1989 PLP 4269 (MLD)

(6) What should the order be? The learned Rent Controller after taking into consideration the evidence produced by the parties has allowed the ejectment application on the ground of wilful default and nuisance, The present appeal is directed against the above impugned order. I have heard Mr. S.M. Afzal learned counsel appearing for the appellant, Mr. Abdul Latif Channa, learned counsel appearing for the respondent and have gone through the R & P of the case. It was contended by Mr. S.M. Afzal, learned counsel appearing for the appellant that no notice under section 18 of Sind Rented Premises Ordinance was served on the appellant, and there is no evidence that appellant had ever paid rent to the respondents and, therefore, the learned Rent Controller had erred in deciding the issue regarding default against the appellant. It was further contended that no issue was framed by the learned Rent Controller regarding sub-letting. Even the appellant was not cross-examined on the point of sub-letting and, therefore, point regarding subletting could not be pressed before this Court. That there is no evidence to show that the appellant was responsible for committing nuisance and, therefore, the learned Rent Controller had erred in deciding this issue against the appellant. In support of his contention, the learned counsel has relied upon: P.L.D. 1981 Karachi page

591. Mr. Abdul Latif Channa, learned counsel appearing for the appellant has contended that according to Family Settlement, the premises in question had fallen to the share of Mohammad Umer the predecessor in interest of the respondents, and the appellant used to pay rent to Mohammad Umer and, therefore, it was not necessary to serve the appellant with notice after the death of Mohammad Umar. He has further contended that the ejectment application was filed in the year 1986, and the appellant has failed to pay rent till today and, therefore, the filing of ejectment application was clear notice to him. That since he has failed to pay rent even after the service of notice of ejectment application he was clearly a defaulter. In support of his contentions the learned counsel has relied upon (1) 1985 S.C.M.R. page 24. (2) 1986 S.C.M.R. page 751. (3) 1987 S.C.M.R. page 1288. He has further contended that since the premises were being used for the purposes other than the one for which they were let out, therefore, it was a case of subletting. That the respondent Mohammad Bashir had specifically stated in his affidavit in evidence about nuisance and subletting giving names of the persons to whom the premises were sub-let but he was not cross-examined on this point. In support of his contentions, he has relied upon 1986 C L C 1709. I have considered the contentions of the learned counsel. The affidavit filed by respondent Mohammad Bashir in evidence shows that the demised premises were originally owned and possessed by his grandfather Mohammad Usman who had rented out the same to the opponent/appellant. That the opponent was chronic defaulter and therefore his grandfather had filed ejectment case against him in the Court of Rent Controller, Karachi. That the opponent filed a frivolous suit in this Court and ultimately he executed an agreement of tenancy Ex. P/9 in favour of their father and others. That on 7-10-1968 there was a family settlement between his father and other co-owners and as such the plot in question including the demised premises was given to his father towards his share, and the opponent attorned to his father Muhammad Umer as tenant. The agreement of family settlement has been produced as Ex. P/10. Later on the rent was enhanced to Rs. 125 per month by the consent of the parties, which opponent used to pay to his father till his death in April, 1979. He participated in the funeral ceremony of his father. That after the death of his father, the opponent continued to pay the rents to him at the rate of Rs. 125 per month and he used to issue receipts to him. He has produced the counterfoils thereof Ex. P/11. each containing from billing month April, 1979 till August, 1983 bearing receipts Nos. 801 to 900 and similarly another book containing counterfoils starting from August, 1983 till December, 1986 from 901 to 970 as Ex. P/

12. That the opponent without their consent has divided and bifurcated the tea shop premises and converted it into four (4) parts/portions in the following manner:-- (i) Hand Football games have been installed in a portion of Tea shop room, which has been sublet to one Syed Jafar Shah s/ o Ibrahim Shah. He has produced 18 photos as Annexure P/11 showing that hand football game was being played in tea shop. (ii) In other portion Pan Shop has been established which portion has been sublet to one Ibrahim, who is running a Pan Shop. (iii) Third portion is being used as butcher's shop and has been sub-let to one Mehtab s/o Siraj. (iv) The fourth portion has also been made Butcher's shop, which has been sublet to one Mohammad Ansar alias Munna s/o Mohammad Hanif, thus the entire Tea shop tenement is being used for the purpose other than the one for which it was originally let out on rent. That the above acts of opponent has materially impaired the value and