In these columns, we intend to publish informative articles on various aspects of law that needs to be fully understood by all but especially people in commercial activities, business or simply in jobs and in private business; a clear perception of these matters will help to deal effectively with law, as an when necessary
By Javaid Musarrat Advocate
(26) In case of any dispute arises between the landlord and the tenant regarding payment of rent burden of proof regarding the payment of rent is always upon the tenant and in the absence of written receipt it is very difficult for the tenant to prove payment of rent. It is pertinent to mention here that the law has provided safe guard for the tenants that in case the landlord refused or avoided to accept the rent, it may be sent to him by postal money order or, the deposited with the Learned Controller, as such the tenant can not take plea that he is/was always ready to pay the monthly rent but his sincere effort is was in vain due to the negligence or avoidance of the land lord. Although the law has not imposed an restriction on the tenant and if he desire so he/she can directly deposit rent before the Learned Controller, but there are certain Judgments of our Superior Courts in which it was held that before approaching the Learned Controller the tenant must remit the rent by postal money order and the same if refused then the rent be deposited with Learned Controller. As such it will be proper and beneficial for the tenant that before approaching the leaned Controller in the first attempt rent be sent through Postal Money Order to the landlord.
(27) Section 14 of the Ordinance deals with Ejectment of Tenant, which is summary proceeding in nature. But the benefit of this Section is available to certain class of persons. For the knowledge and benefit of readers relevant few lines from Section 14 of the Ordinance is reproduced.
“Section 14 Delivery of vacant possession (1) Notwithstanding any thing contained in this Ordinance or any other law for the time being in force, the landlord of a building who is a widow, or a minor whose both parents are dead or a salaried employee due to retire within the next six months or has retired or a person who is due to attain the age of sixty yeas within the next six months or has attained the age of sixty yeas, may, by notice in writing inform the tenant that he or she needs the building for personal use and require him to delivery vacant possession of the building within such time as may specified in the notice, not being earlier than two months, from the receipt thereof.
(28) A bard reading of the above lines will manifest that legislature has provided special benefit to the person mentioned above as such only those persons who are within the ambit of aforementioned Section can have benefit of Section 14 of the Ordinance.
(29) Section 15 of he Ordinance also deals with Ejectment of Tenant, but it must be kept in mind that under Section 14 of the Ordinance only certain category of person can approach the Learned Controller for Ejectment of Tenant, but under Section 15 of the Ordinance every body can approach the Learned Controller for Ejectment of Tenant.
(30) Do the readers want to know what the grounds are for Ejectment of tenant? On what grounds Application under section 15 of the Ordinance can be made?
(31) A landlord can seek Ejectment of his tenant on these grounds/reasons:-
(i) The tenancy has cased to be valid under Section 6 of the Ordinance.
In short if the tenure of tenancy; tenancy agreement is expired. In my opinion the main object of this clause was that if the tenancy period is ended then the landlord is entitled to apply t the Controller for the Ejectment of the of tenant under Section 15 sub Section 2 (i) (since this clause is not in operation and has been deleted /omitted by Sindh Rented Premises (Amendment) Ord. 1984 IV of 1984, Sindh Government Gazette Extra, Pt. 1, P. No 853, dated 30th July, 1984, as such discussion on this clause is wastage of time and energy).
(ii) The tenant has failed to pay rent in respect of the Premises in his possession within fifteen days after the expiry of the period fixed by mutual agreement between the tenant and landlord for payment of the rent, or in the absence of such agreement, within Sixty days after rent ahs become due for payment.
“ Provided that where he application made by the landlord is on the sole ground mentioned in this Clause and the tenant on the first day f hearing admits his liability to pay the rent claimed from the controller shall, if he is satisfied that the tenant has not made such default on any previous occasion and the default is not exceeding six months, direct the tenant to pay the entire rent claimed from him, on or before the date to be fixed of the purpose and upon such payment he shall reject the application”.
