1989 PLP 1244 (CLC)

Khalilur Rehman for Appellant. Habibur Rahman for Respondent. Dates of hearing: 1st April, 4th, 12th, 21st, 25th, 31st May; 20th September; 4th October; 22nd November; 2nd, 14th December, 1987; 10th, 14th and 18th January, 1988. The respondent filed eviction application being No.4679 of 1979 against the appellant for eviction on the ground of default and personal requirement from premises bearing No.F/148, Zubari Colony, Karachi. The appellant denied the respondent's claim. The appellant contended that there existed no relationship of landlord and tenant between the parties. The learned Controller allowed the eviction application on both the grounds by order dated 31‑3‑1985. . It is that eviction order which is challenged by the appellant in this First Rent Appeal. I have heard the learned counsel for the parties. I have perused the R & P of the case with the assistance of the learned counsel for the parties. 1 have also gone through the impugned order. The case as set out in the eviction application is that the respondent is owner of the said premises bearing No.F/148, Zubari Colony, Karachi and the appellant is his tenant in respect of the said premises on monthly rental of Rs.40 since 1966. It is alleged in the eviction application that the appellant had stopped paying rent since July, 1971, therefore, the respondent had filed D. W. proceedings against the appellant for recovery of arrears of rent which were decided in his favour. The appellant had challenged in Revision Application No.172/1972 which was also dismissed. The appellant had also filed suit for declaration and injunction which was dismissed. The appellant appealed against that decree to the District Judge. The learned appellate Court confirmed the findings of the Trial Court and dismissed the appeal. The appellant denied all the allegations alleged by the respondent and stated in his written statement that the respondent is not owner of the said premises and he had purchased the structure comprising of three rooms from the respondent in consideration of Rs.2,000 through agreement dated 12‑10‑1966 and receipt dated 12‑10‑1966. The appellant denied relationship of landlord and tenant between the parties. The learned Controller framed the following issues:‑ "(1) Whether there exist relationship of landlord and tenant between the parties? (2) Whether opponent committed default in payment of rent from 1972? (3) Whether applicant requires the premises in case for his personal use? (4) What should the order be?" It is an admitted fact that the respondent filed D.W. proceedings against the appellant which were decided in favour of the respondent. It is also not in dispute that the Revision application filed against the D.W. proceedings filed by the appellant was dismissed. It is also not in dispute that the appellant filed Suit No.2271 of 1972 against the respondent for declaration and injunction which was dismissed by the Trial Court. The learned Trial Court held that documents Exts.2 and 3 were fabricated documents and the appellant was inducted as tenant, The appellant appealed against judgment and decree to the District Court, Karachi. The learned Ex Officio Additional District Judge, confirmed both the findings and dismissed the appeal. The revision application filed by the appellant against the judgment and decree of the Courts below. I have dismissed the same by specific judgment today. The case pleaded by the appellant was not found favoured and it was held that the appellant was inducted as tenant in respect of the said premises at the monthly rental of Rs.40. In these circumstances the learned Controller rightly held that there existed relationship of landlord and tenant between the parties. It is an admitted position that the appellant had paid rent up to 30th June, 1971. It is an admitted position that the appellant had not only committed default in payment of rent but he denied the title of the respondent who inducted him in the said premises and by setting up title in himself. Section 13(1) of there pealed Ordinance, A provides that a tenant shall not be evicted from the premises in his possession except in accordance with the provisions of this section. Subsection (2) of section 13 provides that a landlord shall not be entitled to evict his tenant so long the tenant pays the amount of rent. Therefore, if the provisions of section 13(2)(i) are violated, the appellant can be evicted from the premises in his possession. In my opinion, therefore, the appellant in the instant case by denying the title of the respondent who inducted him in the said provisions and by setting up title in himself and by not paying rent has forfeited B protection which section 13 accords to him. Therefore, in my opinion he was not willing to observe and pay rent to the respondent and, therefore, he was not entitled to the protection under the repealed Ordinance. In that view of the matter he is liable to be evicted and the eviction order passed by the learned Controller is quite justified. The parties did not lead any evidence on the ground of personal requirement. The respondent stated in his eviction application that he required the premises for his personal use and for the use of his _ family members as he was residing in a 'Katcha' but alongwith eleven family members and which premises is not sufficient for his use. The appellant had not denied this position. The learned Controller decided this issue in the affirmative. The learned counsel for the parties have not addressed any arguments on this issue. Both the learned counsel addressed only on the point of relationship of landlord and tenant. As regards the personal requirement no finding can be given. In fact any such finding is no longer required in view of the fact that once the respondent proves default and the Controller as well as this Court are satisfied about it, the respondent is entitled to get eviction on this ground. The First Rent Appeal, therefore, fails and is dismissed. However, the appellant shall hand over the vacant possession of the said premise's within two months from today, on expiry of two months from today, a writ of possession without notice will be issued against the appellant. M. Y. H./M‑613/K Appeal dismissed.