1990 PLP 2019 (CLC)

The main question that has been raised in this appeal filed under section 21 of the Sindh Rented Premises Ordinance, 19'79, relates to the interpretation of the term 'tenant' used in the section 2 (j) of the Sindh Rented Premises Ordinance, 1979.

2. The respondent No.1 is the owner landlord of premises bearing C.S. No. C‑221, Neem‑ki‑chari, Sukkur, Muhammad Ali, father of respondent No.2 was the tenant of respondent No.l in respect of one room situated on the ground floor of the said premises at a monthly rent of Rs.30. The said Muhammad Ali died on 23‑3‑1983, leaving behind respondent No.2, as one of his sons. In the year 1984, the respondent No.l filed an application for ejectment against Qurban Ali, brother of respondent No.2, but withdrew the same after the said Qurban Ali made statement that the disputed premises was in occupation of respondent No.2; On 31‑10‑1987 the respondent No.2 agreed to enhance rent from Rs.30 P.M. to Rs.70 P.M. and executed such acknowledgment in writing. The respondent No.2, however, failed to pay or tender rent. The respondent No.l also required the disputed premises for his own use and consequently on 5‑6‑1988 the respondent No.1 filed an application for eviction against respondent No.2 on the aforesaid grounds in the Court of 1st Senior Civil Judge and Rent Controller, Sukkur. The respondent No.2 who was serving in Saudi Arabia during those days resisted the application for ejectment through his brother/attorney Bagh Ali. According to him the appellants who are his wife and children are in fact the tenants of the said premises. It was also pleaded on his behalf that appellant No.1 was depositing the rent regularly in the office of Rent Controller, Sukkur within the meaning of section 10 of the Sindh Rented Premises Ordinance, 1979. The personal requirement of respondent No.1 was also questioned. The parties went to trial on the following issues: (i) Whether there is existence of relationship of landlord and tenant between the parties? (ii) Whether the opponent has committed wilful default in the payment of rent? (iii) Whether disputed premises is required by the applicant for his personal bona fide use and use of his children? (iv) What should the order be?

3. The respondent No.l examined himself (P.W. 1), Mr. Maqbool Ahmed Awan Advocate (P.W.2), Shamshad Ali (P.W.3), and Sajjad Ahmed (P.W.4), while the respondent No.2 examined Mansoor Ahmed (D.W.1) and Bagh Ali (D.W.2).

4. On the assessment of evidence both oral as well as documentary, the learned Rent Controller decided all the issues against respondent No.2 and directed his ejectment from the demised premises within a period of 45 days. This order dated 28‑6‑1989 was not challenged by respondent No.2, but the same was questioned by his wife and children who claimed to be the `tenants' of the demised premises.

5. I have heard'Mr. A.M. Mobeen Khan, learned counsel for appellants and Mr. Abdul Oadir Shaikh, learned counsel for respondent No.l.

6. Under section 2 (j) of the Sindh Rented Premises Ordinance, 1979, the 'tenant' means any person who undertakes or is bound to pay rent as A consideration for the possession or occupation of any premises by him or by any other person on his behalf and includes:‑ (i) any person who continues to be in possession or occupation of the premises after the termination of his tenancy; (ii) heirs of the tenant in possession or occupation of the premises after the death of the tenant.

7. Admittedly Muhammad Ali father of respondent No.2 was the tenant of the disputed premises. After the death of said Muhammad Ali the tenancy devolved upon his heirs. Since the respondent No.1 was not aware about the heirs of said Muhammad Ali actually in occupation of the disputed premises, he instituted ejectment proceedings against Qurban Ali, brother of respondent No.2, who disclosed for the first time that respondent No.2 who was one of the sons of late Muhammad Ali was in actual possession /occupation of the disputed premises. It was thereafter that the respondent No.1 accepted respondent No.2 as, tenant who in fact agreed to increase the rent at Rs.70 P.M. and executed such j acknowledgement. The stand taken by respondent No.1 gets support from cases reported as Kamal Afrcen v. Mansoor Muhammad Qureshi (P L D 1983 Karachi 598), and Ghulam Nabi v. Muhammad Sachal 1986 C L C 2858. The temporary I absence of respondent No.2 from Pakistan in connection with employment will not change his status of tenant nor it will make the Appellants as "tenants" during his lifetime. The term "heirs" means all persons who arc entitled to the property of another under the law of inheritance, and, therefore, the appellants are not the I legal heirs of late Muhammad Ali during the life time of respondent No.2. The J respondent No.2 had in fact accepted this position. The acknowledgment executed by him is on record and both the attesting witnesses have proved the contents thereof. One of them, namely, Mr. Maqbool Ahmed Awan (P.W.2) is a practising Advocate and appears to be a respectable person, as an advocate is considered to be. The evidence to this effect conclusively establishes that respondent No.2 was the tenant of respondent No.1 and not the appellants. The appellants again kept quiet during the pendency of ejecment case before the Rent Controller, although they were fully aware of these proceedings. They came forward only when the respondent No. 2 lost the case. They are, therefore, not `aggrieved person' and the appeal filed by them is not competent. The word `aggrieved' connotes legal grievance which refers to a person prejudicially affected. The `aggrieved person' was in fact respondent No.2, to remain behind the curtain. In such circumstances the observations made in the case of Muhammad Azeem Qureshi v. Hakim Syed Akhtar Irshad and 4 others, reported in 1990 C L C 122, are not relevant. The present appeal is liable to be dismissed on this score alone.

8. The appeal was admitted on a simple point that the learned Ist Senior Civil Judge and Rent Controller, Sukkur lacked jurisdiction and consequently it was a case of total absence of jurisdiction. This case was transferred to IInd Senior Civil Judge, and Rent Controller, Sukkur on administrative ground. The Notification No. GAZ/VI‑247 (2), dated 30‑3‑1989, which is referred to on behalf of appellants does not have retrospective effect and consequently the 1Ind Senior Civil Judge and Rent Controller, Sukkur was well within his powers to decide this case.

9. The appeal being incompetent is dismissed with no order as to costs. C Two, months' time is, however, allowed to appellants who are family members of respondent No.2, the actual tenant, to vacate the demised premises. A.A./P‑155/K Appeal dismissed.