1. ' This is tenant's appeal against an order of ejectment passed on 1-4-1990 by the IVth Senior Civil Judge and Rent Controller, Karachi East in Rent Case No, 2 of 1988.
2. ' Admittedly, appellants Muhammad Ashraf and Muhammad Amin, legal heirs of deceased Qasim are in possession of the shop in litigation bearing No,K/12, Block No,1, Main Bazar, Shah Faisal Colony, Karachi, belongs to respondent Aziz Baig. Aziz Baig had let out said shop to Qassim on 29-3-1976 under a rent agreement copy ExhA/4, on monthly rent of Rs,140. Said agreement was followed by another agreement dated 30-11-1983 copy EihA/7 between the respondent and Qassim by which said shop was again let out to Qassim on monthly rent of Rs,200 with Rs,1,000 as security deposit paid by Qassim to Aziz Baig. Said agreement was followed by another agreement dated 30-11-1984, by which same shop was let out to Qassim by Zamir Baig son of respondent Aziz Baig on monthly rent of Rs,200.
3. ' In 1986, Zamir Baig son of the respondent filed Rent Case No, 70/86 for eviction of Qassim from the shop in litigation on the grounds of default and bona fide personal requirement. Said rent application was contested by Qassim and ultimately it was dismissed under an order copy ExhA/11 dated 29-11-1987, by IVth Senior Civil Judge and Rent Controller, Karachi East,-who found that the ground of default in payment of rent was not proved while in respect of the ground of personal requirement the view taken was that clause (vii) of subsection (2) of section 15 of Sindh Rented Premises Ordinance envisaged requirement by the landlord or by his spouse or any of his children, but not his parents. The trial Court made an observation that if father of Zamir Baig returned to this country after his retirement, a fresh cause of action would accrue to him for filing the ejectment case. Aforesaid order dated 29-11-1987 was not challenged before any forum.
4. ' It was after all this, that the respondent filed Rent Case No,2 of 1988 for eviction of Qassim from the shop in litigation, on the grounds of default in payment of rent since July, 1985 and for bona fide personal requirement. During pendency of the rent case, Qassim expired and the appellants were brought on record as his legal representatives.
5. ' The rent case was contested by Qassim who in his written statement denied relationship of landlord and tenant existing between him and the respondent. He challenged maintainability of the rent application and jurisdiction of the trial Court. Qassim also pleaded that the rent case was in counterblast of the previous Rent Case No,70/86 filed by Zamir Baig, which was dismissed on 29- 11-1987. It was further stated in the written statement that the rent agreement in respect of the shop in litigation stood between Qassim and Zamir Baig, who was son of Aziz Baig. Both the grounds taken for eviction were controverted.
6. ' After recording evidence of the parties learned Rent Controller under the impugned order dated 1- 4-1990 ordered for eviction of the appellants, after holding that the respondent requires the premises in question for his personal bona fide use and so also for use of his son Zamir Baig. Hence this appeal.
7. ' In his written arguments Mr. Manohar Lal learned counsel for the appellant contended that in the tenancy agreement dated 30-11-1984 (copy ExhA/6) Zamir Baig had not mentioned if he was attorney of Rent Controller for Aziz Baig or if Aziz Baig was owner of the disputed shop, and as such it was Zamir Baig and not Aziz Baig, who was landlord of the appellants. Conversely it was contended that there was no rent agreement between the respondent and the appellants or their father Qassim and the previous rent agreements dated 29-3-1976 and 30-11-1983 between the respondent and Qassim stood superseded by the latest rent agreement dated 30-11-1984 between Zamir Baig and Qassim. In respect of the point of personal requirement, learned counsel for the respondent relied on the judgment copy ExhA/11 dated 29-11-1987 delivered in Rent Case No, 70/1986 and argued that no case of bona fide requirement was made out by evidence of Aziz Baig and Zamir. It was also argued that the respondent and his son had not examined any independent witness on the point of personal requirement.
