By this petition, the petitioner has challenged the order dated 21-1-2003 passed by the learned IInd Additional District Judge Khairpur by which petitioner's F.R.A. No,5/2001 was dismissed and the order passed by the Rent Controller dismissing the rent case of the petitioner was maintained. Brief facts of the matter are that the petitioner has filed an application for the ejectment of the respondent No,1 on grounds of default in payment of rent and for personal bona fide need in respect of shop No,1-A-113-G-1 Shahi Bazar P.S.A. Section Khairpur. The respondent No,1 contested the rent case and filed his written statement. Thereafter the petitioner filed his affidavit-in- evidence so also affidavit-in-evidence of his witness Muhammad Zaman. Both the petitioner and his witness were cross-examined by counsel for the respondent No,1. Respondent No,-1 filed his own affidavit-in-evidence who was cross-examined by the petitioner's counsel. The Rent Controller after hearing the counsel of the parties passed order dated 25-6-1998 dismissing rent case which order was challenged by the petitioner by filing the appeal which has been dismissed by the impugned order. Mr. Qalandar Bux Phulpoto learned counsel for the petitioner has contended that the petitioner through evidence has proved that respondent No,1 has defaulted in payment of rent so much so that respondent No,1 himself has admitted the fact of not paying the rent to the petitioner and that both trial Court as well as Appellate Court has altogether misread the evidence and gave illegal findings. He has further contended that the petitioner has also proved through evidence that premises in question is required by him for his personal use but the trial Court as well as appellate Court has disbelieved the evidence of the petitioner on wholly illegal premises. He has relied upon case of Abdul Qayoom v. Messrs Shell Pakistan (Ltd.) and others 2001 CLC 514, Dilawar Jan v. Gul Rehman and 5 others PLD 2001 SC 149 and Muhammad Yamin v. Sarabai and others 2004 M LD 328. On the other hand Mr. Abdul Fateh Malik learned counsel appearing for the respondent No,1 has contended that the respondent No,1 has committed no default in payment of rent as he has been depositing the rent in Court regularly. He has referred to the advance rent paid by respondent No,1 to the previous owner Muhammad Zaman. He has further contended that rent case was filed by the petitioner in or about August, 1997 whereas the sale-deed of premises was made in favour of the petitioner on 27-12-2002 and no notice of change of ownership or sale-deed was given to the respondent No,
1. He has contended that no default in payment of rent has been made by respondent No,
1. He has further contended that petitioner has failed to establish the case of his personal requirement of the premises in question. In support of his submissions he has relied upon 1991 SCM R 1029. The petitioner's case is that the shop in question was owned by his brother Muhammad Zaman who has inducted the respondent No,1 as tenant of the shop. There was some litigation regarding the shop between the petitioner and his said brother which was compromised vide order dated 23-1-1993 and the shop came to be owned by the petitioner. Petitioner said brother through his registered post letter dated 17-4-1994 intimated the respondent No,1 about the change of ownership of the shop. The petitioner through his letter dated 26-7-1997 sent by UMS gave notice of change of ownership of the shop to the respondent No,1 With request to pay past and future rent to the petitioner. The respondent No,1 despite notice did not tender the rent of the shop to the petitioner. The petitioner therefore filed the rent case for ejectment of the respondent No,1 from the shop on the ground of default in payment of rent with additional ground that the shop is required by him for his personal bona fide use. The respondent No,1 filed his written statement. In written statement respondent No,1 pleaded that he has paid advance rent of Rs,15,000 to Muhammad Zaman the owner of shop and that he is not aware of any litigation regarding the shop between the owner and the petitioner and that the letter dated 17-4-1994 was not received by the respondent No 1. It is further stated that Muhammad Zaman who used to collect the rent regularly did not come to collect the rent from January, 1993. The rent was sent through money order dated 13-4-1993 to Muhammad Zaman but it was returned. The respondent No,1 then filed Misc. Rent case and started depositing the rent regularly in the name of Muhammad Zaman and asserted that the rent stood so deposited up to October, 1997. The respondent No,1 admitted in the written statement that the notice dated 26-7-1997 of the petitioner was received by him but as he was not satisfied about the ownership of shop, he continued depositing rent in Court in the name of previous owner Muhammad Zaman. With regard to personal requirement of shop by the petitioner, respondent No,1 took defence that he has only the rented shop for running his business which is only source of his income and he has spent considerable amount for decorating shop and invested sufficient amount and will sustain heavy and irreparable loss if he is ejected from the shop. He has further pleaded that the petitioner being owner of Cotton and Ginning Factory has other source of income and thus took the stand that there is no requirement of the shop by the petitioner. The petitioner filed his affidavit-in-evidence and also affidavit-in-evidence of his witness namely Muhammad Zaman. Petitioner with his affidavit-in-evidence produced a compromise application made in Civil Appeal No,98/1992 which was between the petitioner and Muhammad Zaman which also contain order of the District Judge Khairpur granting the compromise application and passed the decree in terms of the said compromise