PLJ 1996( Karachi) 156
[Rent Appellate Jurisdiction]
Present: ABDUL MAJID KHANZADA, J. BASHIR AHMAD MUNIR-Appellant
versus
Mrs. TAHIRA QURESHI-Respondent
First Rent Appeal No. 586 of 1994 dismissed on 14-12-1995.
(i) Sindh Rented Premises ordinance 1979 (XVII of 1979)-
—S. 15--Tenant-Ejectment of~Prayer for~landlord and tenant- Relationship of-Denial of-Challenge to-Contention that learned Rent Controller had no jurisdiction due to non-existence of relationship of landlord tenant-Appellant has tried to take advantage of misdiscription of Respondent in legal notice-Where as appellant himself admitted in. . reply to legal notice that he is tenant-Appellant in his written statement and cross-examination admitted that he is tenant of Respondent-Held,
There is relationship of landlord and tenant between parties and Rent Controller had-jurisdiction- [P. 160] A & B
PLD 1973 Quetta, 1981 SCMR 527 and PLD 1995 Karachi 17 ref.
!ii) Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--
—Section 15 (2) (vii)--Ejectment of tenant-Personal need of landlord- Contention that there are existence of inconsistencies between pleadings and evidence of Respondent/Landlord regarding personal bonafide need- Admission of Respondent that her husband had opened a tution centre and she is running a boutique business in application, whereas in cross- examination Respondent stated that she is working in a school as teacher-Held: With regard to denial that applicant is not working as
school teacher does not seem to be inconsistency- [P. 161] C
(iii) Sind Rent Premises ordinance 1979 (XVII of 1979)--
—S. 15 (2) (vii)-Tenant-Ejectment of-Personal bonafide need—Contention that Respondent is a school teacher and her husband is doing a job- Appellant has not produced any proof of it—No such suggestion was made in cross examination- [P. 162] D
(iv) Sind Rent Premises ordinance 1979 (XVII of 1979)--
—S. 15 (2) (xii)-Tenant-Ejectment of-Personal bonafide need-Contention that Respondent has no experience in business of boutique and despite this, she wants to oust Appellant with malafide intention-Held, Everyone is free to embark on a profession of his/her own liking- Contention of Appellant has no force- [Pp. 162 & 163] E
1991 SCMR 1939,1993 CLC 505 rel.
(v) Sind Rent Premises ordinance 1979 (XVII of 1979)--
—-S. 15 (2), (xii)-Tenant-Ejectment of--personal bonafide need-Contention that rented premises are not suitable for, boutique business as entire area is surrounded by 22 motor workshops-Helds: It has come on record quite unchallenged and unrebutted, that area in question is well known for tailoring shops and ladies frequently visit these shops-There are more than 14 tailoring shops 3 are boutiques, two of which are being run by ladies-Appeal dismissed- [P. 164] F
1984, CLC 71, 1993 CLC 505, 1993 CLC 270,1993 CLC 2272,1993 MLD 399, 1993 MLD 386, 1991 MLD 1377, 1993 MLD 876, 1994 CLC 1875, PLD
1994 Karachi 209 ref.
Petitioner through SyedAli Ahmed, Advocate. Respondent through Amanulalh Khan, Advocate. Date of hearing 29-10-1995.
judgment
This appeal has been filed against the order dated 31.8.1994 passed by the learned Vth Rent Controller Karachi East, whereby he allowed the application filed by the Respondent for ejectment of the Appellant from the rented premises.
2. The brief facts of the case are that one Mrs. Anwar Begum (who was the mother of the Respondent) was granted sub-lease of two plots of land, each measuring 60 square yards, situated at PECH Society Ltd., Karachi. She raised the construction of five shops on the ground floor and two flats on the first floor. In the year 1969 she let out the five shops to the Appellant. Subsequently, in the year 1974 she also let out the flat on the rear portion of the building to the Appellant. However the flat situated on the front side of the building remained with her. The Appellant had been paying the consolidated rent for the five shops and the flat to her.
3. The siad Mrs. Anwar begum made a gift of both the plots of land and the building constructed thereon to her daughter, the Respondent, who became the owner of the same. The Appellant became the tenant of the Respondent and started paying the rent to her.
4. The case of the Respondent is that she and her husband are highly educated. They were teaching in the universities of foreign countries. They decided to return to their countiy and to use and occupy the rented premises for their livelihood. On various occasions the Respondent herself and through her husbknd requested the Appellant to vacate the rented remises as soon as they arrived in Pakistan. The Appellant promised to comply with their request. Ultimately they returned to Pakistan with intent to have permanent abode at Karachi and to occupy and use the rented premises for their business purposes. On arrival the Respondent requested
the Appellant to vacate the rented premises. The Appellant promised to vocate the rented premise but requested for time to make arrangements for shifting. The process continued but the Appellant did not vacate. The Respondent served the Appellant with the legal notice dated 29.8.1992 calling upon him to vacate the rented premises. But the Appellant gave false and evasive replie. The husband of the Respondent started a tution centre under the name of Danis}i-Kada, but there was no success. The respondent thereafter opened a Boutique in the portion in her possession. This business became successful and flourished day by day. But the portion in possession of the Respondent is too small for this business. The Respondent wants to expand her business. Therefore the respondent needs the rented premises
for her own use and occupation and need is genuine and bonafide. The respondent wants to establish the display centre/show room jn the five shops on the ground floor and use the flat in possession of the Appellant for tailoring purposes. She shall use the flat in her possession for office, storage and dealing with customers. It has been alleged that the Appellant has failed to pay the rent from April 1993. It has been further alleged that the Appellant has without the permission of the Respondent, removed the partition walls of the said five shops and thereby has caused damage and impaired the material value and utility of the shops. The Respondent sought the ej ectment of the Appellant on these three grounds.