8. ' Mr. Khajumal D. Ladhar, learned counsel for the respondent did not press the ground of default but stressed the ground of bona fide personal requirement by arguing that the respondent was jobless after his return to Pakistan from abroad and so also his son Zamir Baig who was not doing any job or business despite having attained complete know-how of repairing the Air-Conditioners, Refrigerators, and washing machines. It was further argued that both Aziz Baig and Zamir Baig had sworn affidavits in support of their plea that they required the disputed shop bona fidely for personal use. In respect of the issue about relationship of landlord and tenant between the parties, learned counsel for the respondent was of the view that since the respondent had proved through the Allotment Order copy ExhA/16 and the registered Lease Deed Copy DdiA/3 that he was owner of the shop in question, as such he was covered by the definition of 'landlord' as given in section 2(f) of Sindh Rented Premises Ordinance. In support learned counsel cited the cases of:--
(i) Muhammad Farooq Khan v. Sulaiman A.G. Panjwani and others (PLD 1977 Kar. 88).
(ii) Haider Raza v. MRs, Irum Ahmed (1986 CLC 343).
(iii) Ashfaque v. Mst. Begum Bibi alias Bego Bibi and another (1984 CLC 2587).
(iv) S..M. Hayat v. Commodore (Retd.) Ikramul Haq Malik and another (1984 CLC 3176).
(v) S. Moinul Hassan v. A.H. Junaid (1985 CLC 882).
9. ' Accordingly Qassim predecessor of the appellants was tenant of respondent Aziz Baig as per the tenancy agreement, copies Exhs.A/4 and A/7,. However, on 30-11-1984, the position completely changed. On said date a fresh tenancy agreement copy ExhA/6 came into existence by which predecessor of the appellants continued to remain in possession of the shop in litigation, as tenant of Zamir Baig son of Aziz Baig. In said tenancy agreement Zamir Baig claimed being exclusive owner and possessor of the disputed shop. Zamir Baig did not state in said agreement if he was acting as attorney of the respondent. He did not state in said agreement if he was appointed as rent collector. In other words a new relationship of landlord and tenant came into being, between Qassim predecessor of the appellants and Zamir Baig son of the respondent. In presence of the tenancy agreement (copy ExhA/6) the respondent cannot be considered to be landlord of Qassim or of his legal heiRs, ' The respondent tried to cover the mistake, of himself filing the rent case rather than asking his son Zamir Baig to do the same, by producing in evidence copy ExhA/16 of allotment order and copy ExhA/3 of a registered lease deed, both showing him to be allottee and lessee of the property in litigation. His counsel wanted him to be treated as landlord of the appellants, on the ground that he was covered by the definition of "landlord" given in clause (f) of section 2 of Sindh Rented Premises Ordinance. Said definition shows that any body who is owner of the premises and a person who is for the time being authorised or entitled to receive rent in respect of such premises, is a landlord.
10. The respondent may be owner of the shop in litigation but by virtue of his being owner of the same, he cannot be treated to be landlord of the appellants. Admittedly there is no privity of contract between the respondent and the appellants. The rent case was filed on the basis of tenancy agreement copy ExhA/6 to which neither the respondent was party nor the appellants were party.
11. Appellants are, however, bound by the said tenancy agreement being legal heirs of Qassim who was party to said agreement. However, if relationship of landlord and tenant was created by the agreement ExhA/6 that was between Qassim and Zamir Baig and not between Qassim and Aziz Beg. In the circumstances, it is clear that the relationship of landlord and tenant did not exist between the parties and as such the rent application merited dismissal.
12. ' The cases cited on behalf of the respondent do not help him. In the case of Haider Raza (1986 CLC 343) the parties who were separated from each other as husband and wife, entered into an agreement in writing, whereby the husband undertook to become tenant of his wife in the house raised by him on plot of his wife, and the amount spent on construction was to be adjusted towards rent up to a certain date, after which the husband was to pay rent if he continued to remain in the house and the view taken was that such document created tenancy between the parties. This is not a case of an agreement between a party in the case and a third party. In the cases of S. Moinul Hassan (1985 CLC 882) the view taken was that jurisdiction of the Rent Controller to decide the question of relationship of landlord and tenant was very limited, as he was not the regular Court to open up controversy relating to the title in the property and that a tenant was bound by initial agreement of tenancy. In the cited case, the tenant was inducted into the premises under an agreement in which the landlord was not described to be the sole and absolute owner of the premises and the tenant had been paying rent under the said agreement and no notice of change of ownership was given by any body to the tenant notifying any change of ownership of the premises and the view taken was that it was not open to the tenant to introduce imaginary ownership on the basis of some entries in records here and there. In the present case there was no change of ownership. Rather there was fresh tenancy agreement which was binding on the parties.