application. Copy of notice dated 26-7-1997 has also been produced. The petitioner's witness Muhammad Zaman also produced copy of his letter dated 17-4-1994. The petitioner was cross-examined by the respondent No, 1 's counsel. In cross-examination no suggestion was made to petitioner that the respondent No,1 has offered the rent of the shop and that the petitioner has refused the same. Rather it was suggested that the petitioner is receiving the rent from the Court deposited by the respondent No,1. With regard to the personal requirement, petitioner was suggested that he has filed rent case against Khush Muhammad to which he replied evasively. The suggestion that respondent No,1 has not committed default in payment of rent was denied. The further suggestion that the shop was not required by the petitioner was denied so also the suggestion that the petitioner will let out the rented shop to other person for considerable rent was denied. The petitioner's witness Muhammad Zaman in his cross-examination admitted that he received Rs,15,000- as advance from respondent No,
1. He denied the suggestion that the respondent No,1 is not a defaulter. He also denied the suggestion that the petitioner does not require the shop for his personal use. The respondent No,1 has filed his own affidavit-in-evidence in which he reiterated the stand taken by him in his written statement with addition that he is continuing depositing rent in Court in Misc. Rent case filed against Muhammad Zaman and the rent stood deposited up to March 1998. He has further stated that petitioner has drawn the rent amount from the Court up to June, 1997. He has further taken stand that petitioner has not submitted any documents regarding change of ownership of the shop and took stand that he is ready to accept the petitioner as owner if allowed by the Court or even by the original owner Muhammad Zaman. He took stand that the petitioner is owner of other shop, therefore does not require the shop in question for his personal use. In cross-examination he denied having received notice from Muhammad Zaman regarding change of ownership of shop but admitted receipt of notice sent by the petitioner of change of ownership. The respondent No,1 also admitted that he did not pay the rent of shop in question to the petitioner but on receipt of notice of change of ownership from petitioner started depositing rent in Court in name of Muhammad Zaman the previous owner. He has denied the suggestion that shop in question is required by the petitioner for his own use and voluntarily stated that the petitioner has three shops in his name. He denied that there are only two shops of the petitioner. From the perusal of the above record it stands established that the respondent No,1 has received from the petitioner the notice dated 26-7-1997 of change of ownership with request to the respondent No,1 to pay to the petitioner, past and future rent of the shop. As per respondent No, I is own statement in his evidence that on receipt of the said notice of change of ownership he started depositing rent of the shop in Court by way of Misc. Application filed against the previous owner Muhammad Zaman. Further even after receipt of notice of the rent case, the respondent No,1 did not offer/tender the rent of the shop to the petitioner but as per his own evidence, the respondent No,1 continued to deposit rent of the shop in the same Misc. Rent case filed against the previous owner Muhammad Zaman. During the course of hearing of this petition, it was stated that respondent No,1 has continued to deposit the rent in the name of the previous owner in Court. The respondent No, 1 's counsel has however filed a statement dated 18-8-2004 with which he has submitted original receipts showing for the first time deposit of rent in Court by the respondent No,1 in the name of the petitioner for the months of April, May, June and July, 2004. Why the rent for these four months was deposited in Court and not paid to the petitioner directly is not explainable. The learned Rent Controller in its order has made reference of receipt of notice dated 26-7-1997 by the respondent No,1 but has stated that as the petitioner has not shown any proof of ownership of the shop, therefore the rent being deposited by respondent No,1 in the Misc. Rent case in the name of Muhammad Zaman will only be a technical default. The Rent Controller further found that the petitioner on the basis of spicier power of attorney executed by Muhammad Zaman has been collecting rent from said Misc. Rent case. The Court therefore came to the conclusion that respondent No,1 is not a defaulter. The Appellate Court all together omitted to consider in its order the admitted fact of receipt of notice of change of ownership dated 26-7-1997 sent by the petitioner but rather stated that there was no specific notice by the petitioner with regard to the change of ownership and discussed only the notice dated 17-4-1994 of Muhammad Zaman and concluded that its delivery was not proved. The Appellate Court also noted the fact that the petitioner was drawing rent from the Misc. Rent case as attorney of Muhammad Zaman and thus the case was of a technical default. It is very strange that both the Court below have felt it convenient in considering the case of default in payment of rent on admitted facts in such cursorily manner and ,without adverting to the legal position and established law applicable to the facts and circumstances of the case. The Courts below altogether went off the mark when it gave importance to the fact that the petitioner as attorney of he previous owner was drawing rent from Misc. Rent case. It may be noted that there is no evidence of the parties on record regarding drawing of rent by the petitioner. The Rent Controller, as it appears from the record while writing order has itself examined the record of Misc.
