1989 PLP 3557 (MLD)

Abdul Sattar Memon for Respondent No.

2. Date of hearing: 19th December, 1988. This First Rent Appeal has been filed against the order dated 21st February, 1984 of Xth Senior Civil Judge and Rent Controller, Karachi.

2. The facts are that Abdul Ghani Shaikh is the owner of house No. 96-B, Mohammad Ali Co-operative Housing Society, Karachi, while appellant Syed Abdul Rehman Shah is a tenant @ Rs. 810 per month. The original landlord was Malik Mohammad Azim Khan, but subsequently the property was mutated in the name of Abdul Ghani in view of the decision of the High Court in suit No. 26/1975 as such the appellant became a statutory tenant. The rent case under section 13 of the Urban Rent Restriction Ordinance, 1959 was filed by Abdul Ghani on 28-3-1979 on the ground of personal bona fide requirement. Before the Rent Controller, the appellant and the respondent were examined and the rent application was allowed. I have heard Mr. Nooruddin Sarki, learned counsel for the appellant. It is argued that appellant got the premises from the previous owner for 2 years by a written agreement dated 17-12-1977. It is contended that Malik Mohammad Azim Khan, who entered into the agreement also received Rs. 14,670 as being advance rent of 6 months and Rs. 9,780 as fixed security deposit. It is argued that before the expiry of the term of the agreement: the ejectment application was filed, which is not maintainable. It is submitted that personal bona fide requirement has also not been proved. He has referred to the cases reported in 1987 CLC 1988 and 1988 CLC 1988. Mr. Azhar Ali Khan, Advocate for respondent No. 1, submitted that personal bona fide requirement has been proved and Rent Controller has rightly passed the order in favour of the landlord. It is contended that respondent took the possession by way of an execution application and subsequently sold the property , of Farooq Majeed Motan. Mr. Abdul Sattar Memon, Advocate, for the respondent No. 2, submitted that respondent No. 2 has been made a party as he has purchased the property from Abdul Ghani Shaikh and it was a plot, therefore, this rent appeal is not maintainable.

4. Rent case proceeded between Abdul Ghani Shaikh and Abdul Rehman Shah. The order of the Rent Controller was challenged in this First Rent Appeal, but on 16-4-1987, the a peal was dismissed for non-prosecution and restoration application came up before the Court on 15-10-1987 i.e. after about 6 months of the dismissal of the appeal as it was being adjourned from time to time. The appeal was finally restored by an order dated 28-2-1988 and on that day the learned counsel for the respondent made a statement that appellant has already been evicted and building has been demolished. Mr. Nooruddin Sarki has admitted to the extent that appellant was dispossessed. The possession was taken from the appellant on 3-10-1987. The first objection of Mr. Sarki is that the application is not maintainable in view of the existence of the agreement and he has referred to section 13 (3) (a) of the Urban Rent Restriction Ordinance, 1959. This point was not taken in the written statement before the Rent Controller nor in the evidence by the appellant Abdul Rehman Shah. However, this is a legal point. On this I refer to a case of M/s. Sadir Silk Mills v. Shaikh Mohammad Amin Haider; reported in 1979 CLC 498, where it has been held that after acquisition of the property from the previous landlady and lease deed entered between them is of no avail to the new tenant. The respondent has not entered into any agreement with the appellant. Abdul Ghani in his evidence has stated that marriage of his son Kamran has been held up for want of accommodation. He has stated that present accommodation where his wife, daughter and 3 sons are living is not sufficient so much so that his daughter has to sleep in the study room and sometimes in the drawing room. On the other hand the appellant stated that respondent is occupying his own house in Sindhi Muslim Cooperative Housing Society and there are 5 rooms, which is built on 500 yards. The Rent Controller has assessed the evidence of both the parties in detail and rightly decided the issue of personal bona fide requirement in favour of the landlord. The position now is otherwise that Abdul Ghani has surrendered the possession as property in question has been sold to Farooq Majid Motan, who is in possession as stated by Mr. Abdul Sattar Memon that he got a plot and respondent No. 2 is raisin construction. In these circumstances, the appellant cannot get the possession o house. For the aforesaid reasons, the appeal is dismissed with no order as to costs. M.Y.H./A-580/K Appeal dismissed.