5. The Appellant in his written Statement has denied and rebutted the case of the Respondent. The Appellant has challenged the jurisdiction of the learned Rent Controller on the ground that the Respondent in the legal notice dated 29.8.1992 had described him as the caretaker/trespasser. The respondent has been pressurizing him for enhancement of rent. He has denied that the Respondent needs the rented premises for bona fide personal use. He has alleged that the Respondent has approached various estate agents for selling of the building on high price. He has stated that the applicant is a school teacher and her husband is also doing the job. The Appellant has denied that the Respondent is doing the boutique business. He has said that the respondent has no experience of boutique business. The Appellant is running the motor workshop in the shop on the ground floor. The area is known for the business of motor workshops and there are more than 22 motor workshops. No woman can run a boutique in the rented premises. The Appellant has denied that he has committed default in the payment of rent. He has pleaded that he has been regularly paying the rent through cross-cheques, which she used to deposit in her bank account. When the Appellant came to know that the Respondent is not presenting the cheques in her account, he tendered the rent through money orders, but the respondent refused to receive the money orders. Thereafter he is depositing the rent in the Court in a Misc. Rent Case. The Appellant has denied that he has removed the partition walls of the shops on the ground floor and caused damage or impair their utility. He has stated that no such walls were ever situated in the shops.
6. The respondent filed the affidavit-in-evidence of her husband and attorney who produced a number of documents. He was cross-examined by the learned counsel for the Appellant. The Appellant filed his own affidavit-in-evidence and he produced some documents. The Appellant was cross-examined by the learned counsel for Respondent.
. 7. The learned Rent Controller framed the following issues on the basis of the pleading s of the parties:-
(1) Whether there exists relationship of landlord and tenant between parties?
(2) Whether the demises premises are required by the applicant for her personal use in good faith honestly?
(3) Whether the opponent has committed a wilful default in payment of monthly rent to applicant?
(4) Whether the opponent has caused damage, to the demised premises by removing the partition walls and has impaired the material value and utility of the same?
(5) What should the order be?
8. The learned Rent Controller decided the Issue No. 3 in favour of the Appellant and the Issue No. 1, 2 and 4 in favour of the Respondent and allowed the Rent Application and directed the appellant to hand over the possession of the rented premises to the respondent.
9. The learned counsel for the Appellant has raised the following pleas in support of his appeal:
(i) the learned Rent Controller had no jurisdiction;
(ii) there -are inconsistencies between the pleadings and evidence of the respondent;
(iii) the respondent had demanded the enhancement of rent;
(iv) the demand for ejectment on personal need is mala fide;
(v) the appellant has not impaired the value and utility of the shops.
10. With regard to the question of jurisdiction the arguments of the learned counsel for the appellant is that the respondent in legal notice dated 29.8.1992 had described the Appellant as care-taken/trespasser and hence the learned Rent Controller had no jurisdiction to try the case. It is an established law that a Rent Controller has to jurisdiction if there is relationship of landlord and tenant between the parties. The learned counsel for the appellant has avoided to argue that there is no such relationship between the parties. He has rightly done so because it is the case of Appellant himself that he is the tenant and the respondent is the landlord/owner of the rented premises. The learned counsel for the Appellant has tried to take the undue advantage of the misdescription of the Respondent in the said legal notice. It is interesting that the iearned counsel i in his letter dated 8.9.1992, in reply to the siad legal notice, had stated that the appellant was the tenant of the Respondent and had been paying the i rent to her. The authority reported as Faqir Muhammad vs. Mulla Mahmood PLD 1973 Quetta 1, cited by the learned counsel for the appellant, does not apply to the facts of present case. In the reported judgment the facts were entirely different. The facts of the reported case were that the rent application had unequivocally dubbed the appellant (in that case) as a trespasser and the same stand was maintained by the respondent (in that case) in his statement during the proceedings before the Rent Controller and the appellant (in that case) also in his statement did not acknowledge the respondent (in that case) as his landlord and even one of the ground of that appeal was that there was no relationship of landlord and tenant between those parties. On the other hand, in the present case the respondent in paras 1, 2, 7,11, 15,16 and 18 of the Rent Application has asserted that she is the owner/landlord and the Appellant is her tenant in respect of the rented premises. The Appellant in paras 6, 9, 12 and 15 of the written statement has admitted that he is the tenant of the respondent in respect of the rented premises, who is the owner/landlord of the same. Even in the affidavit-in-evidence of attorney for respondent it has been repeatedly stated that the respondent is the owner/landlord of the rented premises and the Appellant is the tenant in respect thereof. This fact has not been questioned in the cross-examination of the attorney for the respondent. It is also important to mention that the Appellant in his cross-examination has admitted that he is the tenant of the respondent. The learned counsel for the respondent has argued that the respondent is the owner/landlord and the Appellant is the tenant in the light of the definitions given in Section 2 (f) and (j) of the Sindh Rented Premises Ordinance. He has contended that the learned Rent Controller had the jurisdiction to try the case. In support of his plea he has cited the cases of Abdul Earned vs. Abdul Rasheed (1981 SCMR 527) and Abdul Shakoor vs. M/s. Abdul Razzaque (PLD 1995 Karachi 179). In the Supreme Court case, the landlord's statement acknowledging the petitioner to be his tenant, was held, sufficient to establish tenancy in absence of any evidence to contrary. In the Karachi case it was held that the respondents in the past had admittedly paid rent to appellants and the respondent in his cross-examination had admitted that appellants were landlords and respondents were their tenants, as such the relationship of landlord and tenant was proved in the circumstances. The learned counsel for the respondent has pointed out that in the legal notice the word trespasser was not used and the notice was in respect of the flat only. He has further drawn the attention that the tenancy is in respect of five shops on the ground floor and one flat on the first floor for which the appellant has been paying the consolidated rent. In view of above discussions it is clear that there is relationship of landlord and tenant between the parties and the learned Rent, Controller had the jurisdiction in the matter.
11. The learned counsel for the Appellant has argued that there are inconsistencies between the pleadings and evidence of the respondent. He has pointed out that the respondent had described the appellant as care taker in the legal notice, she had asked for fresh rent agreement, she has stated that her husband had opened a tution centre and she is running a boutique business and in the cross-examination the attorney for the respondent has stated that "it is incorrect that applicant is working in a school as teacher though she is teaching privately". These are not the inconsistencies in any way. The point of care-taker has already been dealt
with above. The asking for fresh rent agreement is neither illegal nor inconsistent. It has been categorically stated in the Rent Application and then repeated in the affidavit-in-evidence of the attorney for the respondent that the husband of the respondent had opened a tution centre which did not meet with success and thereafter the Respondent opened a boutique. In view of this fact there is no question of any inconsistency. With regard to the denial that the applicant is not working as school teacher though teaching privately, there does not seem to be inconsistency.
