' By this appeal the appellant Mst. Saberun Nisa has impugned an ejectment order, dated 13-11- 1998 passed by 5th Senior Civil Judge/Rent Controller Karachi in Rent Case No,238 of 1995 (Abdul Ghani v. Mst. Saberun Nisa), whereby the ejectment was ordered against the appellant.
2. The fact as narrated by Abdul Ghani respondent/applicant (hereinafter referred to as the respondent) in his application under section 15(H) and (VII) of Sindh Rented Premises Ordinance, 1979 are that he is owner of residential Flat No,E-5, Doulat Square Hnd Floor Plot No,II, Block No,13-B, Gulshan-e-lqbal Karachi. He purchased it from its previous owner Abdul Sattar vide sale agreement dated 13th January, 1993. The appellant was tenant of previous owner at the rate of Rs,1,800 and other extra charges such as water, electricity and taxes to be borne by tenant in addition to monthly rent. After purchase the respondent served her notice under section 18 in January, 1993. She 'was also served with a notice by Abdul Sattar the previous owner acknowledging the transfer of tenements in favour of appellant but vide her reply, dated 8-2-1993, she raised some unnecessary objections and denied the entitlement of respondent to receive the rent as such she intended to cause undue inconvenience and harassment to the respondent. The appellant failed to pay the rent to the respondent and committed wilful and deliberate default, consequently a sum of Rs,46,800 became due upto 31st March, 1995. The respondent further asserted in his application that he is a Government servant and is provided accommodation by the Government which is not suitable and sufficient for his large family, and he needed the house for his personal bona fide use.
3. The appellant was served with the notice. She filed her written statement and agitated that application was hit by res judicata and was not maintainable. She further pleaded that the premises in question was let out to her by one Dr. Abdul Majeed Kaludi vide an agreement, dated 15-2-1982 at the rate of Rs,1,800 per month without any extra liabilities. She raised a plea that there was a House Building Finance Corporation loan and that the property in question could not be sold by her previous landlord. In view of such position no registered sale-deed can be executed and the agreement of sale, if any, would not confer any ownership righters on the respondent. She further asserted that previously Abdul Sattar had also filed ejectment cases being Rent Cases Nos.860 of 1987 and 192 of 1998 but ultimately the same were dismissed. She, however, had not denied the receipt of notice by respondent said Abdul Sattar which was properly replied by her through an Advocate.
4. The appellant has further asserted in her written statement that she was regular in payment of rent and was denying any default on her part. The appellant has, however, denied the non- suitability of present accommodation provided to him by Government for want of knowledge.
5. The parties led their evidence in support of their averments made in the pleadings. The appellant examined her daughter Murrain: Ansari and produced certain documents in support of assertions made by her, whereas the respondent filed his own affidavit and produced the relevant documents to substantiate his pleas.
6. Consequently, the learned Rent Controller allowed the ejectment application and passed an order for her ejectment on 30-11-1998.
7. It is contended by Mr. Farooq Hashim learned counsel for appellant that the impugned order is erroneous and the findings by the learned Rent Controller are in disregard of the settled principles laid down by the superior Courts. He has further urged that no general power of attorney was produced on record allegedly executed by Abdul Majeed in favour of Abdul Sattar to receive rent and that after expiry of a period of his rent agreement with Dr. Abdul Majeed, the appellant had become statutory tenant. The objection was raised by the learned counsel that House Building Finance Corporation was a necessary party. He also raised certain objections over the purchase of property by the respondent and much stressed upon the previous rent cases filed by Abdul Sattar which were consequently dismissed. He has also attacked the legality of notice under section 18 issued against the appellant. Learned counsel has submitted that the appellant has committed no default in payment of rent and the tenement was never required to respondent for his personal bona fide use. He has further contented that the Rent Controller has misconceived and misread the evidence on record. He has relied upon the case-law 1997 M LD 923, 1986 CLC 107, 1998 M LD 43, 1987 CLC 472, 1987 CLC 1722, 1991 M LD 1, PLD 1987 SC (Azad J&K) 93, 1989 SCM R 949, PLD 1996 Kar. 210, 1992 M LD 810 and 1998 M LD 903.
