1993 PLP 1970 (CLC)

(1) Whether there exists relationship of tenancy between the parties? If so, what is the rate of rent? (2) Whether the applicant requires the disputed premises for personal bona fide use in good faith? (3) Whether the opponent has committed default in payment of rent? (4) What should the order be?

7. The learned Rent Controller, on perusal of evidence and case‑law, determined points Nos.1 to 3 in affirmative and granted the application, directing ejectment of appellant, by judgment, now impugned.

8. Mr. Salim Karamally, learned Advocate for appellant first argued point No.1 and contended that since respondent sent no notice under section 18 of the Ordinance after acquiring ownership rights, there was no relationship of landlord and tenant between the parties and the application was not maintainable under the Ordinance. In support of his contention, he placed reliance on (i) Amin Master (Aminuddin) v. Abdul Rashid (1986 CLC 1551) and (ii) Faiz Muhammad v. Gaindmal and another (1986 CLC 2862). In (i) above, the tenancy being oral and the landlord himself admitting that he was not issuing receipts of rent and evidence being oral, it was held that the Rent Controller, in view of oral evidence should have placed evidence of both parties in even scales and conceded the benefit of uncertainty to tenant rather than to landlord who had not been issuing rent receipts. In (ii) above, the facts were that disputed property was purchased by one F from a Hindu Lady having life interest in the property. The tenant started paying rent to the new owner. The settlement authorities claimed to be landlords and demanded rent from tenant as the property was treated as evacuee. In such circumstances, finding of Rent Controller about absence of relationship of landlord and tenant between parties being justified was upheld by High Court. It was also held that in these circumstances, the tenant would not be deemed to have committed any willful default.

9. The learned Advocate, on the point of quantum of rate of disputed premises, contended that the appellant was paying Rs.250 per month and not Rs. 500 as claimed by the respondent. He has also argued that even in the notice allegedly sent by respondent, the quantum of rent is not mentioned. In these circumstances, according to him, it was erroneously held by the Rent Controller that the monthly rent was Rs. 500. 10.. On personal requirement, the contention of the learned Advocate is that the respondent has not shown how the house of his father where he is living is insufficient for his needs or for the needs of his other brothers where names are not even mentioned. Even in the Notice dated 13‑12‑1982 sent by the respondent to the appellant, it is not mentioned that the house in dispute was needed by respondent in good faith for his bona fide personal need. In this respect the learned Advocate placed reliance on lkramullah Khan v. Muhammad Umar (1984 CLC 645), where it was held that the notice given by landlord to tenant omitting to mention personal need, can lead to inference that premises were not required for bona fide need by landlord at that time but he was out to eject his tenant without specific reason. He next placed reliance on Mst. Ashraf Alia v. Asif Majeed (1991 CLC 53), where the dismissal of landlord's ejectment application on the ground of personal requirement was challenged and it was observed that:‑‑ "Not only mere caprice, whim or fancy but even a pious wish on the part of landlord was not equivalent of bona fide personal requirement, which must be established on the basis of substantial and cogent evidence .... Mere desire of landlord to possess the rented premises would not entitle him to seek eviction but such desire had to be coupled with a genuine personal requirement to make him qualified for an order of eviction."

11. It is also contended by the learned Advocate that a similar application filed by respondent against another tenant Tahir Bhai succeeded and the portion vacated by Tahir Bhai is lying vacant but not occupied by the respondent. Yet another portion of the premises which the previous owner Mst. Ameer Bibi occupied fell vacant on her death and is occupied by one Mst. Saeeda but not occupied by respondent himself. These facts would clearly show that the need of the respondent for getting the premises vacated is not in good faith and bona fide. He has referred to Ibrahim v. Mst. Nazeer Begum and others (1987 MLD 255). The facts of this judgment are that another flat adjacent to disputed premises was already got vacated by landlord by filing ejectment application and the said flat was lying vacant for years without any reason. In these circumstances, it was held that the landlord had failed to prove his bona fide requirement in respect of the disputed premises.

