2012 C L C 1104
[Balochistan]
Before Mrs. Syeda Tahira Saf dar, J
LIAQUAT ----Appellant
versus
Haji ALLA -UD-DIN ----Respondent
F.A.O. No.64 of 2009, decided on 12th March, 2012.
(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959) ---
----Ss. 13(2)(i) & 15 ---Ejectment of tenant on ground of default in paym ent of rent ---
Initial burden was on the landlord ---Default was wilful ---Landlord and his witnesses had
deposed on oath that there was default in payment of rent on part of tenant ---On that
assertion on oath the burden shifted to the tenant, but he failed to discharge such burden --
-Tenant had asserted that he paid the rent regularly, then he sent rent due through money
order, which having been refused by the landlord, he deposited the rent in the court in the
name of the landlord ---Tenant had produced the receipts, but he failed to produce the
representative of the Post Office to establish his claim, and to place on record the
statement of the Postman, that there was refusal on the part of landlord receiving the
money orders sent by the tenant ---Burden was on the tenant to establish that the rent was
timely tendered and deposited in the court, but there was complete failure on his part ---
Tenant was under obligation to pay the agreed rent due within the provided period to the
landlord, but the tenant had fail ed to discharge his part of obligation that too without any
reason ---Default in payment of rent by the tenant was established, in circumstances ---
Findings of the Rent Controller to the extent of default in payment of rent, was upheld, in
circumstances.
(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959) ---
----Ss. 13(3)(ii) & 15 ---Ejectment of tenant on ground of bona fide personal need of
landlord ---Landlord sought ejectment of tenant on ground that shop in question was
bonafidely required fo r his son who wanted to start a business therein ---Tenant, in
rebuttal, took plea that landlord was in the habit of instituting ejectment proceedings,
against his tenants, and after succeeding, rented out the premises, so vacated on higher
rent---Tenant ha d referred to four other ejectment applications filed by the landlord
against his tenants on grounds of wilful default and bona fide use of his sons ---All said
applications were filed on identical grounds, even the date of alleged default was the
same in a ll said applications ---Such fact had shown the mala fide on the part of the
landlord ---Son for whom, the shop in question was required in the case, never appeared
before the Trial Court to support the contents of ejectment application ---Such conduct of
landlord had disentitled him for vacant possession of shop in question on ground of
personal need ---Findings of the Trial Court that shop in question was required by the
landlord in good faith for his son, were contrary to facts and also in contravention of t he
relevant provisions of law which could not remain in field ---Order accordingly.
Syed Israr Alam v. S.M. Hussain 1983 CLC 468; Khurshid Ahmed v. Nadeem
lqbal 1985 SCMR 40; Dildar Hussain Nayyar v. Niaz Muhammad Dar 1985 SCMR 1769
and Juma Sher v. Sabz Ali 1997 SCMR 1062 ref.
Syeda Tehmina Samad for Appellant.
Azmatullah Kasi and Ghous -ud-Din Kakar for Respondent.
Date of hearing: 31st October, 2011.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. --- The Appellant Liaquat feeling
aggrieved of the judgment dated 26th June, 2009 of Rent Controller/Civil Judge -IV,
Quetta, whereby the application filed by the respondent Haji Alla -ud-Din seeking eviction
of the appellant from the premises in question was allowed, preferred instant appeal. The
appellant challenge d the judgment on the ground that the trial court failed to decide the
objections, as no proper findings were given thereon. Further, the issue pertaining to
default in payment of rent was also not rightly concluded, because there was failure on
the part o f the respondent to establish the wilful default committed by him (appellant). As
far as issue pertaining to bona fide personal use is concerned, the mala fide on the part of
the respondent, which was apparent from the record, was not given due considerati on.
The appellant contended that the trial court failed to decide the matter on the basis of the
evidence, and the material available on record, rather the available evidence was
misappreciated. Furthermore, the fact that at the time of inception of tenanc y, he
(appellant) paid an amount of Rs.1,40,000/ - (Rupees one lac forty thousand only) as good
will ( ) to Haider Ali son of Sultan Ali, the previous occupier, with the consent of
the respondent in the year 1988, whereafter, the possession of sho p in question was
handed over to him. And the fact that a shop in the same building was rented on higher
rates by the respondent after getting its vacant possession from the previous tenant. But
the trial court failed to give due consideration to these fac ts, and arrived to the findings,
which are contrary to the material on record. It has been prayed that the impugned
judgment be set aside, and the application filed by the respondent be dismissed.
