Short questions for determination in this appeal under the provisions of Sindh Rented Premises Ordinance, 1979 (hereinafter called the Ordinance) are: firstly whether relationship of landlord and tenant exists between the parties; secondly whether the appellant committed a default in payment of rent after the service of statutory notice under section 18 of the Ordinance and thirdly whether the respondent requires the rented premises for his bona fide personal use and occupation in good faith.
2. Dispute between the parties relates to shop No.4 on City Survey No.2149/A, Katchery Road, Nawabshah. Appellant was the tenant of the previous landlord, namely, Qutubuddin from whom the demised premises were purchased by the respondent through a registered sale-deed dated 4-11-1993 for a consideration of Rs,1,00,000. On 24-11-1993 respondent through his counsel sent intimation of transfer of the premises in his favour to the appellant calling upon him to pay the rent at the rate of Rs.500 from the date of the transfer as he was paying rent to the previous owner at this rate. As this notice was not replied and the rent was not remitted respondent approached the Controller for eviction of the appellant on the grounds of default in payment of rent and bona fide personal requirement which ended in the impugned order, dated 4th July, 1996 directing eviction of the appellant from the rented premises.
3. When this appeal came up for preliminary hearing, a learned Judge of this Court ordered pre- admission notice to the respondent whereafter Mr. Raja Khan, learned counsel put in appearance on behalf of the respondent. Appeal was fixed for katcha peshi and hearing of stay application but by consent of both the learned counsel, it was heard on merits and judgment reserved.
4. From the evidence on record it is established that the respondent purchased the demised premises from the previous owner through a registered conveyance deed dated 4-11-1993 whereafter the Property Register Card maintained by City Survey Officer, Nawabshah was mutated in his favour. In the evidence factum of acquiring ownership by virtue of the sale-deed Exh.16 is not disputed but it is pleaded by the appellant that the previous owner had entered into an agreement of sale with him on 3-1-1993 for a consideration of Rs.1,50,000 and put him in possession of the demised premises and thus ownership rights in respect of the rented premises were conferred on him. Be that as it may, sale agreement between the parties which is not available on the record and instead a certified copy has been produced does not tend to show that after the execution of the alleged sale agreement landlord divested himself of his right and title to property or that tenant acquired the status of a landlord on the execution of this document. It was urged on behalf of the respondent that he has filed Suit No.127 of 1993 in the Civil Court at Nawabshali for the relief of specific performance against Qutubuddin to which the respondent has been impleaded as party at a subsequent stage but the date of the suit is not available on record. On a plain reading of the agreement of sale between the parties, I am considered view that it does not confer any right and title on the appellant as an owner and not liable to pay the rent as demanded of him. In the face of undisputed and unchallenged registered conveyance deed in favour of the respondent, appellant cannot be permitted to say that he had acquired title to the property or that he is holding possession of the premises under a valid document or that his occupation is protected under the provisions of section 53-A of the Transfer of Property Act.
5. This question came up for consideration before the Honourable Supreme Court in Province of Punjab through Education Secretary and another v. Mufti Abdul Ghani (PLD 1985 SC 1) when the apex Court held that in all ordinary cases if a tenant wishes to dispute the title of the person with whose permission he obtained the possession as tenant, he must first surrender the possession before doing so. To my mind respondent as successor of the previous landlord in law acquired all the rights and interest vested in the owner as landlord and thus the appellant is not entitled to withhold the payment of rent on flimsy ground raised by him.
5. A similar question arose in Kasim and another v. S. Rahim Shah (1990 SCM R 647) in which the rule laid down was as under:----- "Eviction application--Landlord acquired right of ownership in property through sale deed--Until sale-deed was cancelled and was out of field, landlord could claim to have stepped into shoes of previous owner, entitled to recover the rent--Even if agreement of sale was executed by previous owner in favour of tenant on a prior date before registered sale-deed, the registered sale deed would have precedence over the prior unregistered deed of agreement--Position would remain same till such time Civil Court passed decree against landlord in suit for specific performance pending in respect of property--Landlord, held was entitled to recover rent. "
7. Similar view was taken by the Supreme Court in Shamim Akhtar v. Muhammad Rashid (PLD 1989 SC 575) and Iqbal v. Rabia Bibi (PLD 1991 SC 242) which was affirmed and reiterated in Muhammad Rafiq v. Habib Bank Limited (1994 SCM R 1012). In the latest case Supreme Court observed as under:- ---- "We may point out that this Court had declined to allow tenants to place section 53-A of Transfer Property Act even in case, in which the landlords entered into agreement to sell the tenement to the tenants in absence of a clause in the sale agreement to the effect that relationship of that landlord and tenant ceased to exist and that the possession, of the tenant was that of a purchaser after execution of the sale agreement. "
8. In the latest case Tahir Hussain Malik v. Najma Rafi (1995 SCM R 1407) Supreme Court categorically observed that it is well-settled that the registered sale-deed has always precedence and preference over the prior unregistered agreement to sell. The respondent being successor-in- interest of the original landlord had stepped into the shoes of the previous landlady and after the issuance of notice under section 18 of the Ordinance was entitled to receive the rent from the petitioner and the tenant was obliged to pay the rent to her. By not paying the rent to the respondent the petitioner has rendered himself liable to action, the Supreme Court concluded.