12. As regards the allegation of demanding the enhancement of rent, the learned counsel for the respondent has argued that there is no evidence on record. He has pointed out that the Appellant in his cross- examination has admitted that the rate of the rent was always increased with his consent. The learned counsel for the respondent has further argued that even otherwise the demand for increase of rent if presumed to be true, does not per se cast any doubt about personal bona fide requirement. In support of his arguments he has relied upon the cases of Mrs. Chung Ying Hsiung vs. Mst. Seema Saeed (1993 CLC 505 @ 509) and Iqbal Sulaiman vs. Mst. Shagufta (1986 MLD 1385 @ 1388). In view of these authorities the contention of the learned counsel for the Appellant has no force.
13. On the point of malafide the arguments of the learned counsel for the Appellant are three-fold. Firstly, he has argued that the respondent is a school teacher and her husband is also doing the job. The attorney for the Respondent in his cross-examination has denied that the respondent is a school teacher. He has further stated that since 1989 the respondent is not teaching any where. The Appellant has not produced any evidence to substantiate this plea. The learned counsel for the respondent has argued that in the case of Mrs. Chung Ying Hsiung vs. Seema Saeed (1993 CLC 505 @ 509), one of the applicants/landlords was a school teacher and despite of this fact the tenant was ordered to be ejected on the ground of personal use. Similarly, the appellant has not produced any proof that the husband of the respondent is doing any job. In the cross-examination of the attorney and husband of the respondent no such suggestion was made. In the cross-examination of the Appellant this allegation was challenge.
14. The second limb of argument of the learned counsel for the appellant, on the point of malafide, is that the respondent has no experience in the business of boutique and despite this fact she wants to oust the Appellant with mala fide intention. The learned counsel for the respondent has met this objection by relying upon the case of Mrs. Chung Ying Hsiung vs. Mst. Seema Saeed (1993 CLC 505). In the reported case same objection was raised. The relevant paras 11 and 12 of the report are reproduced below:
"11. The contention at S. No. (ii) was considered by this court in the case of Sher Ahmed Jan v. Mst. Zubeda Nasreen, reported in 1989 CLC 1113, and was answered in the following words :-
"The word "business applied to an occupation of a mercantile of commercial nature. The physical involvement for carrying on business or trade is not necessary. The impression that the respondent should have skill or capability to do the business of tailoring herself is wholly misplaced. The word "business" by itself is very comprehensive and it may at some time include carrying on of a business through employees."
"12. In the case of Mst. Ghulam Fatima and 3 others v. Noor Hussain, reported in 1991 SCMR 1939 the following observations were made:-
"As regards the second ground, it is not the requirement of law that the landlord/landlady must establish on record that he/she is badly in need of earning livelihood for getting his/her own property vacated for his/her personal use. With the galloping inflation in the countiy and when every one is free to embark on a profession of his/her own liking a chance cannot be denied even to those who have not worked so far from stalling a business or participating in an enterprise for the purpose of augmenting their income and fulfilment of their aspirations."
In view of above authorities this contention of learned counsel for the Appellant also has no force.
15. The third contention of the learned counsel for the appellant, on the point of mala fide, is that the rented premises are not suitable for boutique business as the entire area is surrounded by 22 motor workshops. He has argued that no woman can run the boutique business and no woman would come for shopping in such area. There is inconsistency with regard to motor workshops in the pleading and evidence of the appellant. In para 14 of the Written Statement the appellant has given the number of workshops as 22 ; whereas in para 9 at page 4 of his affidavit-in-evidence he has stated that the number of workshop is 28. In the cross-examination of the attorney for the respondent a suggestion was made with regard to workshops, which he has replied that "It is incorrect that there are so many other workshops in the same street where the demised premises is situated." The claim that there are various workshop (either 22 or 28) was challenged in the cross-examination of the appellant, which he had replied that "it is incorrect that there is only one workshop at Khushal Road which belongs to me." In view of assertion by Appellant and denial by respondent about various workshops, it was the obligation of the appellant to have proved the same. But he has not produced any evidence, and has failed to discharge the burden. As against this, the attorney for the respondent in para 16 of his affidavit-in-evidence has stated as under:-
"The area in question is well known for the tailoring shops and the ladies frequently visit these shops and the applicant's boutique. Just adjacent to the five shops rented out to the opponent there are four tailoring shops namely, Ali Tailors, Sain Baba Tailors, Masin Tailors and Barkat Ali Tailors."
Again, in para 22 of the affidavit-in-evidence of the attorney of the respondent, it has been stated as under :-
"That I further say and submit that it is not time that the area where the said building is located is not suitable for Boutique and Tailoring business and that no woman can run a Boutique there. It is respectfully submitted that on the same road where the said five shops are situated and around the corner, there are more than 14 Tailoring Shops, 3 of them are Boutiques. Two of these Boutiques are being run by the ladies. As a matter of fact 4 of these tailoring shops, in a row, are located adjacent to the said five shops under the name and style of: 1. Ali Tailprs, 2. Sain Baba Tailors, 3. Yasin Tailors, ,4. Barkat Ali & Sons (Naval and Civil Tailors).
