' The appellant is tenant in Shop No,2 on the ground floor of the premises bearing No,16-F, Commercial Area, Muhammad Ali Memorial Cooperative Housing Society, Karachi (hereinafter referred to as the tenement in question) whose eviction was ordered by the learned IIIrd Rent Controller, Karachi West vide impugned, dated 23-7-1998 passed in Rent Case No,710 of 1995 against which tenant/appellant has filed the instant appeal under section 21 of Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance, 1979).
2. On 4-9-1988, pre-admission notice was issued to respondent/landlord and in pursuance of the same, Mr. Ahmedullah Faruqui has appeared. I have heard both the learned counsel today as well as on previous dates of hearing. The eviction of the appellant/tenant was ordered on the ground of default during the period of previous landlord. Sheikh lqbal Ahmed. As many as five issues were framed by the learned Rent Controller all of which were answered in affirmative, consequently ordering eviction of the appellant/tenant. Following are the points for determination as settled by the learned Rent Controller:--
(1) Whether the applicant has purchased the building in question/demised premises?
(2) Whether the relationship of landlord and tenant came into existence between the applicant and the opponent?
(3) Whether the opponent has committed default in payment of rent?
(4) Whether the applicant is. Entitled to file rent case on ground of default committed during the tenancy of previous landlord?
(5) What should the order be?'
3. The facts as 'leged ' in the main application filed und section 15 of the Ordinance. 1979 ale that on or about 28-2-1988, the tenement in question was purchased by the present respondent/landlady from one Sh. Lqbal Ahmed for which notice order 18 of the Ordinance, 1979 was szrVed on 20th April, 1988; that the appellant/tenant was inducted as tenant by the previous landlord at the rate of Rs,300 per month and that he failed to tender the rents from May, 1987 to July, 1987 and December, 1987. It is further alleged that the appellant/tenant failed, to pay rent for the months of January and February, 1988. Admittedly, all these alleged defaults were committed prior to February, 1988 where after the tenement in question was purchased by the respondent/landlady. This fact brings to the question of the law laid down by the Honourable Supreme Court in the case of Mazharul Islam and another v. Mst. Mafia PLD' 1991 SC 835 which was noted by the learned 'Rent Controller but still' he ordered eviction of the appellant/tenant.
4. Mr. Ahmedullah Faruqui has attempted to take advantage of the rule, laid down in the case of Mazharul Islam (ibid) by saying that the proceedings for eviction were initially instituted by the former landlord Sheikh lqbal Ahmed in Rent Case No,229 of 1988 and that present proceedings of Rent Case No,710 of 1992 being based on the same cause of action is continuation of the previous proceedings. With this plea, he has relied upon para. 9 of the judgment, in the case of Mazharul Islam (ibid). The ratio laid down by the Honourable Supreme Court in the above case is that as subsequent purchaser of a tenement 'is entitled to continuo with the ejectment proceedings on the ground of despite the fact that the property is sold. However, where a fresh case is to be filed on the ground of default committed during the tenancy of the previous landlord, it was held by the Honourable Supreme Court in the case of Mazharul Islam that there must be an expressed provision either in the sale, deed or assignment deed for recovery of arrears of such rent as well as to maintain an eviction petition on the ground of such default. Admittedly, there was no such assignment in the instant case.
5. In so far as the previous Rent Case bearing No,229 of 1988 is concerned, that was dismissed by the 1st Rent Controller, Karachi East vide his order, dated 30-11-1995 Where it was observed by him that the ejectment application was not maintainable after transfer of property by Sheikh Muhammad Iqbal to Mst. Gul-e-Rana. While dismissing the said rent case with the said observation, the learned Rent Controller permitted the applicant to file fresh ejectment proceedings according to law. The learned Rent Controller lost sight of the fact that there was a direction by this Court, dated 20-8-1995 in First Rent Appeal No,84 of 1994 (Qayamulddin v. Sheikh Muhammad Iqbal) whereby the rent case was-remanded to the Court of Rent Controller for 'framing of issues on the point of default occurred during the period of previous landlord and to give fair chance of hearing to the parties and thereafter to record his finding on merits of the case.
In pursuance of the said order of this Court, learned Rent ,Controller was not competent to dismiss the previous rent case on the ground that it was not maintainable and at the same- time 'to' grant permission to the subsequent purchser," to maintain fresh eviction proceedings on the ground of default during the period 'of ,previous landlord. Although Mr. , Zafar Alam Khan has also argued on the point that the respondent failed to establish the existence of relationship of landlord and tenant, I would not like to go into such question at this stage since I am of the considered view that even if. For the sake of arguments, it is held that there, was a relationship of landlord and tenant between the parties, still the landlady/ has failed to bring her case within the scope of ratio laid down in the case of Mazharul Islam (ibid). There was no authority or specific assignment in favour of subsequent owner to recover arrears of rent and to pursue cause for eviction of the tenant on the ground of default which occurred during the currency of previous owner. This present proceeding is in no manner continuation of the previous rent case which was dismissed by the Rent Controller as not maintainable. The eviction order suffers from gross irregularity and illegality.
6. Accordingly, the above appeal is allowed and the eviction order is set aside with no order as to costs.