8. Mr. Abdul Aziz Khan learned counsel for respondent has contended that the order impugned in appeal in just and proper and is based on sound judicial principles of appraisal of evidence. He has further contended that the appellant had admitted the ownership of Abdul Majeed and had entered into a rent agreement knowing the fact that the property was under loan by House Building Finance Corporation, which still needed clearance. Once the ownership is admitted then it does not lie in the mouth of appellant to raise the same objection to the subsequent transferee.
9. It is contended that the appellant is wilful defaulter who failed to deposit the rent after receiving the notice under section 18 and that the premises in question are required to the respondent for his personal bona fide use.
10. The perusal of record shows that the ownership of Abdul Majeed with whom the appellant had entered into rent agreement is not denied. Abdul Sattar purchased the property from him and she started paying rent to him. The present respondent after the purchase of premises in question has stepped into the shoes of Abdul Sattar. The appellant by raising this plea that the respondent is not owner of the property as he has not produced any sale-deed does not lie in her mouth and cannot exonerate her from responsibility of being tenant of the respondent. She was bound to pay the rent directly to respondent within 30 days after receipt of the notice. But it appears that appellant unnecessarily wanted to cause undue harassment, humiliation and inconvenience to the respondent. It is for that reason that the appellant started depositing the rent in the Court rather than to pay it directly to the respondent. The reference can be made to a case of Fazal Ellahi v. Gul Khan Ahmed Qureshi 1997 SCM R 945, wherein their Lordships have held as under:-- "Before us, learned counsel for the petitioner has argued that the petitioner has deposited the rent from the month of March, 1992 in a rent case in the name of the respondent and previous landlady jointly. So, he has not made any wilful default in the payment of rent which could entail the penalty of his eviction from the shop, similar arguments were made on behalf of the petitioner before the High Court. After having applied its mind to the relevant evidence the High Court in its judgment has observed-- ' It is an admitted position that after receiving notice under section 18 of the Ordinance the tenant (appellant) started paying the rent to the respondent/landlord but then suddenly he shifted to depositing the rent in Court in a miscellaneous rent case. This act of the appellant itself goes to show that the said practice was resorted to by him to cause harassment to the respondent. In these circumstances this itself amounts to defiance in payment of rent to the landlord' ."
11. The same view was earlier taken by apex Court in the case of Abdul Malik v. Mrs. Qaiser Jehan, 1995 SCM R 204 wherein their Lordships have held as under:-- "Therefore, in such cases it has to be seen that while depositing the rent in Court there has been refusal or avoidance and further that the conduct of the tenant is not contumacious or with mala fide Intention to harass the landlord. In the facts of the present case the respondent had served a notice informing the appellant that the property has been gifted to her. Instead of making any inquiry about the title he started depositing rent in Court. The respondent had supplied a copy of the gift deed also and from evidence it seems that Haji Muhammad Bashir, the original owner had gifted to his nephew who had gifted to the respondent who was closely related to them. In these circumstances, the deposit of rent without replying to the notice of the respondent under section'18 of the Ordinance could not be held to be a bona fide conduct on the part of the appellant."
' If the appellant would have deposited the rent in the name of the respondent alone, perhaps the degree of contuncious conduct would have been sufficiently decreased, but he deposited rent in the names of all the four persons, namely, Haji Muhammad Bashir, Muhammad Ziauddin, Muhammad Merajuddin and Mrs. Qaiser Jehan. This would have caused harassment to the respondent."
12. The appellant has not denied the ownership of respondent as she started depositing the rent in the name of its previous owner as well as the respondent. Although she knew that-the previous owner had acknowledged the transfer of property by him in favour of respondent but she only made it impossible for the respondent to draw the rent from the Court.
This act of appellant clearly indicates that she only wanted to create hindrances for the landlord.
The default on the part of appellant is clear as she had received notice under section 18 of Sindh Rented Premises Ordinance, 1979 in January, 1993 and so also the acknowledgement of transfer of ownership by the previous owner in January, 1993. Under these circumstances in such A situation the appellant was required to pay the rent within 30 days with effect from February, 1993 directly to the respondent but instead of doing so she started depositing the rent in Court from March, 1993. It could only be possible for the respondent to receive the rent from March, 1993 to November, 1995 when such order was passed by the Rent Controller.
