1. ' This has arisen from the judgment of XII Senior Civil Judge and Rent Controller, Karachi, dated 7-3- 1983 whereby he allowed the ejectment application filed by respondents/landlords directing the appellant/tenant to vacate the demised premises and hand over the possession thereof to the respondents within sixty days of the judgment.
2. ' The facts of the case in brief are that the disputed premises are a ground floor bearing No,G/7-RS 1/15/1-IV-B-II of Patel Building in Ramswami, Karachi. It was transferred to Mst. Muhammadi Begum, the predecessor-in-interest of the respondents under the P.T.D. Issued by the Deputy Settlement Commissioner, Karachi. The appellant was occupying the disputed premises as a tenant at monthly rent of Rs,25. The respondent's case is that the appellant had paid rent to Mst.
3. Muhammadi Begum upto December, 1979 for which he was given receipts. Thereafter, according to them, he has paid no rent. When the respondents inherited the disputed premises following the death of Mst. Muhammadi Begum, the appellant was given notice by them calling upon him to clear the rent arrears and vacate premises on account of his default in payment of rent and also because the disputed premises was needed by them for their personal use. As he failed to heed the notice, ejectment application was filed against him. The said application was resisted by the appellant who .Made categorical denial of the respondent's allegations. The learned Rent Controller after taking into consideration the evidence produced by the parties, allowed the application and directed the appellant to deliver vacant possession of the disputed premises to the respondents. Hence this appeal has been preferred by the appellants.
4. ' After hearing the arguments of the learned counsel for the parties the appeal was dismissed with no order as to costs by short order, dated 13-4-1986 for reasons to be recorded separately.
5. Following are reasons in support of the said short order.
6. ' The respondents have examined one of them Khurshid Ali Khan and Syed Qamar Hussain in support of their case whereas the appellant, besides himself has produced in evidence Syed Shakir Hussain and Syed Manzar Hussain. It is not disputed that Mst. Miihammadi Begum was the original owner of the premises in question and on her death the respondents, her heirs, became the owners of the said pemises. The appellant/tenant has, however, denied the allegation of default of payment of rent. In this connection he has raised the following plea in his .Written statement:- "The landlady is a close relative of opponent and before her death relations between opponent and landlady were very good, therefore, during her sickness the opponent used to go to her house to see her and paid her rent regularly and some time in advance. After her death opponent had sent the rent for the month of January to April, 1980 by M.O. To her son Sajjad All and Sultan Ali upto August, 1980 but all Money Orders have returned and opponent came to know that they are also died and opponent has deposited the same through the Court in the office of Nazir (Photocopies of all M.O. Receipts are filed herewith as marked 'A').
7. ' It would be observed that right below the above assertions of the appellant/tenant in the same para. Of the written statement he has taken an inconsistent stand stating that during sickness period of Mst. Muhammadi Begum, he paid rent to her upto April, 1980 though on account of her serious illness she was unable to issue receipts in respect of the period from January, 1980 to April, 1980. However, it is further stated that she promised to issue the receipts .After her recovery from illness. It is an admitted position that Mst. Muhammadi Begum expired on 17-8-1979. This is clear from the notice, dated 24-11-1980 given by the respondents to the appellant. In his reply to the above notice the appellant has not disputed the date of Mst. Muhammadi Begum's death. Thus subsequent to Mst. Muhammadi Begum's death on 17-8-1979, the question of paying her rent during her sickness from the months January, 1980 to April, 1980 did not arise. Consequently the appellant's stand taken in this regard in para. 4 of his written statement is obviously false on his own showing. The story of sending of the rent for the said months to Muhammadi Begum's sons Sajjad Ali and Sultan Ali by money order also does not appear to bear any truth. First of all as has been pointed out above in the same para. Of the written statement (para.4) the appellant has taken two inconsistent stands. At one place he has stated that he sent the rent for these months to the sons of Mst. Muhammadi Begum by money order but in the same breath, contradicting himself he has stated that the rent for these months was paid by him to Mst. Muhammadi Begum herself during period of her sickness. Again as has been admitted on his behalf that Mst. Muhammadi Begum was not, alive during the said period of January, 1980 to April, 1980, as she had expired on 17-8-1979. The appellant A calims to have relationship with Mst. Muhammadi Begum and hence with the respondents. I.t has come on record that Sajjad Ali son of Mst. Muhammadi Begum had died, before her. As such the qeustion of sending the rent for months of Janitrary, 1980 to April, 1980 to him by money order did not arise. Moreover,' none of the money order coupons produced by the appellant is addressed to either Sajjad All or Sultan Ali, the sons of Mst. Muhammadi Begum. In all seven coupons are brought on record. They relate to the period between February, 1980 to August, 1980. They are all addressed to Mst. Muhatmadi Begum. When it was within the knowledge of the appellant that she was not alive how then he sent these money orders to her. Moreover, in 1980 the Sind Rented Premises Ordinance, 1979 was in force. As provided in section 10(2),0 the said Ordinance rent shall, as far as may be, be paid to the landlord. In case of his refusal or if he avoids to accept the rent, then it can be remitted either by money order or by depositing in Court. There is absolutely no evidence that during her lifetime Mst. Muhammadi Begum refused or avoided to accept the rent. On the contrary the appellant's plea is that he continued paying her rent even during the period of her illness though she could not issue receipts for the, payment. How then he sent the rent to her by above money order coupons, has not been clarified. Thus the case of the appellant stands further falsified. In absence of the evidence of landlady's refusal or refusal of her heirs namely the respondents, the sending of rent by the appellant by money order or by depositing the same in Court was obviously not valid tender. Consequently even if it believed that he had sent the rent by money order or deposited it in Court, he cannot be held to have discharged his liability of payment of the rent.
