2001 SCMR 159 (PLP)

ABDUL HAMEED DOGAR, J.

This petition for leave to appeal is directed against the judgment dated 17-5-2000, passed by a learned Single Judge in Chamber of the High Court of Sindh Bench at Sukkur in First Rent Appeal No.79 of 1987, whereby the appeal of the respondents was allowed and the order of the Rent Controller, Sukkur dated 2-8-1982 was reversed.

2. Briefly, the facts, leading to the filing of this petition are that a residential house bearing City Survey No.D-525/1 (hereinafter to be referred as the "demised premises") was taken on rent by Choudhry Ghulam Ghous, the original tenant from one Altaf Ahmed son of Ailah. Ando Khan at the monthly rent of Rs.300. The said Altaf Ahmed gifted the demised premises to respondent No.2 Mst. Munawar Sultana and four others namely, Ashfaq Ahmed, Maqsooda Begum, Ghulam Fatima and Mehboob Illahi which was accordingly mutated in their names on 7-12-1973. Respondent No.

1. Saifullah was authorised by respondent No.2 to collect the rent on her behalf and issue receipts thereof in writing. Since 1-3-1976 Choudhry Ghulam Ghous did not pay any rent either to Altaf Ahmed or to the respondents or any other owner of the said premises. The respondent No.2 and other owners sent a notice dated 24-12-1980 under section 18 of the Sindh Rented Premises Ordinance, 1979 (hereinafter to be referred as the "Ordinance") for handing over the possession of the demised premises as it was required for personal bona tide need and occupation as the accommodation had become insufficient for the family, but the then tenant Choudhry Ghulam Ghous did not reply though acknowledged receipt. Accordingly the respondents filed application under section 15 of the Ordinance seeking eviction on the ground of default and personal bona fide need.

3. The then opponent/tenant Choudhry Ghulam Ghous in the written statement denied that he ever took demised premises on rent from the respondents or from any person as such the question of payment of rent to them did not arise. It was further averred that since the respondents were not owner of the disputed property, therefore, they cannot demand his eviction on the ground of personal bona fide need. He, however, admitted the receipt of notice dated 24-12-1980 sent by respondent No.2.

4. The respondents moved an application under section 16(1) of the Ordinance for depositing monthly rent with effect from 1-3-1976 at the rate of Rs.300 per month which was allowed vide order dated 18-3-1982. Since Choudhry Ghulam Ghous the original tenant failed to deposit the arrears of the rent as such Rent Controller struck off his defence on application under section 16(2) of the Ordinance and directed him to hand over the possession of the demised premises within two months to the respondents.

5. The said order was appealed before the learned High Court of Sindh, Karachi in First Rent Appeal No. 126 of 1982 and on 20-10-1985 the matter was remanded to the Rent Controller for deciding the relationship of landlord and tenant first.

6. In pursuance of the remand order the Rent Controller recorded the evidence of the parties and by order dated 7-6-1986 concluded that the relationship of landlord and tenant did not exist and thus, rejected the eviction application. The said order was impugned by the respondents in F.R.A. No.79 of 1987 against the petitioners, the legal heirs of Choudhry Ghulam Ghous, who meanwhile had exalted, which was allowed and eviction of the petitioners was ordered.

7. We have heard Mr. Zafar Hadi Sho, Advocate Supreme Court on behalf of the petitioners at length and have gone through the record and proceedings of the matter in minute particulars.

8. The learned counsel for the petitioner raised preliminary objection that the appeal was dismissed on 10-10-1990 and was restored on 12-6-1998 without notice to the petitioners which prejudiced their case and caused them damage as their valuable rights had been taken away and were condemned unheard. He next argued that upon receipt of the notice after the appeal was restored the petitioners filed objections to such restoration but the same were not considered at all. According to him the petitioners were not liable to pay rent to the respondents as there existed no relationship of tenant and landlord in-between them and respondents failed to show any proof of ownership of the demised premises. In support, he relied upon the case of Haji Suleman v. Haji Amin Shakoor Tumbi and another (1982 CLC 1453).

9. As regards the first contention the learned High Court in its order dated 12-6-1998 has advanced valid reasons for the restoration of the appeal. The main reason shown was that respondent No. l Saifullah who used to pursue the matter on behalf of respondent No.2 Mst. Munawar Sultana a Pardahnasheen unmarried lady was missing and his whereabouts were not known as such respondent No.2 having no other male member in her family was quite unaware of the proceedings of F.O.A. and for the same reason her counsel Mr. Mehboob Illahi also could not 00ntact. Respondent No.2 as well as her counsel Mr. Mehboob Illahi had filed their respective affidavits in support of filing belated application for restoration which were also taken into consideration. Even otherwise the justice demands that the valuable rights of the parties need to be agitated upon on merits rather than dismissing the matter on the technical grounds. The next contention that the objections filed by the petitioners to the restoration were not considered at all is devoid of force as the same amounted to review allocation, the scope of which is not extended in the rent laws. The right of appeal or review being substantive in nature must be conferred by the statute and, therefore, in the absence of any provision for the review in the Ordinance, power of review cannot be exercised in the proceedings under the Ordinance. This Court in the case of Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94 while dealing with the similar matter has held that the right of the review is a substantive right and is always a creation of relevant statute on the subject.

10. With regard to third and the last contention it would be pertinent to note that Choudhry 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 16(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 Mohallah '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 admission 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 tent and that of landlord in-between them and the demised premises were let out to Choudhry Ghulam Ghous, the husband and father of the petitioners on rent. On the death of Choudhry Ghulam Ghous the tenancy devolved upon the petitioners. Admittedly since 1-3-1976 neither Choudhry 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.

11. Irrespective of the above the learned counsel for the petitioners have not been able to point out any illegality or infirmity in the impugned judgment as such it does not call for interference and is maintained.

12. Accordingly, leave to appeal is -refused and the petition is dismissed. However, the petitioners are allowed three months' time to vacate the demised premises and hand over its vacant possession to the respondents, failing which writ of possession shall be issued against the petitioners without notice with police aid, if necessary. Q.M.H./M.A.K./G-35/S Petition dismissed.