13. The next ground on which the respondent had filed application is the personal bona fide use of the respondent. The parties had pleaded their case on different point of view. The respondent is a Government servant and he was allotted a Government residence. He has pleaded that he has a large family and is facing great difficulties in putting, up the whole family in that insufficient residence and so also accommodate his relatives and the guests. Had he not needed the premises, he would have pleaded that he wants to save his income as rent was being deducted from his salary but he has very fairly pleaded that apart from this Government residence he needed his own property for the bonafide use of his personal requirement, under the aforesaid circumstances. On the other hand the appellant has no knowledge about the ownership of any other property in the name of respondent nor does she know about the recent position of the family of respondent. The respondent has stated on oath that he needed the property for his personal bona fide use, which was in consonance with the pleadings and has remained unchallenged and unshaken. The respondent has succeeded in establishing his claim for the requirement of property for his bona fide use and occupation. The reference can be made to a case of Allah Dino v. Din Muhammad and others 1986 CLC 395, wherein their lordships have held as under:- "The respondents from the very beginning have been stating that they require the premises for their own use. It is established that they have a joint business, which is very vast in nature and is run in a rented premises. According to Mr. Memon the respondents are running their business in four shops. This contention by itself establishes that the business run by the respondents is not small or insignificant but is varied and vast in nature. There is no evidence on record to establish that all the respondents are carrying on their business separately, independently and have no concern with each other. The plea regarding their landlord's pressure to vacate the shop is completely a new plea and cannot be considered for the purpose of granting ejectment, but the question remains whether the respondents have established their bona fide requirement. As the statement made on oath with regard to personal requirement in consonance with the pleadings and has remained unchallenged and unshaken and further that two more witnesses have supported the respondents' claim, and there being no evidence on behalf of the appellant or respondent No,7 in rebuttal, in views of PLD 1976 Kar, 836 the respondents have succeeded in establishing their claim for bona fide use and occupation. The learned counsel contended that the respondents have not given full details of their business, the existing accommodation in their possession nor the respondents have stated which of the six persons will carry on business and of what nature, therefore, they have failed to establish their plea. The evidence of the parties has already been discussed above and need not be referred again. Suffice to say that the respondents have proved their plea. The vast nature of business has been established which according to the respondents cannot be accommodated in the existing shop. The respondents have been carrying on business jointly and all of them require the premises. The learned counsel has referred to S. Muhammad Ali v. Mst. Aisha 1984 CLC 2332. In this case the landlord had stated that he was living in a rented house, but no evidence to substantiate this plea was produced, therefore, ejectment was refused. In the present case the respondents have produced sufficient evidence to show that they are carrying on their business in a rented premises and require the premises for their personal use."
14. The reference can also be made to a case of Fazal Sons v. Shabbir and others 1999 SCM R 2612. In the case of Fazal Sons (supra) the tenant had challenged the gift made in favour of landlord but the objection was over ruled.
15. The case law cited by learned counsel for appellant has no relevance to the facts and circumstances in instant case.
16. From the record it appears that the appellant is not a fair tenant. She only wants to create troubles for her landlord and is not sincere even to pay the rent to her landlord. It is sufficiently a long time that her landlord is not only deprived of his premises but has suffered a lot to collect the nominal rent which was fixed long back by the previous owner. The record reveals that the learned Rent Controller has very rightly considered and discussed the evidence brought on record and passed a justified and legal order. He has rightly granted ejectment application filed by the respondent on both grounds of default in payment as well as personal requirement. I, therefore, find no justification in the appeal, which is hereby dismissed, but I grant two months time to the appellant to vacate the premises subject to the condition that she shall continue to deposit rent in terms of Rent Controller's order. In case she either fails to deposit the rent as stated above or after expiry of 60 days she fails to vacate the premises, the writ of possession will be issued against her with the aid of police without issuing any notice to her. In the circumstances the appeal stand dismissed with no order as to costs.