1990 PLP 1009 (MLD)

(3) Whether the applicant requires the tenement in question bona fide and in good faith? (4) Whether the opponent has impaired the value and utility of the shop in question? (5) Whether the opponent is entitled for the restitution of possession of the shop in question? (6) What should the order be? Vide his impugned order, the learned Rent Controller decided the issues Nos. 1, 2 and 3 in the negative and the issue No. 5 in the affirmative. With regard to issue No. 4 he has held that it remains unproved. Consequently, he as stated above, dismissed the ejectment application and ordered the appellant to restore possession of the demised premises to the respondent. I have heard Mr. Mirza Abdul Rashid, Advocate, on behalf of the appellant and Mr. Khalilur Rehman, Advocate for the respondent at sufficient length. The main argument of the learned counsel for the appellant was that the learned Rent Controller was not competent to examine the validity of the gift and his finding to the effect "that the story of gift/transfer of the shop in question by the applicant's father Muhammad Arif Siddiqui is a mere device for the ejectment of the opponent from the tenement in question by hook or by crook" is unsustainable in law. In his submission, there was no embargo on the rights of the father of appellant to give a portion of his property including the demised premises to the appellant alongwith his another son named Muhammad Sharique Siddiqui. According to him, there was no iota of evidence available on record which may lead to an inference that the gift so made by the father of the appellant in favour of his two sons was mala fide. The counsel submitted that the gift was as a matter of fact orally made by the father of the appellant in favour of his two sons in the year 1972. At that time both the donees were minor and hence he (donor) continued to manage the gifted property himself. It was upon appellant's attaining the age of majority that he was given charge of the gifted property and an intimation to that effect was duly given to the respondent vide appellant's Advocate's legal notice dated 1‑7‑1982 (Ex‑A/8) and he was called upon to vacate the demised premises on the plea of default, subletting and personal bona fide use. According to Mr. A. R. Mirza the respondent had, by his conduct, accepted the appellant to be his landlord inasmuch as he, in fact, tendered rent by money orders to him as well as deposited the same through Misc. Rent Case No. 5026 of 1982. According to Mr. A. R. Mirza, the respondent was thus under section 115 of Qanun‑e‑Shahadat, estopped from denying the title of the appellant and/or the existence of relationship of landlord and tenant between him and the appellant. In support of his contention the learned counsel for the appellant placed reliance on the decisions reported in 1987 C L C 1716, P L D 1988 S C 734, P L D 1958 Lah. 218 and 1986 C L C 1873. He also submitted that in view of the definition of the word "landlord" as given in section 2(c) of the Sindh Urban Rent Restriction Ordinance, 1959 the earlier ejectment application filed by the appellant's father as a landlord was justified. The learned counsel for the appellant next assailed the finding of the learned trial Court in regard to issue No. 3 only. In his submission, the appellant was in fact using the demised premises for himself. Besides, he further urged that no question doubting the appellant's bona fide need was put to him during his cross‑examination and hence it amounted to admission of appellant's case as set up in the ejectment application. The respondent was even otherwise out of country since 1979 and was not using the premises for himself. In support of his contention he cited, the case of Qasim and others v. The State P L D 1967 Kar.

