1. ' The appellant is the tenant in respect of two shops bearing Nos.1 and 2 situated on Plot No,177-C, Block-2, Central Commercial Area, P.E.C.H.S., Karachi, and through this appeal has assailed the judgment, dated 28-8-1996 passed by the IIIrd Rent Controller, Karachi Eact, in Rent Case No,729 of 1989 directing him to vacate the dispusd shops and handover .Vacant possession of the same within 60 days from the said order.
2. ' The brief facts as per memo of appeal are that the respondent/landlady, who had purchased the premises through a sale-deed, dated 22,4-1989 filed Rent Case No,729 of 1989 against the appellant on the ground of personal bona fide need for herself and for her husband and son.
3. Notice of the said application was issued to the appellant/tenant who filed written statement on 23-10-1989 denying averments contained in the application and taking the plea that the owner of the plot had first entered into an oral agreement of sale with him and had also accepted an amount of Rs,50,000 as earnest money but backed out from the said agreement and secretly entered into a sale agreement with the respondent/landlady and on coming to know of this fact he filed suit for injunction praying to restrain the owners from selling the property to any other person except the appellant/tenant. He also gave a public notice in this regard but in spite of that the property was sold and as such another Suit bearing No,1092 of 1989 was filed by him for cancellation of sale in favour of the respondent/landlady. The attorney/husband of the respondent/landlady, namely, Muhammad Shafi filed his affidavit-in-evidence and produced Muhammad Aslam his son and Wasi Ahmed Khan one of the joint previous owners of the property who were cross-examined. While the appellant/tenant filed his own affidavit-in-evidence and was cross-examined. The learned Rent Controller after considering the pleadings and hearing the parties framed the following issues for determination: "(1) Whether by virtue of sale-deed the applicant has become the owner/landlady of the building in question? If yes whether the opponent committed default in payment of rent?
(2) Whether the applicant requires the demised premises bonafidely for the use and occupation of her husband and son?
(3) What should the order be?"
4. ' The findings on both the issues were given in affirmative and the ejectment application was allowed. Hence the present appeal.
5. ' The contention of Mr.S. Taimur Ali, the learned counsel for the appellant was that neither the default is mentioned in any paras. Of the rent application nor there is any prayer to that effect but the learned Rent Controller has framed the issue on the point of default and has given his finding.
6. His next contention was that the learned Rent Controller had misconstrued the evidence on record and misapplied the law on the relevant point. His third contention was that no notice under section 18 of the Sindh Rented Premises Ordinance, 1979, in writing was issued to the appellant/tenant and as such no cause has accrued to the respondent/landlady.
7. ' On the other hand Mr. S. Zahir Hussain Chishti, the learned counsel for the respondent contended that the learned Rent Controller had basically framed the issue on the question of ownership of the disputed property. His next contention was that even if no notice was issued after the purchase of the property the filing of the rent application itself is enough for the tenant to tender rent to the new owner.
8. ' I have heard both the counsel and have perused the documents on record. Before I take up the points argued before me I may mention here that record is full of documents pertaining to the litigation between the appellant/tenant and the previous owners of the disputed property and the husband of the present respondent/landlady which in my opinion was not necessary to be brought on record to decide the rent application.
