1986 PLP 1169 (MLD)

K.B. Bhutto for Respondent. Date of hearing: 8th December 1985. This First Rent Appeal is filed against the order of learned XIIIth Senior Civil Judge and Rent Controller, Karachi, dated 30th July, 1984, whereby, he ordered eviction of the appellant in Rent Case No. 4947.

2. The respondent claims to be landlord of the premises bearing Excise and Taxation No.' AK‑14‑38S‑65/9 (K.M.C. lease No.890). Photo Lines, Chakiwara, Karachi. It is occupied by the appellant as tenant at Rs.50 p.m. It is alleged, that the appellant has failed to pay rent since February, 1981, and has also caused damage to the premises by demolishing upper tenement made of wooden planks and asbestos sheets and removed the material, and thereby impaired the material value of the same. It is also claimed, that the premises are required for bona fide use of the landlord. The appellant resisted the rent case raising objections, that there was, no relationship of landlord and tenant between the parties. The appellant claims, that the premises in question was purchased by her husband from Chindra and Hirendara (Hindus) in the year 1951 for consideration of Rs.2,000 but, thereafter, the sellers migrated to India and property being evacuee property .was handed over to the Settlement Department. On the pleadings of the parties, the learned Rent Controller framed the following issues:‑ "(1) Whether there exists relationship of landlord and tenant between the parties? (2) Whether the opponent has impaired material value of the premises? (3) Whether the opponent had defaulted in payment of rent? (4) Whether the applicant requires the premises for her own occupation and in the occupation of her husband and children? (5) What should the order be? The learned Rent Controller decided all issues in favour of the respondent.

3. The learned counsel for the appellant, Mr. Chaudhry Iftikhar Ahmed, has contended, that the appellant has been prejudiced as her side was closed by the learned Rent Controller without giving her opportunity to tender herself and her witnesses for cross‑examination, and therefore, the material facts were not before the learned Rent Controller to arrive at correct decision.

4. The diary of the rent case shows, that the appellant filed her affidavit and that of her witness, Muhammad Taj, in evidence on 21‑3‑1983 while her side was closed on 24‑5‑1984. The diary further shows, that case was adjourned by consent of parties on one hearing, whereas, the counsel for the appellant sought adjournment on four hearings. The counsel for the respondent sought adjournment on two hearings and the learned Rent Controller was on leave on two hearings. On 25‑4‑1984, the appellant made an application for adjournment to engage another counsel which was granted and matter was adjourned to 16‑5‑1984. On 16‑5‑1984, she again moved application for adjournment on the same ground. The matter was adjourned to 24‑5‑1984 when she and her Advocate failed to appear and her side was closed by the learned Rent Controller. The diary further shows, that even after closure of her side, the matter was adjourned on seven hearings, but the appellant continued to remain absent. However, I have gone through the file and find that all the material evidence was before the learned Rent Controller to enable him to arrive at correct finding.

5. The appellant had been given opportunity to cross‑examine witnesses of the respondent, namely, Muhammad Ali, and Yaqoob, who have been cross‑examined at length. The case of the appellant is also stated in her affidavit and that of her witness, Muhammad Taj, which are on record. '

6. There is no tenancy agreement to prove the relationship of landlord and tenant between the parties. There is, however, oral evidence of Muhammad Ali and Yaqoob. The respondent has produced counterfoils of rent receipts, which are from 12‑5‑1980 to 7‑3‑1981, but these counter‑foils have not been signed by the appellant. It is contended by the learned counsel for the appellant,that these counter foils have been manipulate to strengthen the case of the respondent. He also pointed out the fact, that in the rent application, the respondent claims, that the appellant is defaulter since February, 1981, but the last counter‑foil of receipt of the rent is dated 7‑3‑1981. The last three receipts show, that the rent for the month of December, 1980, was paid on 6‑1‑1980, and that for the month of January, 1981 was paid on 9‑2‑1981. Again the last receipt of rent though. shows to be for December, 1980, and January, 1981, but on its back it is written, that "this rent is upto March, 1981." There appears to be mistake it the issue of the last receipt which has been corrected afterwards. This also appears to be reason why the appellant is shown as defaulter from February, 1981. If the appellant wanted to manipulate' these receipts to strengthen his case, the manipulation would have been done more carefully. This mistake rather weakens allegation of manipulation Apart from this evidence, there is oral evidence of Muhammad Ali Khan and Muhammad Yaqoob, that the appellant had been paying rent to the respondent,‑ which fact is challenged in their cross‑examination.