The learned counsel for the respondent has argued that the above statements have not been challenged in the cross-examination of the attorney for the Respondent and hence the same go unrebutted and are deemed to have been admitted by the appellant. The learned counsel for the respondent has further argued that the suitability of sufficiency of the premises is the prerogative of the landlord and it is not for the tenant to say that the premises are not suitable for the landlord. In this submission he has relied upon the following authorities:
Mst. Ghulam Sakina vs. Khaliq Bari (1984CLC71)
Mrs. Chung Ying Histung vs. Mst. Sakina Saeed (1993 CLC 505)
Miss Zafar Fatima Rizvi vs. Syed Saleem Raza (1993 CLC 270)
National Bank of Pakistan vs. Sh. Muhammad Sharif (1993 CLC 2272)
Muhammad Sanaullah vs. Allah Din (1993 MID 399)
Ghulam Hyder Baluch vs. Ghulam Nabi (1993 MLD 386)
The learned counsel for the appellant has cited the authorities, (1) Haji Gulab Baig vs. Mst. Syeda Tayaba Ishtiaq (1991 MLD 1377), (2) Jamaluddin vs. Muhammad Anwar (1993 MDL 876), (3) Attya Badar v*. Haji Munshi Khan (1994 CLC 1875) and Zohra Bai v. Messrs Standard Industries Ltd. (PLD 1994 Karachi 209). These authorities can be distinguished. In the case of Haji Gulab Baig the Rent Application was filed on the ground of personal use for the sons of the landlord. But the particulars were not given in the Rent Application as well in the affidavit-in-evidence. Both were vague. The names and ages of the sons were not mentioned. No detail of accommodation in possession of landlord was given. The case of Jamaluddin relates to the personal use of the children of landlord. Here also neither the number of children nor their ages were given. The nature of business was also not mentioned. Necessary details were not given. But there was a general statement with regard to personal use. In the case of Attiya Badar it was held that mere desire of landlord to occupy the premises for personal use was not enough. The landlady was patient of asthma. The nature of the business was not disclosed. It was held that the landlady had failed to prove her case and she had tried to rely upon the weakness of the case of the tenant. The premises were situated in the congested locality of Hyderabad and it was held that it was not possible for a lady to run business in an open shop. In the present case the circumstances are totally different. The social conditions of Hyderabad are at large variance with that of Karachi. In the present case, it has come on record, quite unchallenged and unrebutted, that the area in question is well known for the tailoring shops and the ladies frequently visit these shops and there are more than 14 tailoring shops, 3 of them are boutiques, two of which are being run by the ladies. In the case of Zohra Bai it was averred that the member of family had multiplied which gave the impression that the premises were required for residential purposes; whereas the landlord had asked for the premises for commercial purposes. The necessary particulars were not given. On the contrary there was contradiction in the contents of Rent Application and affidavit-in-evidence. The landlord had tried to rely upon the weakness of the case of the tenant instead of proving his own case.
16. The learned counsel for the respondent has argued that the defence of the appellant is false, frivolous and based upon mala fide. He has pointed out that the appellant in paras 14 and 9 of the Rent Application and affidavit-in-evidence respectively, has denied that the respondent is carrying on the business of boutique. He has further pointed that the same position was maintained in the cross-examination of the attorney for the respondent where on the suggestion of the learned counsel of the appellant the attorney for the respondent had said that "It is incorrect that there is no Boutique shop. It is incorrect that 1 have decorated our own clothes in the same shop." The learned counsel for the respondent has then referred to the cross- examination of the appellant where he had said that "It is correct that
applicant is running a Boutique shop."
7. The learned counsel for the respondent has argued that it is an established law that on the ground of personal bona fide need the case of landlord stands proved, if (i) his statement in the pleading sin consistent with his evidence, (ii) his statement has not been shaken in the cross- examination and (iii) the case of the landlord has not been rebutted in the evidence of the tenant. In support of this argument he has referred to the following authorities:-
Muhammad Ishaq vs. Fateh Muhammad, (1984 CLC 2527)
Younus vs. S. Aziz Ahmed, (1993 CLC 2380)
Iqbal Sulaiman vs. Mst. Shagufta, (1986 MLD 1385)
Atiuddin vs. Saleem Karim, (1993 MLD 410)
Anis Ahmed vs. Tasawar Jahangir (1993 CLC 1759)
Syed Nazir Haider vs. Amanullah (1986 MLD 347)
Rafmddin Ahmed Khan vs. Mst. Noor Jehan 1986 MLD 1606)
Mirza Yawar Baig vs. Usman Ghani Chippa (1989 CLC 247)
18. It has already been held above that there is no inconsistency between the statement of the respondent in Rent; Application and evidence produced on her behalf. I have minutely gone through the cross-examination of the attorney for the respondent and have come to the conclusion that his estimony has not been shaken in the cross-examination. The Appellant has not been able to rebut the case of the respondent in his evidence. On the contrary the learned counsel for the respondent has argued that there is no evidence on behalf of the Appellant as the affidavit-n-evidence of the appellant is not admissible iii evidence. The learned counsel for the respondent has pointed out that the appellant has, in his cross-examination, admitted that "I have signed on my affidavit in evidence in the office of my counsel and there was no any person present at that time." The learned Counsel for the respondent has contended that since the affidavit-in-gvidence was not sworn by the appellant before the Oath Commissioner, it is not admissible in evidence. In support of this plea he has relied upon the authority of Master Muhammad Bashir vs. Moinuddin reported as 1990 CLC 703,
19. On the ground of impairing the value and utility of the five Shops the case of respondent is that the appellant without her permission or consent has removed the partition walls of the siad shops., The attorney for the respondent in para 19 of his affidavit-in-evidence has stated that the appellant by letter dated 27.5.1975 has requested the mother of the respondent (who was the owner of the building at that time and had not gifted the same to the respondent till then) to grant the permission to remove the main wall running between four of the said five shops. He has produced a photocopy of the said letter. The attorney for the respondent has further said that no such permission was granted to the appellant. Despite this fact the appellant has removed the partition walls and has caused damage and impaired the material value and utility of the rented premises. This statement has not been challenged in the cross-examination, which
would be deemed to have been admitted. On this point the appellant has given the contradictory version. In the written statement as well as in the affidavit-in-evidence the appellant has stated that he has not removed the walls and no such walls.every existed. But contrary to this, he has stated, in his cross-examination, that "The same partition wall is still exist there." The learned counsel for the respondent has submitted that this contradiction exposes the falsehood of the case of the appellant. To support the argument that the removal of the partition walls has impaired the value and utility of the shops the learned counsel for the respondent has cited the authority
reported as Mirza Mustafa Beg vs. Mst. Khatoon Hadi (1983 CLC 2063), where it was held that in the case s of this nature, it is reasonable to infer that the removal of wall would impair the value, or, utility of the premises.
20. Considering the above legal and factual position the impugned order does not call for interference. I see no merits in this appeal which is according dismissed with no order as to costs. However, two months time from now is allowed to the appellant for handing over vacant possession of the premises in question'to the respondent.