2. Brief facts of the case are that the respondent Alla -ud-Din filed an application
seeking eviction of the appellant on grounds of default in payment of rent since 1st
September, 2004 till date, and personal bona fide use of shop in question for his son
Rahim -ud-Din. In reply the appellant though admitted existen ce of relationship of
landlord and tenant between him and the respondent, but strongly denied the commission
of default in payment of rent, and requirement of shop by the respondent. It was his
contention that the amount of rent was sent through money orde r, which was refused by
the respondent, whereafter, due rent was deposited in the court in the name of the
respondent. Therefore, in the circumstances there is no default in the payment of rent. He
further contested the requirement of premises in question for the son of the respondent,
with contention that initially the shop in question was rented out to one Haider Ali son of
Sultan Ali, and with the consent of the respondent/landlord, and on payment of an amount
of Rs.1,40,000/ - said Haider Ali in the year 1988, as good will ( ), the possession of
shop in question was handed over to him, and the tenancy begins. He prayed for dismissal
of the application.
3. Issues were framed on 8th August, 2006 by the trial court as under: ---
(1) Whether the evict ion application is not maintainable in view of preliminary legal
objection A. B, and C of written statement raised by respondent?
(2) Whether applicant rented out the shop in question to the respondent?
(3) Whether the respondent is bad paymaster and troub le some tenant and Rs.13,300/ -
are outstanding?
(4) Whether the applicant is entitled for possession of house ( -) in question?
(5) Relief?
An additional issue was framed to the effect: ---
(i) Whether the shop in question is required by applicant in good fa ith for his son
namely Rahim -ud-Din, because he wants to start his business of Spare Parts in the
shop in question?
4. To prove his respective contention the respondent produced two witnesses, and got
recorded his statement through his attorney. While in r ebuttal the appellant recorded his
own statement in addition to two witnesses produced by him. The trial court through
judgment dated 27th June, 2009, allowed the application, whereby the appellant was
directed to hand over vacant possession of the premise s in question to the respondent.
Feeling aggrieved of the order, the instant appeal has been filed on the grounds as
mentioned hereinabove.
5. The learned counsel for the appellant while arguing the matter contended that the
trial court failed to consider all the legal as well as factual aspects of the case, and arrived
to the conclusion, which is not supported by the material on record. It was further his
argument that there was no instance of wilful default in payment of rent, rather the due
rent was alre ady deposited in the court, but this fact was not duly considered.
Furthermore, the admission made by the applicant's witnesses, and the documents placed
on record were not properly considered, and contrary findings were given. It was also
argument of the learned counsel that the fact of payment of good will ( ) though
admitted by the applicant's witness No.1 (AW -I) but the court below failed to consider
this material aspect of the case. The learned counsel concluded that the respondent
completely f ailed to establish his personal bona fide use, despite the same a favourable
order was made by the trial court, which is in contravention of law, thus liable to be set
aside. The learned counsel for the appellant placed reliance on the judgment titled as
"Syed Israr Alam v. S.M. Hussain" reported in 1983 CLC 468.
6. While replying to the arguments of the learned counsel for the appellant, the
learned counsel for the respondent was of the view that in case of personal bona fide use
it is the choice of the la ndlord for the premises, which is suitable for his needs. It was
further his argument that the appeal is premature, and no grounds are available to the
appellant to challenge the judgment of the trial court, therefore, the appeal is liable to be
dismissed, and order of the trial court is to be upheld. The learned counsel for the
respondent relied on: ---
Khurshid Ahmed v. Nadeem lqbal 1985 SCMR 40, Dildar Hussain Nayyar v. Niaz
Muhammad Dar 1985 SCMR 1769, Juma Sher v. Sabz Ali 1997 SCMR 1062.
