1. ' This is an appeal under section 21 of Sindh Rented Premises Ordinance, 1979 (hereinafter called Rent Ordinance) directed against an order dated 31-5-1995 passed by Senior Civil Judge/Controller No,VII, South Karachi in Rent Case No,1700 of 1994 Akhtar Ahmed and another v.
2. Muhammad Saeed whereby an application under section 15 of Rent Ordinance filed by respondents was allowed and the appellant was ordered to hand over the vacant possession of shop premises No,2 to the respondents within sixty days, hence this appeal.
3. ' Brief facts of the case are that the respondents filed an application under section 15 of Rent Ordinance stating therein that they were owners and landlord of building on Plot No,61, Ghulam Hussain Hidayatullah Colony, Jehangir Pathangi Road, Karachi, while opponent was tenant in respect of Shop No,2 at the monthly rent of Rs.150 which building, on the said plot was raised without any plan as the property was neither regularized nor lease was granted by KMC and on the said property four small shops and a temporary residential room were constructed. However, after the death of respondents' father, lease was granted by KMC to the respondents whereafter they asked the appellant to vacate the shop in dispute so as to enable the respondents to get the plan approved and to re-erect the building for their residence but the appellant refused to do so, hence the respondents filed the ejectment application against the appellant on the ground of personal requirement as the respondent No,2's wife Mst. Kaniz Fatima was heart patient who could not climb staircase and further that the respondents have obtained necessary sanction from competent authority for constructing residential premises. The appellant filed written statement stating therein that the respondents were not the landlords of the Shop No,2 as the appellant was put into possession of the said shop by Muhammad Ibrahim, father of respondents in December, 1971 as per agreement on the monthly rent of Rs.100 on receipt of Rs.1,500 as fixed deposit which rent was increased to Rs.125 per month which he was paying to said Muhammad Ibrahim who issued rent receipt of December, 1980, however, said Muhammad Ibrahim avoided to receive rent, consequently, he deposited rent in MRC No,794 of 1981 at the rate of Rs.150 from January, 1981 where he has been depositing rent. It is further stated by the appellant that the respondents have neither served him with the intimation as required by section 18 of Rent Ordinance about the change of ownership by way of inheritance nor claimed rent nor he paid rent to the respondents. He further submitted that the appellant was not the tenant of respondents.
4. ' On the pleadings of parties, Rent Controller struck two issues viz:
(i) Whether there existed relationship of landlord and tenant between the parties?
(ii) Whether the premises in question are required by the applicants in good faith?
5. ' The respondent No,1 filed his affidavit in evidence and produced photo copies of building plan, NOC to the proposed building plan, photo copy of letter with regard to permission to carry out the construction, photo copy of lease executed between Directorate of Katchi Abadi and the respondents, photo copy of the application for withdrawal of rent. The appellant filed his own affidavit in evidence and produced photo copies of tenancy agreement between appellant and deceased father of respondent and three rent receipts issued by the father of the respondents and receipt with regard to deposit of rent of Rs.1,500, two receipts with regard to deposit in the Office of Rent Controller.
6. ' The deponents who filed affidavits in evidence were cross-examined by respective adversary counsel and after recording of above evidence and hearing counsel for parties, impugned judgment was passed.
7. ' The only contention of the learned counsel for appellant is that the appellant is not the tenant of respondents as he was put into possession of the demised shop premises by the father of the respondents which plot then was not leased out to him but was leased out to the respondents after the death of their father by the Katchi Abadi and the grant of lease in favour of respondents would not create tenancy between appellant and the respondents and the tenancy between appellant and the respondent's deceased father could not be said to have been passed on in favour of respondents under the law.
8. ' Counsel for respondents has argued that admittedly the appellant was put into possession of the demised shop by the father of the respondents to whom he was paying rent and after death of their father, the appellant cannot be permitted in law to deny tenancy of the respondents in respect of shop premises. He further submitted that even after the death of the father of the respondents, the appellant has been depositing rent in the office of Rent Controller in the name of respondents' father which amount was withdrawn by the respondents. He further submitted that filing of the eViction application would amount to intimation under section 18 of Rent Ordinance. He has placed reliance upon Ghulam Samdani v. Abdul Hameed (1992 SCM R 1170) and Wali Muhammad v. Mukhtar Hussain (1991 SCM R 224) in support of his contentions.
9. ' The contention of learned counsel for appellant has no substance and merit: The appellant in the written statement has admitted that he was put into possession by the father of the respondents and he was paying rent to him but thereafter he started deposit of rent in Miscellaneous Rent Application No,794 of 1991 from January, 1981. The appellant has also in the affidavit in evidence in para 2, reiterated that he was put into possession of shop built on an unauthorised premises by Muhammad Ibrahim, father of the respondents, sometimes in December 1971 as per agreement at monthly rent of Rs.100 with Rs.1,500 fixed deposit, rate of rent was ultimately increased to RS.150. He in the cross-examination has deposed:-- ' "I am tenant since last 20 years. Premises in question was let out to me by Mr. Muhammad Ibrahim father of the applicants. I have paid rent to the father of present applicant up to 1989 thereafter I have started depositing rent in the Court."