MMA Appeal dismissed.
[Rent Appellate Jurisdiction]
Present: ABDUL MAJID KHANZADA, J. BASHIR AHMAD MUNIR-Appellant
versus
Mrs. TAHIRA QURESHI-Respondent
First Rent Appeal No. 586 of 1994 dismissed on 14-12-1995.
(i) Sindh Rented Premises ordinance 1979 (XVII of 1979)-
—S. 15--Tenant-Ejectment of~Prayer for~landlord and tenant- Relationship of-Denial of-Challenge to-Contention that learned Rent Controller had no jurisdiction due to non-existence of relationship of landlord tenant-Appellant has tried to take advantage of misdiscription of Respondent in legal notice-Where as appellant himself admitted in. . reply to legal notice that he is tenant-Appellant in his written statement and cross-examination admitted that he is tenant of Respondent-Held,
There is relationship of landlord and tenant between parties and Rent Controller had-jurisdiction- [P. 160] A & B
PLD 1973 Quetta, 1981 SCMR 527 and PLD 1995 Karachi 17 ref.
!ii) Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--
—Section 15 (2) (vii)--Ejectment of tenant-Personal need of landlord- Contention that there are existence of inconsistencies between pleadings and evidence of Respondent/Landlord regarding personal bonafide need- Admission of Respondent that her husband had opened a tution centre and she is running a boutique business in application, whereas in cross- examination Respondent stated that she is working in a school as teacher-Held: With regard to denial that applicant is not working as
school teacher does not seem to be inconsistency- [P. 161] C
(iii) Sind Rent Premises ordinance 1979 (XVII of 1979)--
—S. 15 (2) (vii)-Tenant-Ejectment of-Personal bonafide need—Contention that Respondent is a school teacher and her husband is doing a job- Appellant has not produced any proof of it—No such suggestion was made in cross examination- [P. 162] D
(iv) Sind Rent Premises ordinance 1979 (XVII of 1979)--
—S. 15 (2) (xii)-Tenant-Ejectment of-Personal bonafide need-Contention that Respondent has no experience in business of boutique and despite this, she wants to oust Appellant with malafide intention-Held, Everyone is free to embark on a profession of his/her own liking- Contention of Appellant has no force- [Pp. 162 & 163] E
1991 SCMR 1939,1993 CLC 505 rel.
(v) Sind Rent Premises ordinance 1979 (XVII of 1979)--
—-S. 15 (2), (xii)-Tenant-Ejectment of--personal bonafide need-Contention that rented premises are not suitable for, boutique business as entire area is surrounded by 22 motor workshops-Helds: It has come on record quite unchallenged and unrebutted, that area in question is well known for tailoring shops and ladies frequently visit these shops-There are more than 14 tailoring shops 3 are boutiques, two of which are being run by ladies-Appeal dismissed- [P. 164] F
1984, CLC 71, 1993 CLC 505, 1993 CLC 270,1993 CLC 2272,1993 MLD 399, 1993 MLD 386, 1991 MLD 1377, 1993 MLD 876, 1994 CLC 1875, PLD
1994 Karachi 209 ref.
Petitioner through SyedAli Ahmed, Advocate. Respondent through Amanulalh Khan, Advocate. Date of hearing 29-10-1995.
judgment
This appeal has been filed against the order dated 31.8.1994 passed by the learned Vth Rent Controller Karachi East, whereby he allowed the application filed by the Respondent for ejectment of the Appellant from the rented premises.
2. The brief facts of the case are that one Mrs. Anwar Begum (who was the mother of the Respondent) was granted sub-lease of two plots of land, each measuring 60 square yards, situated at PECH Society Ltd., Karachi. She raised the construction of five shops on the ground floor and two flats on the first floor. In the year 1969 she let out the five shops to the Appellant. Subsequently, in the year 1974 she also let out the flat on the rear portion of the building to the Appellant. However the flat situated on the front side of the building remained with her. The Appellant had been paying the consolidated rent for the five shops and the flat to her.
3. The siad Mrs. Anwar begum made a gift of both the plots of land and the building constructed thereon to her daughter, the Respondent, who became the owner of the same. The Appellant became the tenant of the Respondent and started paying the rent to her.
4. The case of the Respondent is that she and her husband are highly educated. They were teaching in the universities of foreign countries. They decided to return to their countiy and to use and occupy the rented premises for their livelihood. On various occasions the Respondent herself and through her husbknd requested the Appellant to vacate the rented remises as soon as they arrived in Pakistan. The Appellant promised to comply with their request. Ultimately they returned to Pakistan with intent to have permanent abode at Karachi and to occupy and use the rented premises for their business purposes. On arrival the Respondent requested
the Appellant to vacate the rented premises. The Appellant promised to vocate the rented premise but requested for time to make arrangements for shifting. The process continued but the Appellant did not vacate. The Respondent served the Appellant with the legal notice dated 29.8.1992 calling upon him to vacate the rented premises. But the Appellant gave false and evasive replie. The husband of the Respondent started a tution centre under the name of Danis}i-Kada, but there was no success. The respondent thereafter opened a Boutique in the portion in her possession. This business became successful and flourished day by day. But the portion in possession of the Respondent is too small for this business. The Respondent wants to expand her business. Therefore the respondent needs the rented premises
for her own use and occupation and need is genuine and bonafide. The respondent wants to establish the display centre/show room jn the five shops on the ground floor and use the flat in possession of the Appellant for tailoring purposes. She shall use the flat in her possession for office, storage and dealing with customers. It has been alleged that the Appellant has failed to pay the rent from April 1993. It has been further alleged that the Appellant has without the permission of the Respondent, removed the partition walls of the said five shops and thereby has caused damage and impaired the material value and utility of the shops. The Respondent sought the ej ectment of the Appellant on these three grounds.
