent was liable to pay Rs.6,300 thus there is -a difference of Rs.700 i.e. one month rent. The respondent by it's letter dated 25-2-1976 (Ext.2/2) informed the appellant about tax liability. The respondent by it's letter Ext.2/3 again informed the appellant. The respondent by letter dated 3-2-1976 (Ext.2/5) informed the appellant to collect rent regularly and also sent a cheque for Rs.700. It is not disputed by Mr.S.Hamid Hussain that under section 13(2)(i) of the Repealed Ordinance, the Controller is not bound to order eviction in every case in which default in payment of rent has been proved. Under the said clause the Controller has ample discretion and the same no doubt has to be exercised after taking into consideration all the factors. In the instant case the finding of the Controller is that the default in payment of rent was not wilful. He has dealt with the circumstances under which the default was committed and I not only share his view but have independently come to the conclusion that in this case the respondent was compelled to deposit rent with the Nazir of the Civil Court, as it was the appellant who himself was responsible as he did not care to send any reply and he did not care to collect the rent within time. The respondent cleared taxes which were payable by the appellant. The respondent deposited Rs.970 with the Nazir thus the total amount comes to Rs.5,600 and the total amount of rent due from 1-12-1975 to 31-8-1976 comes to Rs.6,300 thus one month's rent :was due and payable by the respondent.

The submission of the learned counsel for the respondent is that this is not wilful and deliberate but due to miscalculation on the part of the respondent. On the other hand, Mr.Hamid Hussain has submitted that the respondent had committed default in payment of rent for one month. I agree with the learned counsel for the respondent that this is not a case of wilful default. I have no doubt that the respondent would have paid one month rent if he did not miscalculate it. I think the Controller has rightly exercised discretion in favour of the respondent. The learned counsel for the appellant is unable to show that the discretion was not exercised properly. I therefore find no substance in this ground and accordingly reject it.

Accordingly for the reasons stated above I maintain the order of the Controller and dismiss tire appeal. However, in the circumstances of the case I leave the parties to bear their own costs.

M.Y.H./A-129/K

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