1. ' BHAJANDAS TEJWANI, J.---This petition is directed against the ejectment order dated 25-7-2009 passed by learned IIId Rent Controller, Karachi Central in Rent Case No, 49 of 2007 and judgment dated 16-11-2009 passed by learned IInd Additional District Judge, Karachi Central in F.R.A. No, 109 of 2008, whereby ejectment order passed by learned Rent Controller was upheld.
2. ' The brief facts of this case are that one Syed Muhammad Arif owner of the property filed application under section 15 of Sindh Rented Premises Ordinance, 1979 for ejectment of the petitioner/tenant from Shop No,2 situated in Block No,1236 Nishtar Colony Gulbahar, Karachi, on the ground of default in payment of monthly rent from March, 2002 and arrears of rent for 59 months amounting to Rs,1,68,150. The allegations of non payment of water and conservancy charges were also levelled against the petitioner. The said Muhammad Arif, the landlord also alleged that the petitioner being a tenant of said shop forcibly occupied area of 12/10 feet by breaking the bath room situated on the back side of the said shop and also intervening wall of two rooms by making addition/alteration included the said rooms. Lastly the landlord Muhammad Arif prayed for eviction of the petitioner from the said demised premises.
3. ' After service of the notice the present petitioner appeared before the learned Rent Controller and filed his written statement whereby he admitted the relationship, of landlord and tenant between him and said Muhammad Arif and pleaded that no default of payment of monthly rent was committed by him and further asserted that the petitioner paid monthly rent up to October, 2005 to landlord Muhammad Arif and thereafter started to deposit the same in MRC No, 196 of 2006 as the landlord refused to accept the monthly rent. The allegation of addition and alteration in the property was specifically denied by present petitioner.
4. ' The landlord's attorney Muhammad Hussain Khilji filed his affidavit-in-evidence on behalf of landlord by repeating the contents of Rent case the said attorney was cross-examined and during his cross-examination the attorney admitted the execution of power of attorney in his favour by the landlord Muhammad Arif who after executing the power of attorney dated 14-11-2006 proceeded to USA by authorizing his attorney to execute the sale-deed in respect of demised premises in favour of Muhammad Shabir and Mst. Himayoon Begum (Respondents) as he had sold the said property to them and received consideration of Rs,80,00,000 while remaining Rs,40,00,000 were payable by the vendees at the time of presentation of conveyance deed. The attorney denied to have committed violation of the terms of power of attorney by filing the ejectment case. However, he denied that the petitioner has not committed default in payment of monthly rent. The present petitioner being respondent in the rent case also filed his affidavit-in-evidence in which he gave the detail of payment of monthly rent to the landlord Muhammad Arif and so also deposit of the monthly rent from the year 2006 in MRC No,196 of 2006. The petitioner also denied to have made any addition or alteration in the demised premises. The petitioner in proof of his contention submitted the documentary evidence i,e, copies of diaries/book showing payment of monthly rent to the landlord. During pendency of rent case the property was conveyed/sold by the said Muhammad Arif through his attorney Muhammad Hussain Khilji to Muhammad Shabir and Mst.
5. Himayoon Begum by way of sale-deed dated 2-5-2009 but said fact was not disclosed before the learned Rent Controller that applicant/landlord Muhammad Arif has ceased to be owner and landlord of the property but the matter was prosecuted and the learned Rent Controller allowed the rent case on the point of default while point with regard to addition and alteration was decided in favour of petitioner. However petitioner was allowed 45 days to vacate the premises.
6. ' The petitioner being aggrieved by the above ejectment order preferred F.R.A. No, 109 of 2009.
7. During pendency of this first appeal the subsequent purchasers Muhammad Shabir and Mst.
8. Himayoon Begum were impleaded as respondents and the name of the previous owner/landlord Muhammad Arif was struck off and the appeal was proceeded and the same was also dismissed, hence this petition.
9. ' I have heard Mr.Naeem Suleman, learned counsel for the petitioner and Mr. Hussain Bux Sario and Miss Farah Naz Qazi appearing for the respondents.
10. ' The learned counsel for the petitioner has contended that the application was filed by the attorney with mala fide intention and no default whatsoever nature was committed by the petitioner who is old tenant of the demised premises since, 1983. Rent was paid to landlord Muhammad Arif till December, 2005 by different modes as detailed in the written statement and affidavit-in-evidence and thereafter same is being regularly deposited in MRC No,196/2006 but the trial Court as well as the appellate court heard and decided the point of default against the petitioner without appreciating the evidence of parties.
11. ' Mr. Naeem Suleman further submitted that previous landlord Muhammad Arif had sold the property and transferred the all rights of ownership in favour of respondents by executing conveyance deed dated 2-5-2009, during ejectment proceedings but he concealed this material fact from learned Rent Controller and obtained the ejectment order though he has already passed the ownership rights in the demised premises in favour of the respondents Nos.1 and 2 by executing the said sale-deed and he was neither landlord nor owner of the property in terms of clause (f) of section 2 of Sindh Rented Premises Ordinance, XVII of 1979. The learned counsel also submitted that not only this but the subsequent purchasers joined themselves as respondents in the first rent appeal, persuaded the same and the ejectment order passed by the Rent Controller against the petitioner was maintained, thus the subsequent purchasers were held entitled to evict the tenant on the ground of default in payment of rent, if any, committed during the existence of relationship of landlord and tenant with previous owner. The learned counsel submitted that the right of respondents to recover the monthly rent of the demised premises will commence from 2-5-2009 when they, acquired ownership in the demised premises on execution of conveyance deed by the attorney of previous owner/landlord and not before that period and the benefit of default committed during the ownership of previous landlord will not go to the respondents nor such right was transferable with passing of the property.