7. In insta nt case the existence of relationship of landlord and tenant between the
parties, and the agreed rate of rent are not the disputed facts. Rather the landlord/present
respondent sought eviction of the tenant/present appellant from the premises in question
on grounds of default in payment of rent since 1st September, 2009, and personal bona
fide requirement of the shop for his son Rahim -ud-Din. The appellant though have not
denied his tenancy, but strongly contested the grounds raised for his eviction from th e
shop in question. In reply of plea of default in payment of rent, it was contended that the
rent was tendered through money order, which was refused by the respondent, whereafter,
the rent was deposited in the court in the name of the landlord. As far as ground of
personal bona fide use is concerned, the appellant asserted that the son of the respondent
namely Rahim -ud-Din, for whom personal requirement is urged, is already carrying on
business in a shop situated at Sirki Road, Kabari Galli, Quetta in the name of Madina
Autos. In addition the appellant contended that he paid an amount of Rs.1,40,000/ - as
good will to the previous tenant, with the consent of the respondent/ landlord. At this
stage, it is noted that in his rejoinder the appellant raised thre e preliminary objections.
But in fact these objections do not pertain to any law, rather based on factual aspect of the
case; therefore, framing of issues to the effect was not required. The trial court while
deciding the issue No.1, rightly arrived to the conclusion that the objections pertained to
the merits of the case, therefore, they will be discussed, and decided with the issues on
merits. As far as the issue No.2 is concerned, it is also of no legal effect, because there is
no denial of tenancy on th e part of the appellant. Therefore, in the circumstances, only
issue No.3 pertaining to default in payment of rent, and the additional issue No.1 about
requirement of the landlord in good faith for his son Rahim -ud-Din, are the issues in
hand. As far as th e plea about payment of an amount of Rs.1,40,000/ - as good will (
) at start of tenancy is concerned, it is of limited effect. It can establish mala fides on the
part of the landlord in receiving such money. In case of default it will be helpful t o the
tenant, if it is established that the amount so paid was agreed to be adjusted towards rent
due or was agreed to be treated as advance, thereby required to be adjusted towards rent
at end of tenancy. Therefore, in the circumstances only payment of th e amount, if proved,
is not enough, rather the tenant/appellant has to prove something more, to get benefit of
the same.
8. The first ground on which the eviction of the appellant is sought by the landlord is
default of payment of rent from 1st September, 2004 till date. The initial burden was on
the landlord to establish that there is a wilful default on the part of the tenant. It is
admitted position that the rent was paid against the receipt issued by the landlord. Though
certain rent receipts are availa ble in the case file, but none of the parties tried to bring
them on record. The landlord/present respondent remained contended while producing
oral evidence. He, and his witnesses deposed on oath that there is default in payment of
rent on part of the app ellant/tenant. Therefore, on this assertion on oath the burden shifted
to the tenant/appellant to prove the contrary. It is the appellant/tenant who has to establish
that not only he tendered the rent in time, but also paid it to the landlord. The appellan t in
his rejoinder while replying the allegation asserted that he paid the rent regularly at the
rate of Rs.700/ - per month. Further, he sent the rent due through money order, which was
refused by the respondent/landlord, whereafter the rent was deposited in the court in the
name of the respondent. To establish his contention, he produced two witnesses.
Respondent's witness No.1 (RW -1) Muhammad Zakaria and RW -2 Abdul Malik, stated
that the appellant regularly paid the rent to the landlord through his sons and nephews,
and also paid the rent in lump sum, while the respondent/ landlord intentionally refused to
receive the rent for making ground for filing of an eviction application. But the witnesses
are silent to the effect that whether any rent was send thr ough money order or otherwise,
and there was refusal of the respondent for receiving the same. The attorney for the
appellant stated on oath that he paid the rent in lump sum. To establish the method of
paying rent in lump sum he produced a rent receipt as Exh.R/2, which pertains to the
period February, 2000 to January, 2001. He also produced a rent receipt for the month of
September as Exh.R/3, which bears date 1st September, 2004. He further produced the
receipts of money order as Exh.R/4. The perusal dis closed that an amount of Rs.10,000/ -
and Rs.4000/ - were rendered through money order bearing seal with date 7th April, 2006
with assertion that the landlord refused to receive them.
