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Petitioner: Mrs. Syed NUSRAT JAFFERY and others VS Respondent: SHAFI AHMAD
Court Name: Sindh High Court Judge(s): Allah Dino G. Memon Title: Mrs. Syed NUSRAT JAFFERY and others vs SHAFI AHMAD Case No.: First Rent Appeal No, 266 of 1986 Date of Judgment:1987-03-26 Reported As: 1995 MLD 452 Result: Appeals allowed
JUDGMENT
JUDGMENT ' By a short order dated 25-2-1987 the above appeals were allowed for the reasons to be recorded later. These are the reasons for the same. ' This judgment will govern F.RA. No, 266 of 1986 and F.RA. No, 267 of 1986, as the landlords/appellants in the two cases are same, and the ejectment was sought on the common ground of personal use. ' The appellants filed two ejectment applications against the respondents inter alia alleging therein that late Mr. Aqil Hussain Jaffery was the owner and landlord of the Plot No, 4-F-114, and the bungalow constructed thereon situated at Nazimabad IV, Karachi-18. That the Opponent/respondent Shafi Ahmed is tenant in respect of the main/larger portion of the said bungalow at monthly rent of Rs,500, while Muhammad Anwar opponent/respondent was tenant in respect of the smaller portion of the said bungalow at monthly rent of Rs,300 . That Mr. Syed Aqil Hussain Jaffery died on 6th April; 1981, leaving behind the applicants/appellants as his only heirs. That the applicants/appellants required the above premises in good faith for their own occupation and residence. ' It was further stated that the applicant No, 1 is a widow now, and it is not possible for her to live in Lahore with her 12 sons and daughters, and she wishes to shift to Karachi since long. That the applicants requested the opponents orally to vacate premises and even a written notice was served on opponent Anwer on 3-8-1982, but they have refused to vacate the premises. ' The opponents/respondents filed written statements in which they stated that the applicants did not require the premises in case for their bona fide use and occupation, but actually they want to sell the house in question. It was further stated that the applicants are permanently settled in
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Lahore, and they have no intention to shift to Karachi. It was further stated that late Syed Aqil Hussain Jaffery had asked the opponents to vacate the premises as he wanted to sell the same, and on his death, his heirs sent the notices to the opponents only for the said purpose. ' On the pleadings of the parties, the learned Rent Controller, framed the following issues:-- (1) Whether the premises, in question is required by the applicants in good faith? (2) What should the order be? ' The learned Rent Controller decided the Issue No, 1 against the appellants/applicants, and has dismissed the ejectment application. The appellants have therefore come in these appeals. ' I have heard Mr. N.M. Shaikh, Advocate for the appellants, and Mr. S. Mukhtar Hussain Naqvi for the respondent. ' The learned Advocate for the appellants contended that the appellants were originally residing at Karachi, but their ancestor Syed Aqil Hussain Jaffery had some business at Lahore, therefore, they shifted to Lahore. Now they have decided to settle at Karachi, and that they have no other house at Karachi in which they can reside. He has relied on PLD 1984 Karachi page 14, 1984 CLC page 2531. ' On the other hand Mr. S. Mukhtar Hussain, Advocate for the respondents contended that the appellants did not require the premises in good faith, and that' they intend to sell the same to some one. He has also relied upon PLD 1984 Karachi page 14. ' I have considered the contentions of the learned counsel, and have gone through the record and proceedings of the case, and have also considered the case-law cited by the learned counsel of the parties. ' On the side of the appellants Syed Babar Hussain Jaffery appellant No, 3 filed his own affidavit supporting the facts mentioned in the ejectment application. He has also produced Special Power of Attorney Exh. 0/1. The respondents have also produced through him a post card Exh. 0/2 and the Rent Agreement Exh. 0/3. ' On the other hand respondent Shafi Ahmed has filed his own affidavit in Rent Case No, 1641 of 1984 and has also examined one Muhammad Aijaz Ali a property dealer Exh.4. This witness has also produced a photo copy of entry Exh.4. In Rent Case No,1642 of 1984 respondent K.M. Anwer has filed his own affidavit. He has also examined witness Muhammad Aijaz Exh. 5, this witness has produced the photo copy of the entry from his register as Exh. 5-A. ' The evidence of appellant Babar Hussain shows that their family consists of 13 members. That they want to settle in Karachi now, and the premises in question are required by them for their personal bona fide use. He has also stated that they do not own any other premises at Karachi. He has denied a suggestion that they want to sell the premises in dispute. In cross-examination in Ejectment Case No, 724 of 1985 a notice dated 3-8-1982 