5. The Appellant in his written Statement has denied and rebutted the case of the Respondent. The Appellant has challenged the jurisdiction of the learned Rent Controller on the ground that the Respondent in the legal notice dated 29.8.1992 had described him as the caretaker/trespasser. The respondent has been pressurizing him for enhancement of rent. He has denied that the Respondent needs the rented premises for bona fide personal use. He has alleged that the Respondent has approached various estate agents for selling of the building on high price. He has stated that the applicant is a school teacher and her husband is also doing the job. The Appellant has denied that the Respondent is doing the boutique business. He has said that the respondent has no experience of boutique business. The Appellant is running the motor workshop in the shop on the ground floor. The area is known for the business of motor workshops and there are more than 22 motor workshops. No woman can run a boutique in the rented premises. The Appellant has denied that he has committed default in the payment of rent. He has pleaded that he has been regularly paying the rent through cross-cheques, which she used to deposit in her bank account. When the Appellant came to know that the Respondent is not presenting the cheques in her account, he tendered the rent through money orders, but the respondent refused to receive the money orders. Thereafter he is depositing the rent in the Court in a Misc. Rent Case. The Appellant has denied that he has removed the partition walls of the shops on the ground floor and caused damage or impair their utility. He has stated that no such walls were ever situated in the shops.
6. The respondent filed the affidavit-in-evidence of her husband and attorney who produced a number of documents. He was cross-examined by the learned counsel for the Appellant. The Appellant filed his own affidavit-in-evidence and he produced some documents. The Appellant was cross-examined by the learned counsel for Respondent.
. 7. The learned Rent Controller framed the following issues on the basis of the pleading s of the parties:-
(1) Whether there exists relationship of landlord and tenant between parties?
(2) Whether the demises premises are required by the applicant for her personal use in good faith honestly?
(3) Whether the opponent has committed a wilful default in payment of monthly rent to applicant?
(4) Whether the opponent has caused damage, to the demised premises by removing the partition walls and has impaired the material value and utility of the same?
(5) What should the order be?
8. The learned Rent Controller decided the Issue No. 3 in favour of the Appellant and the Issue No. 1, 2 and 4 in favour of the Respondent and allowed the Rent Application and directed the appellant to hand over the possession of the rented premises to the respondent.
9. The learned counsel for the Appellant has raised the following pleas in support of his appeal:
(i) the learned Rent Controller had no jurisdiction;
(ii) there -are inconsistencies between the pleadings and evidence of the respondent;
(iii) the respondent had demanded the enhancement of rent;
(iv) the demand for ejectment on personal need is mala fide;
(v) the appellant has not impaired the value and utility of the shops.
10. With regard to the question of jurisdiction the arguments of the learned counsel for the appellant is that the respondent in legal notice dated 29.8.1992 had described the Appellant as care-taken/trespasser and hence the learned Rent Controller had no jurisdiction to try the case. It is an established law that a Rent Controller has to jurisdiction if there is relationship of landlord and tenant between the parties. The learned counsel for the appellant has avoided to argue that there is no such relationship between the parties. He has rightly done so because it is the case of Appellant himself that he is the tenant and the respondent is the landlord/owner of the rented premises. The learned counsel for the Appellant has tried to take the undue advantage of the misdescription of the Respondent in the said legal notice. It is interesting that the iearned counsel i in his letter dated 8.9.1992, in reply to the siad legal notice, had stated that the appellant was the tenant of the Respondent and had been paying the i rent to her. The authority reported as Faqir Muhammad vs. Mulla Mahmood PLD 1973 Quetta 1, cited by the learned counsel for the appellant, does not apply to the facts of present case. In the reported judgment the facts were entirely different. The facts of the reported case were that the rent application had unequivocally dubbed the appellant (in that case) as a trespasser and the same stand was maintained by the respondent (in that case) in his statement during the proceedings before the Rent Controller and the appellant (in that case) also in his statement did not acknowledge the respondent (in that case) as his landlord and even one of the ground of that appeal was that there was no relationship of landlord and tenant between those parties. On the other hand, in the present case the respondent in paras 1, 2, 7,11, 15,16 and 18 of the Rent Application has asserted that she is the owner/landlord and the Appellant is her tenant in respect of the rented premises. The Appellant in paras 6, 9, 12 and 15 of the written statement has admitted that he is the tenant of the respondent in respect of the rented premises, who is the owner/landlord of the same. Even in the affidavit-in-evidence of attorney for respondent it has been repeatedly stated that the respondent is the owner/landlord of the rented premises and the Appellant is the tenant in respect thereof. This fact has not been questioned in the cross-examination of the attorney for the respondent. It is also important to mention that the Appellant in his cross-examination has admitted that he is the tenant of the respondent. The learned counsel for the respondent has argued that the respondent is the owner/landlord and the Appellant is the tenant in the light of the definitions given in Section 2 (f) and (j) of the Sindh Rented Premises Ordinance. He has contended that the learned Rent Controller had the jurisdiction to try the case. In support of his plea he has cited the cases of Abdul Earned vs. Abdul Rasheed (1981 SCMR 527) and Abdul Shakoor vs. M/s. Abdul Razzaque (PLD 1995 Karachi 179). In the Supreme Court case, the landlord's statement acknowledging the petitioner to be his tenant, was held, sufficient to establish tenancy in absence of any evidence to contrary. In the Karachi case it was held that the respondents in the past had admittedly paid rent to appellants and the respondent in his cross-examination had admitted that appellants were landlords and respondents were their tenants, as such the relationship of landlord and tenant was proved in the circumstances. The learned counsel for the respondent has pointed out that in the legal notice the word trespasser was not used and the notice was in respect of the flat only. He has further drawn the attention that the tenancy is in respect of five shops on the ground floor and one flat on the first floor for which the appellant has been paying the consolidated rent. In view of above discussions it is clear that there is relationship of landlord and tenant between the parties and the learned Rent, Controller had the jurisdiction in the matter.
11. The learned counsel for the Appellant has argued that there are inconsistencies between the pleadings and evidence of the respondent. He has pointed out that the respondent had described the appellant as care taker in the legal notice, she had asked for fresh rent agreement, she has stated that her husband had opened a tution centre and she is running a boutique business and in the cross-examination the attorney for the respondent has stated that "it is incorrect that applicant is working in a school as teacher though she is teaching privately". These are not the inconsistencies in any way. The point of care-taker has already been dealt
with above. The asking for fresh rent agreement is neither illegal nor inconsistent. It has been categorically stated in the Rent Application and then repeated in the affidavit-in-evidence of the attorney for the respondent that the husband of the respondent had opened a tution centre which did not meet with success and thereafter the Respondent opened a boutique. In view of this fact there is no question of any inconsistency. With regard to the denial that the applicant is not working as school teacher though teaching privately, there does not seem to be inconsistency.
