1. This first appeal is directed against the order dated 22-9-1993 passed by the learned II-Rent Controller, Karachi (South) whereby Rent Application No. 1271 of 1987 under section 15 of the Sindh Rented Premises Ordinance, 1979 (hereafter referred as the Ordinance, 1979) for ejectment was allowed and the appellants were directed to vacate and handover the vacant and peaceful possession of premises bearing Plot No.IR-4/70, Carry Street, Nishter Road, Karachi (hereafter referred to as the demised premises) within sixty days.
2. According to the respondent No. l they are owners/landlord of the demised premises having purchased the same from previous owner under a sale-- deed, registered on 23-6-1976. It is further stated in the rent application that originally one Dada s/o Vira was the tenant in respect of the demised premises and after his death the tenancy right devolved upon the appellants being his legal heirs. The appellants also filed Suit No.3677 of 1978 against the respondent No. l and the previous owners on the plea that they were the owners of the construction raised by them with the consent of the previous owner and they were also paying ground rent @ Rs.70 per month to the previous owners. According to the appellant the previous owners filed rent case against the appellant but the same was dismissed for non-prosecution. The respondent No. l also alleged that the appellant had full knowledge of the ownership of the respondent No. l but they failed to pay the rent and the demised premises are also required by the respondent No. l for carrying on their own business as there is no suitable place for that purpose.
3. The case of the appellants in their written statement was that their predecessor-in-interest late Dada s/o Vira was carrying on business of ship legging and painting business. Late Dada had raised pucca construction with the permission given by Abdul Hussain who was father of Hamza A.I, the previous owner and it was agreed that late Dada could pay only ground rent. Late Dada died in April, 1969 at the age of 90 years and his legal heirs are paying rent regularly. During lifetime of Dada Vira since the price of the land and structure in Karachi increased considerably; Hamza A.I-who is son of Late Abdul Hussain also made efforts to eject him and for that purpose he filed Rent Case No.3846 of 1967 Re. No.1436 of 1968 which was dismissed for non-prosecution. Thereafter Hamza A.I executed a sale-deed dated 23-6-1976 purporting the transfer to the respondent Plot No.IR-4/17 with structure thereon without any right therein. The heirs of late Dada Vira, therefore, filed Suit No.3677 of 1978 (Re. No.4509 of 1985) against Hamza A.I and the respondent in the Court of IV Civil Judge, Karachi South. The appellants, however, started depositing the ground rent in Court @ Rs.70 per month in Miscellaneous Rent Case No.2046 of 1971. The appellant took up the additional plea that the rent application was not maintainable. The learned Rent Controller settled the following issues:--- "(1) Whether the relationship of landlord and tenant exists between the parties?
(2) Whether opponents have failed to pay the rent to the applicant since the purchase of the property?
(3) Whether the property in question is required by the applicant in good faith and for their personal bona fide use?
(4) What should the order be?"
4. The respondent No. l filed affidavit-in-evidence of Haji Muhammad Yousuf whereas from the side of appellants their attorney Adam filed his affidavit-in-evidence. They were cross-examined by the learned Advocate. The learned Rent Controller allowed ejectment application hence this appeal.
5. I have heard learned counsel for the parties and also perused the record.
6. Learned counsel for the appellants submitted that the findings of the learned Rent Controller are erroneous and illegal as the sale-deed dated 23-6-1976 was not produced by the respondent No.1 and thus there was no document of title to establish that the said respondents are the landlords.
7. He also submitted that the learned Rent Controller misread the judgment and decree dated 14-10- 1991 passed by the learned IIIrd A.D.J., in Civil Appeal No. 122 of 1989. Likewise the findings of the learned Rent Controller on issues Nos. 2 and 3 are also erroneous. The appellants did not commit default in payment of rent and it was wrongfully held by the Rent Controller that the appellants had the knowledge of change of ownership. The respondents also failed to discharge their burden that the demised premises were required by them for their own occupation. In support of his submission the learned counsel cited Muhammad Jahangir and 6 others v. Rashid @ Sheeda and 2 others 1992 MLD 58, Pir Ghulam v. The State 1992 MLD 361, Major (Rtd.) A.S.K. Samad v. Lt.-Col. (Rtd.)
