2001 PLP 45 (YLR)

(2) Whether there exists any relationship of landlord and tenant between the applicants and opponent No.2? (3) Whether the opponent No. 1 or 2 we defaulted the rent from the month of February, 1972? (4) Whether the applicants have required the shop in question for their personal bona fide use in good faith? (5) Whether the applicants are entitled to grant of relief prayed by them in payer clause (b)? (6) What should the order be?

6. The learned Rent Controller after hearing the parties and evaluation of the evidence brought on record by the respective parties dismissed the rent application filed by the appellants by impugned judgment. The appellants being aggrieved with the said judgment have preferred this appeal.

7. The trial Court while deciding the Issue No. 1 has highlighted the existence of relationship of landlord and tenant between the applicants/appellants and respondent No. 1 is disputed. The claim of appellants is that the shop in question which was inherited by them from deceased Lal Bux the actual owner of the property was originally rented out by late Lal Bux to the respondent No. 1 from 20‑3‑1971 to 20‑2‑1972 at the rate of Rs.70 per month for 11 months and such rent agreement was executed between late Lal Bux and respondent No.

1. The respondent No. 1 after the completing the period of rent agreement failed to vacate the shop in question in spite of repeated requests by the appellant's husband late Lal Bux. Lal Bux died in the month of September, 1983, leaving behind the appellants as legal heirs and respondent No. 1 neither vacated that shop nor paid the rent from 21‑2‑1972 to 19‑9‑1983. The respondent No. 1 after the death of Lal Bux deliberately did not come forward to contact the appellants for fresh agreement nor vacated the said shop, therefore, the appellant No. 1 approached the respondent No. 1 so many times alongwith Khadim Hussain, Nabi Bux and others as the said shop is required for their personal use as the son of appellant No. 1 namely Muhammad Ali is running jobless and she wants to set him in business to support the family members as they have no other source of income. The said shop has been sublet by the respondent No. 1 to respondent No.

2. The respondent No. 1 has defaulted the rent, therefore, the ejectment application was filed with the prayer that respondent No. 1 be ejected from the said premises.

8. The respondent No. 1 has contested the pleadings and denied the relationship of landlord and tenant between him and late Lal Bux and so also the appellants. It was stated by the respondent No. 1 that neither any rent agreement was executed between him and late Lal Bux nor he is the tenant of the shop in question to his brother namely Feroze the respondent No.2 who is regularly paying the rent. It is stated that the respondent No.2 paid the rent to late Lal Bux and after his death the son of Lal Bux namely Muhammad Ali had received the rent from the said respondent No.2. As there are valid receipts up to September, 1987. The respondent No.2 has also remitted the rent through postal money orders. The appellant No.2 had refused to receive the money orders, the respondent No.2 had filed Rent Application No. 40 of 1988 for depositing the rent which was allowed and the respondent No.2 is depositing the rent regularly in the Court.

9. The Trial Court after examining the evidence brought on record by the parties has formed its opinion that the appellants have failed to prove that respondent No. 1 as a tenant of the said premises through documentary evidence, whereas the opponents through the rent receipts Exh. 18 to Exh. 22 proved that the respondent No.2 is the real tenant as the evidence of witnesses does not fully support the alleged rent agreement. Therefore, it is evident that the respondent No.l 'is, not a tenant of the appellants, and relationship between the respondent No.l with the appellant is not established.

10. Since the appellants in their case have not accepted the respondent No.2 as their tenant and they claim that the shop was rented out by late Lal Bux to the respondent No. 1 for 11 months from the month of March, 1971 to February, 1972. As there is documentary evidence brought on record by respondent No.2 about the payment of rent through other modes. The trial Court has observed that from the circumstances of the case, it appears that the relationship of landlord and tenant is actually existed between the respondent No.2 and the appellants for the shop.

11. It is admitted fact that respondent No.2 had paid the rent to appellant No.2 and such receipts have been brought on record from very beginning 6‑5‑1971 up to September, 1987. After September, 1987 appellant No.2 had issued such receipts. Thereafter, the respondent No.2 has remitted the rent through money orders as Exhs.167 to 172 and thereafter, the respondent No.2 had filed a rent application for depositing the rent in the Court and he is depositing the rent in the Court. In light of rent receipts produced by the respondent No.2 issued by the appellants in his favour the question of default in payment of any rent does not arise.

12. It is contended by the learned counsel for the appellants that learned Rent Controller has wrongly held while deciding the Issue No.l that there is no relationship between the appellants with respondent No.l as both the respondents are the tenants of the appellants. It is further urged that the respondents have committed wilful default as there is sufficient evidence for the ejectment of the respondents from the said shop. It is further stated that the appellant No.l is a widow and appellants Nos.2 and 3 have no other source of livelihood as they wanted the premises for their personal bona fide use.