12. ' The learned counsel for respondents contended that the default in payment of monthly rent from March, 2002 committed by the petitioner was proved by the previous owner/landlord and the burden was on the petitioner to have proved the valid payment or tender of monthly rent to the landlord (previous owner) but since the petitioner failed to discharge such onus therefore both courts below have rightly passed and maintained the eviction order against the petitioner.
13. ' Controverting' the second contention of petitioner's counsel, it was asserted by the learned counsel for the respondents that the demised property was transferred to them with all rights and benefits, therefore the respondents are entitled to get vacated the premises from the petitioner and continue the ejectment proceedings initiated by previous owner/landlord on the ground of default in payment of monthly rent committed by the petitioner during ownership of previous landlord.
14. ' The learned counsel in support of their contentions referred the case of Ghulam Ghaos v.
15. Muhammad Yasin reported in 2009 SCMR 70 and case of Abdul ul Zahir v. Jaffer Khan, reported in 2010 SCMR page 189.
16. ' I have considered the arguments of learned counsel for both parties, case law cited at the Bar, oral and documentary evidence brought on the record.
17. ' The undisputed fact is that the default in payment of monthly rent, if any, was committed by the petitioner/tenant during his relationship as a tenant with previous landlord Muhammad Arif, who had a cause to file proceedings against the petitioner and such Rent Case No,49 of 2007 was instituted by him through his attorney namely Muhammad Hussain Khilji under section 15(2)(ii)(iv) of Sindh Ordinance XVII of 1979. After filing the Rent case, the previous owner through his attorney had gone through the mandatory procedure prescribed under section 19 of the said Ordinance, during which he adduced his evidence by filing Affidavit-in-evidence and had gone through the test of cross-examination, while petitioner also availed same opportunity.
18. ' On 2-5-2009, the previous owner/landlord, through his Attorney conveyed the property and transferred ownership rights to respondents, as aforementioned, which definitely passed forthwith to buyers, the respondents. The previous owner Muhammad Arif after surrendering his all rights, benefits in favour of respondents, had no right or any concern with the demised premises, therefore he was not entitled to pursue his Rent case and obtain ejectment order on 25-7-2009, i,e, after about 2-1/2 months from the date sale of property by Muhammad Arif to respondents Nos. 1 and 2. It appears that this material fact that said Muhammad Arif was not owner or landlord of the property after 2-5-2009 and that the property was owned by the respondents, who were owners/landlords in terms of Clause (f) of section 2 of said Ordinance, was deliberately concealed and an eviction order was, obtained in favour of previous owner.
19. ' The respondents being subsequent purchasers appeared during pendency of First Rent Appeal, they were joined in the proceeding and continued to prosecute the appeal on the ground of default allegedly committed by the petitioner during the period of previous owner and landlord, without any express authorization or covenant in the Deed of Sale nor the appellate forum had taken pain to consult the available record and give same finding on this legal point raised by the petitioner's side. '
20. ' Sindh Rented Premises Ordinance XVII of 1979, provides mechanism for landlord and owner of Rent premises to seek ejectment of tenant under section 15 of the said Ordinance on the various grounds including the ground of default in payment of monthly rent committed by the tenant. The section 15(1) and its clause (ii) of subsection (2) of the said Ordinance, which dealt with the situation is reproduced here:-- "Section 15. Application to Controller.---(1) Where a landlord seeks to evict the tenant otherwise than in accordance with section 14, he shall make such application to the Controller.
(2) The Controller shall, make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in the order, if he is satisfied that:
(ii) the tenant has failed to pay rent in respect of the premises in his possession within fifteen days after the expiry of the period fixed by mutual agreement between the tenant and landlord for payment of the rent, or in the absence of which agreement, within sixty days after the rent has become due for payment."
21. ' The above provisions envisage in clear terms that the person seeking eviction of tenant must be the landlord in terms of Clause (f) of section 2 of the said Ordinance, which stipulates as under:-- "Section 2(f):---Landlord means the owner of the premises and includes a person, who is for the time being authorized or entitled to receive the rent in respect of such premises."
22. It is an admitted position that the respondents were not landlords in terms of above clause of section 2 of said Ordinance, when the alleged default was committed by the petitioner and they had no right to recover the monthly rent. The right to recover the rent started from the date of change of ownership, when the respondents acquired title in the property and thereafter they will be entitled to approach the concerned Rent Controller to evict their tenant/petitioner, when he commits default in payment of rent payable to respondents and not for a period for which they were not even entitled to recover the rent. The landlord/owner seeking ejectment of his tenant will have to go through the mandatory procedure prescribed under the provisions of section 19 of the said Ordinance but in this case the respondents did not pass through the said procedure, as the tenant has not committed the default in payment of rent to the respondents i,e, subsequent owners/landlords, therefore they cannot avail the benefit of default, if any, committed by the tenant during the ownership of previous landlord, without having recourse of law and procedure.
23. ' Furthermore there is no any express covenant, clause or stipulation in the conveyance deed executed by previous owner in favour of respondents, authorization them to recover the arrears of rent or prosecute litigation initiated the previous owner on the ground of default nor there is any separate assignment of authorization from the previous owner and in absence of such authorization or assignment the action of respondents for ejectment of the petitioner/tenant cannot sustain, therefore the order of eviction and judgment of appellate forum are illegal and without any lawful authority.
24. ' The case-law of honourable Supreme Court referred by the learned counsel for respondents is not applicable in the instant case.
25. ' For the foregoing reasons the petition was allowed by short order, dated 13-4-2010.