was got produced through him as Exh. 0/4 which was sent by Mst. Nusrat to respondent Anwer asking him to vacate the premises, as the same were required by her bona fide for her occupation and that of her children. The appellant has further stated in cross-examination that they have only one house at Lahore which is constructed on 400 sq. Yards. ' The evidence of respondents shows that late Syed Aqil Hussain Jaffery intended to sell the above premises and had therefore written a post card Exh. 0/2 to respondent Shafi Ahmad. That on his death appellant Amir Azam had approached the respondents and one Muhammad Sadiq an Estate agent for the sale of the above premises before filing of the ejectment applications. In cross-examination both the respondents have shown ignorance whether appellants own any other house at Karachi. ' One Muhammad Aijaz examined by the respondents have stated that he is a property dealer and runs Estate agency in the name of "New A. Siddique Property Dealer". His office is situated at 3-D- 8/39-A, Nazimabad, Karachi. According to him one Amir Azam had contacted him in 1982 for selling his property bearing No, 4-F, 11/14, Nazimabad, Karachi. He had made such entry in the
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register and has produced photo copy of such entry as Exh.5-A. That Amir Azam had demanded Rs,4,00,000 for the above property. ' However so far evidence of witness Muhammad Aijaz is concerned, his evidence is of no help to the respondents inasmuch as the parentage and address of Amir Azam is not mentioned in the entry. He states that he had shown the premises in question to certain persons with great difficulty as the same were occupied by the tenants, but he does not say that the respondents were occupying the said premises as tenants. Moreover the name of Estate agent given, by respondents was Muhammad Siddique, while the name of witness is Muhammad Aijaz, and according to him the name of his Estate agency is "New A. Siddique Property Dealer". Even no entry number is mentioned, nor date on which Amir Azam had contacted him is mentioned. In these circumstances the evidence of this witness could not be relied upon. ' Even otherwise merely because the ancestor of the appellants was I interested to sell the premises in dispute at one stage, will not mean that the A appellants still intended to sell the same. ' In Rajab Ali v. Darius Khandawala and another (PLD 1984 Karachi page 14) relied upon by the learned counsel appearing for both the parties, Mr. Justice Munawar Ali Khan, J. (as he then was) held:-- "That the landlord is absolutely free to live in his own house, once he has elected to do so, his demand for eviction of his tenant from the said house would be presumed to be bona fide and based on good faith, unless mala fides are alleged and proved against him by the tenant." ' In the above cited case it was further observed that: "Ejectment---Personal requirement---Landlord succeeding . In establishing his case on the ground of personal requirement---Desire of landlord to sell disputed house, should not be permitted to come in his way in getting his tenant ejected." ' In Muhammad Ishaque v. Fateh Muhammad and others (1984 CLC page 2527) it was held by Fakhruddin H. Shaikh, J.: "The landlord's statement on Oath in conformity with the pleadings, if shattered in cross-examination, and if not disproved by evidence in rebuttal shall be sufficient for recording finding in favour of landlord". In this decision the learned Judge had relied upon 1981 CLC page 327 also. ' In view of the above discussion I have come to the conclusion that the appellants require the disputed premises bona fide for their personal use and not for sale. Therefore these appeals are allowed, the orders of the Rent Controller are set aside, with no orders as to costs. It is hereby ordered that the respondents should hand over vacant possession of the premises in question to the appellants within three months. Appeals allowed. 1995 MLD 456 [Karachi] &fore Tanzil-ur-Rahman, J Dr. SURAYYA MATIN and others---Appellants versus Mst. AKHTARUNNISA---Respondent First Rent Appeal No, 328 of 1985, decided on 19th May, 1990. (a) Sindh Rented Premises Ordinance (XVII.Of 1979)--- ----S. 15---Expired agreement of tenancy---Effect---Agreement of tenancy though expired would continue in force, with liability of tenant to pay rent at the same rate and time---Consequences of non-payment of rent would however, be subject to law in force at the relevant time.. [p. 462] A Zarina Khawaja v. Agha Mahboob Shah PLD 1988 SC 190; Mehro Mal v. Habibur Rahman Khan PLD' 1988 Kar. 240; Sayed Riaz All v. Shabbir Ahmed Khan 1971 SCMR 598; Amanat Khan v. Mst. Begum Jan and another 1979 SCMR 608; Abdul Rashid v. Saleh Muhammad 1980 SCMR 506; M/s. Tar Muhammad Janoo & Co. v. Taher All and others 1981 SCMR 93; Mrs. Alima Ahmed v. Amir Ali PLD 1984 SC 32; 1971 SCMR 598 32; 1979 SCMR 608; Abdul Rashid v. Saleh Muhammad 1980 SCMR 506; 1981 SCMR 93 and Alif Din v. Khadim Hussain 1980 SCMR 767 ref.
