1995 PLP 1471 (MLD)

Dispute between the parties relates to House No. P‑34, Korangi Township No. 2‑1/2. Respondent purchased this house from Mst. Munawar Sultana widow of Hafeez Ahmed Shaikh on 3‑10‑1982 through a registered sale‑deed. As the appellant was the tenant of the previous owner, he was served with a notice under section 18 of the Ordinance on 30‑6‑1983 calling upon him to pay rent at the rate of Rs. 150 per month with effect from the date of purchase. Appellant was also called upon to inform the number of miscellaneous rent case, the period of rent and the name of Court, in case he had deposited the rent of the premises in the name of previous owner. Appellant promptly replied to this notice through his Advocate and challenged the validity of the sale‑deed in favour of the respondent claiming that the previous owner Shaikh Hafeez Ahmed had entered into an agreement of sale with him in respect of the disputed house for a consideration of Rs. 25,000 and received Rs. 8,000 by way of earnest money. He referred to Suit No. 2492 of 1982 filed by him and stated that in view of pendency of the said suit there was no question of payment of rent to the respondent. Respondent sought ejectment of the appellant on the ground of default and bona fide personal requirement which was resisted by the appellant who filed a written statement denying the relationship of landlord and tenant between the parties in view of agreement of ‑sale executed in his favour by late Hafeez Ahmed Shaikh husband of Mst. Munawar Sultana. He added that on coming to know about the sale‑deed in respect of the said property in favour of the respondent by the widow of Hafeez Ahmed Shaikh he filed Suit No. 2492 of 1982 for declaration, injunction and cancellation of sale‑deed which was pending as such present ejectment application could not be maintained at law. Before the agreement of sale he was the tenant of Hafeez Ahmed Shaikh and always paid rent to him regularly. Since Hafeez Ahmed Shaikh died before the execution of the sale‑deed, appellant questioned the validity of the sale‑deed executed, by his widow in favour of the respondent. He denied default as well as requirement of the premises for personal use and occupation of the respondent and his family. After recording evidence of the parties, learned Rent Controller by his order dated 24‑2‑1988 held that there was no relationship of landlord and tenant between the parties. He therefore dismissed the rent application with a direction to the respondent to get his title cleared from the Civil Court or to wait for final decision of the suit filed by the appellant challenging title of the latter. Aggrieved by this order F.R.A. No. 292 of 1988 was filed by the respondent before this Court which was allowed. It was held that until the registered sale‑deed in favour of the respondent was not cancelled by competent Civil Court he could claim to be the successor‑in‑interest of Mst. Munawar Sultana widow of the landlord of the appellant. It was further held that in case the suit for specific performance filed by the appellant was decreed in his favour and tile sale‑deed executed by Mst. Munawar Sultana was cancelled, relationship of landlord and tenant between the parties shall cease to exist. Consequently the case was remanded to the learned Controller for decision on merits. Civil Petition No. 445‑K of 1991 preferred by the appellant before the Supreme Court of Pakistan was dismissed on 20‑11‑1991 observing that in view of para. 3 of the agreement for sale in favour of the appellant till the sale was completed in every respect he was liable to pay rent. After the remand order both the parties adduced evidence whereupon learned Controller settled the following issues:‑‑‑ (1) Whether there exists relationship of landlord and tenant between applicant and opponent? (2) Whether opponent committed default in payment of rent since 3‑10‑1982 at the rate of Rs. 150 p.m.? (3) Whether applicant requires the rented premises for his personal bona fide use? (4) What should the order be? Learned Controller on assessment of evidence held that in view of dismissal of the suit for declaration, injunction and cancellation of sale‑deed on 27‑9‑1994 filed by the appellant there existed relationship of landlord and tenant between the parties. Learned Controller further held that the appellant had committed default in payment of rent since the date of acquisition of title by respondent in respect of the premises i.e. 3‑10‑1982 and that the respondent required the demised premises for his personal bona fide use. This finding has been impugned in this appeal. In view of denial of relationship of landlord and tenant between the parties since the commencement of the proceedings a pre‑admission notice was issued to the respondent. Learned counsel for the appellant while admitting that the suit filed by the appellant had been dismissed on 27‑9‑1994 contended that he had filed an appeal which had been admitted for regular hearing and the matter being sub judice it would be just and proper to admit this appeal for regular hearing and stay the operation of the ejectment order sine die till final disposal of the appeal filed by the appellant. He attempted to show that in the face of a valid agreement of sale executed by late Hafeez Ahmed Shaikh in favour of the appellant as back as 14‑6‑1979, execution of sale‑deed by his widow in favour of the respondent was neither valid nor proper. Since a competent Court of law has adjudicated upon the matter and the issue is sub judice before the District Court, it would neither be proper nor equitable to dilate upon this question. Needless to point out that in his written statement, appellant had admitted to be the tenant of Hafeez Ahmed Shaikh at the rate of Rs. 150 per month and after his death he continued to pay rent to his widow Mst. Munawar Sultana