1989 PLP 682 (CLC)

(1) Whether the opponent has committed wilful and deliberate default in payment of monthly rent? (2) Whether the applicants require the tenement in question bona fidely and in good faith for the use and occupation of applicant No. 1? (3) What should the order be?"

2. Both the issues were decided in the affirmative and in favour of the respondents and as a result order of eviction was passed on 7th April, 1987, which has been impugned in this appeal. 3. 1 have heard Mr. K. B. Bhutto, learned counsel for the appellant and Mr. Shaikh F.M. Javaid, Advocate, for the respondents and have gone through the record of the case. 4. 1 find that there is some mystery about the facts as alleged by the respondents. Firstly, the respondents claimed that they had purchased the house on 14‑12‑1980 but I find that the Rent Petition No.4930 of 1976, which was filed by the previous owner Muhammad Alam, continued to drag on till as late as 29‑8‑1983 when it was dismissed in default. Copy of the order dated 29‑8‑1983 is on record at page 71 of the R & P and it appears from it that till that date the case was being pursued by Muhammad Alam and it was only on 29‑8‑1983 that he was un-represented resulting in the dismissal of the rent case in default. The order does not record the presence or absence of the appellant and it, therefore, appears that he was also absent on that date. Now, if the respondents had purchased the house on 14‑12‑1980, there seems to be no reason that the previous owner would continue to pursue his ejectment petition till as late as 29‑8‑1983. It was argued by the learned counsel for the respondents that ever since the respondents purchased the house in December, 1980, the previous owner Muhammad Alam stopped pursuing the rent petition and, therefore, it was dismissed in default. The order of dismissal, however, does not support him on this point. It does not disclose that Muhammad Alam had not pursued his ejectment petition since December, 1980. It only shows that Muhammad Alam had remained absent and unrepresented on 29‑8‑1983. Secondly, it does not stand to reason that after purchasing the house in December, 1980, the respondents would sleep on their rights and content themselves with the oral intimation of their having become owners and permit the appellant to live peacefully in the house without paying any rent until April, 1985, when they gave written and registered notice to him informing him that they had purchased the house. No one is expected to sleep over his rights for five years. Thirdly, the joint purchase of the house by respondents Nos. l and 2 is something which I have not been able to comprehend. Respondent No.l Muhammad Irshad states in his affidavit and cross‑examination that he is not related to respondent No.2 Mst. Najma. No other connection has been disclosed between them. Respondent No.2 was only a school‑going girl of 14 or 15 years of age when the respondent jointly purchased the house in December, 1985. Of course there is no legal bar prohibiting the respondents to jointly purchase a house but there should at least be some understandable connection or relationship between them which would warrant a transaction of this nature. All these circumstances have not been properly explained by the respondents. Notice of adornment dated 4‑4‑1985 (Exh.A‑1/4) does not disclose from whom respondents had purchased the house. It only stated that the respondents had purchased the house bearing No.88 situated in Modern Colony, Manghopir Road, Karachi. In para. 1 of the rent petition it was, however, stated that the house was originally "held" by Ch. Muhammad Alam under allotment from M/s. Pak Construction Company. The respondents have not brought on record any document showing that Ch. Muhammad Alam had transferred to them his rights in the said house. In cross‑examination respondent No.l Muhammad Irshad had stated that he and respondent No.2 had purchased the house from Ch. Muhammad Alam through his attorney Muhammad Javed for a sum of Rs.1,10,000 and a sale agreement was executed between them. However, neither the sale agreement has been filed nor any other document has been filed showing that Ch. Muhammad Alam or his attorney Muhammad Javed had sold the house to the respondents. Neither Ch. Muhammad Alam nor his alleged attorney Muhammad Javed has been examined as a witness before the learned Rent Controller. No doubt one Safdar Raza has been examined by the respondents as a witness and he stated that he was Accountant of M/s. Pak Construction Company, the lessee of the land comprising the Modern Colony, Karachi, and that the house in question was originally allotted by the Company to Ch. Muhammad Alam who through his attorney Muhammad Javed had sold the said house to the respondents. This latter part of the deposition of this witness, vide para. 2 of his affidavit, is not a direct piece of evidence on the point because this witness was not an attesting witness of the agreement of sale and he does not also claim that the transaction of sale was finalized in his presence. His further deposition in para. 3 of the affidavit that the new joint owners/ transferees paid the transfer fee to the Company and were entered in the record of the Company as the new allottees with effect from 14‑12‑1980. makes no difference. The respondents may well have been entered by the Company as the allottees of the house in question but there is no evidence that this had been done with the consent of the previous owner Muhammad Alam and it also does not prove that the respondents had in fact purchased the house.

5. As a matter of fact, the appellant had not admitted the relationship of landlord and tenant and his stand on the point is quite clear in his written statement. The written statement was, unfortunately, not properly drafted and denial of the relationship of landlord and tenant, although very much there, was not specifically pleaded and no objection to that effect was specifically taken but it is nevertheless clear from the perusal of the written statement that the appellant had not conceded that the respondents were either the owners of the house or his landlord. If the learned Rent Controller had carefully read the written statement he would have surely first framed an issue as to the existence of the relationship of landlord and tenant between the parties before going further in the matter.

6. Under the circumstances, I would set aside the impugned order, I and remand the case to the learned Rent Controller with the director that an issue should be first framed as to whether the relationship of landlord and tenant existed between the parties. Only if this issue is decided in the affirmative and in favour of the respondents, he should pass the order for the deposit of rent and proceed further in the matter.

7. Learned counsel for the appellant had discussed in detail the effect of not registering the sale‑deed and had argued that since there was no registered document in favour of the respondents, showing that they had purchased the house in question from Ch. Muhammad Alum: their ownership right is defective. The question of ownership is not relevant so far as rent petition is concerned. The title of the respondents may be defective but if the previous owner Ch. Muhammad Alam had authorised them to collect rent from the appellant then the respondents become the landlords of the appellant, the defect in their title notwithstanding. This is, however, only an academic point at this stage.

8. Since the case is already very old and the rent petition was filed as early as March, 1986, the parties are directed to appear before the learned Rent Controller on 15‑11‑1988 and he is directed to decide the case within six months‑ M.Y.H./A‑442/K Case remanded.