8. A. Hussain and another 1987 SCMR 1013, National Bank of Pakistan v. M/s. A.B.C. Chinese Restaurant 1987 MLD 625, Mrs. Shahnoor Fazal v. Ghulam Akber Mangi 1987 SCMR 2051, Messrs Fastern Express Co. Ltd., Karachi v. Tariq Ahmed PLD 1986 Karachi 84, Syed Anisur Rehman v. Mst. Sara Bai PLD 1985 Karachi 714, Inayat Ullah v. Perveen Akhtar 1985 CLC 1454 and Mst. Noorunissa v. Qamurul Huda 1988 CLC 1833.
9. Learned counsel for the respondent No.1 although had submitted that the appellants had the knowledge that the said respondent had purchased the demised premises from Hamza A.I and this fact was disclosed in their written statement, they had also the knowledge when notice of transfer was served; Therefore the conduct of the appellants was contumacious inasmuch as after the dismissal of their suit as well as appeal they did not pay the rent. On the point of personal requirement he submitted that the case of the appellants in their written statement and cross- examination is quite different, therefore, the case which was not pleaded could not be proved through evidence. The learned counsel further submitted that the appellants have not proved that the properties which are in possession of the respondent No. l are sufficient for them. According to the respondent the entire plot is needed to them for their business although it was pointed out by the learned counsel -for the appellants that use of the entire plot is not pleaded in the application.
10. So far the question of relationship of landlord and tenant between the parties is concerned, there is no denial of the fact that the appellants predecessor was inducted into that disputed premises as tenant. The plea that he subsequently raised construction and that the payment which he was making at the rate of Rs.70 per month was for the land only needed strict proof in which the burden equally lay on the appellants. In the appeal arising out of the suit filed by the appellants claiming ownership of the construction and seeking declaration that the sale-deed dated 23-6-1976 in respect of the property was of no legal effect, the learned Additional District Judge who decided it observed as under:--- "It is ordered that the appeal (as per judgment) is partly allowed to the extent that the appellants are declared to be the owners of the structure raised on plot in dispute and if the respondent/landlords file ejectment case against the appellants and succeeded in getting the eviction order, then the appellants will be at liberty to remove their structure raised by them on the plot in dispute."
11. The aforesaid order in appeal became final and no further step in that direction appears to have been taken by the appellants. It is thus evident that the status of the appellants in the premises was that of tenant and consequent upon the subsequent sale-deed dated 23-6-1976, they became the tenant of respondent No. l with the continuing liability to pay rent to them. In view of the order in the above-referred appeal, non-production of sale-deed was of no consequence. The finding of the Rent Controller regarding existence of relationship between landlord and tenant is not exceptionable.
12. On the point of default in the payment of rent, the admitted position is that no rent was paid after the sale of the disputed property to the respondent No. l It appears that the actual reason for not making this payment was not lack of knowledge about this transfer on the part of the appellants who were well---aware of it and also challenged it by filing the suit and appeal but their plea was that the sale was invalid and collusive. They could not succeed in their attempt to have the sale- deed cancelled as noted earlier in the order in their appeal. Their refusal to pay rent was thus without any valid excuse and they stood exposed to the consequence of the wilful default in the payment of rent. The conclusion of the learned Rent Controller on this issue also did not suffer from any error.
13. Coming now to issue of personal need as claimed by the respondent No. l I find from the evidence on record that the same has been established. If as, alleged by the appellants, there was another property suitable to their need owned by the respondent No. l it should have been proved. Similarly the allegation that the need of, the respondent was mala fide was also to be established by the appellants. In absence of any material coming from the side of the appellants to rebut the case of the respondent No. l the Rent Controller could not be said to have decided the issue of personal need contrary to law.
14. It consequence of what I have discussed above the appeal is without merit and is dismissed but the parties shall bear their Town cost However, the appellants are allowed 60 (sixty) days' time to vacate the demised premises.