12. As regards the allegation of demanding the enhancement of rent, the learned counsel for the respondent has argued that there is no evidence on record. He has pointed out that the Appellant in his cross- examination has admitted that the rate of the rent was always increased with his consent. The learned counsel for the respondent has further argued that even otherwise the demand for increase of rent if presumed to be true, does not per se cast any doubt about personal bona fide requirement. In support of his arguments he has relied upon the cases of Mrs. Chung Ying Hsiung vs. Mst. Seema Saeed (1993 CLC 505 @ 509) and Iqbal Sulaiman vs. Mst. Shagufta (1986 MLD 1385 @ 1388). In view of these authorities the contention of the learned counsel for the Appellant has no force.
13. On the point of malafide the arguments of the learned counsel for the Appellant are three-fold. Firstly, he has argued that the respondent is a school teacher and her husband is also doing the job. The attorney for the Respondent in his cross-examination has denied that the respondent is a school teacher. He has further stated that since 1989 the respondent is not teaching any where. The Appellant has not produced any evidence to substantiate this plea. The learned counsel for the respondent has argued that in the case of Mrs. Chung Ying Hsiung vs. Seema Saeed (1993 CLC 505 @ 509), one of the applicants/landlords was a school teacher and despite of this fact the tenant was ordered to be ejected on the ground of personal use. Similarly, the appellant has not produced any proof that the husband of the respondent is doing any job. In the cross-examination of the attorney and husband of the respondent no such suggestion was made. In the cross-examination of the Appellant this allegation was challenge.
14. The second limb of argument of the learned counsel for the appellant, on the point of malafide, is that the respondent has no experience in the business of boutique and despite this fact she wants to oust the Appellant with mala fide intention. The learned counsel for the respondent has met this objection by relying upon the case of Mrs. Chung Ying Hsiung vs. Mst. Seema Saeed (1993 CLC 505). In the reported case same objection was raised. The relevant paras 11 and 12 of the report are reproduced below:
"11. The contention at S. No. (ii) was considered by this court in the case of Sher Ahmed Jan v. Mst. Zubeda Nasreen, reported in 1989 CLC 1113, and was answered in the following words :-
"The word "business applied to an occupation of a mercantile of commercial nature. The physical involvement for carrying on business or trade is not necessary. The impression that the respondent should have skill or capability to do the business of tailoring herself is wholly misplaced. The word "business" by itself is very comprehensive and it may at some time include carrying on of a business through employees."
"12. In the case of Mst. Ghulam Fatima and 3 others v. Noor Hussain, reported in 1991 SCMR 1939 the following observations were made:-
"As regards the second ground, it is not the requirement of law that the landlord/landlady must establish on record that he/she is badly in need of earning livelihood for getting his/her own property vacated for his/her personal use. With the galloping inflation in the countiy and when every one is free to embark on a profession of his/her own liking a chance cannot be denied even to those who have not worked so far from stalling a business or participating in an enterprise for the purpose of augmenting their income and fulfilment of their aspirations."
In view of above authorities this contention of learned counsel for the Appellant also has no force.
15. The third contention of the learned counsel for the appellant, on the point of mala fide, is that the rented premises are not suitable for boutique business as the entire area is surrounded by 22 motor workshops. He has argued that no woman can run the boutique business and no woman would come for shopping in such area. There is inconsistency with regard to motor workshops in the pleading and evidence of the appellant. In para 14 of the Written Statement the appellant has given the number of workshops as 22 ; whereas in para 9 at page 4 of his affidavit-in-evidence he has stated that the number of workshop is 28. In the cross-examination of the attorney for the respondent a suggestion was made with regard to workshops, which he has replied that "It is incorrect that there are so many other workshops in the same street where the demised premises is situated." The claim that there are various workshop (either 22 or 28) was challenged in the cross-examination of the appellant, which he had replied that "it is incorrect that there is only one workshop at Khushal Road which belongs to me." In view of assertion by Appellant and denial by respondent about various workshops, it was the obligation of the appellant to have proved the same. But he has not produced any evidence, and has failed to discharge the burden. As against this, the attorney for the respondent in para 16 of his affidavit-in-evidence has stated as under:-
"The area in question is well known for the tailoring shops and the ladies frequently visit these shops and the applicant's boutique. Just adjacent to the five shops rented out to the opponent there are four tailoring shops namely, Ali Tailors, Sain Baba Tailors, Masin Tailors and Barkat Ali Tailors."
Again, in para 22 of the affidavit-in-evidence of the attorney of the respondent, it has been stated as under :-
"That I further say and submit that it is not time that the area where the said building is located is not suitable for Boutique and Tailoring business and that no woman can run a Boutique there. It is respectfully submitted that on the same road where the said five shops are situated and around the corner, there are more than 14 Tailoring Shops, 3 of them are Boutiques. Two of these Boutiques are being run by the ladies. As a matter of fact 4 of these tailoring shops, in a row, are located adjacent to the said five shops under the name and style of: 1. Ali Tailprs, 2. Sain Baba Tailors, 3. Yasin Tailors, ,4. Barkat Ali & Sons (Naval and Civil Tailors).
