1986 PLP 1873 (CLC)

Muhammad Abdul Rauf v. Mst. Mahmooda Begum 1985 S C M R 1960 ref. (g) Sind Rented Premises Ordinance (XVII of 1979)‑ ‑‑‑S. 15‑‑Ejectment‑‑Additions and alterations, in premises impairing utility of premises‑‑Proof of‑‑Failure to cross‑examine landlord relating to additions and alterations with attendant effect of impairing utility of premises, tenant, held, would be admitting of making such additions and alterations with attendant effect of improving utility of premises‑‑No interference being called for in findings of Rent Controller, appeal would be dismissed in circumstances.‑‑[ Cross‑examination]. Shahoodul Haq for Appellant. S. M. Gharib Nawaz for Respondent. Dates of hearing: 9th, 13th, 20th and 27th April, 1986. This appeal arose from the judgment of VIth Senior Civil Judge and Rent Controller, Karachi, dated 27‑4‑1985, whereby the ejectment application of the respondent, Mst. Humktira Ghias was allowed and the appellant S. Hamid Hussain was directed to vacate the premises in dispute and put the respondent in its possession within two months of the judgment. The facts relevant to disposal of the appeal are these. The residential house bearing No.139/3, Sector 5‑G in New Karachi originally belonged to Mst. Aziz Fatima, mother‑in‑law of the abovenamed respondent. She gifted the said house to her daughter‑in‑law by a registered deed. Following the transfer of the house in favour of the respondent she served a notice under section 18, Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance). on the appellant who was occupying the house as a tenant. He was called upon to pay the rent to her. However, by his reply to the notice, the appellant desired the respondent to supply him the photostat copies of the transfer documents whereupon he was told to inspect the said documents in the office of the respondent's Advocate. But he neither turned up for inspection of the documents nor cared to pay the rent. Therefore, the respondent /landlady instituted ejectment proceedings against the appellant tenant on three grounds: default in payment of rent, personal requirement and damage caused to the disputed property. The appellant vehemently opposed the respondent's move for his eviction from the disputed house. He denied all the three allegations on which the ejectment application was based. According to him, prior to the alleged transfer of the house to the respondent, Mst. Aziz Fatima, the original owner of the house attempted to oust him from the said house and filed three rent cases one after the other against him to achieve the desired object. After she failed to get him evicted she transferred the said house to the respondent by way of gift with the same object in his mind namely, his ouster from the house. According to the appellant the gift transaction was collusive and fraudulent. He also denied that the house in question was needed by the respondent for her personal requirement or that he has caused any damage to the house by making any additions and alterations. The learned Rent Controller after considering the evidence produced by both the parties allowed the ejectment application on all the three grounds directing the appellant to put the respondent /landlady in possession of the disputed house as mentioned above. Aggrieved by this order of the learned Rent Controller, the appellant has preferred this present appeal. As for default in payment of rent, it is an admitted position that the appellant has paid no rent to the respondent. It goes without saying that the appellant has been in occupation of the disputed house as tenant since the days when Mst. Aziz Fatima was the owner of the said house. The respondent who has filed personal affidavit in support of her case has produced a registered gift deed which shows that house in dispute has been gifted to her by Mst. Aziz Fatima her mother‑in‑law. It is admitted by the appellant that he was served with notice intimating him about the change of ownership of. the disputed premises. However his objection was that respondent failed to supply him the photostat copy of the transfer deed for his perusal. Further contention raised on his behalf was that the said transfer deed was collusive as well as fraudulent and was executed with a view to secure his eviction from the disputed house by hook or by crook. His first contention is patently without any merit. All that section 18 of the Ordinance enjoins on the new owner is to serve a notice on the sitting tenant intimating him about the change of ownership of the premises. He is not required to show or supply him the copies of transfer documents. In this connection reference may be made to Sarwar Abbas v. Mst. Hajra Bai and 4 others 1983 C L C 337 wherein it was held: "The provisions of section 13‑A are very clear and do not contemplate anything more than giving of intimation to the tenant about the death of the owner and names of the persons who have inherited the said property." Section 13‑A of the Rent Ordinance, 1959 as mentioned in the above authority is analogous to section 18 of the Rent Ordinance, 1979, therefore, the above authority is fully applicable in the instant case. I am in complete agreement with the view taken in the above reported case. Although the respondent was not bound by law to show the transfer documents to the appellant as is clear from above authority, yet she offered him the inspection of the said documents in the office of her Advocate. It seems the appellant did not avail the offer for which he was to blame himself. The next contention of the learned counsel for the appellant was that the transfer of the house in favour of the respondent was merely a fraudulent device to secure the eviction of the appellant from the said house. In support of this argument he referred to the conduct of the previous landlauy Mat. hzi; Fatima who had filed one ejectment application after the other seeking ejectment of the appellant from the disputed house. The learned counsel submitted it was only after her failure in her efforts to have the appellant ousted from disputed house, that she thought of frandulent device of gifting the house to her daughter‑in‑law, the present landlady so that fresh attempt was made to deprive the appellant of the possession of the house. No doubt the former landlady dragged the appellant thrice to the Court of law but out of three applications filed by her against the appellant, only two applications related to his ejectment'. However, neither of these applications was decided on merits, as one was withdrawn and the other was dismissed owing to absence of the landlady. Even if the former landlady is held to have made repeated attempts to oust the appellant from the disputed house, the present landlady cannot be made responsible for her actions. In this connection reference may be made to Muhammad Anwar v. Suraya Bano P L D 1979 Note 69 at p.47 in which the . landlady was not held responsible for the conduct of her husband. Assuming for the. sake