9. A plea of regular payment of rent was taken in the rejoinder, but throu gh evidence
the appellant tried to establish that there was some practice of receiving of monthly rent
in lump sum. But, he (appellant) failed to establish the same, as no such plea was taken in
his reply, nor even he confronted the same to the respondent, or his witnesses during
course of evidence. The rent receipts of such a nature were also not confronted to the
respondent, while he was appearing before the court for recording of his statement. As far
as the tender of rent through money order is concerne d, the appellant has produced the
receipts as Exh.R/4, but he failed to produce the representative of the Post Office, to
establish his claim and to place on record the statement of the postman, that there was
refusal on the part of the respondent in recei ving the money orders sent by the appellant.
Furthermore, no suggestion to the effect was made to the respondent, while he was before
the court.
10. The landlord can seek eviction of his tenant from a rented premises on ground of
default in payment of rent under Provisions of section 13 (2) (i) of the Balochistan Urban
Rent Restriction Ordinance, 1959, which reads as under: ---
Section 13(2)(i) the tenant has not paid or tendered rent due by him in respect of
the building or rented land, within fifteen days after the expiry of the time fixed in
the agreement of tenancy with his landlord, or in the absence of any such
agreement, [within sixty days from the period] for which the rent is payable; or
(Explanation :-- for the purpose of this clause
(i) where the water charges or electricity charges or both are payable by the tenant to
the landlord which charges shall be deemed rent"
(ii) rent remitted by money order to the landlord or deposited in the office of the
Controller having jurisdiction in the area where the building or rented land is
situated shall be deemed to have been duly tendered.
"Provided further that where the application made by the landlord is on the ground
mentioned in clause (i) and the tenant on the first date of hearing admits his
labiality to pay the rent due from him, the Controller shall, if he is satisfied that
the tenant has not made such default on any previous occasion, direct the tenant to
deposit all the rent due from him on or before a date to be fixed for the purpose,
and upon suc h deposit being made he shall make an order rejecting the
application."
In view of the same if an agreement of tenancy existed between the landlord and
tenant, a period of fifteen days is provided as grace for depositing of rent from the time
fixed in the agreement of the tenancy. But in case if there is no agreement between the
parties, a sixty days' time is provided for making payment of rent. In present case the
default is claimed from September, 2004 till date. Therefore, the second instance will be
applicable, and time is to be counted as provided therein. Therefore, in absence of
agreement, the rent will be due after lapse of a full calendar month. Therefore, in present
case the rent for the month of September, 2004 become due after lapse of full mont h,
whereafter, the provide period of sixty days will be counted. As such the rent paid or
tendered within such sixty days will amount to be duly tendered, and there will be no
default. Therefore, the time is to be counted from the agreed date in first case , while in
second case the time shall be computed from the period for which the rent is payable. In
present case admittedly no agreement for tenancy exists between the parties, therefore, it
will be covered by the second case. The appellant produced rent r eceipt pertaining to
September, 2004, which was not denied, and contested by the landlord/respondent,
therefore, it can safely be concluded that the rent of September, 2004 was duly received
by the landlord/respondent. But as far as the payment of rent for onward period is
concerned, it is the appellant, who has to establish that the rent was duly tendered by him
within the provided time, but it was refused, thereby deposited in the court by him. If he
succeeded to establish the same, he can take benefit of the Explanation attached to clause
(i), of subsection (2) of section 13 of the Ordinance, whereby the rent remitted through
money order or deposited in the office of Controller are deemed to have been duly
tendered. In addition section 12 -B also provides alternate mode for payment of rent,
which reads as under: --
"Section 12.B . If a landlord refuses to receive or grant a receipt for any rent when
tendered to him by the tenant, the rent may be remitted to him by postal Money
Order or deposited in the offic e of Controller and the Controller shall inform the
landlord regarding the deposit of the rent in his office."