233. No other point was urged by him before me. It was, on the other hand, contended by Mr. Khalilur Rehman, learned counsel for the respondent that it was by virtue of two separate agreements of lease both dated 19‑4‑1971 (EX. A‑4 and A‑5) that the respondent was inducted into the demised premises as tenant by Muhammad Arif, the father of the appellant. It was on 4th of September, 1974 that the said Mohammad Arif filed Rent Case No. 2248/74 on the ground of personal need. It was nowhere mentioned in the said application that he had filed it as a next friend of the appellant and/or on his behalf. After narrating the facts concerning the earlier ejectment proceeding adopted by Mohammad Arif, the father of the appellant against the respondent as noted above, the learned counsel for the respondent strongly urged that the learned Rent Controller was justified in observing that the plea of gift of the demised premises by Muhammad Arif to the appellant and his another son was a mere device for the ejectment of the appellant from tenement in question by hook or by crook. It was according to him, the bounden duty of the learned Rent Controller to look into and examine the plea of alleged gift of the demised premises as raised in notices (EX. A/8 and Ex. O/31), which were stated to be notices under section 18 of the Ordinance. Mr. Khalilur Rehman further submitted that although the gift was allegedly made somewhere in 1972/1974 yet no mutation had taken place in the relevant records of concerned authorities/departments. It was next urged by him that the respondent was not legally estopped from denying the title of the appellant as he had not inducted him into the premises as his tenant nor did the title to the property admittedly vest in the appellant at the date of the commencement of the lease. The principle of estoppel contained in section 115 of Oanun‑e‑Shahadat or section 116 of repealed Evidence Act was not applicable to this case. Relying upon the definition of the expression "personal use" as given in section 2(g) of the Ordinance, Mr. Khalilur Rehman forcibly argued that an application for eviction under section 15 can be made only when the premises is required in good faith by the owner of the premises or his wife, or husband, son or daughter. Since the property is still owned by the father of the appellant, this application on the ground of personal use was thus not maintainable in law. In support of his above contention, the learned counsel cited the following authorities (1) 1985 C L C 882, (2) P L D 1981 S C 545, (3) P L D 1985 S C 1, (4) 1984 C L C 3093 and. (5)1987 M L D

281. Mr. A. R. Mirza at this stage further submitted that the learned Rent Controller has not recorded definite finding to the effect that appellant is not the landlord. On the contrary, the respondent has accepted the appellant to be his landlord and hence no further proof was required to be given by the appellant. I have given my earnest consideration to the submissions made at the Bar. I find that two questions of basic importance arise for my determination in this appeal. The first is whether ejectment application on the ground of personal need of the appellant as landlord was maintainable in law, or the appellant is legally entitled to eject the respondent from the demised premises on the ground of his own personal requirement. The second point is whether the respondent having admittedly paid the rent of the demised premises to the appellant upon receipt of notices under section 18 of the Ordinance was precluded from asserting that the title is in some other person than the appellant to whom rent was paid by him. On the first ground, a learned Single Judge of this Court, relying upon the two decisions reported in P L D 1961 Dacca 25 and 1945 (2) All England Reporter 55 has, in S. Moinul Hassan v. A. H. Junaid 1985 C L C 882, already held that the persons other than owners falling under the definition of word "landlord" as defined in section 2(f) of the Ordinance such as, the attorney, agent or rent collector cannot resort to the remedy provided under sections 14 and 15 (2) (vii) of the Ordinance. The relevant paragraph from the judgment as appearing at Page 887 is reproduced as under‑‑ "Now can it be said that the rent collector or an agent who is not the owner of the property but a landlord within the meaning of section 2(f) of the Sindh Rented Premises Ordinance is competent to apply for possession of the premises if he needs the premises for his own occupation or his spouse or any of his children, perhaps not. Similarly an agent or attorney who has been collecting rent on behalf of a lady who has become widow or a minor whose both parents are dead or any employee who has retired or attained the age of 60 years cannot spring up to claim possession for himself on the happening of the eventualities relating to the owner for whose benefit this agent was working and technically speaking is covered by the definition of landlord. To hold otherwise is bound to create a confusion. The special concession allowed to the owners