9. ' Now coming to the first contention raised on behalf of the appellant/tenant the ejectment application nowhere specifies that the appellant tenant has committed any default. The only plea taken in the rent application is that of personal bona fide need of herself as well as of her husband and her son Muhammad Aslam to set up readymade garment shop as such the contention of the learned counsel for the appellant/tenant to that extent is correct. However, in para.4 of the affidavit-in-evidence of Muhammad Shafi the attorney/husband of the respondent/ landlady, two lines have been added to the effect that the appellant/tenant has failed to pay rent since May, 1989 and as such has become wilful defaulter. Admittedly, the respondent/landlady has purchased the disputed property through a registered sale-deed, which fact has not been denied by the appellant/tenant. The record indicates that after purchasing of the said property a notice, dated 29-7-1989 was served on the appellant/tenant by registered post A.D. To which a reply, dated 10-8- 1989 was sent through an Advocate. The reply indicates that the rent for May, 1989 onward was tendered by the appellant/tenant but the same was refused by the respondent and as such was sent by money order which was also refused and consequently the same was deposited in Court. It is also established that under letter, dated 27-8-1989 a copy of the sale-deed was provided to the applicant/tenant. As such the contention of the counsel that no notice in regard to change of ownership was served is untenable and wrong. It can be said that the appellant/tenant was aware of the change of the ownership and accepted the respondent as the landlady and tendered rent to her and subsequently deposited the same in Court in her name. Reliance can be placed on the case of Major (Retd.) Muhammad Yousuf v. Mehraj-ud-Din and others (1986 SCMR 751) wherein a similar plea of denial of relationship of landlord and tenant was raised it was held that "the authority of the original owner was neither disputed nor challenged and tenancy of the premises was accepted by the respondent/tenant. Since subject-property has been purchased through sale-deed the relationship of landlord and tenant had been established as such the tenant cannot raise the plea now." In similar circumstances in the case of Allah Yar and others v. Additional District Judge, and others (1984 SCMR 741) and Mian Muhammad Abdullah v. District Judge, Sahiwal and 6 others (PLD 1985 Lah. 467), it was laid down unambiguously that "ejectment proceedings could not be stayed or stalled on plea that the tenant in possession held such agreement. Even pendency of a suit for specific performance of the agreement was held no ground to avoid eviction of the tenant by the. Rent Controller." It was also held that "in such cases although the tenant has a right to adduce evidence and take short time for that purpose to remain in occupation despite having set up a hostile title which is denied by the landlord; but on the well-known bar of estoppel in this behalf, he (tenant) cannot be, permitted to remain in occupation and fight the litigation for long time even for decades. Accordingly, orders were passed to vacate the disputed premises." Yet in another case of Kassim and another v. S. Rahim Shah (1990 SCMR 647), in similar circumstances, wherein sale agreement in favour of the tenant was produced as well as registered sale-deed in favour of the landlord it was held that "All the evidence, prima facie, supports the plea of the respondent that he had acquired the right of ownership in the property through sale-deed. Until the sale-deed is cancelled and is out of the field, the respondent can claim to have stepped into the shoes of the previous owner, entitled to recover rent from the tenants of the building which was the subject-matter of the sale. There is another aspect of the case which cannot be ignored. Even if the agreement of sale was executed by the previous owner on a prior date before the registered sale-deed, by virtue of section 50 the registered sale-deed nonetheless has precedence over the prior unregistered deed of agreement. This position would remain till such time the Civil Court passes a decree against the respondent in any of the suits pending in respect of the property.
10. However, for the purpose of the Rent Controller the possession as it stands today was sufficient to satisfy the requirements of law that the respondent was landlord to recover rent." In the present case as I have already mentioned hereinabove the appellant/tenant has already deposited rent in the name of the landlady, thus, accepting her as the owner for the purposes of recovery of rent.
11. This position may change in case the appellant/tenant succeeds in obtaining a decree in his favour. While going through the evidence of all the witnesses nothing can be spelt out in regard to default as such although finding in regard to relationship between the appellant/tenant and respondent/landlady is maintained, the finding given, by the learned Rent Controller in respect of.
12. Default is set aside.
13. Now coming to the issue of personal need the attorney of the respondent/landlady and their son have maintained their averments of the application and affidavit-in-evidence which remained un shattered in cross-examination. The learned Rent Controller after discussing the evidence in detail and referring to the case-law has given the finding which in my opinion is based on sound judicial assessm ent of the evidence on record and as such needs no interference. In view of above except with the modification mentioned hereinabove in regard to default the appeal having no merits is dismissed with no order as to costs.