8. ' It is not denied that after the death of the original owner of the disputed premises the appellant was served with the notice whereby he was called upon to clear the rent arrears of ten months (January, 1980 to October, 1.980) within seven days and vacate the disputed premises within two months, as the same was needed for the respondents' personal use. By, his reply, dated 2-12-1980, the appellant informed the respondents that he would continue to deposit the rent in Court until it was decided by Court as to which of them was entitled to collect the rent. As for vacating of the premises he told them that Mst. Muhammadi Begum was his relative and she had never expressed her desire that he should vacate premises. It was thus clear that even though. As required by law the appellant was served with the notice intimating him about the change of ownership of the demised premises, he remained indifferent as he neither cleared the rent arrears specified in the notice nor vacated the premises a,s desired by the respondents. In the earlier part of his reply the appellant stated that on several occasions he had sent the rent by money orders first to Sajjad Ali, Mst. Muhammadi Begum's son and after his death to her other son . Sultan All but the same were refused and thereafter he started depositng the rent in Court. As has been pointed out above, the only money order coupons produced by the appellant in support of his plea indicate that they were all addressed to Mst. Muhammadi Begum. He has failed to prove that he had ever sent the rent by money order either to Sajjad Ali or Sultan Ali. Moreover, under the Rent Ordinance, 1979 he could resort to sending the rent by money 'order only after the landlord had either refused or avoided to accept the same. There is nothing toC show that the appellant had first offered the rent to the respondents. His attitude reflected in his reply to the notice clearly indicates that he had no intention to pay rent to any of these respondents until the Court decided as to which of them is entitled to receive the rent. This by itself falsifies the appellant's earlier part of his reply that he had sent the rent to two sons of the deceased landlady by money orders.
9. No doubt As provided in section 18 of the above Ordinance the rent arrears due from the appellant and specified in the notice served on him were to be cleared within one month of the notice and not within seven days as required by the notice. However, it is an admitted position that the appellant has not paid the rent arrears to the respondents at all. Despite the notice served on him, the appellant has not cared to pay even the monthly rent to the respondents commencing from November, 1980 in which he was served with the notice. It is not disputed by the appellant that the respondents are heirs of the original deceased landlady. He could not withhold the payment of the rent to them on the plea that the Court should first decide as to which of the respondents was entitled to receive rent. There is nothing to show that for this purpose he has gone in Court or that the Court has authorised him to withhold payment of rent to the respondents. So far the respondents are concerned, as soon as the original landlady died they served the appellant with the notice asking him to pay the rent as specified in the notice. Since he has failed to make the payment in compliance of the notice, he is liable for the default. Accordingly the finding of the learned Rent Controller on the issue of default in payment of rent is erroneous and is hereby set aside.
10. ' As far the respondents' plea of personal requirement, the learned Rent Controller has decided it in favour of the respondents. In this connection the respondents' case as stated in the ejectment application is that disputed premises is needed for use of applicant No, 1 (i.e. Mr. Khurshid All Khan).
11. This is repeated in the notice, dated 24-11-1980 served on the appellant. However, in his written statement the appellant has contested this plea averring herein that all the respondents including respondent No,1 are living in their own bungalows which are in good condition and as such they are not homeless. In support of the respondents' plea of personal requirement two affidavits: one of Khurshid All Khan, one of the respondents and another of Syed Qamar Hussain have been filed.
12. Both of them have stated on oath that the disputed house is required for respondent Khurshid All Khan who has retired from Railway Service and has no house of his own. Although both of them have been subjected to cross-examination, yet nothing has been brought out from them to negative the plea of personal requirement. On the other hand apart from appellant Syed Ahmed Ali, his witness Syed Shakir Hussain and Syed Manzoor Hussain have filed thei affidavits. On perusal of their statements it would appear that it is denied that Khurshid All Khan respondent has retired from Railwa sevice and has no house of his own. All that has been stressed is that he permanently lives at Sukkur as he is employed in some hospital there' and, therefore, he does not need the disputed house at Karachi. Of course Khurshid All Khan has admitted that presently he is living at Sukkur but his temporary residence at Sukkur in connection with his service would not deprive him of his right to have the disputed hous vacated for his permanent abode. It was also contended on behalf oflH the appellant, that respondent Khurshid Ali Khan has not proved th agreement of other share-holders of the disputed house for using it for his residence. .The very fact that other respondents have joine him in filing the ejectment case in which ejectment is sought inter ali on the ground that it is required for respondent No,1 clearly show that they are agreeable to his living in the disputed house when it is vacated. Furthermore, the said respondent has been' authorised b other respondents to act as their attorney in the case. For above' reasons the learned Rent Controller has rightly decided the issue relating to personal requirement in favour of the respondents. Accordingly it is hereby maintained.
13. ' As a result of the above findings the appeal was dismissed.