11. Though the appellant asserted that there was refusal on the part of the landlord for
receiving of the rent, which was duly tendered through M oney Order, and thereafter
deposited in the court. To establish his assertion he produced receipts of Money Order,
and also placed on record the challans, whereby the rent was deposited in the court. These
two pieces of evidence are to be seen, and conside red in view of above quoted provisions.
It is an admitted position that there is no agreement of tenancy between the parties. The
perusal of Exh.R/4 reveals that the Money Orders were sent on 7th June, 2006. While the
rent for the months of October, 2004 t o July, 2006 were deposited in the court/Civil
Court's Deposit on 19th July, 2006. This clearly shows that the Money Orders were sent,
and the deposit was made after filing of the instant eviction application, which was filed
on 15th May, 2006. There is no explanation that why the appellant remained silent during
all these years, and did not try to tender the rent as provided under the relevant law. The
burden was on the appellant to establish that the rent was timely tendered, and deposited
in the court. B ut, there is complete failure on his part. The appellant being tenant was
under obligation to pay the agreed rent due within the provided period to the landlord, but
in present case the appellant has failed to discharge his part of obligation, that too wit hout
any reason. There may be some mala fide on the part of the landlord, but the tenant must
be vigilant in payment of rent due, and have to adopt the course provided in the law.
There may be exception to this general principle, but in such case even the burden is on
the tenant to establish the same. The appellant also not claim the benefit as provided in
Proviso attached to subsection (2) of section 13 of the Ordinance. Therefore, in the
circumstances, the default in payment of rent is established.
12. As far as the ground of personal bona fide use, and occupation of landlord is
concerned, the burden was on the respondent being the landlord. To substantiate this issue
the respondent/landlord produced two witnesses, who in their affidavits stated that the
shop in question is required by the respondent for use of his son Rahim -ud-Din, who
wants to start a business of Spare Parts. The attorney for the respondent also made
statement to the same effect. In rebuttal the appellant took plea that the respondent is in
habit of instituting eviction proceedings against his tenants, and after succeeding, rented
out the premises, so vacated, on higher rent. The appellant referred to four other eviction
applications filed by the respondent against his tenants on grounds o f wilful default and
personal bona fide use of his sons. He produced copies of the judgments as Exh.R/5,
Exh.R/6, and Exh.R/7, and also copy of an application filed under section 13(4) of the
Ordinance by one Haji Muhammad Raza, seeking restoration of shop from where he was
evicted. The fact of filing these eviction applications is not denied by the respondent and
his witnesses during course of cross -examination. But it was their contention that the
shops were required by the respondent for his three sons. The perusal of the judgments
reveals that all the applications including instant application were filed on identical
grounds, even the date of default i.e. 1st September, 2004 is the same in all the four
applications. This fact showed the mala fide on the part of the respondent. In addition, the
son for whom the shop in question is required in present case, never appeared before the
trial court to support the contents of the eviction application. The trial court has wrongly
concluded the issue. Though it wa s rightly argued by the learned counsel for the
respondent that it is the choice of the landlord to seek eviction of any premises suitable
for his needs. But, in view of the facts as narrated hereinabove the mala fide on the part of
the landlord is very mu ch apparent. His own conduct disentitled him for vacant
possession of shop in question on ground of personal need. The findings of the trial court
on additional issue are contrary to facts, and also in contravention of the relevant
provision of law, theref ore, cannot remain in field.
13. While going through the case file of the trial court, it is observed that despite the
fact that there was no dispute of title between the parties, the trial court failed to make an
order as required to be made under subsect ion (6) of section 13 of the Ordinance, which is
mandatory in nature. The trial court was bound to make an order for depositing the rent
before framing of issues, and recording of evidence. But the trial court failed to fulfil this
legal requirement, which is a serious error on the part of the trial court. It will be
advisable for the learned Judge, to go through the relevant law before proceeding with the
matter to avoid such legal flaws.
14. In view of the above discussion the findings of the trial court are upheld to the
extent of default in payment of rent, therefore, the impugned judgment dated 26th June,
2009 of Rent Controller/Civil Judge -IV, Quetta is upheld to said extent. Resultantly the
appeal is dismissed without costs.
H.B.T./24/Q Order accordi ngly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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