of the property may be exploited by the owners themselves if the term landlord used in section 14 and section 15(2) (vii) is interpreted in its extended meaning as given in the definition clause in the Ordinance. Even a non‑resident owner or an owner holding other property would appoint a rent collector who in turn would press his demand for personal need successfully and throw out a tenant from the premises. I would therefore, hold that the term landlord used in section 14 and even in subsection 2(vii) of section 15 has been used for the owner of the premises." I respectfully find myself in complete agreement with the above enunciation of law. Now it was, therefore, incumbent upon the learned Rent Controller to have satisfied himself as to whether the appellant is the owner of the demised premises so as to seek eviction of the respondent on the ground of personal bona fide requirement for his own occupation or use. The appellant claimed the ownership of the demised premises by virtue of an oral gift which was made somewhere in the year 1972/74 by his father Mohammad Arif Siddiqui in his favour alongwith his brother. The said gift, as per evidence brought on the record, was accepted on behalf of the said minor donees by their mother. The factum of the gift having been made could, in my opinion, be examined by the learned Rent Controller although it was beyond his competency to examine and/or determine the validity or otherwise of the gift. In the cases cited by the learned counsel for the appellant as discussed below the existence of the gift was not doubted. In all the cases it was the validity or legality of the gift which was questioned. In the case reported in 1987 C L C 1716 my learned brother Abdul Razzak A. Thahim, J. has held that "validity of the gift cannot be challenged by the tenant. It is between the parties who have executed the gift deed. The tenant cannot be allowed to challenge the title for which he has no locus standi. In this case, it is pertinent to note, the ownership had been proved from the documentary evidence produced by the landlord". In the case reported in P L D 1988 S C 734 the gift made by owner in favour of her two sons was not approved by the Cantonment Board and hence it was pleaded by the tenant that the gift was invalid. It was in this context that their Lordships held, "it is difficult to accept this contention for the reason that the validity or invalidity of the gift was a matter between the Cantonment Board and the respondents. The petitioner being an outsider had no locus standi to call in question its validity." In the instant case, however, the case of the respondent right from the very beginning was that the plea of gift of the demised premises by Muhammad Arif Siddiqui, the father of the appellant jointly in favour of the appellant and his brother Sharique Siddiqui was wholly false. It is specifically mentioned in the legal notice dated 1‑7‑1982 (Ex A/8) served by the appellant upon the respondent intimating him about the change of ownership of the demised premises that the appellant and hiss brother Mohammad Sharique Siddiqui "are the owners/landlords in respect of Shops No. l to 7, Plot No. 1‑E 14/1, Nazimabad, Karachi by virtue of gift made by their father in their favour which was duly accepted by their mother and on their behalf as they were minors and accordingly necessary entries were made in the records, such as Excise and Taxation Department and other departments". P. W.2 Muhammad Arif Siddiqui, the donor and father of the appellant during his cross -examination, inter alia, deposed, "I do not remember the exact date of gifting the tenancy in question to my sons but I had gifted the same in their childhood. It is correct to suggest that I had already gifted the tenancy in question prior to filing of previous Rent case in the year 1974, against the opponent. The mutation with regard to the gifted property has not yet taken place but it is still under process. It is correct to suggest that as per K. D. A. record I .am still the owner of the entire property. It is correct to suggest that the tenancy agreement was executed between me and the opponent when the shops in question were let out to the opponent". The mother of the appellant who allegedly accepted the gift on behalf of the appellant and his another minor son named above, has not been examined to prove that in fact she had accepted the gift on their behalf. In the legal notice EX. A/8, as already stated, it was specifically asserted that necessary entries with regard to that gift were made" in the record of the Excise and Taxation Department and other Departments, whereas no such documents have been produced. On the contrary, in his statement the doner, Muhammad Arif Siddiqui belied this version, during his cross‑examination as is evidently borne out from his above reproduced version. It is also again an admitted fact that the earlier proceedings for eviction of, the respondent were adopted by Muhammad Arif Siddique, the donor without disclosing the fact of. the alleged gift and on the