' This is first appeal under section 21 of the Sind Rented Premises Ordinance, 1979, from the order of Senior Civil Judge and Rent Controller No, VIII, Karachi dated 19th April, 1981 whereby the learned Rent Controller had accepted the ejectment application of the respondents and directed the appellant to hand over possession of the premises in dispute that is, shop No, 1, Noorani Manzil, Karachi, to the respondents within a period of one month.
2. The respondents had filed ejectment application on two grounds. One, that they wanted the shop for their own personal use and two, that the appellant has failed to pay rent from July, 1978 to August, 1979.
3. The plea of the appellant was that the two respondents are not the only landlords of the shop in question. Their real brother Abdul Ghafoor is also one of the owners of the shop and that the rent agreement was executed between Abdul Ghafoor and the appellant on 11th October, 1971 in respect of this shop whereby the rent was fixed as Rs, 90 per month and that an amount of Rs, 10,000 was also deposited by the appellant with Abdul Ghafoor. This amount was to be refunded to the appellant on termination of the tenancy. It is denied that the arrears of rent were due from July, 1978 as alleged by the respondents. He, however, admits that rent of February, 1979 was offered to the respondents, but they had refused to accept the rent ; therefore, the amount was sent through money order, which was also refused by the respondents. It is, therefore, asserted that the appellant is not a defaulter. He has also denied that the respondents require the shop in question for their bona fide use and alleges that they own four other shops beside the shop in dispute.
Maintainability of the ejectment application was also challenged.
4. Learned Rent Controller framed five issues on the basis of the above pleadings which are as under :-
(1) Whether the rent application is not maintainable ?
(2) Whether the notice under section 13-A of the Ordinance was necessary to be served upon the opponent ?
(3) Whether the opponent is a willful defaulter ? If so since when ?
(4) Whether the applicants require the premises in question in good faith for their personal bona fide use ?
(5) What should the order be ?
5. After recording evidence of the parties, the learned Rent Controller came to the conclusion that the rent application was maintainable, that notice under section 13-A was not necessary, that the appellant was a defaulter and that the respondents have proved their bona fide requirement of the shop for their personal use.
6. From the evidence it transpires that originally the shop in question belonged to 3 brothers, that is, the two respondents and Abdul Ghafoor who had rented his shop to the former and thus they became sole owners of the property in question. It is also in evidence that after the respondents had purchased the share of Abdul Ghafoor, they had sent a notice under section 13-A to the appellant and asked him to pay rent to the respondents. In support of their case the respondents have filed affidavit of Abdullah respondent No, 1 in which he admitted that originally the shop belonged to the three brothers, that is himself the respondent Muhammad Khan and Abdul Ghafoor and that Abdul Ghafoor had transferred his share to them thereafter they had become sole owners and lords in respect of the shop in question. They have denied having received Rs, 10,000 as fixed deposit from the appellant. However, it is alleged that if Abdul Ghafoor had accepted this deposit, then it was his responsibility to refund it to the appellant.
7. So far as the question of default for three months is concerned it is admitted by the appellant himself that rent for the months of February, March and April, 1979 is due, but it is alleged that the respondents had refused to accept the same. The appellant Muhammad Yaqoob has filed his affidavit in support of this averment and has further stated that the rent for two months was sent by two money orders but it was refused. He has produced only one money order coupon which appears for the rent of the month of February, 1979. The learned Rent Controller has disbelieved the plea of tender of rent as well as the money order on the ground that the money order coupon did not bear any endorsement of refusal nor there is any stamp of the post office to prove the genuineness of the money order. No exception can be taken to this finding of the learned Rent Controller. The plea of the appellant that he tendered the rent but it was refused, was also rightly disbelieved by the learned Rent Controller. The appellant was a tenant from 1971 and never before, the landlords had refused to accept the rent. There was no reason for them to have refused the rent for the month of February, 1979 onwards. The issue regarding default in payment of rent was, therefore, rightly decided by the learned Rent Controller in favour of the landlords.
8. In support of personal requirement of the landlords there is affidavit of respondent Abdullah. He has specifically stated that the shop is required by him in good faith for his own use. So far as the other shops owned by the respondent are concerned he has stated that they are on rent with other tenants. This facts has not been challenged by the B appellant in his affidavit. The issue regarding personal requirement of the appellant was, therefore rightly decided by the learned Rent Controller in favour of the respondents.
9. The plea of the appellant is that he had deposited Rs, 10,000 with Abdul Ghafoor, the brother of the respondents, in pursuance of the tenancy agreement which was executed between him and Abdul Ghafoor in the of 1971. This Abdul Ghafoor is real brother of the respondents . He has appeared as a witness of the Appellant and has filed affidavit Exh. 7 in which he has admitted execution of the rent agreement and having accepted Rs, 10,000 as fixed deposit. He further stated that he had transferred his share in the premises in question to his brothers that is, two respondents who had further agreed that appellant shall continue as tenant of the shop on the same terms and condition as before. I do not see any reason to disbelieve Abdul Ghafoor who is real brother of the two respondents. The two respondents, after purchasing the share of Abdul Ghafoor have stepped into the footsteps of Abdul Ghafoor in respect of his share. As successors of Abdul Ghafoor they are also liable to discharge the responsibility which Abdul Ghafoor owned to the appellant in respect of this shop. The learned Rent Controller has come to positive finding that Rs, 10,000 were deposited by the appellant with Abdul Ghafoor but he came to the conclusion that the respondents were not liable to refund this amount to the appellant. The finding of the learned Rent Controller is apparently erroneous. While purchasing the share of Abdul Ghafoor the respondents had also inherited the liabilities of Abdul Ghafoor in respect of his share. The appellants are bound by the tenancy agreement which was originally executed as between Abdul Ghafoor and the appellant and in pursuance of which the appellant had paid rent from 1971 upto February, 1979. There is specific stipulation in the tenancy agreement that this amount shall be refunded to the appellant on termination of the tenancy. Learned counsel for the appellant has rightly argued that the respondents are liable to refund this amount to the appellant before the ejectment order is executed.
10. For the above reasons the appeal is dismissed with no order a to costs with the observations that the execution of the ejectment order shall be subject to refund of Rs, 10,000 by the respondents to the appellant. The respondents shall however, be entitled to deduct the arrears of rent, if any, due from the appellant upto the date of ejectment from the said amount.