Sindh Ordinance adds (this amendment of condoning default by the tenant for six months is inserted b the Ordinance No. XIV of 2001, Sindh Government Gazette Extra Pt.1.P. No 1010-G, dated 17th April, 2001. Prior to insertion of this amendment there was no Leniency / concession for tenant if he /she have committed default in payment of rent)
(32) The world “default” in legal sense and meaning element of negligence or fault or to departure from legal duty. The interpretation of “default” has been given in the case of Ghulam Mohammad Khan Lundhkor v/a Safdar Ali reported in P.L.J. 1978, Supreme Court at Page No. 412. “The world “default” in legal terminology necessarily imports an element of negligence or fault and means something more than mere non-compliance. To establish default one must show that non-compliance has been due to some unavoidable cause, for, a person is not to be made liable for a failure due to sufficient cause for which he is, in no way responsible or which was beyond his control. It is not likely to be presumed that the law intends to cause injustice or hardship. Thus, unless the legislature has made its intention clear that construction must be preferred this will prevent manifest injustice and obviate hardship. On the principle the words “default” should mean an act done in breach of a duty or indistregard of order or direction.
(33) Where landlord as his own witness stated that tenant had not paid rent since particular month buy the tenant controverter landlord’s statement by a “mere assertion” that rent had been paid and that receipts were not taken as he had faith on landlord admitting at some time that there was no entry in his account books regarding payment of rent it was held that assertion would not be enough and the tenant, being a defaulter, would be liable to eviction,” It has been observed in the case reported in P.L.D 1981, Karachi at page No. 164 QUOTE” there is undisputed proposition of law that it is the debtor who is to find the creditor and as such respondent shaving failed to tender rent when it become the due every month they become willful defaulters.
(iii) The tenant has without the written consent of the landlord:-
(a) Handed-over the possession of the premises to some other person, e. g, the premises was let out to “A” but he handed over possession of rented premises to his friend or relative or any one else. Any person other than the (b) Used/suing the premise for the purpose/ purposes other than that for which it was let out, e.g. the premises is let out for residential purpose but the tenant is using the tenement for commercial purpose.
(c) Infringed the conditions on which the premises was let out e. g the tenant has agreed to pay rent on or before 10th of each calendar month but paying accumulated rent for two months or three months some time for four moths.
(iv). The tenant has committed such acts as are likely to impair the material value to utility of the premises, e.g. the tenant has occupied the premise for residential purpose but is using the same as a godown and string combustible articles/ substance.
(v) The tenant has indulged in such activities as are causing nuisance to the neighbors; e. g the premises was let out to he tenant for purely residential purpose but the is arranging musical programmes in the rented premises or like activities in the premises. One thing must be kept in mind to bring a case under Section 15 (iii) (v) of the ordinance the neighbor’s evidence is required, without the evidence of the neighbour the case of landlord is weak.
(vi) the premises is required by the landlord for reconstruction or erection of a new building at the site and the land lord has obtained necessary sanction for such reconstruction or erection from the authority competent under any law for the time being in force to give such sanction;
(vii) The landlord requires the premises in good faith for his own occupation or use or for the occupation or use of his spouse of any of his children.
(34) On the ground of personal Bonafide requirement case of Muhammad Mushtaq Hussain versus Abdul Qadir Malbari reported in N.L.R. 1985 Civil at page No. 25 can be referred,
Ss 15 (2) (vii) 15-A proof of bona fidies of requirements – if from facts and circumstance a genuine requirement is spelt out, landlord’s bona fidies can not be doubted unless such facts are brought on record by tenant which militate against it safeguards under section 15-A give sufficient protection to tenant in case landlord re-lets premises to some other person or does not use it personally- Held. In instant case the facts that landlord was rerunning a business in Dubai and that he had given only his own statement did not militate against bonafidie requirement which stood established by statement as well as conduct of parties –Eviction order maintained and tenant’s appeal dismissed.
(35) Where the landlord who has obtained the possession of the premises for the purpose of reconstruction of the building or erection of a new building, shall demolish the existing building within six months of the taking over of the possession of premises or, as the case may be, commence the erection of the new building within two years of the taking over of the demolish the building as aforesaid, and in case the landlord fails to demolish the building as aforesaid, the tenant shall be entitled to be put into possession of the premises and for the purpose in may apply to the controller for an order in that behalf.
To be continued
Source: The News, 27/10/2008