7. In this context, it maybe pertinent to refer to the definition of word "landlord" as contained in section 2(f) of the Sind Rented Premises Ordinance, 1979, "to mean the owner of the premises and includes a person who for the time being is authorised or entitled to receive ran in respect of such premises". The definition of the word landlord clearly shows, that every owner of the premises is landlord within the meaning of said Ordinance. The respondent claims ownership on basis of lease deed issued in her favour by the Municipal Corporation. It is contended by the learned counsel for the appellant, that this leas deed was issued to the respondent on 29‑9-1981, and if any right ha accrued on that day by virtue of this deed, the respondent could no seek ejectment, as she did not give any notice under section 18 of the Ordinance to the appellant. The learned counsel for the respondent, Mr. K.B. Bfiutto, urged, that the lease deed was issued to the respondent on 29‑9‑1981 on the basis of the entries in the record of K.M.C. in 'her favour since 1968 for which she has been paying taxes. He has placed reliance upon the demand challans produced by the respondent. One challan is demand for taxes for the year 1980‑81 and other is for the years 1968‑69 to 1971‑

72. No doubt, mere‑ entry in the record of K. M. C. showing name of respondent as occupant of the premises or demand of taxes would not confer right of ownership upon the respondent, as to entitle her to be considered as landlady within the meaning of said Ordinance. This right was conferred upon her through registered lease‑deed executed by K . M . C . in her favour in 1981. These entries at least show, that the respondent was considered to be is occupation and possession in question and contraction thereupon. I she had rented out these premises to the appellant, she would b landlady within the meaning of Sind Rented Premises Ordinance. It may also be noted, that the appellant does not deny to be in occupation of the premises on the plot in question. Her claim, that her husband purchased the plot from Hindu, even on her own admission in the written statement, is not only not substantiated by any document but she states to have surrendered the house to the Settlement Authorities. The appellant in her affidavit in evidence or in the writt6n statement has not produced any document to show, that the premises in question were ever declared as evacuee property and was taken over by the Settlement Authorities. No receipt of payment of any rent to the Settlement Authorities has been produced. As such the learned Rent Controller was fully justified in holding, that the respondent was the owner and landlord of the demised premises. It is admitted fact that no notice under section 18 of the said Ordinance was given by the respondent to the appellant after the execution of the lease deed in her favour. But it is contended by the, learned counsel for the respondent, that no such notice was necessary as the appellant had been inducted as tenant and was paying rent to the respondent. Apar from oral evidence of the respondent's two witnesses there are counter foils and receipts of rent. It is not possible to believe, that the respondent would have left the appellant in possession of the premises c for such a long time without getting rent or moving the Rent Controller for ejectment of the appellant. Even non‑service of notice under section 18 would not disentitle respondent from obtaining eviction of the appellant on the ground, that she requires the premises in question for he bona fide requirements or that the appellant has paused damage to the premises and impaired the material value. In his evidence Muhammad Ali, husband of the respondent, in para. 4 of his affidavit has stated, that the opponent has demolished the upper tenement made of wooden planks and asbestos sheets and removed its material dishonestly and thereby damaged the said premises and by such dishonest, illegal and unauthorised acts, the opponent has impaired the value and utility of the said premises. In the cross‑examination, he denied the suggestion, that the opponent (appellant) had not demolished upper portion. Other witness, Muhammad Yaqoob, does not support Muhammad Ali on this issue. As such there is word of Muhammad Ali against the word of the respondent in her written‑statement, and therefore, this allegation is not properly proved. In para.4 of her application, respondent states, that she and her family consisting of herself her husband and five) children, are residing in one room size 12' x 14'. She further stated that the said residential accommodation was insufficient and congested and in view of number of family members and growing schoolgoin children. Her husband, Muhammad Ali Khan, in his affidavit has stated, in para No.5, that he, applicant and their five children are residing in one‑roomed premises situated in Taj Manzil and the licensee of her owner. He states, that this accommodation is in‑sufficient and congested due to their growing school going children. They require the house for personal occupation in good faith. In his cross‑examination his statement as to the number of family members is not challenged but it is suggested that present accommodation in possession and occupation of the respondent is five‑roomed house which suggestion is denied by Muhammadl Khan. It is not suggested, that the present accommodation in occupation of the respondent is owned by her, or that she‑is not living there a licensee of owner. Furthermore, the evidence of witness Yaqoob, ha gone unchallenged in the cross‑examination. In his affidavit in evidence in para. 2 he states that present residential accommodation of the applicant, consists of one‑roomed house where the respondent alongwith her husband and children is residing. I have gone through the affidavit of appellant and her witness. Neither she nor her witness have assertion even in the affidavits that the respondent is not living in one‑room house with her husband and five children and that she does not required the house in good faith for her bona fide use. It is not difficult to understand the desire of a family' consisting of seven members to shift from one‑roomed house where they are living at sufferance of the owner to their own premises. There appears to be no iota of evidence to rebut the contention of the respondent that the house in question is required by her for her personal bona fide use. There is not merit in1 the appeal which is liable to be dismissed.

7. The learned counsel for the appellant requests, that the appellant, who is a widow, may be given sufficient time to make alternate arrangement for herself. The appellant is given six months time to vacate the demised premises. . By a short order, dated 8‑12‑1985, appeal was dismissed. The above are the reasons for the said order. M.Y.H. Appeal dismissed.