IN THE HIGH COURT OF SINDH AT KARACHI.

Constitutional Petition No.S-832/2009

Petitioner:                           Mst Akhtari Begum through Mr. Khashif 

                                         Paracha  Advocate.

Respondent No.2:              Syed Akhlaq Haider through Mr. Iftikhar

                                         Jawed Qazi Advocate.

Date of hearing:                    20.09.2016

Date of Judgment:                03.10.2016.

O R D E R 

Muhammad Iqbal Kalhoro, J.  Petitioner is owner/landlady of house No.175, P.I.B. colony Karachi, where respondent No.2 has been residing since the year 2000 as tenant. She filed a rent case No.442/2006 against the respondent on the grounds of default and personal bona fide need. The said rent case was decided against him on both the grounds and he was directed to hand over vacant possession of the said house to the petitioner. Respondent being dissatisfied with such order filed appeal No.91 of 2009, which has been decided vide impugned judgment in the terms whereby the appellate court while rejecting the ground of personal bona fide need has remanded the matter to the learned Rent Controller with direction to decide the ground of default afresh after considering whether or not the amount of earnest money (Rs.150,000/-) paid to the petitioner as sale consideration in respect of the said house vide sale agreement dated 12.07.2005 was adjustable to the arrears of rent. The petitioner is not satisfied with such findings and has preferred the instant petition.

2.    Mr. Khashif Paracha learned counsel for the petitioner in his arguments supported the judgment of the learned Rent Controller and further stated that both the grounds i.e. personal bona fide need and default were fully established but the learned appellate court failed to consider them; that there was sufficient material before the appellate court to decide the matter on merits but it, contrary to the well-established principles of law, preferred to remand the case; that impugned judgment suffered from gross misreading of evidence and non-appreciation of law; that the impugned findings were based on erroneous assessment of relevant material and were therefore not sustainable. He in support of his arguments relied upon the case laws reported in PLD 1986 Karachi 74, 1994 SCMR 1918 and PLD 2006 Lahore 684.

3.         Contrary to the above submissions, Mr. Iftikhar Jawed Qazi learned counsel for the respondent stated that impugned judgment was well-reasoned and based on proper appreciation of the evidence; that ground of personal bona fide need was no more available after death of the petitioner as out of her five children three, which included a son and two daughters, were living abroad, whereas her remaining two daughters were married and living independently with their families; that the late petitioner had filed the rent case on the ground of personal need exclusively for her own living, therefore with her death such ground too had died out; that there was no material showing default on the part of the respondent; that late petitioner had entered into sale agreement regarding sale of the said house with the respondent and had received earnest money in this behalf as such she was not entitled to file the rent case for eviction against him; and that at the most she could have filed the civil suit against him for specific performance of the contract. He supported his arguments with the case laws reported in 2007 S C M R 160, 2000 CLC 1140, PLD 1976 Lahore 637, AIR 1958 Punjab 111 (V 45 C 31), PLD 1981 Karachi 273, 1992 A L D 543, 1986 S C M R 451, PLD 1985 SC 46, 2002 C L C 1391, 1997 M L D 98, 1994 C L C 2141 and 1979 C L C 367.

4.    I have considered the above submissions, perused the material and have respectfully taken guidance from the reported judgments cited at the bar. It is relevant to observe here that due to death of the petitioner during pendency of this petition, she has been replaced by her legal heirs/her children who are now the petitioners. Owing to this fact, learned counsel for the respondent during his arguments had laid much emphasis on the contention that as for the ground of personal bona fide need was, it had died out along with the petitioner. Explaining the point, he had argued that in the rent application the suit premises was claimed to be required for late petitioner’s exclusive living independent of her children who were all already married and living separately in their own houses. Therefore, her children never needed the suit premises for their personal use either in her life-time or after her death, and more so, in law they could not press such ground in the present proceedings after death of their mother, unless they amended the pleadings to expound their own personal need. I have considered this stance of the respondent. It appears from the rent application as well as affidavit-in-evidence that the late petitioner had wanted to live alone in the suit premises without her children/the petitioners who all were independent and residing separately. Presently (it was informed in the arguments) three of whom including a lone son are living abroad, and apparently, therefore, do not appear to be in need of the suit premises for their personal use. Even otherwise, it does not seem to be the case of the petitioners either that they need the premises for their personal use. Their counsel in his arguments, however, had emphasized on this ground on the premise that decree of the Rent Controller being part of inheritable estate left by the late petitioner, the petitioners were entitled to the benefit arising thereunder. His contention is not sustainable for the reason that the decree of the rent controller was set aside by the learned appellate court during life of the late petitioner, and therefore when she had died (during pendency of this petitioner) it was no more available to the petitioners to claim benefit thereunder. In view of this fact, I am of the opinion that insofar as the ground of personal need in the present proceedings is concerned, it is not available to the petitioners to base their case on and succeed. The findings of the learned appellate on this ground are unexceptionable and do not call for inference.

