1989 PLP 620 (CLC)

This appeal under section 21 of the Sind Rented Premises Ordinance, 1979, has arisen in somewhat unusual circumstances.

2. The premises bearing No.J.M. 159/49 (commonly known as J.M. 49) situated at Bhurgari Road, Karachi was owned by one Saeed Ahmad Rashid, who executed an agreement on 20‑2‑1974, for its sale to Dildar, father of respondents. The said Saeed Ahmad Rashid, however, died before execution of sale‑deed leaving behind the following heirs:‑ (a) Mst. Zamani Begum (Widow), (b) Khursheed Ahmad (Son), (c) Mst. Rashida Begum (daugher), and (d) Mst. Saeeda Begum (daugher).

3. The legal heirs of said Saeed Ahmad Rashid avoided to execute the sale‑deed in favour of said Dildar, who filed a suit for specific performance of contract against them before this Court, being Suit No.159 of 1977. During the pendency of the aforesaid suit, the said Mst. Rashida Begum compromised the matter and executed a registered sale‑deed in favour of said Dildar in respect of her undivided share. Such intimation was sent to appellant, who is in occupation of upper floor of said premises at tenant. After the death of said Dildar, his share in the said premises devolved on respondents by operation of law and by mutual settlement. In June, 1982, the aforesaid Mst. Zamani Begum and Khurshid Ahmed also compromised with the respondents in respect of their undivided shares and executed registered sale‑deed. The suit against said Mst. Saeeda Begum was decreed by this Court and in this way the respondents became the absolute joint owners of the said premises. They notified to appellant through a notice dated 17‑1‑1983, about their entitlement, calling upon her to pay all the rent due within the statutory period as envisaged by section 18 of the Sind Rented Premises Ordinance, 1979. The said upper‑floor is also needed by the respondents for their personal use and occupation, more particularly for Anwar Ahmed (respondent No.3), who is presently residing in a rented flat in "Mehboob Building", Ranchor Lines, Karachi, consisting of one room which is not sufficient for a family of six members. On 21‑4‑1983, the respondents filed an application for ejectment against the appellant on the ground of default in payment of rent and personal requirement, in the Court of IInd Senior Civil Judge and Rent Controller, Karachi.

4. The appellant contested the grounds of ejectment in her written statement by stating that the disputed premises originally belonged to one Khan Sahib Rasheed Ahmed, a close friend of her late husband Col. Agha Khan, who had rented it out at Rs.71 p.m. The said Khan Sahib Rasheed Ahmed had also borrowed a sum of Rs.47,500 from her late husband with an understanding that the same would be adjusted towards the rent of this premises. According to appellant, the respondents own so many properties in Karachi, and their requirement for the use and occupation of the disputed premises is not genuine. The quantum of rent and arrears of rent are also disputed by the appellant.

5. The pleadings of the parties gave rise to the following issues:‑ (1) What is the rate of rent ? (2) Whether opponent has committed wilful default in payment of rent ? (3) Whether applicants are badly in need of premises in question for personal bona fide use in good faith (4) What should the order be ?

6. The respondents have examined Muhammad Nawab (P.W.1) and Anwar Ahmed (P.W.2), while the appellant has examined her daughter and attorney Nazneen Haque (D.W.1).

7. On the assessment of evidence, both oral as well as documentary, the learned Rent Controller decided issue No. 1, in favour of appellant, while rest of the issues were decided against her and in consequence thereof her ejectment was directed from the disputed premises. This order dated 29‑11‑1986, is the subject‑matter of this appeal.

8. I have had the benefit of very careful arguments on both the sides.

9. Muhammad Nawab (P.W.1), who is respondent No.l, and attorney of rest of the respondents has testified about the facts constituting the background of this litigation. He has produced the relevant documents (Exh.A/1), (EXh.A/2), (Exh.A/5), (Exh.A/6) and (Exh.A/7) to prove that they are .owners of premises bearing No.J.M. 159/49, Bhurgari Road, Karachi. The notices under section 18 of the Sind Rented Premises Ordinance, 1979, sent to the appellant by their father Dildar and then by them are on record (Exh.A/3) and (Exh.A/8). The appellant acknowledged both these notices by sending replies (Exh.A/4) and (Exh.A/9), but demanded a copy of sale‑deed. The demand of copy of sale‑deed/title‑deed, being not consistent A with legal requirements would not absolve the tenant from paying the rent due. The respondents were entitled to claim rent from 1‑7‑1982 at the rate at which the appellant was paying rent to previous landlord The demand of higher rent by them did not render the notice illegal nor it absolved the appellant from paying the rent due.

10. He appellant has claimed adjustment of R‑s.47,500 borrowed by Khan Sahib Rasheed Ahmed frcm her husband Col. Agha Khan, towards the arrears of rent. Para.3 of the affidavit‑in‑evidence filed by Nazneen Haque (D.W.1) relates to this transaction, which reads as follows:‑ "That I say that Khan Sahib Rasheed had borrowed a loan of Rs.47,500 from the late husband of the opponent and as per the commitments of the original owner Khan Sahib Rasheed the said amount of Rs.47,500 was to be adjusted in the monthly rent in respect of the said tenement which was duly fixed as s.71 per month. It was also the commitment of the Khan Sahib that the opponent shall not be ejected from disputed premises till the loan amount is adjusted towards loan."

