1. ' MRS. QAISER IQBLA, J.---The Petitioner has resorted to file Petition under Article 199 of Constitution of Islamic Republic of Pakistan 1973, assailing the order passed by the respondents Nos.1 and 2, in Rent Case No,777 of 2000 and F.R.A. No,25 of 2003.
2. ' The facts leading to the petition are that, petitioner Mst. Mushtari Begum is the widow, the petitioners Nos.2 to 4 are the sons of late Syed Akhtar Hussain, who was actual tenant of the demise premises bearing No,51-E-2, Block-6, P. E. C. H. S, Nursery, Karachi "hereinafter referred to as disputed premises for the sake of brevity". Which was rented out to him by the husband of respondent No,1 namely Aminuddin Siddiqui in the year 1964. During the life time of Late Aminuddin Siddiqui, the dispute arose between the landlord and tenant upon which Syed Akhtar Hussain the original tenant and the predecessor of the petitioner started depositing rent due in the Court, such fact was within the knowledge of petitioner No,
1. The respondent No,1 filed Rent Case No,424/1994 in the Court of VIth Rent Controller, Karachi-East, the petitioner No,1 Mst. Mushtari Begum was not impleaded as party, ejectment proceedings came to the knowledge of the petitioner No,1 when the execution application was filed, she had resorted to file an appeal in the High Court of Sindh, Karachi and the order ejectment by consent was set aside and the matter was remanded for decision on merits to the Rent Controller.
3. ' The respondent No,1 filed an application before Rent Controller for withdrawal of Rent Case No,424/1994 which was allowed and on the same ground fresh Rent Application bearing No,777/2000 was filed, that the demise premises was required for the personal bona fide need and the default in payment of the rent committed by the petitioners. The petitioner filed the written statement the petitioner No,1 contended that the application was not maintainable for want of notice of change of ownership under section 18 of Sindh Rented Premises Ordinance, 1979, the demise premises was owned by late Aminuddin Suddiqui, which was let out to the predecessor of the petitioners. The respondent No,1 was living with his unmarried daughters in the premises initially owned by her late husband, the accommodation in her possession is sufficient, therefore the element of bona fide good faith was missing and that no default was committed, because the petitioner No,1 who is the widow and in lawful possession of the demise premises was not served with the notice of the change of ownership. The rent was regularly deposited in Misc. Case No,141/1969, therefore the ejectment application is liable to be dismissed.
4. ' The learned Rent Controller framed the following issues:--
(1) Whether ejectment application is maintainable?
(2) Whether the premises in question is required by the applicant for the personal bona fide use?
(3) Whether the opponents have committed wilful default in payment of rent?
(4) What should the order be?
5. ' The learned trial Court on, the basis of the evidence adduced by the parties allowed the ejectment application which was assailed in F.R.A. No,25/2003 and the same was dismissed through the impugned judgment. The petitioners have resorted to file the petition against the respondents.
6. ' Mr. Khalid Imran, the learned counsel appearing for the petitioners has contended that the judgment of the Courts below are patently illegal and unwarranted as the notice regarding the change of ownership in terms of section 18 of the Sindh Rented Premises Ordinance, 1979 was not served upon the petitioner No,1, therefore rent case was not legally instituted and the whole proceedings stand vitiated on this score. It is contended that the findings of the trial Court that the petitioners were well within the knowledge about the change of ownership would not effect the service of the notice upon the petitioner No,1, is totally unsustainable as the service of the change of ownership is mandatory requirement of law and on account of the omission on the part of the landlord, no rent proceedings can be continued, the legislature wants an act to be done in a specific manner, therefore it must be done in the manner provided under the law. Section 18 of the Sindh Rent Premises Ordinance 1979 reads as follows:- "18. Change in ownership. ---Where the ownership of a premises in possession of the tenant has been transferred by sale, gift, inheritance or by such other mode, 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 intimations should, in normal course, have reached the tenant."
7. ' The learned counsel for the respondent No,1 has contended that the petitioner has categorically admitted that the rent was deposited in the name of deceased husband of the respondent No,1 in M.R.C. No,141/1969 and despite of the service of the notice of rent application, the petitioner No,1 was depositing rent in the name of deceased husband of the respondent No,
1. The petitioners were aware of death of deceased husband of respondent No,1 in Rent Case No,242/1994 finally adjudicated by the High Court of Sindh, Karachi, case was remanded by consent, latter withdrawn by the respondent No, 1.