The learned counsel for the respondent has argued that the above statements have not been challenged in the cross-examination of the attorney for the Respondent and hence the same go unrebutted and are deemed to have been admitted by the appellant. The learned counsel for the respondent has further argued that the suitability of sufficiency of the premises is the prerogative of the landlord and it is not for the tenant to say that the premises are not suitable for the landlord. In this submission he has relied upon the following authorities:
Mst. Ghulam Sakina vs. Khaliq Bari (1984CLC71)
Mrs. Chung Ying Histung vs. Mst. Sakina Saeed (1993 CLC 505)
Miss Zafar Fatima Rizvi vs. Syed Saleem Raza (1993 CLC 270)
National Bank of Pakistan vs. Sh. Muhammad Sharif (1993 CLC 2272)
Muhammad Sanaullah vs. Allah Din (1993 MID 399)
Ghulam Hyder Baluch vs. Ghulam Nabi (1993 MLD 386)
The learned counsel for the appellant has cited the authorities, (1) Haji Gulab Baig vs. Mst. Syeda Tayaba Ishtiaq (1991 MLD 1377), (2) Jamaluddin vs. Muhammad Anwar (1993 MDL 876), (3) Attya Badar v*. Haji Munshi Khan (1994 CLC 1875) and Zohra Bai v. Messrs Standard Industries Ltd. (PLD 1994 Karachi 209). These authorities can be distinguished. In the case of Haji Gulab Baig the Rent Application was filed on the ground of personal use for the sons of the landlord. But the particulars were not given in the Rent Application as well in the affidavit-in-evidence. Both were vague. The names and ages of the sons were not mentioned. No detail of accommodation in possession of landlord was given. The case of Jamaluddin relates to the personal use of the children of landlord. Here also neither the number of children nor their ages were given. The nature of business was also not mentioned. Necessary details were not given. But there was a general statement with regard to personal use. In the case of Attiya Badar it was held that mere desire of landlord to occupy the premises for personal use was not enough. The landlady was patient of asthma. The nature of the business was not disclosed. It was held that the landlady had failed to prove her case and she had tried to rely upon the weakness of the case of the tenant. The premises were situated in the congested locality of Hyderabad and it was held that it was not possible for a lady to run business in an open shop. In the present case the circumstances are totally different. The social conditions of Hyderabad are at large variance with that of Karachi. In the present case, it has come on record, quite unchallenged and unrebutted, that the area in question is well known for the tailoring shops and the ladies frequently visit these shops and there are more than 14 tailoring shops, 3 of them are boutiques, two of which are being run by the ladies. In the case of Zohra Bai it was averred that the member of family had multiplied which gave the impression that the premises were required for residential purposes; whereas the landlord had asked for the premises for commercial purposes. The necessary particulars were not given. On the contrary there was contradiction in the contents of Rent Application and affidavit-in-evidence. The landlord had tried to rely upon the weakness of the case of the tenant instead of proving his own case.
16. The learned counsel for the respondent has argued that the defence of the appellant is false, frivolous and based upon mala fide. He has pointed out that the appellant in paras 14 and 9 of the Rent Application and affidavit-in-evidence respectively, has denied that the respondent is carrying on the business of boutique. He has further pointed that the same position was maintained in the cross-examination of the attorney for the respondent where on the suggestion of the learned counsel of the appellant the attorney for the respondent had said that "It is incorrect that there is no Boutique shop. It is incorrect that 1 have decorated our own clothes in the same shop." The learned counsel for the respondent has then referred to the cross- examination of the appellant where he had said that "It is correct that
applicant is running a Boutique shop."
7. The learned counsel for the respondent has argued that it is an established law that on the ground of personal bona fide need the case of landlord stands proved, if (i) his statement in the pleading sin consistent with his evidence, (ii) his statement has not been shaken in the cross- examination and (iii) the case of the landlord has not been rebutted in the evidence of the tenant. In support of this argument he has referred to the following authorities:-
Muhammad Ishaq vs. Fateh Muhammad, (1984 CLC 2527)
Younus vs. S. Aziz Ahmed, (1993 CLC 2380)
Iqbal Sulaiman vs. Mst. Shagufta, (1986 MLD 1385)
Atiuddin vs. Saleem Karim, (1993 MLD 410)
Anis Ahmed vs. Tasawar Jahangir (1993 CLC 1759)
Syed Nazir Haider vs. Amanullah (1986 MLD 347)
Rafmddin Ahmed Khan vs. Mst. Noor Jehan 1986 MLD 1606)
Mirza Yawar Baig vs. Usman Ghani Chippa (1989 CLC 247)
18. It has already been held above that there is no inconsistency between the statement of the respondent in Rent; Application and evidence produced on her behalf. I have minutely gone through the cross-examination of the attorney for the respondent and have come to the conclusion that his estimony has not been shaken in the cross-examination. The Appellant has not been able to rebut the case of the respondent in his evidence. On the contrary the learned counsel for the respondent has argued that there is no evidence on behalf of the Appellant as the affidavit-n-evidence of the appellant is not admissible iii evidence. The learned counsel for the respondent has pointed out that the appellant has, in his cross-examination, admitted that "I have signed on my affidavit in evidence in the office of my counsel and there was no any person present at that time." The learned Counsel for the respondent has contended that since the affidavit-in-gvidence was not sworn by the appellant before the Oath Commissioner, it is not admissible in evidence. In support of this plea he has relied upon the authority of Master Muhammad Bashir vs. Moinuddin reported as 1990 CLC 703,
19. On the ground of impairing the value and utility of the five Shops the case of respondent is that the appellant without her permission or consent has removed the partition walls of the siad shops., The attorney for the respondent in para 19 of his affidavit-in-evidence has stated that the appellant by letter dated 27.5.1975 has requested the mother of the respondent (who was the owner of the building at that time and had not gifted the same to the respondent till then) to grant the permission to remove the main wall running between four of the said five shops. He has produced a photocopy of the said letter. The attorney for the respondent has further said that no such permission was granted to the appellant. Despite this fact the appellant has removed the partition walls and has caused damage and impaired the material value and utility of the rented premises. This statement has not been challenged in the cross-examination, which
would be deemed to have been admitted. On this point the appellant has given the contradictory version. In the written statement as well as in the affidavit-in-evidence the appellant has stated that he has not removed the walls and no such walls.every existed. But contrary to this, he has stated, in his cross-examination, that "The same partition wall is still exist there." The learned counsel for the respondent has submitted that this contradiction exposes the falsehood of the case of the appellant. To support the argument that the removal of the partition walls has impaired the value and utility of the shops the learned counsel for the respondent has cited the authority
reported as Mirza Mustafa Beg vs. Mst. Khatoon Hadi (1983 CLC 2063), where it was held that in the case s of this nature, it is reasonable to infer that the removal of wall would impair the value, or, utility of the premises.
20. Considering the above legal and factual position the impugned order does not call for interference. I see no merits in this appeal which is according dismissed with no order as to costs. However, two months time from now is allowed to the appellant for handing over vacant possession of the premises in question'to the respondent.
MMA Appeal dismissed.
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