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First Rent Appeal No. 902 of 1986, decided on 10th May, 1987.

---Ss.15(2)(vii) & 21--Ejectment on ground of personal requirement of landlord--Landlord admitting in cross-examination that he was in possession of three shops in the same market--Such admission corroborated by statement of previous owner of the said shops--Rent Controller, held, was not justified in allowing ejectment on ground of personal requirement in absence of any sufficient explanation as to why landlord needed disputed shop in addition to three shops already in his possession--Finding of Rent Controller reversed.

---Ss.15(2)(ii), 18 & 21--Ejectment on ground of default in payment of rent--Landlord having purchased the disputed shop, tenant found to have started making payment to him thereafter--Tenant thus having accepted him as the landlord, service of notice under S.18 was not required--Default in payment of rent for one month by tenant having been established, Rent Controller, held, could pass ejectment order on ground of said default Findings Rent Controller and ejectment order on such ground maintained--Tenant, however, allowed one year's time to vacate the shop subject to condition that he shall continue to deposit rent in terms of Rent Controller's order.

Khuda Bakhsh v. Muhammad Yaqoob 1981 S C M R 179 ref.

Dawood v. Abdul Ghani 1983 C L C 339 distinguished.

Manzoorul Haq for Appellants.

Dewan Bashir Ahmad Khan for Respondent.

Date of hearing: 10th May, 1987.

This is an appeal against an order dated 13-10-1986 passed by the learned VIth Senior Civil Judge/Rent Controller, Karachi West in Rent Case No.4313/85, whereby he allowed the respondent's application for ejectment on the grounds of default for the period commencing from September 1985 upto the date of filing of rent case i.e. 23-12-1985, personal requirement and unauthorised alteration. The appellants resisted the above application. The learned Rent Controller on the basis of the pleadings of the parties framed the following issues:

"(1) Whether notice under section 18 of Sind Rented Premises Ordinance,, 1979 was necessary

(2) Whether opponents have committed default in payment of rent

(3) Whether opponents have made additions and alterations in demised premises without consent of applicant

(4) Whether applicant requires demised premises for his personal bona fide use

(5) What should the order be "

The Respondent examined himself and one Muhammad Qasim, previous owner, whereas appellant examined himself and three witnesses' namely Shaukat Hussain Exh.8, Haji Muhammad Hussain Exh.9, and Kamaluddin Exh.10. The learned Rent Controller after hearing the parties allowed the rent application on two grounds namely, default and personal requirement. The appellant being aggrieved by the above order has filed the present appeal.

2. In support of the above appeal Mr. Manzur-ul-Haq learned counsel for the Appellants has urged as follows:

(1) That since no notice under section 18 of the Sind Rented Premises Ordinance, 1979 hereinafter referred to as the Ordinance was served on the appellants after the purchase of the property by the respondent, the learned Rent Controller could not have allowed the rent application on the ground of default.

(2) That even otherwise the default if any was of less than one month.

(3) That since the learned Rent Controller has recorded the issue on the question of unauthorised alteration against the respondent and as there was alleged default of only one month, the learned Rent Controller should have exercised the discretion in favour of the appellants.

(4) That the personal requirement has not been proved.

On the other hand Mr.Dewan Bashir Ahmed has urged as follows:

(1) That once the appellants started paying rent, there was no need for service of notice under section 18 of the Ordinance.

(2) That there was admittedly default of one month for which there was no explanation given by the appellants and that in spite of the filing of the rent case the appellants deposited the rent on 1-4-1986.

(3) That it was the choice of the respondent to select the shop and even if it is assumed that the respondent was in possession of three shops namely, shops Nos. 4, 5 and 6, the respondent was entitled to apply for the ejectment on the ground of personal requirement.

3. I intend to take up the question of personal requirement first. From the evidence, it seems that the respondent in his cross-examination admitted the fact that he was in possession of Shops Nos.4,5 and 6 in the same market. This admission is corroborated by the statement of the previous owner, namely, Muhammad Qasim, who has deposed that the respondent was his tenant in respect of Shops Nos.4,5 and 6 in the same market. In view of the above evidence the learned Rent Controller was not justified in allowing the ejectment on the ground of personal requirement in the absence of any sufficient explanation as to why the respondent needed the shop No.1 in addition to the above three shops. The respondent tried to get away from his admission by stating that his brother-in-law sits in these shops not he. This fact that he was in possession of 3 shops was suppressed by the respondent in his application for ejectment. I am not inclined to concur with the finding of the learned Rent Controller. It is, the before reversed.

4. As regards the default, it is an admitted position that the respondent had not sent any notice under section 18 of the Ordinance but at the same time, it is also an a limited position that the appellants started making payment of rent to the respondent from the month of February, 1985 onwards. According to the written statement the appellants had paid rent to the respondent upto August, 1985. However, in the evidence they had come out that they had paid rent upto October and that the rent receipt for the above two months was not given. I am not inclined to accept this statement of the appellants that they had paid the rent for the months of September and October and were not given the receipt. Since the appellants started paying rent to the respondent, they accepted the respondent as the landlord. In this view of the matter, there was no requirement of service of any notice under section 18. of the Ordinance. Reference may be made to para 7 of the judgment in the case of Khuda Bakhsh v. Muhammad Yaqoob reported in 1981 S C M R 179 in which the Hon'ble B Supreme Court has observed as follows:

"Be that as it may on page 54 of the paper book we find that the petitioner admits paying rent to the respondent. The reason for a notice under section 13-A is to inform the tenant that the landlord has sold the property to another person so that rent could thereafter be paid by the tenant to the new landlord. In this case knowledge of the transfer admitted by the petition and hence even if a notice had not been served under section 13-A, it would not stand in the way of the Court in granting the relief that it has granted."

It is, therefore, evident that the appellants had not paid rent from the month of September, 1985. The rent for the month of September after excluding the statutory period of 60 days had become due and payable in or about first week of November, 1985. The rent application was filed on 23-12-1985. There was, therefore, default of one month.

Mr.Manzur-ul-Haq has referred to the case of Dawood v. Abdul Ghani reported in 1983 C L C 339, in which a learned Single Judge of this Court allowed the appeal by holding that the learned Rent Controller should have exercised discretion in favour of the tenant in respect of default of one month as the landlord had failed to prove the other grounds which he had failed to prove the other grounds which he had urged in the ejectment application.

I have given serious thoughts to the above judgment cited by Mr. Manzur-ul-Haq, but in my view the present case is distinguishable, inter alia, for the reason that in the instant case the appellants had alleged payment for the months of September and October, which has been disbelieved by the Rent Controller as well as by mc, which has also contrary to the pleading in the written statement. Since there is a default of payment of rent for the month of September, 1985, the learned Rent Controller could have passed the ejectment order on the ground of default for the above month. I would, therefore, maintain the finding of the Rent Controller on the above ground.

5. For the aforesaid reasons the appeal is partly allowed and partly dismissed but the ejectment order is maintained on the ground of default. However, I would allow one year's time to the appellants as the subject-matter is a shop, on the condition that the appellants Shall continue to deposit rent in terms of the Rent Controller's order.

I may also observe that it was pointed out by the learned counsel for the appellants that the shop No.2 is in the tenancy of appellant's son Shaukat, whereas shop No.1 is in the tenancy of the apppellants. .The partition wall between the two shops was removed even prior to the purchase of the property by the respondent. The respondent shall be entitled to the possession of shop No.1 alone after the erection of partition wall and not of both the shops, at the place where it was originally constructed. The learned Rent Controller shall hold an enquiry in respect of the above issue before issuing writ of ejectment.

S.Q./M-254/K Ejectment maintained.

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