1997 PLP 1186 (CLC)

The respondents filed ejectment application against appellant Shahid Ahmed and subsequently other appellants were also joined. According to the Ejectment Application Haji Abdul Karim Sootwala rented out the premises to Mukhtar Ahmed predecessor‑in‑interest to Respondents. Haji Abdul Karim died in 1981 Shaikh Muhammad Taqi, his brother became his legal heir. Aforesaid Shaikh Muhammad Taqi also expired, his son and daughter Muhammad Yousuf and Mst. Najma became the legal heirs, after their death the respondents are their legal heirs. After death of Abdul Karim Sootwala his son Muhammad Taqi informed Mukhtar Ahmed regarding change of ownership by notice dated 15‑9‑1981 which was acknowledged by Mukhtar Ahmed. After death of Shaikh Muhammad Taqi, his son Shaikh Muhammad Yousuf, also informed Mukhtar Ahmed regarding change of ownership and Mukhtar Ahmed acknowledged the same. After death of Mukhtar Ahmed the appellants became his legal heirs. Again on 7‑11‑1991 another legal notice was sent to the appellant demanding arrears of rent and also for vacating the suit premises as required by the Respondents for the personal bona fide need. Finally Ejectment Application was filed for default in payment of rent since December, 1981 and also for the personal requirement of respondent Shaikh Muhammad Anis. The Ejectment Application was resisted on the ground that no power of attorney has been executed by all the respondents and also that respondents had sold this property to Abdul Malik the attorney and also that no notice of transfer of property was received by the respondents. It was further averred that rent was depo ,ited in Miscellaneous Rent Case No.986 of 1982 upto 31‑12‑1986. Mukhtar Ahmed died in January, 1987 and appellants being his legal heirs became statutory tenants, and on verification they came to know that no one had claimed the rent deposited by their predecessor, and as they did not know about any hiers of Abdul Karim, they discontinued depositing of rent in the Court. It was further averred that on receipt of notice from Abdul Malik attorney of the respondent, he was asked to show documents of ownership but he was not able to show any document. Finally, a succession certificate was supplied in October, 1991 which contained names of some of the respondents and not all. As such, the Appellants started depositing rent in M.R.C. No.91 of 1992 in the name of the persons whose names were mutated in the record of rights of K.D.A. It was further averred that acknowledgement letters of Mukhtar Ahmed did not bear his signatures but were forged. Personal bona fide requirement of demised premises by the respondents was also controverted. From the side of the respondents Abdul Malik attorney of the respondents was examined. He produced power of attorney of the respondents, death certificates of Abdul Karim Sootwala and Muhammad Taqi, lease agreement between .Abdul Karim Sootwala and Mukhtar Ahmed, notice regarding change of ownership written by Muhammad Taqi to Mukhtar Ahmed dated 5‑9‑1981, acknowledgment letter of Mukhtar Ahmed dated 15‑9‑1981, letter of Shaikh Muhammad Yousuf to Mukhtar Ahmed regarding change of ownership dated 21‑4‑1983, letter of Mukhtar Ahmed acknowledging the same, legal notice to appellant Shahid Ahmed by Advocate of the respondent dated 11‑8‑1991, letter of appellant Shahid Mukhtar demanding copy of succession/inheritance certificate of Abdul Karim Sootwala dated 19‑8‑1991, letter of the Advocate of the Respondents to Appellate Shahid Mukhtarforwarding a photostat copy of mutation in record of rights, copy of record of rights, acknowledgment receipt of letter addressed to Shahid Mukhtar, legal notice of the Advocate of the respondents dated 7‑11‑1991. Acknowledgment receipt, copy of application in M.R.C. No.986 of 1982, rent receipts, report of the Nazir in that Miscellaneous Rent Application, registered envelopes addressed to respondents Shahid Ahmed and Laila Khatoon and acknowledgment receipts. Muhammad Saleem C.O.C. in the Office of the Rent Controller was examined as Court witness. From the side of the Appellants, Shahid Mukhtar and Mst. Laila Khatoon were examined. The learned Rent Controller set the following points for determination:‑‑ (1) Whether opponent have committed default in payment of rent? (2) Whether suit premises are required for personal bona fide use by applicant No.3? (3) Whether opponents have handed over possession of the suit property to M/s Bushra Textiles? Findings of learned Rent Controller on points Nos.1 and 2 are in affirmative and Ejectment Application was allowed and appellants were directed to hand over the peaceful possession of the premises to Respondents within sixty days of the passing of the order. The alleged default can be divided into two different periods;

1. Period between death of Abdul Karim Sootwala and 11th August, 1991 when the appellant was served with a notice under section 18 of Sindh Rented Premises Ordinance; and

