1. ' The appellant is the landlady in respect of the shop constructed on portion of Plot bearing No, CS.
2. No, 3760, Ward 'B' Thatta Town, Thatta. The respondent is the tenant in respect of the said shop since 1-10-1989 under an agreement of even date. The appellant had filed Rent Application bearing No,6-A of 1996 before the Senior Civil Judge/Rent Controller for ejectment of the respondent/tenant from the shop premises on the ground of default in payment of rent from January, 1994 to April, 1996 and on personal bona fide requirement of the premises for herself. Notice was issued to the respondent tenant who filed written statement on 26-9-1996 denying the allegation contained in the application and raising objection to the effect that the application is not maintainable under the law and further the respondent tenant is a lawful owner of the property by virtue of a sale agreement entered between him and the original owner Muhammad Ramzan Bhutto. According to him, the original owner had entered into a sale agreement with him and an amount of Rs,25,000 was paid towards sale consideration and balance was to be paid before the Registrar. However, the original owner died and thereafter his L. Rs, refused to perform the part of the contract. In the circumstances, a case for specific performance of the contact has been filed by him which was pending.
2. The attorney of the appellant/landlady, Muhammad Usman, filed his affidavit-in-evidence producing the Registered sale-deed in respect of the disputed property and extract from the Property Register Card and also produced witness Syed Rafiq Ahmed Shah and Abdul Karim, who were cross examined. The respondent tenant filed his own affidavit-in-evidence and was cross- examined. The learned Rent Controller after recording of evidence and hearing the arguments of the parties framed the following issues for determination: "(1) Whether there is relationship of tenant and landlord between the parties in respect of the premises in dispute?
(2) Whether disputed premises required to applicant for her personal bona fide use?"
3. ' The learned Rent Controller gave his findings in negative and dismissed the application. Hence the present appeal.
4. ' The contention of the learned counsel for the appellant is that although a specific plea was taken in the rent application as regard to default in payment of rent but the learned Rent Controller failed to frame the issue on this point and as such the impugned judgment is liable to be set aside.
5. According to him even if notice of the transfer of property in the name of the appellant/landlady was not served the notice of the rent application itself can be treated a notice and relied on the case of Major (Retd). Muhammad Yousuf v Mehrajuddin and others (1986 SCMR 751). He further submitted that the authority of the original owner was neither disputed nor challenged and tenancy of the premises is accepted by the respondent/tenant and since the subject property has been purchased through registered sale-deed, the relationship of landlord and tenant is established.
6. ' On the other hand, the learned counsel for the respondent stated that since he had purchased the property from the original tenant he is not liable to pay rent. His next contention was that the power of attorney executed in favour of the attorney Muhammad Usman does not bear the signature of the applicant but only thumb-impression as such it is not a legal document. He further submitted that although the title of power of attorney is "special power of attorney" but actually it is a general power of attorney and sufficient stamps have not been affixed on the same and as such the document is not legal. His next contention was that as no notice under section 18 of the Sindh Rented Premises Ordinance, 1979 was served on the respondent/tenant no cause of action has accrued to the landlady and the application is liable to be dismissed. Next he argued that though the landlady has pleaded that she needs the premises for personal bona fide use to construct the house and live therein but neither approved plan for construction was produced nor evidence was led in this regard and as such the application was rightly dismissed by the learned Rent Controller.
7. ' I have heard the arguments of the counsel and have perused the record.
8. ' Coming to the first issue, i,e, relationship of landlord and tenant between the parties, the learned Rent Controller after discussing the evidence on record has observed that "in view of above discussion specifically when ownership of the applicant is sub judice in civil suit, conduct of L.Rs, of Ramzan Bhutto is not treating opponent as tenant of premises and applicant's silence for 1 year and 7 months after alleged purchase of premises, I hold that applicant has failed to prove that there is relationship of landlord and tenant between the parties in respect of premises in dispute."