utility of the tenement in question and has also infringed the conditions of tenancy. The playing of Hand Football games has seriously and adversely affected the innocent children of neighbours and the school going children in particular. The neighbours Abdul Rashid and Mohammad Ismail have complained to him. about such nuisance and asked them to remove such nuisance. In view of the above circumstances, the opponent has become un-desirable tenant and was liable to be ejected from the Tea Shop. It was further submitted that the opponent owns a very big shop in his own building known as Yousuf Suleman Building situated at Gali No. 6, Daryabad, at the distance of 100 yards, in the same locality. In cross-examination he has admitted that rent agreement was executed between his father and the opponent in the year 1960. He has further admitted that above agreement was made with Mohammad Umer s/o Usman, Mohammad Ramzan s/o Usman, Mst. Zainab widow of Usman, Abdul Ghani s/o Usman and Mst. Allah Bachi d/o Usman. That nobody is applicant from the above person in the present rent case. They became owners of demised premises in the year 1968 after private partition. No notice was given by them to the opponent after change of ownership. Voluntarily stated that the opponent -was in knowledge of change of ownership. He has denied that the opponent was not aware about the change of ownership of the demised premises. He has denied that opponent never paid rent to them. He has also denied that opponent never. paid rent to them, nor he issued the rent receipts to him. He has also denied a suggestion that the counterfoils of receipts produced by him are bogus. He has denied a suggestion that the opponent had taken the premises as a Hotel from his father. He has denied a suggestion that in agreement as well as in the application it was shown as a Hotel. He has denied a suggestion that opponent is not running a Football game in the premises. He has also denied a suggestion that opponent Yousuf is in possession of the room. He has also denied that the receipts produced by him were not issued to the opponent. - Witness Mohammad Ismail produced by the respondent has deposed that he is residing in the same locality where disputed tenement is situated and he is conversant with the facts of this case. That the opponent is running blade games and Football games in the disputed premises which was originally a Tea shop (refreshment-shop) and was let out to Yousuf Suleman known as Lalla, and the same has created nuisance and thereby seriously and adversely affected school-going children as they spend most of their school time at the above premises to play games and waste their money also. That the boys in order to acquire money for playing games have adopted the third hand methods of committing thefts. The above games have thus created serious nuisance to which they seriously protested to the applicant. In cross-examination he has deposed that he knows applicant since last about 4/5 years. He has admitted that previously Yousuf was running a hotel in the shop but nowadays he is not running the hotel. He has denied a suggestion that Yousuf is running hotel in the premises. He has denied a suggestion that there is no complaint of Mohalla People against Yousuf regarding his business. He has admitted that he hat deposed at the instance of the applicant. Witness Abdul Rashid has supported the evidence of witness Mohammad Ismail on the point of nuisance. In cross-examination he has deposed that he is not on friendly terms with the applicant but they belong to the same Mohalla. The premises are situated about 10 feet away from his house. One shop is situated between his house and house of the applicant. He has denied a suggestion that the premises in question is a hotel. He has also denied a suggestion that Yousuf is in possession of the, premises, he has voluntarily stated that Jaffer Shah is running a shop. He has denied a suggestion that there is no complaint of Mohalla people against Yousuf. Many times the children are taken away by the police from the shop. He has denied a suggestion that he has filed his affidavit in evidence at the instance-of the applicant. Appellant Yousuf Suleman has stated in his affidavit that he is tenant of the demised premises since last 25 years, and the agreement of tenancy was executed between him and Mohammad Umer. Mohammad Ramzan and others in September, 1960. According to the agreement he, had taken the premises as a hotel and the same is used Laloo Hotel" and it is still used by him as a Hotel. He came to know for the first time after filing of this case that the above applicants are owners of the premises otherwise he never received any notice regarding the change of ownership. The opponent never paid rent to the present applicants. He has no knowledge if applicants are owners of the premises. The applicants never gave any rent receipt to him at any time. He is himself in possession of the Hotel and has not sublet to any person or party. He has also denied that Carrum or Football game or any other games are played in the Hotel premises, and the allegations made by the applicants and their witnesses are m-correct. That he is an old man of 70 years and is