IN THE HIGH COURT OF SINDH AT KARACHI
BEFORE:
Mr. Justice Muhammad Shafi Siddiqui
C.P. No. S-210 of 2007
Muhammad Swaleh
Versus
Mst. Asma Yasin & others
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Date of Hearing: |
05.04.2018 |
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Petitioner: |
Through Syed Mohammad Haider Advocate |
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Respondent No.1: |
Through Mian Mushtaq Ahmad Advocate |
Muhammad Shafi Siddiqui, J.- Petitioner/tenant has filed this petition against concurrent findings of two Courts below. The ejectment application was filed by respondent No.1/landlady Mst. Asma Yasin on the ground of default and personal requirement. The default was claimed w.e.f. December 2001 while personal bona fide need was pleaded for son of the landlady/respondent. In the application the respondent claimed payment of rent in advance at the rate of Rs.780/- per month. After service of notice written statement was filed by the petitioner and the default and personal requirement were denied. The payment of rent in advance was also denied in the written statement though the rate of rent was admitted.
2. Both the parties led evidence and on considering the same, Rent Controller allowed the ejectment application on both the counts i.e. default and personal need vide order dated18.12.2006, which order was maintained by appellate Court vide its order dated 11.04.2007 hence the petitioner has filed instant petition.
3. I have heard the learned counsel and perused the material available on record.
4. I would first take up the ground of personal requirement. The applicant/respondent Asma Yasin filed her affidavit-in-evidence and she was subjected to cross-examination. With reference to personal requirement she has admitted in her cross-examination as under:-
“I do not remember the name of the tenant of shop No.2. It is correct to suggest that shop No.2 is in the tenancy of one Rahimuddin. It is correct to suggest that I have filed a rent case against the tenant Rahim uddin on the ground of default and personal bonafide of my husband who wants to start a hardwear shop in the said shop. It is correct to suggest that the said rent case was decided in my favour and ejectment order was passed against the tenant namely Rahimuddin. It is correct to suggest that in the said rent case I have filed execution application. It is correct to suggest that during execution proceeding I compromised with the Rahimuddin on enhancement of rate of rent and continued his tenancy.”
5. Thus she (respondent/landlady) herself had earlier filed ejectment application against one of her tenants and she entered into a compromise after enhancement of rent and continued the tenancy. The respondent as such not only as landlady/applicant but also as a witness, lost her credibility insofar as case of personal requirement for her son is concerned in view of the fact that previous Rent Case, which included the ground of personal requirement, was compromised on enhancement of rate of rent. Son, for whom the subject demised premises is required, for the discharge of an honest statement could have appeared in the witness box but he failed. Although there is no legal requirement for his appearance in witness box but in view of peculiar circumstances of this case his appearance was inevitable as earlier a statement of her mother regarding bona fide requirement was proved to be a dishonest statement, hence I do not consider the case of the respondent to have been made out as far as personal requirement is concerned.
6. In the case of Shirin Bai v. Famous Art Printers (Pvt.) Ltd. reported in 2006 SCMR 117, while dealing with personal need in good faith, the Hon’ble Supreme Court has very elaborately discussed the subject issue and has observed as under:-
“8. "Good faith" means an honest act. Honesty is a state of mind and is capable of proof or disproof only by evidence of conduct. If requirement of landlord is found to be genuine, Rent Controller is bound to order eviction of tenant notwithstanding the fact that he had also made a demand for enhancement of rent or any other demand from the tenant. The expression "good faith" is abstract term not capable of any rigid definition. The ordinary dictionary meaning of the expression "good faith" is honesty of intention and, therefore, what is required under clause (vii) of subsection (2) of section 15 of the Ordinance is that the landlord should have a genuine need of the premises, which should certainly be more than a mere wish or desire. The expression "good faith" has been used in the Ordinance purposely meaning an act performed honestly without fraud, collusion or participation in wrong doing. The words "desire" or "need" have not been used, which would negate the two extreme views which are pleaded in cases of this nature. The expression "good faith" employed in clause (vii) must be interpreted in the light of definition thereof as embodied in section 2(28) of the West Pakistan General Clauses Act, 1956, which provides that "a thing shall be deemed to be done in good faith where it is in fact done honestly, whether it is done negligently or not". Strictly speaking it means honesty and when a person is in occupation of another premises, generally speaking he cannot be said to be acting honestly when he asks for another premises unless the premises in his occupation is not sufficient for his need. Mere whim or fancy, wish or convenience of the landlord should not be adequate to demonstrate that the landlord requires the premises in "good faith". He must plead and prove his requirement by sufficient and satisfactory evidence inspiring confidence. It is a state of mind, which may be inferred from circumstances attending to each case and Courts ordinarily accept requirement of landlord without imputing bad faith unless strong circumstances indicate to the contrary. Right of landlord to claim possession from a tenant is regulated by Rent Controller only to the extent to examine whether the request of landlord for possession is inspired with "good faith", or is frivolous or mala fide.”
7. Hence, while considering facts involved the instant matter in the light of the above observation of the Hon’ble Supreme Court, the element of bona fide requirement is missing.
8. Insofar as default in payment of rent is concerned, no doubt the respondent/applicant has alleged in paragraph 2 of the ejectment application that the rent was payable in advance but it was vehemently denied in paragraph 2 of the written statement that it was ever payable in advance. The burden was then shifted to applicant/respondent to establish that the rent of the subject premises was payable in advance. In the cross-examination however this burden was diluted when suggestion of payment of advance rent was admitted by the tenant/ petitioner.
9. The tenant/petitioner admitted in the cross-examination that the monthly rent of Rs.780 was payable on/or before 10th of each calendar month. The rent for the month of December 2001 claimed to have been tendered through money order on 31.01.2002 but no such evidence is available. The petitioner/tenant also admitted that he tendered rent for the month of December 2001 and January and February 2002 through money order dated 19.02.2002 and has voluntarily stated that it is second money order. The witness/ tenant also admitted that he has not disclosed the fact of tendering rent prior to the alleged money order of 19.02.2002. Thus, apart from money order dated 19.02.2002 there is no other money order coupon available on record. The petitioner/tenant also admitted that there is no endorsement of refusal on money order dated 19.02.2002.
10. The burden of proving payment of rent in advance was in fact apparently discharged when on a suggestion the petitioner/tenant himself admitted in the cross-examination that the rent was payable on or before 10th of each calendar month. Thus, the tenant had only a grace period of 15 days for its payment on its becoming due. Rent was due on 10th of each calendar month and grace period of 15 days makes it 25th of each month. The money order for the month of December 2001 and January 2002 was in fact tendered on 19.02.2002, by the time the default for these two months at least had already been committed.
11. The judgment as relied upon by Mr. S. Muhammad Haider in the case of E.H. Jaffar & Sons Ltd. v. Sultan Karam Ali reported in 1995 SCMR 330 is distinguishable from the facts and circumstances of instant case as no rent receipts were produced by the tenant to establish any modified terms for payment of rent. In the cross-examination the tenant/petitioner has admitted that the rent is still payable in advance hence there may not be a written tenancy agreement and there may not be receipts available on record, yet the admission of the tenant is sufficient for the discharge of this burden in the circumstances and the tenant is not entitled for extended or grace period of 70 days to be counted from 10th of the following month.
12. Upshot of the above discussions is that the orders passed by the Courts below are maintained only on the ground of default whereas findings as to personal requirement are reversed. The petition stands disposed of accordingly.
Dated: 12.04.2018 Judge