of argument that due to the conduct of former landlady, as was reflected in the chain of cases filed by her against the appellant, the execution of gift deed by her in favour of her daughter‑in‑Taw cannot but be. regarded as fraudulent device for ousting the appellant from the disputed house, the Rent Controller being a Tribunal of limited jurisdiction cannot go into such questions which can be decided only by civil Court of competent jurisdiction. If the appellant genuinely felt that the gift deed was executed dishonestly and with ulterior motive, he should have rushed to the civil Court having jurisdiction for its verdict on that question. He could not expect the Rent Controller to come to his rescue in this regard. Reliance may be made to the case reported as Bashir Ahmed v. Abdul Hamid and another 1983 S C M R 302 in which it was held:‑ "In view of the registered deed showing that the entire property had come in the hands of Abdul Hamid, the respondent, the Rent Controller as an authority of limited and exclusive jurisdiction had no power, in fact, to go behind the registered deeds, to question their validity and legal effect." From above discussion it is clear that after the respondent became the owner of the disputed house by virtue of gift deed executed in her favour she served a mandatory notice on the appellant intimating him about the change of ownership of the house. But despite the receipt of notice by him the appellant has failed to pay rent to the respondent. The learned counsel for the appellant's contention that the appellant has continued to deposit the rent in Court in the name of the former landlady will obviously be of no avail to him. As required by section 10 of the Ordinance the tenant had to offer payment of rent first to the landlady and it was only after her refusal or avoidance to receive the same, he, was justified in remitting the rent either by money order or by depositing it in the Court. Since he has admittedly not offered the payment of rent to the respondent /landlady in the first instance, he has clearly committed the default. Moreover the rent is beine deposited not in the name of the respondent but in the name of former landlady. Such depositing of rent cannot be held to have been made in the name of the respondent. Reference may be made to the case of Muhammad Ashraf v. Abdul Hameed and another 1982 S C M_ R 237 wherein it was held:‑ "He could not in good faith deposit the amount in the name of landlord about whom he was informed formally that he had ceased to have interest in the property thereby depriving the claimant landlord to prove his entitlement before the Rent Controller and get the rent deposited. Such a conduct on the part of the tenant has always been considered contumacious. Coming to the plea of personal requirement it would be noticed that in her affidavit in evidence the respondent/ landlady has advanced various grounds to show that she needs the disputed house for her personal bona fide use. The learned Rent Controller has rightly held that since We landlady has not been cross‑examined in respect of these grounds, her claim of personal requirement of the disputed house has gone unchallenged. However, the argument of the learned counsel for the appellant was that since the grounds taken by respondent in support of the plea of personal requirement in her affidavit‑in‑evidence are not enumerated in the ejectment application, they are to be ignored as afterthought. This argument has been rightly rejected by the learned Rent Controller on the strength of Supreme Court authority reported as Malik Muhammad and another v. Abdul Rauf 1972 S C M R Sfil wherein it was held:‑ "In the application for ejectment the respondent was not required to spell out all the evidence or factors in support of his personal requirement, and these things had to be stated only during the course of evidence." Apart from above, it is admitted that the respondent/ landlady is presently living with her husband in his house. The appellant has failed to show that excepting the disputed house the respondent owns any other house anywhere. Since she expressed her desire that she needs the disputed house for her own use particularly when she does not own any other house, her demand for vacation of the disputed house cannot be frustrated on the ground that she is putting up with her husband with whom she is in ordinary course, expected to reside. In a case like this, the view taken by the Supreme Court is that despite the fact that the wife has sufficient accommodation in her husband's house, she is free to live in her own house and can get her house vacated for her own use if the same is in occupation of the tenant. In this connection reference may be made to the case of Muhammad Abdul Rauf v. Mst Mahmooda Begum 1985 S C M R 1960 wherein it was held:‑ "It is well‑recognized that under the law of the land a wife car independently hold property and there is no embargo in law against her assertion of the right to live in her own house. The embargo contained in subsection (2) of section 14 of the Sind Rented Premises Ordinance, which disentitles a landlord to avail the benefit of subsection (1) of the said section stipulates that the landlord must be in occupation of the building owned by him in any locality, It was not denied by the learned counsel that the house in which the respondent is at present living belonged to her husband and she did not own the same. The question of better accommodation in such a house was, therefore, wholly irrelevant and did not in fact react upon her right to occupy her own house." It is clear from above discussions that the respondent /landlady needs the disputed house for her own use and therefore, she must succeed in getting the said house vacated. The last ground taken by the respondent for seeking ejectment of the appellant is the damage allegedly caused by him to the disputed house. In her affidavit‑in‑evidence the respondent has specified the additions and alterations carried out by the appellant in the disputed house. It is clear from the impugned judgment that the appellant has failed to cross‑examine the respondent on her evidence relating to the aforesaid additions and alterations. In other words he has admitted the making of such additions and alterations with the attendant effect of impairing the utility of the house. On his part the appellant has made" no attempt to show that despite the said changes the worth and utility of the house have remained unaffected. Accordingly the learned Rent Controller has come to the right conclusion, that the allegation of the damage caused to the house has also been proved. For above reasons no interference is called for with the impugned judgment of the learned pent Controller. Accordingly the appeal is dismissed with no order as to costs. The appellant is directed to deliver the vacant possession of the disputed house to the respondent/landlady within two months of this order. A. A. Appeal dismissed.