1. ' This appeal, under section 21 of the Sindh Rented Premises Ordinance, 1979, hereinafter called the Ordinance, is directed against the order dated 15-1-1991, passed by the then learned Rent Controller, Karachi (South), in Rent Case No,1502 of 1989, whereby he directed the appellant to hand over vacant possession of the premises in question to the respondents within 30 days from the date of said order. The facts relevant for decision of this appeal are as follows:-- ' The respondents had filed eviction application against the appellant on 23-10-1989 on the ground of default in payment of rent, impairing materially value and utility of the premises, and bona fide personal requirement. The case of the respondents is that they are the owners of the premises admeasuring 784 sq. Yds. Together with ground plus one storey construction thereon, situate on Plot No,R.B.9/1 Tirathdas Road, Karachi, which they have purchased from its previous owner namely, Fozia Naqi, through Registered Sale-Deed dated 7-6-1989 and the appellant is a tenant in respect of tenement No,23-A and B of the said building at a monthly rent of Rs,20, payable before 10th of every calendar month. In all there were 45 tenants in said building. It is alleged that, after purchasing said property the respondents sent, a notice dated 12th June, 1989 to the appellant, under section 18 of the Ordinance, informing, him about the change of ownership. According to them, the appellant declined to accept said notice. It is averred in the application that the appellant is a tenant in the premises in question since May 1977 and he had paid rent to previous owner only upto July, 1978. They have claimed that previous owner had authorised them to recover arrears of rent from the appellant. According to them, the appellant committed default by not paying them rent for the months of June, July and August, 1989, and onwards. They have alleged that the appellant has materially impaired value and utility of the premises. According to them, the premises in question is commercial and they require it for personal bona fide use of respondent Muhammad Iqbal. The appellant, in written reply, resisted the claim of the respondents. According to him, he is in the premises as a tenant for .More than 28 years and M/s. Haridas Lalji are its owner.
2. He stated that his aforesaid landlords used to collect rent in lump sum and money orders sent by him to them on 9-2-1976 had come back undelivered and thereafter, he started depositing rent in Court in Misc. Rent Case No,1092 of 1976, which he is doing since then. He also stated that, on 4th January, 1989 he deposited rent in advance for 12 months i,e, from January to December, 1989. He has taken a plea that there is no relationship of landlord and tenant between him and the respondents. According to him, he had never paid rent to previous owner namely, Mst. Fozia Naqi.
3. He has denied to have impaired materially value and utility of the premises and asserted that the respondents do not require the premises for their personal bona fide use.
4. ' Respondent Muhammad Iqbal filed his affidavit-in-evidence as co-owner and attorney of the other respondents. The appellant filed his affidavitin-evidence and that of his witness Kaleem Shah.
5. They all were cross-examined.
6. ' Learned Rent Controller settled the following issues:--
(1) Whether opponent has committed default in payment of rent?
(2) Whether opponent has carried the addition, and alteration in the disputed shop without permission of the applicant No,3.
(3) Whether applicants require the disputed shop for their own business?
(4) What should the decree be?
7. ' On assessm ent of evidence brought on record, learned Rent Controller decided Issues Nos.1, 2 and 3 in affirmative and consequently she allowed the eviction application by the order, which has been impugned in this appeal.
8. ' It is contended on behalf of the appellant that learned Rent Controller has misread the evidence and wrongly drawn the conclusion that there was relationship of landlord and tenant between the parties. Learned counsel for the appellant also argued that finding of Rent Controller, on the point of default, is incorrect and contrary to the material available on record. Also, it has been argued that findings of learned Rent Controller on the points of impairing materially value and utility of the premises and personal bona fide use are not in consonance with the evidence adduced by the parties.
9. ' Above contentions have no force. Conveyance deed dated 7th June, 1989, is available on record and shows that the premises was purchased by the respondents from the previous owner named earlier. The authenticity of this conveyance deed is not challenged. The appellant, in his affidavit- in-evidence, has himself stated that he had sent rent for the year 1990 to the respondents. This being the admitted position, now, it cannot be said that there is no relationship of landlord and tenant between the parties. Accordingly, I hold that the appellant is a tenant of the respondents.