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(b) Sindh Rented Premises Ordinance (XVII of 1979)--- ----S. 15---Expired agreement of tenancy---Acceptance of rent after specified date---Effect--- Acceptance of rent after specified date would not constitute "practice so as to change the terms of agreement or law; such act on the part of landlord, would, however, amount to condonation, with the result that term of agreement of tenancy as to payment of rent in advance, as agreed between parties, would remain binding on parties---Landlady having knowledge of delay in payments, her failure to take action under relevant term of tenancy would not render tenant liable to ejectment on the ground of alleged default. [p. 464] B Muhammad Saleh v. Muhammad Shafi 1982 SCMR 33 and Black's Law Dictionary ref. (c) Sindh Rented Premises Ordinance (XVII of 1979)--- ----S. 15---Diminishing the value and utility of premises---Removal of wall under the mezzanine floor and iron shutters admitted by tenant---Such act on the part of tenant diminished the value and utility of premises in question. [p. 466] C (d) Sindh Rented Premises Ordinance (XVII of 1979)------S. 15---Bona fide personal requirement of premises by sons of landlady--Non-submission of affidavits of sons of landlady in proof of their bona fide requirement---Effect---Affidavits of sons for whose use and occupation premises was required was not to be filed necessarily. [p. 467] D Muhammad Sharif v. M. S. Sultan 1981 SCMR 844; Dilshad Muhammad v. Mst. Zubaida Begum 1981 SCMR 895 and Arshad Umar and another v. Begum Nazrul Askari PLD 1985 SC 38 rel. Khalid Lateef for Appellants (in F.RA. No, 326 of 1985). HA. Rehmani for Respondent (in F.RA. No, 326 of 1985). HA. Rehmani for Appellants (in F.RA. No, 328 of 1985). Khalid Lateef for Respondent (in F.RA. No, 328 of 1985). Dates of hearing: 9th and 10th May, 1990. JUDGMENT ' These are two First Rent Appeals F.RA. No, 326/85 has been filed by the landlady and F.RA. No, 328/85 has been filed by the tenant. Both these Appeals arise out of an order dated 18-3-1985 passed by the learned Xth Senior Civil Judge/Rent Controller, Karachi in Rent Case No, 1385/75. I intend to dispose of these two appeals by this judgment. ' Since these are two cross-appeals, instead of using the words appellant and respondent I will hereinafter mention them as landlady and tenant in order to avoid ambiguity. ' On 7-5-1975, the landlady filed an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 for ejectment of the tenant from two shops in her tenancy on the grounds (i) default, (ii) impairing the value and utility of the premises and (iii) personal use of the landlady's husband and their children. The landlady's husband and Special Attorney examined himself only in evidence. The tenant's widow Dr. Surayya Matin examined herself and produced one witness in evidence only. The learned Rent Controller, by his aforesaid Order, allowed the application for ejectment in respect of one shop only on the grounds of impairing the value and utility of the premises and for personal use of the landlady's husband. The landlady has now filed F.RA. No, 326/85 against not allowing the application for both the shops and also on the ground of default. F.RA. No, 328/85 has been filed by the tenant against the said Order. ' Mr. Khalid Latif, learned counsel for the landlady, arguing the Appeal (F.RA. No, 326/85), submitted that the learned Rent Controller has erred in giving his finding on issue of default against the landlady. He refers to paragraph 4 of the affidavit-in-evidence of the husband and Attorney of the landlady, which mentions the several payments made late by the tenant in contravention of clause 4 of the Agreement of Tenancy, dated 7th April, 1963, which requires payment of monthly rent to be made in advance during the first week of each month. The exact details are reproduced as under:- -{{TABLE}} Date of receipt Cheque No, & date
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& deposit with the Bank (UBL) For the month of Amount Rs, 23-9-72 PAB 437015 22-9-72 Aug./Sept. 72 1040 30-11-72 " 340864 29-11-72 Oct./Nov. 72 1040 10-1-73 341061 9-1-73 Dec. 72 520 6-2-73 341563 6-2-73 Jan. 73 520 29-3-73 342467 28-3-73 Feb./Mar. 73 1040 8-5-73 342347 8-4-73 April 73 520 15-6-73 341877 15-6-73 May 1973 520 00-9-73 434117 10-8-73 June. 73 520 12-9-73 (CBL) 434456 10-9-73 Jul./Aug. 73 '1040 12-12-73 CA 1 582103 11-12-73 Sept./Oct./Nov. 73 1560 7-3-74 584968 6-3-74 Dec./Jan. 74 1040 22-4-74 018788 20-474 Feb./Mar. 74 1040 17-5-74 PAC 18745 16-5-74 Apr./May. 74 1040 2-7-74 PAC 19187 27-6-74 June 74 520 3-8-74 19563 31-7-74 July 74 520 3-9-74 C 407257 31-8-74 August 74 520 16-10-74 " 407275 15-10-74 Sept./Oct. 74 1040 3-5-75 PAB 438498 29-4-75 April 74 520 {{TABLE}} ' Learned counsel further submitted that the tenant was bound to adhere to the terms of agreement which, inter alia, provides that the rent shall be paid monthly in advance. Although the agreement executed between the parties expired in 1968, the condition of payment of