9. The above finding given by the learned Rent Controller is contrary to the principles laid down in various judgments. Reliance can be placed on the case of lqbal and six others v. Rabia Bibi and another (PLD 1991 SC 242), herein the tenants had set plea of denial of relationship of landlord and tenant on the basis of an agreement to sell the demised premises in their favour and leave was granted to consider that "the Rent Controller had not recorded any finding on the question whether agreement to sell was genuine or not and decision on that point was particularly important as under the said agreement tenant had come to occupy demised premises not as tenant but in their own rights after payment of very large amount of consideration", and relying on the case of Allah Yar and others v. Additional District Judge and others (1984 SCMR 711) and Mian Muhammad Abdullah v. NH I) District Judge, Sahiwal and others (PLD 1985 Lahore 467), wherein it was laid down unambiguously that ejectment proceedings could not be stayed or stalled on plea that the tenant in possession hold such an 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 held that in such cases although the tenant has a right to adduce evidence and take a 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 to estoppel in this behalf, he (the tenant) cannot be permitted to remain in occupation and fight the litigation for a long time even for decades. Accordingly, orders were passed to vacate the disputed premises. Yet in another case of Kassim v. S. Rahim Shah (1990 SCMR 617) in similar circumstances wherein the alleged sale agreement in favour of the tenant was produced as well as the registered sale-deed in favour of the landlord. It was observed that "all the evidence, prima facie, supports the plea of the respondent that he had acquired the right of the ownership in the property through sale-deed. Until the sale-deed is cancelled and is out of field, the respondent can claim to have stepped into the shoes of the previous owner entitled to recover rent from the tenant of the building which was the subject-matter of the sale. There is another aspect of thecase 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.
10. 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. However, for the purpose of the Rent Controller, the position as it stands today was sufficient to satisfy the requirement of the law that the respondent was landlord to recover rent. In the present case, admittedly, the sale-deed has been executed in favour of the appellant/landlady and even if there was a prior sale agreement in favour of the respondent/tenant the same was not finalized by the previous owner as well as by his legal heirs. Admittedly, the tenant has not paid any rent to the present appellant even after filing of the ejectment application which constitutes default. In the prevailing circumstances it is held that there exists relationship of landlord and tenant between parties and that the respondent/tenant has committed default in payment of rent due to the respondent/landlord.
11. ' As regards the service of notice under section 18 of the Sindh Rented Premises Ordinance, reliance can be placed on the case of Major (Retd.) Muhammad Yousauf v. Mehrajuddin and others (1986 SCMR 751) wherein it was held that "the rent having admittedly not been paid after the institution of the application for eviction which has also been treated as notice under section 13-A the respondents were liable to be evicted" This principle was followed in the case of Israr Ahmed v.
12. Abdul Aziz (1987 CLC 336). In view of above, the contention that no notice was served under section 18 of the Sindh Rented Premises Ordinance has no force.
13. ' The next issue is, if the disputed premises are required by the applicant for her personal bona fide use. The applicant in the rent application has pleaded that the premises are required for her own use which will be used for residential purpose after the construction of the said premises on the plot. The same plea has been taken in the affidavit-in-evidence filed by the attorney of the applicant and maintained in the cross-examination. The learned Rent Controller has given finding that "since no sanction from a competent Authority for reconstruction or creation of house has been filed by the applicant in the present case. I, therefore, hold that she has failed to prove that she requires premises for her personal bona fide use." Admittedly, the landlady had purchased the plot alongwith the shop constructed thereon. During the arguments it was admitted that the plot is a residential plot. The appellant in the application as well as in affidavit-inevidence of the attorney and cross-examination has maintained averments that the premises will be utilised to construct the house for her own use. In the case of Kevalram v. M/s. Ismail Brothers (1980 CLC 915) wherein the disputed premises were plot and a similar plea of construction and self-occupation was taken, it was held that "ejectment of the respondent/tenant could be ordered by the Rent Controller under clause (vi) of subsection (2) of section 13, when the Rent Controller is satisfied that the rented land is reasonably and in good faith is required by the landlord for erection of building thereon coupled with the sanction of the Corporation for the erection of such building. It is not requirement of law that sanction of the Corporation should have been obtained before making the application under section 13(2) of West Pakistan Urban Rent Restriction ordinance, 1959."In the present case objection of the tenant that no sanction was obtained from a competent Authority has no force as it will be entirely an issue between the competent authority and the landlord to raise any construction thereon according to the approved plan as per Rules and Regulations of the competent Authority.
14. ' Since it has been established that the appellant landlady is the owner of the premises through sale-deed executed between the parties and the appellant/tenant has failed to pay rent and as such a wilful defaulter and the averments of personal bona fide need are consistent with the deposition and cross-examination. The appeal is allowed and the order dated 9-5-1998 passed by the learned Rent Controller, Thatta in Rent Application No,6-A is set aside and application under section 15 of the Sindh Rented Premises Ordinance filed before the said Court is allowed. However, two months time is allowed to the respondent to vacate and hand over vacant, peaceful possession of the disputed premises to the appellant landlady.