10. ' The respondents, in eviction application as well as in affidavit-inevidence of Muhammad Iqbal, have stated that on 12th June, 1989 they had sent a notice, under section 18 of the Ordinance, to the appellant informing him about the change of ownership. The envelope containing said notice is on record and bears endorsement as "refused". The correctness of address given on this registered envelope is not challenged. The presumption, therefore, would be that, in ordinary course of business, it must have reached its destination. Besides, also on record is a letter of Chief Post Master, Karachi, (Exh.A/4), showing that the addressee of said envelope had declined to accept it.
11. The authenticity of this letter is also not challenged but only it is alleged that it was obtained improperly which assertion was vehemently denied by the respondents witness in his cross- examination. Additionally, the appellant in his Misc. R.C. No,127 of 1990 filed in Court on 18-1-1990, stated that the respondents were the owners of the premises and they purchased it on 7-6-1989.
12. This provides ample proof that the appellant had knowledge that the premises was purchased by the respondents. Even he was aware about the exact date of purchase. Therefore, the conclusion, would be that it was in the knowledge of the appellant that the respondents were the owners of the premises and this information he had before 19-11-1989, when he had filed written reply. In context to above discussion, now, it is to be resolved if the appellant is a defaulter or not. In cross- examination, the appellant clearly admitted that even after receiving the notice from Court he had not paid rent to the respondents. He started depositing rent, showing the respondent as owners on 18-1-1990. Thus, it is evident that rent from 7-6-1989 till filing the eviction application was not paid by the appellant to respondents, although he had knowledge about the change of ownership, and, in fact, already had attorned to new ownership. The default is clear and wilful and no exception can be taken to the finding of learned Rent Controller on this point. The plea of the appellant that he had deposited rent for the entire year of 1989 on 4-1-1989 is of significance for the reason that admittedly he had not paid rent to the previous owner namely Mst. Fozia Naqi and nor applied for adjustment of rent before the Rent Controller for the period from June, 1989 to October, 1989 towards the rent account of the respondents. The rent paid by him earlier, if any, must have gone to the previous owners. The fact that he deposited the rent for the respondents on 18-1-1990 shows that earlier deposits were meant for previous owners only.
13. ' From the evidence brought on record, it is not proved that the appellant had impaired materially value and utility of the premises. Necessary details in this respect have neither been furnished in the eviction application and nor in the concerned affidavit-in-evidence. Learned Rent Controller, on this point, recorded his finding in affirmative on the basis of cross-examination of appellant, wherein, he stated that there was already half construction standing on the open space and he constructed roof thereon. He specifically stated that he had not raised any new construction. There is no evidence on record to show when said roof was constructed. The possibility that said roof may have been constructed, during the time of previous owner, cannot be ruled out and nor there is evidence to show when said half construction was raised. So the finding of learned Rent Controller on this point is reversed.
14. ' On the ground of personal bona fide use, the respondents stated that the premises in question is commercial and the same is required for personal bona fide use of one of them namely Muhammad Iqbal, who in cross-examination on this point, deposed that he was not doing any job.
15. He denied the suggestion of appellant that he alongwith his four brothers was doing business jointly. He maintained that since beginning all his brothers were doing business separately. From his evidence, it is clear that he requires the premises for his personal bona fide use. His evidence was challenged on the ground that the tenements 13 and 14-A of said building were lying vacant and he could use either of the above tenements for doing his business. Once it is established that c landlord requires the premises for his own use, then it is his prerogative and not suggestion or desire of the tenant, which would prevail. Learned counsel for the respondents on this point cited (1)
16. 1988 SCM R 819 Qameruddin through his Legal Heirs v. Hakim Maimood Khan, (2) 1989 SCM R 538 Bashir Ahmed v. Muhammad Shafi. The ratio of the first case is that if the statement of the landlord is not rebutted by convincing evidence, the plea of personal requirement would succeed. In the second case, it was held that the landlord is the best judge of his need. The principles laid down in these cases are attracted to the circumstances of this case. The finding of learned Rent Controller on this point is also correct.
17. ' In consequence, I do not find any merit in this appeal and the same is dismissed with no order as to costs. The appellant, however, is given 4 months time from now for handing over vacant possession of the premises in question to the respondents.