1999 PLP 2070 (MLD)

I have heard learned counsel for parties and perused the record proceedings of the case and the case-law cited by them. Contention of the learned counsel for appellants is that the respondent was not landlady of the appellants, therefore, they were not liable to pay rent to her, and consequently, there was no default in the payment of rent. It is the case of the appellants that their father Mehboob Saghri was tenant of Mst. Qayyumun Nisa in respect of shop premises to whom rent was being paid and after death of Mehboob Saghri his legal heirs, the present appellants became tenants of said Mst. Qayyumun Nisa and not of the respondents. The respondent's attorney in his affidavit-in-evidence has reiterated the contents of the eviction application wherein it has been stated on oath that the premises in dispute was transferred to respondent as per registered gift deed No.26879, dated 22-3-1984 and such entry was also made in the record of K.M.C. and necessary intimation about the change of ownership was given to the appellant/tenant. In the said respect, the respondent has produced a lease deed in favour of Mst. Qayyumun Nisa who is said to have gifted the said premises to her son Sabir Hussain who in turn is said to have transferred the said premises by way of gift in favour of respondent Mst. Zubeda Begum as would appear from the photocopy of the mutation order of K.M.C. Exh.A/2. Exh.A/3 notice, dated 2-6-1986 would show that notice of intimation was sent to deceased Mehboob Saghri and thereafter, another notice dated 21-9-1989 was sent to the L/Rs of deceased Mehboob Saghri, the present appellants who on their own admission stated that there was no need to make payment of rent to the respondent as she was not their landlady. The respondent stepped into the shoes -of the previous landlady and became owner of the premises in dispute consequently appellant/tenant who in spite of the fact that they, were intimated about the change of ownership failed to tender rent to the respondent, therefore, they became wilful defaulter in the payment of rent from 22-4-1984. Mere fact that the appellants/tenants made deposit in the office of Rent Controller in the name of previous owner would not absolve them from the liability of payment of rent to the respondent considering that they were intimated as required under the law on 22-4-1984, 2-6-1986 and 22-9-1989 and finally, when the abetment application was filed on 29-1-1990, consequently appellants having not paid rent at least from the date of last notice of intimation would be defaulter in the payment of rent within the meaning of section 15(2)(ii) of the Rent Ordinance, hence the appellants are held to be defaulter in the payment of rent as said above. Next contention of the learned counsel for appellants is that the respondent being not land lady is not entitled to the possession of the premises in dispute and further that the respondent has not asked for the vacation of other three shops in possession of other tenants and that the property in question being residential cannot be put to industrial use by installing hosiery business, consequently, personal need is not in good faith. Learned counsel for respondents has submitted that only two shops were in possession of the respondents while third one was in occupation of the appellant and further no number has been assigned to the shops in the locality. He further argued that it was not for the appellants to object to the opening of hosiery business in the premises in question by the respondent as after getting the possession of required premises the permission from the authority if required would be obtained by the respondent and in failure to put the premises in use for which it is required, the appellant could seek the restoration of possession of the same under the law. He further contended that the respondent has proved personal requirement of the premises in question for her husband in good faith and the same evidence has not been challenged in the cross-examination. He has placed reliance upon (i) Haji Muhammad Rafiq v. Shahenshah Jahan Begum (PLD 1987 Karachi 180); (ii) Ghulam Nabi v. Muhammad Sachal alias Ghiasuddin (1986 CLC 2858); (iii) Raza Ali Shah v. Agha Hassamul Haque and another (1989 CLC 2003); (iv) Dr. Quraishul Mujtaba Qarni v. S. Usman Ali Kazmi (1992 CLC 2114) and (v) Mst. Jan Bibi and others v. Azam Khan and another (1990 CLC 1858) in support of his contentions. The assertion made in the eviction application with regard to personal question needed the premises for personal use in good faith to expand is business as the present accommodation was insufficient. The appellants/tenants filed written statements wherein they stated that there were ten legal representatives of late Mehboob Saghri but the respondents have only four legal representatives as party in the eviction applications :. ,..i that there was no relationship of the appellants being tenant s;t respondent as Mehboob Saghri was tenant of Mst. Qayyumun Nisa, therefore, question of demand, its refusal and payment of rent by respondent would not arise and the notice, dated 21-9-1989 was replied by the appellants on 5-10-1989. The appellants/tenants denied the personal requirement of the respondent husband to be in good faith. The respondent filed affidavit-in-evidence of one Abdul Ghafoor, attorney of the respondent who produced photo copies of power of attorney its Exh.A./1, mutation order in favour of respondent Exh.A/2, P.T.