1. This is an appeal under section 21 of the Sindh Rented Premises Ordinance (hereinafter to be called Rented Ordinance) against the order dated 21-3-1994 passed by the learned III Senior Civil Judge and Rent Controller Hyderabad in Rent Application No.213 of 1989 (Imamuddin v Rais Ahmed) whereby ejectment application filed by respondent/landlord was allowed and the appellant/tenant was directed to hand over the vacant possession of the shop constructed on Commercial Plot No.277/C, Unit No. 11, Latifabad Hyderabad to respondent/landlord within two months, hence, the present appeal.
2. The brief facts of the case are that respondent/landlord filed eviction application under section 15 of the Rented Ordinance against the appellant/tenant on 5-9-1989 on the ground that the latter has materially impaired the value and utility of the shop in question by removing sunshed, closing the Varanda and by making addition and alteration in the said shop and on the ground that the respondent/landlord needed the said shop for his personal bona fide use in good faith. The appellant/tenant filed written statement wherein he denied to have caused any damage or have materially impaired the value and utility of the shop in question and further that the need of the respondent/landlord was not bona fide one. The appellant/tenant also raised the plea that the respondent/landlord was not the owner of the shop premises therefore he would not be entitled to seek his eviction on the ground of personal need.
3. On the pleadings of the parties the Rent Controller settled the following issues:---
(1) Whether the applicant is the owner and the landlord of the rented shop?
(2) Whether the shop is required by the applicant for his personal bona fide use in good faith?
(3) Whether the opponent had made any addition and alteration in the rented shop which impaired the utility of the shop?
4. What should the order be?
4. The respondent/landlord in support of his case filed his affidavit in evidence Exh.15 and has produced the Declaration/Statement of Alimuddin as Exh.16, tenancy agreement Exh.17, registered postal receipt Exh.18, notice sent to appellant/tenant Exh.19, acknowledgement due Exh.19/A and also filed affidavit in evidence of Muhammad Aslam Exh.20 and filed affidavit in evidence of Muhammad Hafeez Exh.21, affidavit in evidence of Alimuddin as Exh.23 as per Exh.36 respondent/landlord closed his side. The appellant/tenant filed his affidavit in evidence as Exh.37.
5. I have heard Mr. Raja Khan learned counsel for the appellant and Mr. Aftab Ahmed Shaikh learned counsel for the respondent.
6. The main first and last contention of Mr. Raja Khan learned counsel for the appellant is that respondent Imamuddin is landlord but was not owner of the shop in question therefore he was not entitled to seek the eviction of the appellant/tenant on the ground of personal requirement therefore the findings of the Rent Controller are erroneous, illegal and not based on proper appreciation of evidence on record. He has referred to section 2(f) and (g) of the Rented Ordinance and has placed reliance upon State Life Insurance Corporation of Pakistan v. S.U.
7. Durrant and another PLD 1987 Karachi 588, Manzoor Ahmed Sahi v. P & T Cooperative Housing Society Ltd., Karachi PLD 1962 Karachi 476, Noor Ahmed and another v. Khawaja Imran Ahmed 1988 CLC 1041, Mst. Zohra Bai and another v. Messrs Standard Industries Ltd. Through Managing Director PLD 1994 Karachi 209, Mst. Khursheed v. Abdul Aziz 1986 MLD 933, Muhammad Kashif-Kamal Siddiqui v. Mirza Farooq Baig 1990 MLD 1009, Abdul Khaliq and another v. Muhammad Siddique 1992 ALD 111, Sh. Muhammad Khalid v. Fakhruddin 1992 CLC 2307, Muhammad Nasaeruddin v. Mst.
8. Hashmat Bibi PLD 1993 Karachi 300, M. Ijaz Khan v. Mrs. Shahida Iqbal 1994 CLC 932 in support of his contentions.
9. Mr. Aftab Ahmed Shaikh learned counsel for the respondent has argued that the appellant/tenant is estopped from challenging the title of the respondent/landlord in respect of his title over the shop in question as he has admitted respondent to be his owner and further that the appellant/tenant had been depositing rent in the office of Controller in the name of respondent as owner and landlord and further that the respondent/landlord also served him with a notice claiming himself to be the owner of the premises and further that Alimuddin the brother of respondent who is stated to be the owner of the premises by the appellant has himself before the Court admitted that the respondent to be the owner of the shop in question therefore, contention of the appellant/tenant that respondent was not owner has no substance and merit. He has referred to Article 115 of the Qanun-e-Shahadat and has also placed reliance upon Azmatullah Khan and others v. Gul Khan Ahmed Qureshi and others PLD 1995 Kararchi 52, Abdul Shakoor and another v. Messrs Abdul Razzaque Abdul Sattar, Jetpurwala PLD 1995 Karachi 179; Anvert Khandwala v. Shahzaman Khuto and another 1995 CLC 225 and Messrs United Impex and 3 others v. Fazal Ahmed PLD 1995 Karachi 147 in support of his contentions.
10. Mr. Raja Khan learned counsel for the appellant in reply argued that tenancy agreement would not confer any title of ownership upon the respondent and further that it was the duty of the landlord to prove title in respect of the property in question and the respondent/landlord cannot prove his case on the weaknesses of the appellant/tenant.
11. Exh.17 tenancy agreement, dated 27-4-1976 in para. No.1 runs:--- "Whereas the party of the first part is the sole and absolute owner of Commercial Plot No.277, Unit No.XI, Shah Latifabad, Hyderabad and constructed shops thereon, and let out a shop to the party No.2 on the monthly rent of Rs.90 (Rupees ninety only) on the following terms and conditions."- This agreement of tenancy has been executed between the parties. Appellant Raees Ahmed has admitted the respondent as sole and absolute owner of the property in question in Exh.17 and this document has not been denied by him. It is also clear from the record that none else except the respondent has made claim of ownership over the shop in question. The case of the appellant/tenant is that Alimuddin was his landlord and owner of the shop in question whereas Alimuddin in his affidavit Exh.23 in para. No.3 has stated that respondent was full owner of the shop in question. The appellant/tenant in the cross has stated: "It is correct to suggest that rent agreement between him and the applicant was executed in respect of the shop, I see Exh.17 it is same which was executed by the present applicant in the year 1976. Rent was Rs.240 per month------------I am depositing rent in Court since 1978. It is correct to suggest that I am depositing rent in the name of present applicant Imamuddin .... It is correct to suggest that Alimuddin also supplied me a copy of the stamp paper wherein one shop was given to the present applicant by him. I see Exh.16 it is same copy which was supplied to me by Alimuddin."
12. Article 115 runs:-- "No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof shall be permitted to deny that such person had a title to such possession at the time when such licence was given."
13. "The Controller shall make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in the order, if he satisfied that the landlord requires the premises in good faith for his own occupation or use for the occupation or use of his spouse or any of his children."
14. Here the word "landlord" would mean the owner of the premises as the Rent Collector through landlord would not be entitled to seek possession of the premises for his personal need. The Legislature has only allowed landlord who is owner of the premises to get eviction of a tenant if the said premises is required by him/her for his or her personal use or for the use of his spouse or his children. Here in this case admittedly as per evidence the respondent was landlord and owner therefore, the application would be maintainable. The contention of the counsel for the appellant has no merit and substance.
15. The cases cited by the learned counsel for the appellant are quite different and distinguishable to the facts of the instant case. No other plea has been raised before me. In the result the appeal has no merit and substance which is hereby dismissed with direction to the appellant/tenant to vacate the premises within sixty days and hand over the vacant possession of same to the respondent subject to condition that he would deposit the rent with the Rent Controller for the said period.