13. Mr. Abdul Fateh Malik, learned counsel for the appellants has placed reliance on the case (unreported authority) of Civil Petition No. 348 of 2000 (Chaudhry Ghulam Ghous (through L.Rs.) v. Saifullah and another). Another judgment in F.R.A. No.79 of 1987 of the same case decided by the High Court on 6‑5‑2000.

14. Mr. Manzoor Ahmed Junejo, learned counsel for the respondents has supported the order passed by the learned Rent Controller. The respondent's counsel has relied upon the following case‑law:‑‑‑ Muhammad Alam through Legal Heirs v. Sultan Shah PLD 1988 Kar. 369; 1982 MLD 2011; Dost Muhammad v. Mst. Ramzan Bibi and 9 others 1990 MLD 1667; Deedar Ahmed and another v. Cooperative Engineers Limited 1992 MLD 1049 and Rahmat Khan v. Mst. Hamida 1992 MLD 1685.

15. I have gone through the judgment, evidence brought on record and contentions raised by the learned counsel for the parties and the case‑law cited by the learned counsel in this case.

16. In the cited authority of the Honourable apex Court was highlighted which is reproduced as under:‑‑ "With regard to third and the last contention it would be pertinent to note that Chaudhry Ghulam Ghous the original tenant in his affidavit‑in- evidence filed in the rent case admitted that the demised premises were in his possession as tenant and he was not defaulter of the respondents and on the contrary when order of depositing rent under section 19(1) of the Ordinance was passed he was depositing the rent all along. He also in para. No.4 of the affidavit said that the respondents as well as Altaf Ahmed had many houses in Sukkur Town and also in the same Muhalla as such the demised premises were not required for their personal use. He categorically admitted the receipt of notice sent to him by the respondents/landlord. Further admis sion that the demised premises were situated in street and the rent of Rs.300 per month was maximum, goes to show that there existed relationship of tenant and that of landlord in‑between them and the demised premises were let out to Chaudhry Ghulam Ghous, the husband and father of the petitioners on rent. On the death of Chaudhry Ghulam Ghous the tenancy devolved upon the petitioners. Admittedly since 1‑3‑1976 neither Chaudhry Ghulam Ghous nor the petitioners have paid any rent either to Altaf Ahmed or to the respondents or any other owner as such they are defaulters and liable to be ejected. As regards personal bona fide need the respondents have been able to place on record sufficient evidence to that extent."

17. But in F.R.A. No.79 of 2000, the judgment passed by this Court in the same matter as above, the High Court has decided the issue as under:‑‑‑ "It is also an admitted position that Ghulam Ghous did not pay any rent to either Altaf Ahmed or Mst. Munawar Sultana and other co -sharers/transferees until the tentative order was passed by the Rent Controller on 18‑3‑1982. This is quite clear from the contents of the written statement wherein he has in para. 2 of the same flatly denied any liability at all for the payment of rent. Similarly in cross‑examination Ghulam Ghous has admitted that he has never paid the rent to any person before he remitted the same in the Court. Consequently, in my view Ghulam Ghous has committed a default in the payment of rent and has thus, rendered himself fit to be ejected from the rented premises."

18. In the above‑cited case, admittedly since 1‑3‑1976 neither Chaudhry Ghulam Ghous nor the respondents had paid the rent either by one, as such they were termed as defaulter and liable to be ejected. There was an order of depositing he rent under section 16(1) of the Ordinance was assed by the learned Rent Controller, Sukkur. The respondent No.2 had paid the rent to the appellant by ay of rent through receipts, money orders and by ay depositing the rent in the Court. Therefore, the respondent No.1 cannot be presumed as defaulter whereas the respondent No.2 has categorically accepted the tenancy which has been proved by way f evidence brought on record. There are rent receipts from 6‑5‑1971 to November, 1991 and he as tiled a rent application under section 10(3) of Sindh Rented Premises Ordinance, 1979. In view of he finding on Issue No. 1 the trial Court has rightly observed that the appellants have failed to prove the relationship of landlord, and tenant between respondent No.

1. There was only prayer, against the respondent No. 1 for ejectment from the shop of S. No. C‑3/1 Station Road, Sukkur, but not against the respondent No.2 who has proved his tenancy and there is no default on his part when the rent is being paid by way of other modes. The appellants in view of the finding of learned Rent controller are authorized to initiate the proper proceedings against the respondent No.2 for the purpose of eviction if the demised premises is required for personal bona fide use for setting the appellant No.2 in the business to support the family embers.

19. In these circumstances, I am of the view hat there is no violation of settled principles of law his is not a tit case to interfere in the impugned order passed by the learned Rent Controller, Sukkur dismissing the ejectment application for the premised premises.

20. Resultantly, this appeal is dismissed and impugned order passed by the said Court is maintained. Q.M.H./M.A.K./S‑105/K Appeal dismissed.