- FXh.A/2--a mentioning name of respondent in the column of owner, notice, dated 2-6-1986 Exh.A/3, notice dated 21-9-1989 fixh.A/4. The appellants filed affidavit-ia1?evidence of Sohail Ahmed, attorney of the appellants who filed photo copies t : t rent receipt for the sum of Rs.300 deposited in M. R. C. No. 1174 of 1987 in ` ;.?name of Qayyumun Nisa on 23-1-1991, death certificate of Sheikh 12ehh()~ issued by KMC, photo copy of power of attorney. The deponents who filed affidavits-in-evidence were Lross-examined h:, respective adversary counsel of the parties. After recording the above evidet . and hearing learned counsel the impugned judgment was passed. I have heard learned counsel for parties and perused the record proceedings of the case and the case-law cited by them. Contention of the learned counsel for appellants is that the respondent was not landlady of the appellants, therefore, they were not liable to pay rent to her, consequently, there was no default in the payment of rent. It is the case of the appellants that their father Mehboob Saghri w;,, tenant of Mst. Qayyumun Nisa in respect of shop premises to whom rent wa.,: being paid and after death of Mehboob Saghri his legal heirs, the present appellants became tenants of said Mst. Qayyumun Nisa and not of the respondents. The respondent's attorney in his affidavit-in-evidence has reiterated the contents of the eviction application wherein it has been stated on oath that jhe premises in dispute was transferred to respondent as per registered gift deed No.26879, dated 22-3-1984 and such entry was also made in the record of K.M.C. and necessary intimation about the change of ownership was given to the appellant/tenant. In the said respect, the respondent has produced a lease deed in favour of Mst. Qayyumun Nisa who is said to have gifted the said premises to her son Sabir Hussain who in turn is said to have transferred the said premises by way of gift in favour of respondent Mst. Zubeda Begum as would appear from the photocopy of the mutation order of K.M.C. Exh.A/2. Exh.A/3 notice, dated 2-6-1986 would show that notice of intimation was sent to deceased Mehboob Saghri and thereafter, another notice dated 21-9-1989 was sent to the L/Rs of deceased Mehboob Saghri, the present appellants who on their own admission stated that there was no need to make payment of rent to the respondent as she was not their landlady. The respondent stepped into the shoes -of the previous landlady and became owner of the premises in dispute consequently appellant/tenant who in spite of the fact that they, were intimated A about the change of ownership failed to tender rent to the respondent, therefore, they became wilful defaulter in the payment of rent from 22-4-1984. Mere fact that the appellants/tenants made deposit in the office of Rent Controller in the name of previous owner would not absolve them from the liability of payment of rent to the respondent considering that they were intimated as required under the law on 22-4-1984, 2-6-1986 and 22-9-1989 and finally, when the abetment application was filed on 29-1-1990, consequently appellants having not paid rent at least from the date of last notice of intimation would be defaulter in the payment of rent within the meaning of section 15(2)(ii) of the Rent Ordinance, hence the appellants are held to be defaulter in the payment of rent as said above. Next contention of the learned counsel for appellants is that the respondent being not lady is not entitled to the possession of the premises in dispute and further that the respondent has not asked for the vacation of other three shops in possession of other tenants and that the property in question being residential cannot be put to industrial use by installing hosiery business, consequently, personal need is not in good faith. Learned counsel for respondents has submitted that only two shops were in possession of the respondents while third one was in occupation of the appellant and further no number has been assigned to the shops in the locality. He further argued that it was not for the appellants to object to the opening of hosiery business in the premises in question by the respondent as after getting the possession of required premises the permission from the authority if required would be obtained by the respondent and in failure to put the premises in use for which it is required, the appellant could seek the restoration of possession of the same under the law. He further contended that the respondent has proved personal requirement of the premises in question for her husband in good faith and the same evidence has not been challenged in the cross-examination. He has placed reliance upon (i) Haji Muhammad Rafiq v. Shahenshah Jahan Begum (PLD 1987 Karachi 180); (ii) Ghulam Nabi v. Muhammad Sachal alias Ghiasuddin (1986 CLC 2858); (iii) Raza Ali Shah v. Agha Hassamul Haque and another (1989 CLC 2003); (iv) Dr. Quraishul Mujtaba Qarni v. S. Usman Ali Kazmi (1992 CLC 2114) and (v) Mst. Jan Bibi and others v. Azam Khan and another (1990 CLC 1858) in support of his contentions. The assertion made in the eviction application with regard to personal requirement of the premises in dispute for the use of respondent's husband for carrying out the business of hosiery has been reiterated in the affidavit in ?evidence by the attorney of the respondent. The evidence of the respondent's attorney could not be shaken in the cross-examination. The appellants/tenants have not brought any reliable and satisfactory evidence to rebut the evidence of the respondent on the point of personal requirement for her husband's use in expanding the hosiery business. The need of the landlady/respondent for her B Husband in good faith cannot be lightly brushed aside considering that she has prerogative right to have choice of any property for her personal use which would include -the use of her husband. The evidence of the respondent inspires confidence consequently no exception could be taken to the finding of learned Rent Controller. Accordingly, contentions of the learned counsel for appellants have no merit considering that a false plea in respect of denial of tenancy was raised by the appellants in the written statement. In view of aforesaid reasonings and the case-law cited I find no merit in the appeal which is hereby dismissed. However, two months' period is given to C the appellants to vacate the shop premises subject to deposit of rent in the office of Rent Controller. These are the reasons in respect of short order, dated 16-9-1998 Q.M.H./M-379/K ?????????????????????????????????????????????????????????????????? Appeal dismissed