respected by Mohallah people and he never created any nuisance or trouble in the Mohallah. The applicants have been troubling him so that he should leave the Hotel. That the application was liable to be dismissed. In cross-examination he has deposed that he had taken the shop on rent from Usman grandfather of the applicants. Usman died on 30-12-1955. After the death of Usman the property was mutated in the names of Mohammad Umer, Mohammad Ramzan, Abdul Ghani, Mst. Allah Bachi, and Mst. Zaibunnisa. He has denied a suggestion that in between 1955 and 1900 he was paying rent to Mohammad Umer. He was on cordial terms with Mohammad Umer and therefore he knows his family members. After 1960 he was paying rent to Mohammad Umer father of the applicant at the rate of Rs. 25 per month. He has denied a suggestion that later on the rent was enhanced from Rs. 25 per month to Rs. 100 per month. He did not know if there was private partition between the heirs of Usman in the year 1908. He has denied a suggestion that the present shop was given in share to Mohammad Umer father of the applicant in the year 1908. He has admitted that after 1968, he was paying rent to Mohammad Umer and the same was paid to him till his death. His relations with Mohammad Umer were cordial. He attended the funeral ceremony of Mohammad Umer. He has admitted that Mohammad Umer (lied in April, 1979. He has admitted that the applicants arc sons of' Mohammad Umer. However, he has denied a suggestion that after the death of Mohammad Umer he was paying rent to the applicants. He has paid rent to Abdul Ghani s/o Usman. He hat admitted that he had given the name of Abdul Ghani in his Written Statement and the affidavit-in-evidence. At present there are two rooms in the premises. He has admitted a suggestion that he was in possession of one room in which he was running the Tea-shop. He used to give the hotel on rent to passengers He has denied a suggestion that there is a football game and carrum business is being run in the premises. He has not given the names of his witnesses in his Written Statement. He has denied that his witnesses are not residents of the locality. Haji and Liaquat are residents of Gali No. 11, The houses of witnesses are situated on the 3rd street of his hotel. He has denied suggestion that he had failed to pay rent for six months, he has also arnica a suggestion that he is tenant of the applicant. Haji witness of tenant/applicant has filed affidavit stating therein that the opponent is an old man and he has got Hotel known as "Laloo Hotel" near his flat. The opponent is in pose of the Hotel and he is doing his business therein. No. Carrum or Football games arc playing in the Hotel premise nor, there is any nuisance on account of opponent who is himself occupying the Hotel. In cross-examination he has admitted that his signature on of affidavit-in -evidence was obtained by an advocate in his office. After signing the affidavit he left for his house. After signing the affidavit he has attended the Court today. The premises in question consists of two rooms. He did not know the measurement of the rooms. At present the servants of the opponent arc running the Tea-shop in the premises. He has denied that business of Carrum and Foot bal game is being carved by Jaffar Shah. He has denied a suggestion that he has given the evidence after taking money from the opponent. The affidavit filed by Liaquat appears to be corbon copy of the affidavit filed by Haji. In cross-examination he has deposed that he has not seen the football and Video game in the premises in question. He has denied a suggestion that Jaffar Shah was doing business of Video game in the premises. One Pan Shop is situated outside the premises He does not know if Yousuf opponent is collecting the rent of Pan shop, He has denied a suggestion that he is unaware of the facts of the case and has deposed falsely. He does not know Mohammad Umer, nor he knows applicant Mohammad Bashir. He does not know if the opponent is paying rent to the applicants. There is one big room in which the tea-shop was running. I have considered the contentions of the learned counsel. The evidence of respondent Mohammad Bashir, and the admissions made by the appellant himself clearly show that he had entered into agreement of tenancy with' Mohammad Omer ancestor of applicants and others and thereafter he used to pay rent to Mohammad Umer. Agreement of family settlement dated 7th October, 1986 shows that the demised premises alongwith some other property was given to Mohammad Umer towards his share. Although the appellant has denied that he knew about the private settlement but he has admitted that he used to pay rent to Mohammad Umer till his death. The two books containing counter-foils of rent receipts produced in Court by the respondents clearly show that the appellant had been paying rent to them even after the death of Mohammad Umer till May 1986 and therefore, it was no necessary for the respondents to serve him with notice under. Section 8 of Sind Rented Premises Ordinance. As far as the decision in the case of Mrs. Mariam', Fernandes v. State Life insurance Corporation of Pakistan, Karachi P. L. D. 1981 Karachi page 591 relied upon by