5.    However, as regards to the findings on the ground of default are concerned, I do not agree with the learned appellate court. The matter has been remanded to the Rent Controller, to determine whether the amount of earnest money is adjustable in arrears of rent, without realizing that such amount is subject to conditions contained in the sale agreement between the parties. Its clause (5) shows that this amount was liable to forfeiture (this comment is without prejudice to any right of the respondent, or any exception to which this right might be, which he may press in future to lay any claim on this amount), if respondent refused to pay balance consideration within the prescribed period. Learned counsel for the respondent did not deny the fact in his arguments, which even otherwise is part of the record, that respondent had failed to pay the balance amount within due period, and it was mainly due to that reason the deal between the parties could not clinch and was cancelled. Therefore, it is obvious (as far as the implication of the same in these proceedings is concerned) that the earnest money stood forfeited in terms of sale-agreement and was not available for adjustment in the arrears of rent. More so, nowhere in the sale agreement, it appears to be intention of the parties that in case of some default by the respondent the said amount would be adjusted accordingly. Thus, in my estimation, in presence of such material the appellate court erred to remand the case to the leaned Rent Controller instead of deciding it on merits. It may, however, be noted that this order itself shows that the appellate court was also convinced about the default on the part of respondent, which is why it required the leaned Rent Controller to determine whether or not said amount was adjustable to the arrears. So, in fact the two courts below are convinced simultaneously that the respondent has committed default in payment of rent. Although leaned counsel for the respondent argued with vehemence against it, but the material on record does not suggest that any inference other than that can be drawn. The petitioner in rent application has alleged default against the respondent from September 2005 till filing of the rent case on 27.09.2006. Against it the stance of the respondent is that he paid rent directly to the late petitioner up-to March 2006, thereafter on her refusal it was tendered through money order and when it was not accepted either, he started depositing the rent through MRC 133/2006 from April 2006. Regarding rent receipts in proof of payments his claim is that they were never issued to him neither before the sale agreement nor after it. It may, however, be observed that even in that case the respondent would not be absolved of his duty to prove payment of the rent to the petitioner. The landlord under the law is required to issue rent receipts to the tenant, and in case he does not, the tenant shall demand the rent receipts from him and on his refusal, he can and he shall resort to proceedings under section 10 SRPO for direction to the landlord to issue him rent receipts. But if the tenant does not opt to either demand the rent receipts or file the proceedings on refusal by the landlord in this regard, then in the face of eviction proceedings on the ground of default, he cannot defend his case by simply saying that no rent receipts were issued to him by the landlord. It is his failure to demand rent receipts on the one hand and on the other his complacency to compromise right to receive the same, which shall be counted in such circumstances against him as a proof of default. So, as far as the rent from September 2005 to March 2006 (7 months) is concerned, there is no proof that it has been paid by the respondent. And in absence of any such proof on record, there is no reason to not count it as default against the respondent making him liable to eviction.    

 6.   In view of above discussion, I am of the view that findings of the learned appellate court on the ground of default are against the facts and relevant law and these findings have resulted into miscarriage of justice, which entail interference by this court under the constitutional jurisdiction. Resultantly, the judgment of the appellate court on the ground of default is set-aside and the case of the petitioners allowed. The respondent is directed to hand over possession of the suit premises to the petitioners in 10 days of today.   

                                                          JUDGE

Rafiq/P.A.