8. ' The petitioners Sajid, Tahir and Aslam were admittedly served with the registered notice under section 18 of the Sindh Rented Premises Ordinance, 1979. The petitioner No,1 claims notice about the change of ownership of the demise premises. This is an admitted fact that in first round of litigation F.R.A. No,567/1998 was decided by this Court, by consent the case was remanded for impleading the legal heirs of deceased Syed Akhtar Hussain, which included present petitioners and Mst.
9. Seema Iqbal D/o late Syed Akhtar Hussain, Mst. Huma Iqbal, Mst. Ramza and Mst. Ramshah widows, sons and daughters of late Iqbal, all the legal heirs of deceased original tenant Syed Akhtar Hussain. It also transpired that notice under section 18 of the Ordinance 1979 was also served upon late Iqbal S/o petitioner No,1, as they fell within the definition of tenant as provided under section 2(j)(ii) of the Sindh Rented Premises Ordinance, 1979, the case was remanded to trial Court, which was subsequently withdrawn by the respondent No,1 and on the grounds available for the eviction of the petitioners. Rent Case No,777/2000 was filed against all the legal heirs of deceased Syed Akhtar Hussain, The chain of litigation between the parties more particularly F.R.A. No,567/1998 filed by the petitioner No,1, assailing her rights as a tenant, which resulted in the remand of the case is sufficient to hold that the petitioner No,1 was aware of the change of the ownership of the demise premises in favour of the respondent No, 1.
10. ' Adverting to the point of personal bona fide use of the premises, the learned counsel for the petitioners has contended that the respondent No,1 is an old lady after the death of her husband, she has been residing with her daughters in a house, which was owned by her husband,mutated in the name of her daughters, in the present situation it will be hard for old lady to live all alone in the demise premises, which is occupied by the tenant from the last four decades. It is urged that the deposition of Mst. Zarka Begum reflects that demise premises is required for her personal bona fide use, she is residing in a house consisted of 120 sq. Yards with three rooms on ground floor and two rooms on the first floor, while the demise premises consisted of 100 sq. Yards, the petitioner No,1 has admitted that she never resided in P.E.C.H.S. Karachi, nor her relatives reside there. She as shown willingness to live in her own house, it is contended that the respondent No,1 has failed to prove her case of bona fide requirement in good faith. In case of Razia v. Muhammad Kamil Qureshi reported in Civil Law Cases 1995 at page 472, it is laid down that good faith means reasonableness and also that good faith could be inferred from the circumstances of each case as against this mala fide would mean a case where the proceedings are negotiated for reasons which are based on ulterior motives. The learned counsel has also placed reliance on the case of Abdul Malik. v. Ejaz Ahmad (1985 CLC at page 1546), wherein it has been held that plea a landlord has let out a portion of residential purpose out of necessity that itself would not be legal bar to his seeking the relief of ejectment for personal requirement on the ground of accommodate his large family."
11. ' The above fact is admitted by the petitioner Tahir, but he could not produce evidence regarding the ownership of other houses owned by the respondent No,1 the landlady has discharged initial burden, for her personal bona fide need, as her case in ejectment application is in line with evidence adduced, not shaken in cross-examination.
12. ' Adverting to the issue of default, the learned-counsel for the petitioner has contended that late Syed Akhtar Hussain the original tenant continued to deposit rent in Misc. Rent Application No,141 of 1969 and after his death the rent is deposited by the petitioners in the same Misc. Rent Application, therefore in the absence of the service of notice under section 18 of the Ordinance 1979 the petitioner No,1 continued to deposit rent in the Misc. Application, therefore, at the best it can be held that there was a technical default. It is settled law that notice under section 18 of the Ordinance, 1979 would not be necessary when tenant continued to pay rent after the death of deceased landlord. The ejectment application without notice under section 18 would be maintainable in such cases. It is established fact that filing of ejectment case, tantamounts to notice A within the meaning of section 18 of the Ordinance 1979 and non-service of such notice would not amount to negation of the relationship of landlord and tenant between the parties. Non-payment of rent within 30 days from the service of notice of ejectment application would constitute default in payment of rent and make the tenant liable to be ejected.
13. ' In view of the above circumstances , the contentions raised on behalf of the petitioners are devoid of force therefore C.P. No,441 of 2004 is hereby dismissed in limine. The petitioners are directed to hand over the vacant and peaceful possession of the demise premises to the respondent No,1 within 30 days hereof.