9. On a careful assessm ent of the facts of this appeal I am of the determined view that relationship of landlord and tenant did not come to an end with the execution of an agreement of sale in favour of the appellant. Suffice to say there is no such clause in the said agreement. The right and interest, if any, in favour of the appellant is subject to the title and ownership acquired by the respondent by virtue of a registered sale-deed in his favour. The protection of section 53-A of Transfer of Property Act is thus not available to the appellant and the case set up on his behalf to this effect is completely misplaced and fallacious on the face of it. There is thus no escape from the conclusion that relationship of landlord and tenant was established between the parties by operation of law with the service of notice under section 18 of the Ordinance on the appellant.
10. Realising the weakness of the stand taken on behalf of the appellant, learned counsel attempted to confound the confusion by saying that the conveyance deed in favour of the respondent relates to a portion of a residential house which is a property different and distinct from the shop premises in dispute. I am not inclined to be swayed away by this unreasonable argument as the boundaries and dimensions of the property and its measurement undoubtedly justify the conclusion that the conveyance deed relates to the shop premises in occupation of the appellant.
Hollowness of the contention can be gathered from the circumstance that this plea was neither raised in the written objections nor in the application of impleading the respondent as party to the suit for specific performance. At any rate, no plea of fact to this effect having been raised appellant is estopped from questioning this issue at this stage.
11. As to the default in payment of rent after the service of statutory notice, defence of the appellant is worse. In the written objection he took the stand that by virtue of purchase of the demised premises he was not liable to pay the rent impliedly justifying the inference that no rent was paid to the respondent. Learned counsel for the appellant, however, took a turn by agitating that the rent payable to the previous landlord was Rs.300 per month whereas rent demanded by the respondent was at the rate of Rs.500 per month which could not be lawfully claimed. Appellant has utterly failed to show in the evidence that the rent payable to the previous landlord was Rs.300 per month. To the contrary copies of the earlier rent application filed by Qutubuddn against the appellant and legal notice requiring him to pay the arrears of rent evidently mention the rate of rent as Rs.500 per month. Exhs.20-A, 20-B and Exh.21 are a complete answer to the issue raised in an attempt to confuse the facts. Assuming without accepting the contention in order to demonstrate his bona fides appellant should have paid or remitted the rent at the rate of Rs.300 which admittedly was neither paid nor tendered. Admittedly no rent was paid before the launching of ejectment proceedings and even afterwards during the pendency thereof. Appellant, therefore, cannot resist the conclusion that he is a wilful defaulter in the payment of rent due.
12. Being fully conscious of the weakness of his case, learned counsel for appellant contended that in the absence of any agreement between the parties as~ to the date for payment of rent appellant would have been justified to pay rent for the month of November, 1993 up to 30th January as he was entitled to grace period of 60 days after the rent fall due in terms of section 15(2) (ii) of the Ordinance. Once again argument on the face of it is misconceived as only a period of 30 days is available to a tenant for payment of rent after the service of notice under section 18 of the Ordinance. I am fortified in this view by the judgments reported as Ramesh Lal v. Munohar Lal (1991 M LD 349), Salamat Jan v. Chotey Khan (1987 M LD 2971), National Bank of Pakistan v. United Distributors (1992 ALD 204) and Habib Jan v. Muhammad Aslam (1986 CLC 1878). On a plain reading of section 18 of the Ordinance, I am of the view that a tenant shall not be deemed to have defaulted in payment of rent in case he makes payment of rent due within 30 days of the receipt of statutory notice under section 18 of the Ordinance.
13. Lastly adverting to the issue of bona fide personal requirement of the rented premises by the respondent it may be observed that this plea of fact was not resisted in the written objections specifically. Without expressly disputing the requirement of the respondent for bona fide use and occupation in good faith to run his business as he had no other shop in the area appellant took the stand that since the respondent is not the owner of the property, the question of personal use does not arise. In his evidence respondent Sharafat Khan has reiterated his bona fide requirement of the premises for his own use and occupation as he has no other shop of his own. This statement of fact was notcontroverted during cross-examination except to the effect that the respondent is doing his typing work in a shop belonging to his wife for the last about 10-12I years. Respondent's case is further supported by Estate Broker Noor Badshah whose evidence has not been seriously controverted except that the respondent is doing work in his own shop. . This statement is the result of a mistake and confusion created during the cross-examination as admittedly respondent is carrying on his business in the shop belonging to his wife. In law property owned by the wife cannot be treated as property belonging to the husband. Both the persons are separate and independent individuals with right to hold, possess and acquire property. Right to avail of the demised premises cannot be denied to the respondent for the sole reason that he is carrying on his business in shop belonging to his wife. Trend of decisions by the superior Courts is to the effect that assertion or claim on oath by landlord if consistent with his averments in his application and not shaken in cross-examination or in rebuttal is sufficient to prove that his need is bona fide. Although no authority is needed for this proposition, a reference may be had to Jahangir Rustam Kakalia v.
State Bank of Pakistan (1992 SCM R 1296) and F.K. Irani & Co. v. Begum Feroz (1996 SCM R 1178). At any event there is no evidence in rebuttal of the assertion of the respondent that he needs the shop premises in dispute for his own use and occupation bona fide. In the absence of any evidence to the contrary, I am not inclined to interfere with the finding on this issue which is based on proper appreciation of evidence on record and in consonance with the settled principles of law.
14. For all these reasons, appeal is without any merit. It is accordingly dismissed with costs.
Appellant shall vacate the premises forthwith as he has not paid a single penny by way of rent to the respondent so far.