11. A photo copy of the letter said to have been written by Khan Sahib S. Rasheed Ahmed to Col. Agha Khan, husband of appellant is placed on record (Annexure 'H'). The appellant wanted to summon sub‑Registrar, Lahore, Manager Standard Bank Ltd. Mall Branch, Lahore and a Clerk from K.E.S.C. Karachi, to produce record, in order to prove the signatures of late Khan Sahib Rasheed Ahmed but this application was disallowed by the learned Rent Controller for good reasons. This application made under section 20 of the Sind Rented Premises Ordinance, 1979, appears to be misconceived. The respondents acquired this property pursuant to a decree passed in' Suit No.159 of 1977, by this Court. A legal notice (EXh.A/8) was then served upon the appellant, who replied it vide (Exh.A/9), but at no time it was pleaded that there was a charge of Rs.47,500 against this property. In the earlier ejectment proceeding filed against the appellant by Saeed Ahmed Rasheed (Exh.0/1), this defence was not taken, otherwise the appellant would have produced the relevant record in support thereof. At any rate this property was agreed to be sold by Saeed Ahmed Rasheed, who had not taken any loan from E the appellant or her husband. The alleged loan taken by Khan Sahib Rasheed Ahmed is not binding as the same was not ratified or adopted by his legal representatives. When a debt is secured on immovable property a charge arises within the meanings of section 100 of the Transfer of Property Act, 1882, but not in a situation under consideration.

12. Mr. S. Abbas Zia, learned counsel for the appellant has invited my attention to cases reported as Muhammad Yousuf v. Abdullah PLD 1980 SC 298, and Mst. Zohra Irshad and another v. M/s. S.K. & F. Company P L D 1981 SC 598, in an attemp to show that the payment of Rs.47,500 made to K.S. Rasheed Ahmed by husband of appellant could be adjusted towards arrears of rent. The facts of both these authorities are distinguishable. The first case relates to a security deposit which was admittedly lying with the landlord and was to be refunded at the time of expiry of lease. In the case of Mst. Zohra Irshad and another v. M/s. S.K. & F. Company, the Supreme Court of Pakistan after examining the facts observed as follows:‑ "Once the Controller comes to the conclusion that the amount of Rs.30,000 was unrelated to the terms of tenancy enjoyed by the appellants, and that it could not protect the tenant against default, the further question as to whether it was a loan personally advanced to Khalid Moeen, or a repayment of loan to him should have been left for being resolves in the pending civil litigation because it was outside the pleadings and outside the limited jurisdiction of the Rent Controller."

13. In this view of the matter the appellant has committed default in payment of rent as she failed to pay rent within the prescribed period after the receipt of notice Subsequent deposit in the office of Rent Controller cannot wipe off the consequences flowing from such default.

14. The respondents have also claimed possession of the disputed premises for bona fide use and occupation. Muhammad Nawab (P.W.1) has testified the circumstances, where under they have sought the eviction of appellant on this ground. Para 23 of his affidavit‑in evidence is relevant and it reads as follows:‑ "That applicant No.3, namely Anwar Ahmad is presently residing in a rented flat in "Mehboob Building" at Aslam Road, Eidgah/Rancfiore Lines, Karachi. This flat consists of one room of 10 x 13 feet. The family of the said Anwar Ahmad (Applicant No.3) consists of six members excluding himself. He is experiencing great hardship and inconvenience in the said rented flat premises, and, therefore, the premises in occupation of the opponent are required /needed, bona fide and in good faith for applicant No.3 and members of his family."

15. Anwar Ahmad (P.W.2) fully supports this version. He has given details of his family members in pare No.4, of his affidavit‑in evidence. Both these witnesses have testified that it is a rented flat which is not sufficient to accommodate Anwar Ahmad and his family members. Nazneen Haque (D.W.1) also admits this position in her cross‑examination in the following words:‑ "It is correct to say that Anwar Ahmad, applicant No.3, is residing in a flat of building known as "Mehboob Building Ranchore Lines."

16. The appellant has disputed the bona fide requirement of the respondents mainly on the ground that they own various properties in Karachi. It is an admitted position that the respondents own two buildings, one in Saddar and the other at Eidgah, Karachi. The building in Saddar is residential‑cum‑commercial one, while the roof of the premises situated at Eidgah had fallen down. As observed in Qamaruddin through his Legal Heirs v. Hakim Mehmood Khan, reported in 1988 S C M R 819, it is not obligatory, upon the landlord to disclose all properties which he owns or which he had rented out to other tenants. All that he was required to show that he needed the premises in good faith. In the case of Sh. Muhammad Riaz v. Mst. Nasim Akhtar and others, reported in 1981 S C M R 979 (1), it was held, that mere ownership of property in the same urban area is by itself not a ground to refuse the application for ejectment.

17. The onus of proof on issue No.3 lay upon the respondents which they have discharged by slating on oath that respondent No.3, who is residing in a rented one‑roomed flat requires the disputed premises for his use and the use of his family members. Onus shifts to other side as soon as a party adduces sufficient evidence to raise a presumption in his favour. The respondents have proved good faith and it was upon the appellant to have shown the circumstances which militated against bona fides of landlords.

18. On all these scores the appeal has got no merit and is dismissed with no order as to costs. The appellant is, however, allowed two months' time to vacate the demised premises. H . B . T . /S‑308/ K Appeal dismissed.