Rent case and made observation on it. The Courts however failed to note that the petitioner, if he was drawing rent from Court as attorney was doing so merely as agent of previous owner and not in his own personal right as owner of the shop. Section 18 of the Sindh Rented Premises Ordinance, 1979 provides that where the ownership of premises in possession of tenant has been transferred by sale, gift, inheritance and by such other mode, the new owner shall send an intimation of such transfer in writing by registered post to the tenant and the tenant shall not be deemed to have defaulted in payment of the rent for the purpose of clause (ii) of subsection (2) of section , 15, if the rent due is paid within thirty days from the date when the intimations should, in normal course, have reached the tenant. In the present case respondent No,1 has admitted having received the notice dated 26-7-1997 as referred in section 18 of the Ordinance. In case of Messrs Habib Bank Ltd. v. Sultan Ahmed (2001 SCM R 678), the apex Court at page 682 has observed as follows:- "Before parting with the judgment we would also like to observe that the tenant has no right to demand title documents from the landlord on receipt of notice within the meaning of section 18 of the Ordinance because no sooner notice is served upon him or it is otherwise conveyed to him either in the judicial proceedings or by some other reliable source he is bound to accept the new owner as his landlord as held in the cases of Muhammad Ashraf v. Abdul Hameed and others (1982 SCMR 237(2)) and Suleman and another v. M.A. Mallick (1988 SCM R 775)." In the case of Sardar Muhammad v. Khawaja Muhammad Nazar (2004 CLC 289) at page 292 a Single Judge of this Court has observed as follows:-- "Finally it was urged by Mr. Tariq that the appellant did not receive any notice from the respondent to attorney to him and therefore he was justified in depositing the rent in M.R.0 and could not be .Ejected on account of default. Without going into the factual controversy it might be sufficient to say that filing of the ejectment application itself having been treated as notice under section 18, there was no justification for the appellant in not tendering rent to the respondent after notice of the application was served upon. His failure to pay rent thereafter clearly amounts to default."
As regard of question of personal use of the shop by the petitioner, it was suggested to petitioner in his cross-examination that he owns another shop in respect of which he has filed another ejectment case but at the same time the petitioner who has stated in his evidence that the shop is required by him for use as office for managing and running his business i,e, of Kohinoor Cotton and Ginning Factory has not been disputed. It may be noted that section 15-A of the Ordinance provides ample security to the tenant in case the landlord fails to put the A premises to his own use within one year of receipt of its possession. In case of Muhammad Bashir v. Sakhawat Hussain (1991 SCM R 846), the apex Court at page 848 has observed as follows:- "Under section 15 of the said Ordinance landlord can apply for eviction of tenant on the grounds mentioned therein including the ground that the premises are required by landlord in good faith for his own occupation or use or for the occupation or use of his spouse or any of his children. The only requirement in this provision .For landlord is to show that he requires the premises in good faith.
This landlord has stated very clearly in unequivocal terms in the application which he has filed for ejectment as well in his statement on oath in the Court of Rent Controller. According to the landlord he is jobless since 1972/73 and previously he was selling medicines at Sukkur and he has a licence for such business. There appears no legal impediment in the way of the landlord if he wants to open a medical store and do business in spite of the fact that he is rich and has no children. The landlord can do whatever he likes with his property and if interest of tenant is involved because property of landlord is rented out to him, then his rights are protected under the rent law. If landlord does not contravene provisions of the rent law, which allows him the relief, then it is not open to the tenant, and even for that matter to the Court, to make a comment as to what the landlord should do or should not do. In the instant case the landlord has stated on oath that he wants to open a medical store and for that purpose he needs shop in this case as well as adjoining Shop No,7 for which he had initiated proceedings separately. Since both shops are adjacent to each other it appears that the landlord wants to obtain both these shops in order to open a medical store for which he has a licence and also previous experience. This assertion as such of landlord is not seriously challenged by the tenant nor its credibility tarnished in the cross-examination. So far affordability of landlord is concerned tenant does not dispute that landlord is rich and resourceful and can open a big medical store for which 2 shops could be required. Lack of cross-examination on this point suggests that this assertion is not disputed or doubted by the tenant. It would not be out of place to mention here that to guard interest of tenant it is provided in section 15-A of the said Ordinance that if landlord after obtaining possession of demised premises from the tenant on the ground of personal requirement, relates it to another tenant or puts it to a use other than personal use within one year of such possession, then landlord would be punished with a fine which shall not exceed one year's rent and evicted tenant is allowed under the law to apply to the Controller for an order of restoration of disputed premises to him." In the instant case the shop in question is adjacent to the shop for which the petitioner has filed another rent case.
It may be noted that though there is concurrent orders of the two Courts below against the petitioner but as discussed above both the orders are based on complete misreading of the evidence and non-reading of evidence in disregard of the established law having application to the case. The Courts below in not considering the record of the case in its true perspective have all together failed to exercise jurisdiction of doing justice between the parties in accordance with law.
The Courts below have ignored the material and admitted evidence and law that was to be considered in deciding the controversy raised in the matter. This Court B in exercise of its Constitutional jurisdiction has to foster the administration of justice to turn down the decisions which are manifestly, arbitrary, capricious -and based on non-considering of established law. The Courts below have not done justice between the parties by their, orders as the petitioner has established on record that the respondent No,1 has defaulted in payment of rent and also that the shop is require& by him for his own use. The orders of both the Courts below are consequently held to be without lawful authority and of no legal effect and are set aside. This Constitution Petition is therefore allowed and the ejectment application filed by the petitioner is allowed with direction to the respondent No,1 to vacate and hand over the premises of the shop in question to the petitioner within sixty days of the date of this judgment. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.