2. Subsequent period till filing of the application. As per evidence of Abdul Malik Attorney of respondent since December, 1991 no rent is paid by appellant, Abdul Karim Sootwala‑has expired on 8‑9‑1981, during his lifetime one Mst. Shabnam used to collect the rent from the appellant which she discontinued after death of Abdul Karim Sootwala. The appellants predecessor Mukhtiar Ahmed started depositing rent in Misc. Rent Case No.986 of 1982. After the death of Mukhtiar Ahmed appellant Shahid Hameed continued to deposit the rent till 1986 and discontinued the same as nobody came to withdraw the rent. After death of Abdul Karim Sootwala his son Shaikh Muhammad Taqi purported to have issued notice under section 18 of the Sindh Rented Premises Ordinance to the respondents on 15‑9‑1981. After his death his son Muhammad Yousuf repeated the same exercise on 21‑4‑1983. Both these notices are alleged to have been acknowledged by the appellant's predecessor Mukhtiar Ahmed who is since dead. His son Shahid Hameed denied the signatures of Mukhtiar Ahmed on these acknowledgment letters. When confronted with the same in the Court. No other evidence was led by the respondents to prove the signatures of Mukhtiar Ahmed on these receipts or any other evidence to prove these notices were actually received by Mukhtiar Ahmed. In my view in absence of proof when service of notice under section 18 of the Sindh Rented Premises Ordinance, having been affected on the appellant no default is committed between the period of death of Abdul Karim sootwala and 11‑8‑1991. As regard the default in payment of rent after receipt of notice under Section 18 of the Sindh Rented Premises Ordinance, the appellant has himself acknowledged receipt of said notice dated 11‑8‑1991 by his letter dated 19‑8‑1991 wherein he had asked for succession/inheritance certificate which also was supplied to him vide letter dated 30‑9‑1991. A reminder dated 7‑11‑1991 by respondents' Advocate in this regard was issued to respondent Shahid Hamid. The appellant in his cross‑examination has denied to have received this notice of 7‑11‑1991 but when respondent produced acknowledgement receipt in respect of this notice, and the appellant was confronted with the same, he admits that some one in his establishment had received the notice. As per appellant he deposited the rent in M.R.C. No.91/92 but no receipt of such deposit has been produced showing the date on which the rent was deposited, no copy of the M.R.C. No.91/92 was produced/filed to indicate on what date such application was filed. The title number of applications shows that the same was filed in the year 1992. Two notices dated 11‑8‑1991 and 7‑11‑1991 under Section 18 of the Sindh Rented Premises Ordinance were issued. .There is also one letter dated 30‑9‑1991 regarding production of certificate of mutation of record of rights. Subsection (2) of section 15 of the Sindh Rented Premises Ordinance lays down that rent due is to be paid within 30 days from the date of intimation. In the A instant case both the notices having been written on 11‑8‑1991 and 7‑11‑1991 would have reached the respondent within 3/4 days. This is also confirmed by postal acknowledgment receipt of notice dated 7‑11‑1991 which shows the date of receipt as 10‑11‑1991. The appellant having failed to deposit or tender the, rent within stipulated period of 30 days from the date of receipt of notice, committed default. In my opinion the learned Rent Controller was justified inholding that the respondent has committed default. The contention of the learned counsel that the ejectment application is not maintainable as there are other legal heirs also apart from the respondent who have not filed the ejectment application. There is no provision in the Sindh Rented Premises Ordinance that if some of the legal heirs do not choose to file ejectment proceedings against the defaulting tenant, or are not interested in collecting the rent, the other co‑sharers cannot enforce their right of receiving the rent. Ownership right devolved on all the legal heirs and all who have legal B right to file the proceedings. However, the tenant could have deposited the rent in the Court to safeguard the interest of those legal heirs who were not party but he cannot take the benefit by not paying the rent. Even otherwise, those legal heirs who have not enforced their right of collecting the rent have not waived their right and mere inaction cannot be termed as waiver, but waiver should either be expressed or implied. To prove this there should be some clear and justified act or conduct beyond mere silence as held in case of Muhammad Saleh v. Muhammad Naeem (1982 SCMR 37). Waiver of one party will not affect thel right of other party. As regard the personal bona fide need of the respondents none of the respondent has been examined on oath to prove the same. No details of business for which the premises is needed has been spelt out. Admittedly the respondents are residents of Rawalpindi and not of the city where the demised premises is situated. Mere assertion that the premises is needed for the bona fide requirement will not entitle them to such relief. In order to prove the bona fide needs the person who require the premises is to be examined on oath and then C subjected to cross‑examination to verify the authenticity of such need. He has to give details of the requirements and the grounds as to why this particular premises is suitable for such purpose. In the instant case only attorney of the respondents has been examined who has not given any details of the business to be carried out on the premises and suitability of the premises for the same. For getting the premises vacated for the landlord's bona fide need the onus lies on him but in the instant case it is not discharged. I do not agree with the findings of the trial Court regarding bona fide need of the respondents for getting the premises in dispute vacated. In view of my above‑discussion I am of the view that the appellant has committed default by not paying the rent within 30 days of receipt of notice under section 18 of Sindh Rented Premises Ordinance and is liable to be ejected. Appeal is allowed to the extent of ejectment on the ground of default only and the appellant is directed to hand over peaceful possession of the premises to the respondents within three months of the date of this order. H.B.T./S‑37/K Order accordingly