11. On the issue of default, the learned Advocate contended that he was not served with a notice under section 18 of the Ordinance, but on the death of previous owner Mst. Ameer Bibi, he voluntarily started depositing rent in the office of Nazir and as such there was no default, muchless a wilful default. Moreover, in the Notice addressed by the respondent after his having acquired ownership rights the rate of rent was not mentioned and in these circumstances, since the appellant deposited rent in the office of Nazir soon after the death of previous owner, there is no default and the finding of the Rent Controller is erroneous.

12. Mr. Rasheed Rizvi, the learned Advocate for the respondent, contended that by virtue of the Sale Deed in favour of respondent, he became owner/landlord of the disputed premises. The appellant was informed of the change of ownership by two notices, one dated 23‑8‑1981 given by the previous; owner Mst. Ameer Bibi and the other dated 13‑2‑1982 given by the respondent. But even if the Notices were not served, as claimed by the appellant, he still continues to remain the tenant while the respondent as his landlord for the purpose of the Ordinance. Since a registered Sale Deed was on the record of the learned Rent Controller showing the property in dispute having been purchased by respondent, the learned Rent Controller had no power to go behind such Deed to question its validity and legal effect. It. was rightly held by the Rent Controller that the relationship of landlord and tenant did exist between the parties. In support of his contention, reliance is placed on Bashir Ahmed v. Abdul Hameed and another (1983 SCMR 302).

13. The learned Advocate next referred to Major (Retd.) Muhammad Yousuf v. Mehrajuddin and others (1986 SCMR 751), where it was held that if the service of notice under section 13‑A of the Repealed Ordinance of 1959 was not established, it would not amount to absence of relationship of landlord and tenant.

14. On the point of quantum of rent, the learned Advocate contended that the two pages of the personal diary written in the hand of Mst. Ameer Bibi (previous owner) clearly establish that appellant was paying Rs.500 per month and there is no evidence in rebuttal. The appellant failed to produce a single receipt for payment of rent showing that the previous owner received rent at Rs.250 and not at Rs.500 per month. Another aspect, to which the learned Advocate has drawn my attention is the decrees passed by the Judge, Small Causes Court, Karachi, decreeing the claim of respondent for arrears of rent and also for future rent @ Rs.500 per month. In execution proceedings the appellant moved application for fixing instalments. Thus there being judicial finding regarding quantum of rent, the same has to be accepted by this Court as well, unless the decrees are set aside and a counter‑finding recorded.

15. On the point regarding personal requirement of the respondent, the learned Advocate contended that the landlord is residing with his father in his bungalow where his other brothers with their families are also residing. The accommodation in that bungalow is not sufficient to accommodate the respondent and his family. He purchased the disputed property for his own use and no more wanted to be a burden on his father or continue occupying the said bungalow. In support of this contention, the learned Advocate placed reliance on Suleman Ghazi v. Ghulam Haider and another (1983 SCMR 1058), where the findings of the Rent Controller as well as the High Court that landlord's personal requirement was genuine, the petition for Leave to Appeal was dismissed and it was held that there was enough evidence with regard to the personal requirement of premises by landlord, not successfully refuted by tenant. In that case also the landlord was living in the house of his father and was not shown to be in possession of suitable building for his need in same urban area as the property in question. He next referred Muhammad Naseem v. Azmat Gul (1982 SCMR 1132), where it was held that eviction of tenant on the ground of personal bona fide use can be refused only when landlord is found to be in possession of building suitable for his needs in same urban area as of demised property.

16. Mr. Rizvi the learned Advocate, contended that it is an admitted fact that the portion in possession of another tenant Tahir Bhai was got vacated and is still lying vacant. The reason is that as per the report of Commissioner, the whole premises are a compact unit and would be used by the respondent after the disputed premises are also vacated and the whole premises are renovated/repaired, making it fit for living.

16. On the point of default, the learned Advocate contended that even after the filing of rent case, the appellant did not pay rent to respondent and he would be deemed to be a defaulter and any deposit of rent made by him in the office of the Nazir would not absolve him of his liability particularly when he deposited @ Rs. 250 per month as against Rs. 500 per month.