contrary, specifically claiming himself therein to be the owner of the demised premises. It was so stated by him even before the Supreme Court as is manifestly clear from a reading of the judgment dated 9th March, 1982 of the honourable Supreme Court given in Civil Appeal No. 93/1981 where it is stated as follows: "Briefly, the facts are that the appellant "Muhammad Arif" is the owner of a building situated on Plot No. l/E‑14/1, Nazimabad, Karachi ..The respondent is the tenant of the appellant in respect of two shops bearing Nos, 6 and 7 at an agreed rent of Rs. 260 p.m." All the above‑said facts and circumstances clearly go to prove the falsity of the demised premises having been gifted by Muhammad Arif Siddiqui to his sons, the appellant named above and Muhammad Sharique Siddiqui. It was in view of the fact that the learned Rent Controller in his impugned order has held that: "It is also established that applicant's father Muhammad Arif Siddiqui used to receive the rent alleged as guardian of the applicant and his other son Muhammad Sharique Siddiqui but he never disclosed in his previous litigation up to the Supreme Court of Pakistan that he is not actual owner of the tenement in question that he had already gifted the shop to his son. I am therefore of the view that the story of gift/transfer of the shop in question by applicant's father Muhammad Arif Siddiqui in favour of the applicant is a mere device for the ejectment of the opponent from the tenement in question by hook or by crook". Even assuming without conceding that there had been a gift of the demised premises as pleaded by the appellant and that he is the owner of the demised premises yet in the facts and circumstances of the case as elaborately stated above, it is difficult to hold that the alleged personal need of the appellant of the demised premises is bona fide or genuine. On the contrary, all the circumstances of the case clearly speak about the mala fide intention of the appellant as well as of his father, the real owner of the property in question. The impugned order of the learned Rent Controller on issue No. 3 therefore deserves to be upheld. Even `Kashif Medico' is registered in the name of Muhammad Arif Siddiqui. It is an admitted fact and is also borne out from the two separate agreements of lease Goth dated' 9‑4‑1971 (Ex. A/3 and A/5) that the demised premises were let out to respondent by Muhammad Arif Siddiqui and not by the appellant and/or his brother Muhammad Sharique Siddiqui. The respondent is therefore not legally precluded from denying the appellant's title. Now there remains to be seen as to whether the attornment or the act of paying the rent by the respondent to the appellant upon receipt of intimation of change of ownership by virtue of a gift allegedly made by the original owner of the demised premises in favour of the appellant would operate as an estoppel. Here also, I find, that the respondent has successfully, shown that the attornment was the outcome of misrepresentation made by the appellant and his father Muhammad Arif Siddiqui and hence it was of no legal consequence. The fact of misrepresentation, as already stated above, stands proved in the instant case and hence paying the rent by the respondent to the appellant did not result in creating a valid relationship of landlord and tenant. The respondent was thus justified in pleading want of title of the property in the appellant to whom attornment was made by him by paying rent to him after receipt of intimation of transfer of ownership. It could also be said to be the result of incomplete knowledge of circumstances of appellant's title. A reference in this connection be made to John Nadjarian v. E.F. Trist A I R (32) 1945 Bom. 399 where at page 400 of the report, it is held as under:‑‑ "It is true and the authorities make this clear that even a mere attornment does create an estoppel against the tenant, but that estoppel is not the same as is given statutory effect by 5.116, Evidence Act. There are other kinds of estoppel between tenant and landlord which fall outside the scope of S. 116, Evidence Act. Although the fact of the defendant having attorned tenant to the plaintiff creates an estoppel in favour of the plaintiff it still does not prevent the defendant from showing that he attorned tenant in ignorance of fact that the plaintiff had no title. What I have just stated is in no way inconsistent with the statement of the law to be found in the latest decision of the Privy Council in 39 Bom. L R 1034" In the result, the appeal fails and is dismissed hereby with costs. In view of the fact that it is an old matter and the respondent was dispossessed of the demised premises quite long time back, I would, therefore, direct the appellant to restore the possession of the shops Nos. 6 and 7 (the demised premises) to the respondent by or before 21st August, 1989 in the same condition in which they were taken possession of by him through Court, failing writ of possession shall be issued against the appellant without notice to him. H.B.T./M‑1036/K Appeal dismissed.