and even deposited rent in M.R.C. No. 5341 of 1981 in the name of Mst. Munawar Sultana. After the decision of F.R.A. No 292 of 1988 on 26‑8‑1991 and Civil Petition for Leave to Appeal No. 445‑K of 1991 by the Supreme Court of Pakistan on 20‑11‑1.991 clearly holding that until the registered sale- deed in favour of respondent was not cancelled by competent Court it holds the filed and by virtue of it respondent could claim to be the successor‑in -interest of Mst. Munawar Sultana, it was incumbent upon the appellant to change his position and to accept to be tenant of the respondent but he remained adamant in denying the title of the respondent and accepting his position as that of a tenant. It is pertinent to point out that the respondent moved an application under section 16 (1) of the Ordinance on 16‑12‑1983 which was kept pending in view of the plea taken by the appellant. He moved second application on 21‑12‑1992 which again was strongly opposed by the appellant with the result that order under section 16(1) was passed whereafter the respondent was obliged to move the third application on 6‑2‑1993 which again was seriously objected to by the appellant whereafter the respondent was constrained to move transfer application before the District Judge, Karachi East which was dismissed with a direction to the Rent Controller to dispose of the entire case within three months whereafter the learned Controller for the first time passed an order on 9‑5‑1994 directing the appellant to deposit arrears of rent on or before 10‑6-1994. It was only at this stage that the appellant complied with this order and deposited the arrears of rent for the first time in Rent Case 548 of 1985 on 31‑5‑1994. Even after deposit of the arrears and the future rent, he objected to the withdrawal of the rent by respondent by filing objections on 27‑7‑1994. which were rightly rejected by the Rent Controller who allowed the withdrawal of rent vide order dated 31‑7‑1994. There is another aspect of the case. The appellant had already admitted to be the tenant in the disputed premises of late Hafeez Ahmed Shaikh. After the demise of the said Hafeez Ahmed Shaikh he accepted his widow Mst. Munawar Sultana as his landlady and continued to pay rent to her and subsequently deposited rent in her name. Even otherwise vide paragraph 3 of the agreement of sale in his favour, appellant had undertaken to pay rent of the premises so long as the registration of sale‑deed was not completed in his favour. After the change of ownership from Mst. Munawar Sultana in favour of the respondent he was liable to pay rent to the respondent without any exception. In Province of Punjab through Education Secretary and another v. Mufti Abdul Ghani (PLD 1985 SC 1) it was held that in all ordinary cases if a tenant wishes to dispute the title of the person with whose permission he obtained the possessions as tenant, he must first surrender the possession before doing so. Respondent being the successor of the previous landlord in law acquired all the rights vested in the owner as landlord and the appellant could not withhold the payment of rent on flimsy ground raised by him. Respondent's case is identical to Kasim and another v. S. Rahim Shah (1990 SCMR 647) in which the following rule was laid down by their Lordships of the Supreme Court: "Eviction application‑‑‑Landlord acquired right of ownership in property through sale‑decd until sale‑deed was cancelled and was out of field, landlord could claim to have stepped into shoes of previous owner, entitled to recover the rent‑‑‑Even if agreement of sale was executed by previous owner in favour of tenant on a prior date before registered sale‑deed, the registered sale‑deed would have precedence over the prior unregistered deed of agreement‑‑‑Position would remain same till such time Civil Court passed decree against landlord in suit for specific performance pending in respect of property‑‑ Landlord, held, was entitled to recover rent:' It would thus appear that the appellant was rightly held to be a defaulter in payment of rent since 3‑10‑1982, the date on which the respondent acquired a valid title to the property in dispute. Adverting to the issue of personal requirement there is enough and satisfactory evidence led by the respondent stating on oath that he himself and his family members were living with his parents and due to paucity of accommodation were undergoing great inconvenience and discomfort and that he required the premises in good faith for residence with his wife and five children. This statement was not controverted in the cross‑examination which by legal implication is deemed to have been accepted by the appellant. In the absence of any challenge to the testimony of the respondent, appellant cannot be allowed to say that there was no justification for directing his ejectment on the ground that the demised premises were bona fide required by the landlord for his own use and the use of his family. There is absolutely no substance in the argument of the appellant that the evidence on this issue is scanty or that the respondent had failed to satisfy the Controller about the bona fide requirement of the premises by him. There is preponderance of case‑law in view of the proposition that the landlord has a prerogative to use his property in the manner he deems fit and no restriction can be placed on his discretion provided his claim is consistent and bona fide. Although no authority for this proposition, is needed yet learned counsel for the respondent has referred to Qamaruddin through his Legal Heirs v. Hakeem Mahmood Khan (1988 SCMR 819). In view of the above discussion, there is no merit in this appeal which must fail and is hereby dismissed in limine. Appellant is allowed 30 days' period to surrender the premises in favour of the respondent. H.B.T./M‑2073/K Appeal dismissed.