rent in advance remained in vogue. Reliance is placed on Zarina Khawaja v. Agha Mahboob Shah (PLD 1988 SC 190), Mehro Mal v. Habibur Rahman Khan (PLD 1988 Karachi 240). ' In view of the pronouncement of the Hon'ble Supreme Court in Zarina Khawaja's case, Mr. Habib A. Rehmani, learned counsel for the tenant, does not dispute that the tenant remains liable to pay rent in advance in the first week of every month as provided in the Agreement. ' Learned counsel for the landlady, on the issue of default, placed his reliance on the cases, namely, (i) Sayed Riaz Ali v. Shabbir Ahmed Khan (1971 SCMR 598), (ii) Amanat Khan v. Mst. Begum Jan and another (1979 SCMR 608), (iii) Abdul Rashid v. Saleh Muhammad (1980 SCMR 506), (iv) M/s. Tar Muhammad Janoo & Co. v. Taher Ali and others (1981 SCMR 93), and (v) Mrs. Alima Ahmed v. Amir Ali (PLD 1984 SC 32). ' In the first case (1971 SCMR 598), it was held that:-- "In law the petitioner could not lead evidence in variation of the terms and conditions of the written agreement of lease (sections 91 and 92, Evidence Act). Moreover, the receipt of rent by the respondent for several months at a time showed that the landlord had condoned the default and not that he had consented to vary the terms and conditions of lease regarding payment of rent." ' In the second case (1979 SCMR 608), it was observed that:-- "Admittedly, no cash rent for the period from August, 1974 to December, 1974, was ever paid by the petitioner to his landlord. He failed to prove to the satisfaction of the Courts below that he was entitled to the adjustment of the rent due for this period in question towards the payment allegedly made to the mason for repairs to the house and in the shape of the bond of the value of Rs,100. On this finding therefore, it follows that even up-to-date the rent for this period in question was neither tendered nor paid to the landlord and this default on his part was wilful and contumacious. A fortiori the rent remitted for the subsequent period from January, 1975 to June, 1975 by money order in July, 1975 did not amount to a valid tendered rent without having cleared the arrears due for the period from August, 1974 to December, 1974. Moreover, he had failed to pay or tender the monthly
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rent within 60 days from the month for which the rent was payable and for this reason the tender of the arrears in lump sum in July, 1975 did not condone the default thus committed by him." ' In the third case Abdul Rashid v. Saleh Muhammad (1980 SCMR 506), it was observed that:- "It has been held time and again that in such cases the parties cannot contract themselves out of the provisions of the law on the subject namely, the West Pakistan Urban Rent Restriction Ordinance. ' Similarly neither party can plead a practice which is contrary to the said law. Moreover, the mere fact that a landlord accepts a delayed payment of rent by the tenant on a number of occasions, cannot be said to have given rise to any practice whitling down the requirement of law that the rent has to be paid by the tenant by the 15th of every month." ' In the fourth case (1981 SCMR 93), it was held that:-- "It is the duty of the tenant to pay or at least tender the rent to the landlord and he cannot be allowed to plead that the landlord did not make any effort to collect the rent. The mere fact that a tenant has made it a habit not to pay the rent regularly every month, and that the landlord has tolerated his default for some time and accepted the rent paid at irregular intervals cannot in any way, be deemed to have established a practice of payment of rent whenever the tenant pleases or affect the liability of the tenant to pay the rent unless the landlord comes and collects it. Nor does it absolve the tenant from paying the rent every month. A landlord's acceptance of the rent paid to him at irregular intervals does not in any way, show that he does not expect it to be paid regularly every month as the reason for receiving the delayed payment might be his decency, his desire to accommodate his tenant, his pre-occupation with his own work, his hesitation to go to Courts of law or his reluctance to incur the expenses and hazards of litigation. The tenant cannot be allowed to take advantage of his own negligence or of his having taken advantage of deliberate non- payment of rent in time every month on the ground that the landlord has been accepting the same and argue that the same had given rise to a practice of the irregular payment of rent." ' In the fifth case (PLD 1984 SC 32), it was held that:- "That the respondent was clearly in default in paying or tendering the rents for April and May, 1970, and from October, 1970 to December, 1970. There was no plausible explanation for such default. He was, therefore, liable to ejectment." ' On the other hand, learned counsel for the tenant submitted that he does not dispute the liability of the tenant to pay rent under the expired agreement of tenancy and that the rents for several months, as detailed in