17. I have heard the arguments of the learned Advocates at length and perused the order impugned as well as gone through the case‑law referred. On the point whether there exists relationship of tenancy between the parties and if so what is the rate of rent, the judgments referred by the learned Advocate for appellant are on facts different from the facts of the case in hand. Admittedly, the respondent has purchased disputed premises through a registered sale deed dated 23‑8‑1981 from the previous owner and he became a landlord for the purpose of the Ordinance. Even if the notices dated 23‑8‑1981 and 13‑2‑1982 were not served on the appellant he could not plead the non existence of such relationship of landlord and tenant between the parties. Point No.1 determined by the Rent Controller is not whether the application is not maintainable but it is whether there exists relationship of tenancy between the parties. There are other grounds as well for seeking ejectment of the appellant besides the ground of default in payment of rent. Such grounds would not be affected by non‑service of notice under section 18 of the Ordinance. In the repealed Ordinance of 1959, section 13‑A is similar to section 18 of the Ordinance of 1979. Two judgments reported in PLD 1976 Karachi 1173 and PLD 1982 SC 212 have elaborately discussed the above points and it was held that the ejectment application by transferee/landlord on grounds other than that of default was maintainable without a notice under section 13‑A or 13‑B of the Repealed Ordinance. The appellant has failed to show that any prejudice was caused to him on the ground of non‑service of notice under section 18 of the Ordinance as held in 1984 CLC 3176.

18. I am clear in my mind that there exists relationship of tenancy between the parties by virtue of acquisition of ownership rights by the respondent through the registered Sale Deed. With regard to the quantum of rent it shall suffice to say that the appellant failed to show that he was paying rent @ Rs.250 per month to the previous owner In presence of the two pages of personal diary maintained by previous own,‑r showing that :inpellar.t was paying rent @ Rs. 500 per month and there being ras evidence in rebuttal and also on account of the decision of the Judge, Small Causes Court decreeing the Claim of respondent for arrears as well as future rent @ Rs. 500 per month, I have no hesitation to hold that the rent payable by the appellant was Rs. 500 per month.

19. The respondent has. successfully shown his personal bona fide requirement in good faith. He is admittedly liking in a bungalow owned by his father where his other brothers with their families are also residing. Not having occupied another tenement which the respondent got vacated from a tenant Tahir Bhai would not show that his need for the disputed premises is mala fide and based on bad faith. t have perused the report of the Commissioner, which clearly mentions the condition of the whole premises, a portion whereof is reported to be dilapidated and the roof made of asbestos sheets. The respondent is not shown to own any other premises fit for his requirement in the game urbai area. In these circumstances, the finding of the Rent Control on 1hts issue is unexceptionable and does not call for any interference.

20. On the point of default; these is evidence on record that even after the filing of ejectment proceedings, the appellant continued depositing rent in the office of the Nazir. The filing of the proceedings in itself was a notice to the appellant regarding change of ownership. In any case he ought to have paid rent to the respondent from the date of service of notice of such proceedings. The rent deposited by him is @ Rs.250 per month when there is documentary evidence to slow f hat the i Pat was Rs. 500 per month. The two decrees of tile Small Causes Court a, a sufficient proof of the fact that the appellant was liable to pay @ Us. 500 per month He is therefore, a defaulter and the decision of the Rent Controller on this issue also needs no interference. 2i. Even if the benefit of non‑service of notice under section 18 is extended to the appellant yet the ground of personal requirement would not come in the way of respondent for seeking the ejectment of the appellant on the said ground besides the ground of default. The application was '' maintainable before the trial Court and judgment impugned needs no interference. The appeal is dismissed but in the circumstances of the case parties shall bear their own costs. However, the appellant is allowed 3 months' time to vacate the disputed premises. These are the reasons of the short order dated 26‑8‑1991. H.B.T./A‑1382/K Appeal dismissed.