1. ' GHULAM SARWAR KORAI, J.---This petition is filed against the Judgment dated 11-8-2011 passed by the Court of learned IIIrd Additional District Judge, Karachi West, whereby FRA of the petitioner against the order dated 31-7-2010 passed by the learned Vth Rent Controller, Karachi (West) was dismissed and order of the learned trial Court was maintained.
2. ' The facts of the case are that Mst. Hameeda Begum respondent No,1 filed an application under section 15(ii) of Sindh Rented Premises Ordinance, 1979 for ejectment of the petitioner from the Shop No. A, constructed on Plot No,487, Sheet No,1, Wilayatabad, Manghopir Road, Karachi (demised premises) on the ground of default in payment of rent and personal bona fide need.
3. ' After service of the notice upon petitioner, he filed written statement and denied the relationship of landlord of respondent No,1 with the petitioner as her tenant. After recording the evidence of both the parties, learned trial Court framed the following points for determination.
POINTS
(i) Whether there is any relationship of landlord and tenant between the applicant and the opponent?
(ii) Whether the opponent is liable to be ejected from the demised premises on the ground of default in payment of rent and/or personal bona fide need?
(iii) What should the order be?
4. ' Points Nos. 1 and 2 were decided in affirmative and Point No,3 ejectment application filed by respondent No,1 was allowed and petitioner was directed to handover vacant and peaceful possession of the demised premises to the applicant/respondent No,1 within a period of 30 days from the date of announcement of the order. That order was maintained by the learned Appellate Court, which is impugned in the present petition.
5. ' Heard Mr. Muhammad Khalid, Counsel for the petitioner and Mr. Ch. Muhammad Abu Bakar Khalil, advocate for the respondent No,1.
6. ' Learned counsel for the petitioner contended that actually there is no relationship in between petitioner and respondent No,1 as tenant and landlord and the learned trial Court has wrongly entertained the ejectment application of the respondent No,1 and decided the same in her favour without determination the point of jurisdiction and maintainability of the ejectment application. He further contended that prior to this respondent No,1 filed ejectment application vide Rent Case No, 52 of 2008 against the petitioner on 8-3-2008,the same was dismissed as withdrawn on 5-1-2009 without seeking permission for filing a fresh, therefore, subsequent Rent Case No,7 of 2009 hit by res judicata under section 11 of C.P.C. He further contended that the actual owner of the demised premises is Aleemuddin and the present petitioner inducted in the shop through Rent Agreement dated 1st July, 2005. He further contended that Aleemuddin is husband of respondent No,1 but respondent No,1 has no Power of Attorney for filing of the rent case against the petitioner. He further contended that the rent was continuously given by the petitioner to Aleemuddin, such receipts are also annexed along with this petition, while he refused to receive the same, and the same was sent through Money order. He lastly contended that while Aleemuddin refused to receive the money order, then rent was deposited in Misc. Rent Case No,174 of 2007 (Muhammad Anwer Hussain v.
7. Aleemuddin) in the Court of 1st Senior Civil Judge/Rent Controller, Karachi West. He therefore prayed that this petition may be allowed and order of the learned trial Court and the judgment of the learned Appellate Court be set aside and ejectment application filed by the respondent be dismissed.
8. ' On the other hand, learned counsel for the respondent No,1 contended that two concurrent orders viz. Order of the learned Trial Court and Judgment of the learned Appellate Court are in favour of the respondent. It is admitted position that petitioner failed to pay the rent to the respondent w,e,f, July. 2007, therefore, he had committed willful default. Merely on this ground, he was liable to be evicted from the demised premises. He further contended that the said shop is also required to the respondent No,1 for personal bona fide need of her son Asif, who is jobless. He lastly contended that Aleemuddin husband of the respondent No,1 is residing in Saudi Arabia and therefore respondent No,1 being his wife filed an ejectment application. He prayed that the order of the trial Court and Judgment of the Appellate Court be maintained and present petition be dismissed.
9. ' I have perused the file.
10. ' It is an admitted position that Rent Case No,52 of 2008 was filed by the respondent No,1 against the petitioner on 8-3-2008 which was dismissed as withdrawn on 5-1-2009 on the application of respondent No,1 without seeking permission for filing a fresh rent case. The respondent No,1 in her evidence produced tenancy agreement dated 1-7-2005. It is in between Aleemuddin and present petitioner and the name of the respondent No,1 has not been mentioned in the entire tenancy agreement. Photo copy of the receipts of rent, money orders, postal receipt, receipts of rent deposited in the Court of 1st Rent Controller in M.R.C. No,174 of 2007 and details of the payment of the rent from 7-11-2007 to 3-11-2010 are annexed along with this petition vide Annexure-D to Annexure E/4. All these documents are in between petitioner and Aleemuddin. The petitioner is tenant of Aleemuddin through tenancy agreement dated 1st July, 2005 while subsequently this property was leased to the respondent No,1 on 8-12-2005 but neither she asked the petitioner to vacate the demised premises on the basis of her ownership nor she gave notice for fresh agreement of the 'A shop in question.
11. ' I have also perused the cross examination of respondent No,
1. Some portions of her cross- examination are reproduced as under:-- It is correct to suggest that tenancy agreement dated 1st July, 2005 was executed in between my husband and tenant. It is correct I have not produced any proof neither I have mentioned in my affidavit in evidence that I was the owner at the time of execution of tenancy agreement on 1st July 2005. It is correct that prior to this I have filed Rent Case No,52/2008 on the same ground which was subsequently withdrawn by me. It is correct that rent of the premises in question is depositing in M.R.C. No,174 of 2007 in the Court of 1st Senior Civil Judge, Karachi West by the opponent in the name of my husband. It is correct that I have not issued any receipt myself to the opponent for payment of rent with my own signature. It is correct that there is no tenancy agreement between me and opponent executed in writing in respect of premises in question".
12. ' From the above position, I am of the view that respondent No,1 has failed to establish her relationship as landlord with the petitioner. Petitioner is tenant of Aleemuddin. He has deposited the rent in his name in M.R.C. No,174 of 2007 in the Court of 1st Rent Controller, Karachi West which was subsequently withdrawn by Aleemuddin. Respondent No,1 miserably failed to establish her relationship, hence she cannot claim the demised premises for personal need of her son. Under such circumstances, this petition is allowed and Judgment of the learned Appellate Court and order of the learned trial Court are set aside and ejectment application filed by the respondent No,1 is dismissed.