the affidavit-in-evidence on behalf of the landlady, was paid by cheques by depositing the same in the landlady's bank account with certain amount of delay. The late payments were, however, accepted by the landlady, without the slightest objection, and therefore, it was not open to the landlady to seek ejectment of the tenant on the basis of such late payments. The delay in payment, as submitted by the counsel, stood condoned. Reliance is placed by Mr. Rehmany on Alif Din v. Khadim Hussain (1980 SCMR 767), wherein it was observed that:- "The fact that the landlord had in the past been accepting the rent after the due dates does not mean that the relevant terms in the lease deed had become inoperative. It only meant that the respondent had condoned the default in that instance and could not plead it as a ground for ejectment of the petitioner." ' Learned counsel further submitted that it was a practice of the landlady to accept rent in lump sum as is evident by the statement of payments of rent. Reliance is placed by him on 1989 SCMR 403, wherein it was observed that:-- "We find no ground either in law or on merits is made out for interference with the impugned judgment of the High Court, for, the finding of fact recorded by the two Courts below that it was the practice of the petitioners to collect the amount in lump sum has been based on the admitted documents which clearly prove payment of rent on yearly basis."
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' Reliance is also placed on Abdul Aziz v. Abdul Ghani (1986 SCMR 1857), wherein it was observed that:- "There is sufficient evidence on the record that it was the landlord who had adopted a practice of receiving the arrears of rent in lump sum. The perusal of the details of the receipts covering the period July, 1974 to May, 1978 given in the judgment of the High Court shows that on two occasions the landlord received the arrears of rent after e'ght months, on one occasion after a period of more than two months without any objection. This practice was in vogue from the very beginning of the tenancy. Though the rent had not been paid by the respondent to the landlord as required under the law but the conduct of the petitioner himself was such which furnished sufficient justification to the appellate Court to exercise its discretion against him in dismissing his eviction petition." ' Except for the principles laid down in the cases cited by Mr. Khalid Latif, as also admitted by him during the course of arguments, they are distinguishable on facts inasmuch as in the said cases the rent was due and payable by the tenant before filing the application for ejectment whereas in the instant case there was no rent due and payable on the date of filing ejectment application. ' I have given my anxious thought to the question whether the tenant, in the circumstances of the case, can, be ejected on the ground of the alleged default. Admittedly, the agreement of tenancy, though expired, continued in force, with a liability of the tenant to pay rent at the same rate and time as held by the Hon'ble Supreme Court in Zarina Khawaja's case. The liability to pay the rent will, therefore, be determined in accordance with the agreement, as to the rate of rent and the date of payment. But the consequence of such nonpayment will be subject to the law of the land. If the tenant agrees to pay rent in advance, he continues to be bound by the said term of tenancy. If he fails to pay or tender rent due by him in respect of the rented premises within 15 days after the expiry of the time fixed in the agreement of tenancy, he is liable to be ejected. In the instant case, the tenant had agreed to pay monthly rent in advance in the first week of the month for which it was due. Thus, he is bound to pay the same accordingly and if he fails to pay within 15 days after it has fallen due under the agreement as also provided in section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, the Controller may make an order, directing him to put the landlord in possession of the rented premises. In the instant case, the tenant was inducted into possession of the premises under agreement dated 7th April, 1963. He is alleged to have made late payments in respect of several months, with intervals, as detailed in the affidavit. There is some delay of several weeks in making such. Payments, which were, however, accepted by the landlady without the slightest protest, objection or reservation or even showing the sign of displeasure over such late payments. Clause (10) of the agreement provided that "in case of breach of any condition of tenancy, the lessee shall be liable to ejectment irrespective of the terms hereinbefore contained, after having been given 15 days' notice to remedy the complaint of the lessor". Admittedly no such notice was given; not even an oral complaint was ever made to the tenant about late payments on 18 occasions during the entire period of 144 months asking him to make payments in accordance…
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