13. In the case of S.M. Hayat (1984 CLC 3176) the view taken was that where evidence about title has been led by the parties and title of the applicant has been established beyond any reasonable doubt, it was not required of the Rent Controller that he should have dismissed the rent case and referred the applicant to establish his title in a Civil Court. In the present case there was no doubt about the respondent being owner of the disputed premises but he was not party to the tenancy agreement copy ExhA/6 by virtue of which the appellants remained in possession of the disputed shop. In the case of Muhammad Farooq Khan (PLD 1977 Kar. 88), it was held that a document evidencing merely a record of past transaction and not containing terms, contract or bargain operating in praesenti would be a mere memorandum and would not require registration. None of these cases covers the instant case.
14. ' On the point of personal requirement there are affidavits of respondent Aziz Baig and his son Zamir Baig. Zamir Baig stated in his affidavit that he had acquired complete training in the field of repairs of refrigerators, air-conditioners and washing machines etc. For a period of three years with United Refrigerators, Karachi as per the certificate Exh.A/8 and that he was capable to run the business of repairs independently and hence he required the disputed shop, which was let out by the respondent to the appellants in the year 1976. Respondent in his affidavit stated that he had returned to Pakistan in the year 1979 after having served in Iraq and on return to Pakistan he moved Qassim to vacate the shop which was proposed to be used by the respondent for his own business.
15. Respondent produced copy ExhA/4 of a general power of attorney said to have been executed by him in favour of Zamir Baig. However, the tenancy agreement copy ExhA/6 does not show if Zamir Baig acted as attorney of the respondent while entering into said agreement with Qassim.
16. Respondent was subjected to a lengthy cross-examination. He stated in cross-examination that after construction of the disputed shop, he started his own business which went on for six years and then he rented out the shop to Rajab Ali, who remained his tenant for 1/1-2/2 years and subsequently there was agreement between him and Qassim in the year 1976. Respondent admitted that his last tenancy agreement with Qassim took place in the year 1981 and he produced photo copy of the agrtement as ExhA/7 which bears the date 30-11-1983. Respondent admitted that subsequently there was agreement of tenancy between his son and Qassim. He admitted that it was not written in ExhA/6 if Zamir Baig was his attorney or rent collector. Respondent further stated that there was agreement of tenancy between his son and Qassim for two or three times. He admitted that after execution of agreement dated 30-11-1984 viz, copy ExhA/6 Qassim had been paying rent to Zamir Baig. Respondent admitted that after his return to Pakistan from Dubai in the year 1986 Zamir Baig had filed Ejectment Case No, 70/86 against Qassim where Zamir Baig had claimed to be the owner and landlord of the disputed premises. Respondent admitted that Qassim had sent rent by money order to Zamir Baig, who accepted the same. He also admitted that since June, 1985, Qassim had been depositing rent in Court in the name of Zamir Baig. Respondent was not put a single question if he did not require the premises in litigation for bona fide personal requirement. Zamir Baig was not put a single question during his cross-examination, because on the day he was to be cross-examined, the Advocate for the appellant was not present. In this situation evidence of the respondent about his requirement of the premises in litigation for bona fide personal use, stands unchallenged. The point about requirement of the premises for bona fide personal use by the respondent, is not barred by the decision given in Rent Case No,70/86 because in such matters fresh circumstances can develop. Moreover evidence of the respondent is unshattered and it cannot be rebutted by word of Muhammad Ashraf that the shop in dispute was not required by the respondent for himself or for his son. The case of the respondent was put to appellant Muhammad Ashraf during his cross-examination but he denied such suggestions. The case of Ashfaque (1984 CLC 2587) does not cover this case as it was in respect of a residential house, where two rooms in possession of the landlady, having three sons and one daughter and grand-children were found to be insufficient.
17. ' The ground of bona fide personal requirement is proved but in absence of relationship of landlord and tenant between the parties, no order of eviction could have been passed.
18. ' Consequently this appeal stands accepted with costs and the impugned order is reversed and the case stands dismissed.