10. ' Ghulam Samdani's case (1992 SCM R 1170) it has been observed at page 1173:-- ' "The respondent's case is that he is a tenant of Mst. Zainab Bibi and that on her death he had been depositing rent in the office of the Rent Controller. He has disputed the title of Mst. Zartaj Siddiqui transferor of the appellant. As narrated above, all the heirs of Mst. Zainab Bibi have admitted the title of Mst. Zartaj Siddiqui and the decree passed in her favour has attained finality as none of the other heirs who were defendants in Case No,201 of 1980 have challenged the same decree uptil now. The application filed by the respondent under section 12(2), C.P.C. Shall be considered on its own merits but prima facie, as he is not claiming any title in the suit house, the chances of its success do not appear to be bright. Anyhow Mst. Zartaj Siddiqui besides the decree of exclusive ownership in her favour, is also the daughter and heir of Mst. Zainab Bibi and Din Muhammad is by operation of law one of the landlords of the suit house and the respondent only a tenant under her and liable to eviction on the application of appellant who is the successor-in-interest of Mst. Zartaj Siddiqui being a transferee from her. The relationship of landlord and tenant is thus established between the appellant and the respondent and rightly held so by the Rent Controller vide his order, dated 24-1-1985. The learned High Court omitted to consider that Mst. Zartaj Siddiqui, besides being armed with a decree of ownership, was also the heir of Mst. Zainab Bibi and was included in the category of landlord. No independent evidence as required of her to establish that the respondent was inducted by her as a tenant because the respondent, on his own showing, is in occupation of the suit house since the time of his father under Mst. Zainab Bibi. The findings of the learned High Court are, therefore, not legally sustainable."
11. In the instant case, the plea of the appellant is also same that because he was put into possession by the father of respondents and not by the respondents themselves, therefore, he could not be treated as tenant of the respondents. The similar plea was taken in the cited case, wherein it was held that no independent evidence would be required to establish that appellant/tenant was inducted by the respondents as tenant as the appellant was admittedly put into possession by the father of the respondents whom the appellant was paying rent as per terms of agreement, copy of which has been filed, so also rent receipts and, thereafter, the appellant has been depositing rent in the office of Rent Controller. The above-cited case is on all fours to the facts of instant case. In the circumstances, the appellant's contention that he was not the tenant of the respondents has no merit and substance. Admittedly, appellant has also deposed that he has not paid rent to the respondents and was depositing in Court. In the above-cited case, their Lordships further observed at page 1174:-- ' "It is by now well-settled that if a tenant denies the relationship of landlord and tenant he is liable to eviction straightaway without recording of evidence on the other allegations of default, damage to property and personal need because default in payment of rent is conceded by the tenant himself. In the case in hand, no doubt, the tenant/respondent alleges deposit of rent in Court but obviously there was no justification for him to resort to this device when he came to know of the decree in favour of Mst. Zartaj Siddiqui in the earlier proceedings and the transfer of ownership rights by her in favour of the appellant, whereafter he was bound to attorn to Mst. Zartaj Siddiqui and later on to the appellant and tender rent to them and in case of their denial to receive the same to pay it in the office of Rent Controller in their names.The deposit of rent before the Rent Controller in this case cannot exonerate him from the liability of paying rent at the relevant time to Mst. Zartaj Siddiqui and thereafter to the appellant after its purchase."
12. In the instant case, also the appellant has stated that he has deposited rent in the office of Rent Controller in the name of deceased landlord, father of respondents but said deposit of rent would not exonerate his liability to make payment of rent to the respondents.
13. ' In Wali Muhammad's case (1991 SCM R.224) the similar question arose for adjudication before the Court wherein tenancy was denied on the ground that the person filing ejectment application was owner but not landlord wherein their Lordships of Supreme Court held that the landlords'have purchased the house from the former owner and the appellant/tenant had not denied that the former owner was not his landlord therefore the person filing ejectment application viz. Respondents would be landlord within the meaning of Cantonments Rent Restriction Act.
14. In the instant case, also admittedly the respondents have got registered lease deed in their favour in respect of disputed plot of which a Shop No,2 is a part, therefore, the appellant cannot deny that the he was not the tenant of the successors-in-interest of the previous landlord Muhammad Ibrahim.
15. So far the personal requirement in good faith of the shop premises by the respondent, the same has not been challenged before me by the appellant, considering also the evidence adduced by the respondent, which could not be shaken in the cross-examination, consequently, personal requirement of shop premises in good faith stood proved.
16. ' In the circumstances, I do not find merit and substance in the appeal which is hereby dismissed.
17. However, two months' time is given to the appellant to vacate the premises subject to his deposit of rent in the office of Rent Controller.