This appeal under section 21 of Sindh Rented Premises Ordinance, 1979 is directed against the judgment dated 15-1-1995 passed by the learned IIIrd Senior Civil Judge and Rent Controller, Karachi (South) in Rent Case No. 1843 of 1992 directing the ejectment of the appellants from the premises in question within 60 days.
2. Briefly stated the facts which lead to this appeal are that respondent Soofia Aftab filed ejectment case against the appellants on the grounds of default, personal need and impairing the utility of the premises, stating therein that she is owner of property bearing No. 936, Old No. 187/A-1, Excise Survey No.AK-13-B-11-S. 78-B, Alfalah Road, Bihar Colony, Tannery Road, Karachi and the opponents/appellants are the tenants in the said premises. It is also stated that the applicants previously filed Rent Case No-3017 of 1983 which was dismissed for want of title but subsequently she got a lease deed dated 25-4-1990 executed in her favour from the KMC. She served the opponents with notice under section 18 of the Sindh Rented Premises Ordinance, 1979 and requested for payment of arrears of rent at the rate of Rs.40 p.m. Plus Rs.6 p.m. Towards water charges, but the opponents failed to pay the same as such committed wilful default in payment of rent. It is also stated that the opponents, without the permission of the applicant, made alterations in the demised premises and thereby impaired its utility and value. She also stated that she is residing in the house of her mother-in-law as such she requires the case premises for her personal use as well as of her family and that she has no other house of her own in the District of Karachi.
3. The opponents/appellants filed their written statement denying the averments and assertions of the applicant and stated that notice under section 18 of Sindh Rented Premises Ordinance, 1979 was properly replied. They are statutory tenants in the case premises after the death of their father who was original tenant and that they are regularly depositing rent in Court as such no default is committed in payment of rent. They have denied the making of alteration in the premises. They also denied the personal bona fide need of the applicant/respondent and her family. They also denied the existence of relationship of landlord and tenant between the parties.
4. From the pleadings of the parties, the learned Rent Controller, framed and determined the following points, while passing the impugned order:---
(1) Whether there exists relationship of landlord and tenant between the parties?
(2) Whether the opponent is wilful defaulter in payment of rent?
(3) Whether the applicant required the premises for her personal bona fide use?
(4) What should the order be'
5. The applicant filed affidavit-in-evidence of her husband/attorney Akhlaq Hussain Qureshi alongwith documents marks-A to L; while the opponent Mubarik Hussain Shah filed his affidavit-in- evidence alongwith documents Exhs.O/1 to 12; and also filed affidavits-in-evidence of his witnesses Rana Anwar Ahmed and Nawaz.
6. That the learned Rent Controller after hearing the parties, determined the above issues in favour of the applicant and directed the ejectment of the appellants/opponents as mentioned above, as the plea of impairing the utility of the premises was not pressed. Hence this appeal.
7. I have heard the arguments of Mr. Feroz Khan the learned Advocate for the appellants and Mr. Akhlaq Hussain Qureshi, the attorney and husband of the respondent and have minutely examined the record of the case.
8. Mr. Feroz Khan, the learned counsel for the appellants contended that the attorney of the applicant who is advocate by profession was the advocate of previous owner Aziz Khan and he by playing fraud got the property in question transferred in his wife's name, as such she is not the owner of the case premises and as such there exists no relationship of landlord and tenant between the parties. He also argued that since the appellants were already depositing the rent of the premises in other rent case; and after the tentative rent order passed in the instant case, they started depositing the rent in compliance of the said Order. In view of the above position, the appellants have not committed any default. On the point of personal bona fide need of the applicant and her family, the learned counsel argued that the applicant is already residing in a double--storeyed building with her family and mother-in-law, which is owned by her husband as such the need is not bona fide. In the end he submits that the ejectment case deserves dismissal with costs, as she failed to prove her case. In support of his contentions he cited Dr. A.R. Khan v.
Muhammad Ishaque 1972 SCM R 437.
9. In reply to the above contentions Mr. Akhlaq Hussain argued that the tenants have no right to dispute the title of the landlord as to how he got it and in whatever manner he got it. He submitted that admittedly the father of the appellants was tenant in the case premises and after his death they stepped into the shoes of their predecessor, as such they became the tenants in the case premises. He further argued that previously rent was being paid to the previous owner from whom the applicant has got the property as such the applicant/respondent became landlord of the appellants who are tenants in the case premises hence the relationship of landlord and tenant does exist in-between the parties. On the point of default Mr. Akhlaq Hussain argued that after service of notice under section 18, Sindh Rented Premises Ordinance, 1979 the appellants sent its evasive reply but failed to pay or tender monthly rent within 30 days on receipt of the notice, as such clear default was committed and the learned Rent Controller rightly decided the issue against the appellants. On the point of personal need, it was argued that the house in which the applicant alongwith her family is residing belongs to her mother-in-law, in which her two other sons apart from the husband of the applicant, with their families are living. In the end he argued that the learned Rent Controller has passed the impugned order, which does not call for interference by this Hon'ble Court, and the instant appeal merits dismissal.
10. I have considered the arguments of both the sides and minutely examined the facts and circumstances of the case. Since the appellants admitted that their father was tenant in the case premises and after his death they became the 'tenants in it, as such they have no right to deny the title of the present applicant who got it from the previous owner and more over she got the lease deed executed in her name from the KMC. In view of this position there is no doubt that the applicant is not the owner of the case premises. Admittedly notice under section 18, Sindh Rented Premises Ordinance was sent to the appellants , who also replied it. I am clear in my mind that there exists relationship of landlord and tenant in-between the parties, and the learned Rent Controller rightly held so. As regards default in payment of rent is concerned, it is admitted position that when the notice under section 18 of Sindh Rented Premises Ordinance, 1979 was served the appellants were already depositing the rent in Miscellaneous Rent Case in the Court of Rent Controller, and after the rent order was passed, they started depositing the rent in this case. In view of this position I am of the view that the appellants have not committed any wilful default in payment of rent. As they are absolved of the same, after the rent is being deposited in Court. Hence the finding of the Rent Controller on the point of default is reversed. So far plea of personal bona fide need is concerned, it is a legal position that against a false plea, the rights of the tenant are protected under section 15-A of Sindh Rented Premises Ordinance, 1979 which reads as under:--- "S.15-A.---Where the landlord, who has obtained the possession of a building under section 14, or premises under clause (vii) of section 15, relates, the building or premises to any person other than the previous tenant or puts it to a use other than personal use within one year of such possession--
(i) he shall be punished with fine which shall not exceed one year's rent of the building or the premises as the case may be, payable immediately before the possession was so obtained.
(ii) The tenant who has been evicted may apply to the Controller for an order directing that he shall be restored to possession of the building or premises, as the case may be, and the Controller shall make an order accordingly.
The cumulative effect of the above findings is that the appeal is dismissed and the ejectment order is maintained on the ground of personal bona fide need of the applicant. The parties shall bear their own costs. The appellants are given 120 days from today to vacate the case premises and to put the respondent/applicant in vacant possession of the same subject to the deposit of rent in terms of the Rent Order, failing wherein the Rent Controller shall directly issue writ of possession, without prior notice to the opponent/ appellants in the case.