Mr. S.M. Afzal was concerned, there is no cavil with the principle laid down in the above case that the notice by transferee landlord to tenant was mandatory requirement under Section 13-A of West Pakistan Urban Rent Restriction Ordinance. However, the facts of the above case are different and the decision is not applicable to the facts of the present case asp the appellant had been paying rent to Mohammad Umer ancestor of the respondent and-on his death to the respondents themselves. The learned Rent Controller has therefore rightly decided this issue against the appellant. As far as second contention of Mr. S.M. Afzal was concerned the evidence of Mohammad Bashir, the admissions of appellant pointed above, and the counterfolis of rent receipts clearly show that the appellant had paid rent upto May 1986, and thereafter he has failed to pay rent to the respondents. The appellant himself has admitted in cross-examination that he used to pay rent to Mohammad Umer till his death. He has further admitted that the applicants are heirs of said Mohammad Umer. He has not alleged that he paid any rent to the B applicants after May 1986, and even after filing of the present application. Ills assertion in cross-examination that he used to pay rent to Abdul Ghani appears tot be false and his after thought inasmuch as he has not stated in his Written Statement as well as to affidavit-in-evidence that he used to pay rent to Abdul Ghani after the death of Mohammad Umer. He has not produced even a single receipt to show that he had paid rent to Abdul Ghani. In this view of the matter the filing of ejectment application was itself a notice to the appellant and since he has failed to pay rent even after service of notice, he was clearly a defaulter. In the case of Syed Azhar Imam Rizvi v. Mst. Salma Khatoon 1985 S.C.M.R. page 24, their Lordships of the Supreme Court were pleased to observe that: -- "The receipt of the copy of the ejectment application and knowledge gained thereby would constitute due notice and it will have to be treated as substantial compliance of Section 13-A of W.P. Urban Rent Restriction Ordinance. And mere fact that after about a year he made the deposit under compulsion of an order of deposit made by the High Court will not make any difference." In the case of Major (Retd.) Mohammad Yousuf v. Mehraj-ud-Din and others 1986 S.C.M.R. page 751, it was observed by their Lordships of the Supreme Court that:-- "The rent having admittedly not been paid after the institution of the application which has also been treated as notice under Section 13-A the respondents were liable to be evicted." In the case of Pakistan Burmah Shell Limited v. Additional District Judge, Rawalpindi and others 1987 S.C.M.R. page 1288, it was observed by their Lordships of the Supreme Court that:-- Even if there was some doubt in the mind of the appellant regarding the entitlement of respondent to receive the rent, the appellant, as rightly held by the Courts below could have deposited the rent in the Court of the learned Rent Controller. Having failed to deposit rent in spite of service of notice of ejectment application, the appeal filed by the tenant was dismissed. In view of the factual as well as legal position, I am of the considered view that there was a relationship of landlord and tenant between the parties and since the appellant had failed to pay rent even after service of notice of the ejectment application till today, he was a wilful defaulter, and the learned Rent Controller has rightly decided this issue against him. Adverting to the last contention of Mr. Afzal, the evidence of respondent, Mohammad Bashir shows that the tenant/appellant had started hand football' game and the premises have been sub-let to one Syed Jaffer Shah, the other portion of the demised premises is being used as Pan shop and has been sub let to one Ibrahim, That two portions of the premises in dispute have been sub let to Aftab and Mohammad Ansar who are running the same as Butcher's shop That the playing of hand football game in the above premises has seriously and adversely affected the innocent children of the Mohallah. That the Mohallah people Abdul Rashid and Mohammad Ismail had complained to him against this nuisance. The evidence of the respondent was not challenged by the appellant in cross-examination. Even he has admitted in para 4(b) of his written statement that he is doing, the above business with the consent of the respondent. The evidence of respondent Mohammad Bashir is further supported by witnesses Mohammad Ismail and Abdul Rashid. I am, therefore, of the considered vie that respondent had proved that the appellant had sub-let the part of the premises and had created nuisance. In view of the above discussion 1 am of the considered view that the order passed by the learned Rent Controller does not suffer from any infirmity and no interference is called for. The appeal is accordingly dismissed. However, I allow three months' time to the appellant to hand over vacant possession to the respondent. In case, the appellant fails to hand over vacant possession to the respondent, as directed, the learned Rent Controller shall issue writ of ejectment against M.Y.H./Y-33/K Appeal dismissed.