1. Appellant Anwar Khurshid has challenged his eviction from residential premises No.R/379, Block 9, Dastagir Society, Federal, 'B' Area; Karachi, ordered on 3-9-1995 by IIIrd Rent Controller and Senior Civil .Fudge, Karachi Central in Rent Case No.750 of 1990.
2. The above rent case was filed by respondent Mst. Rakhshanda Tahira, under section 15 of Sindh Rented Premises Ordinance (hereinafter referred as the Ordinance) for eviction of the appellant from the premises in litigation on the ground (i) that the appellant defaulted in payment of rent w.e.f. February, 1989 to September, 1990; (ii) that the premises is required for bona fide personal need for her residence and clinic, she being M.B., B.S. Doctor.
3. Originally appellant's mother namely Mrs. Waheeda Rehman took the .Premises on rent in 1974 at the rental of Rs.185 per month under a written agreement. Later on rent was increased from time to time and lastly at Rs.650 per month, on her death the appellant became the tenant being her son.
4. The rent application was contested by the appellant, who in his written statement, denied the ownership of the respondent and denied being tenant of the respondent. His plea was that one Ahmed Bux was the owner/landlord of the premises had inducted his mother as tenant. He used to receive rent from his mother and after her death, he became the tenant and used to pay rent to said Ahmed Bux. After the death of Ahmed Bux, he tendered the rent for the month of January, 1989 to his widow, namely Zubaida, who accepted the rent. He also tendered the rent for the months of February and March, 1989 to her by M.O. On refusal, he started depositing the rent in M.R.C. No.298 of 1989. He denied the default as well as personal bona fide requirement of the respondent for residence and clinic.
5. After recording the evidence of the parties, learned Rent Controller under the impugned judgment dated 3-9-1995, held existence of relationship of landlord and tenant between the parties.
6. Accordingly, he accepted the ejectment application and ordered eviction of the appellant from the premises in litigation, by concluding that the appellant has failed to pay rent to the respondent from February, 1989 and the respondent requires the premises in litigation for her personal bona fide need. Hence this appeal.
7. Mr. M. H. Burney, learned counsel for the appellant, has vehemently urged that the learned Rent Controller has erred in holding the existence of relationship of landlord and tenant between the parties on the basis of gift. He contended that gift in favour of the respondent by the donor has not been established. He also contended that even the agreement allegedly executed between Mst.
8. Wahida Rehman, mother of the appellant and the respondent has not been proved.
9. Mrs. Surraiya Rahim, learned counsel for the respondent, conversely, contended that the respondent has established the factum of gift in her favour as well as agreement between Mst.
10. Wahida Rehman the mother of the appellant and the respondent, by examining her attorney Ejaz Ahmed and her mother Mst. Zubaida donor and the attesting witness of the agreement Exh.A/4.
11. She further contended that appellant being tenant has no locus standi to challenge gift of premises in litigation in favour of the respondent-landlord, even if it may not be legally correct. To support her contention, she has referred the case of Quraisul Mujtaba Qami v. S. Usman A.I Kazmi 1992 CLC 211. , The respondent's case was that the premises in litigation was originally owned by her mother Mst.
12. Zubaida vide lease deed Registered No.4263, Volume No.590 of Book No. l Addl. 8th No------..(Exh.
13. A/3). She gifted the said premises by oral gift on 9-8-1973. Attorney Ejaz Ahmed has stated in affidavit-in-evidence that in pursuance of oral gift the possession was delivered to her (donee) the respondent. The donor Mrs. Zubaida also appeared as a witness. In her affidavit-in-evidence she has stated that she was owner of the premises and she gifted the said property to her daughter, the applicant on 9-8-1973 by way of oral gift and declaration of oral gift even dated and also handed over the physical possession. Both witnesses of the respondent namely Ejaz Ahmed and Mst. Zubaida were not cross-examined on this point and their evidence on the point of gift remained unchallenged and unrebutted.
14. PLD 1988 SC 734), it was held that validity or invalidity of a gift a property in litigation by a landlord in favour of his sons cannot be questioned by a tenant who had no locus standi to call in question validity of such gift. In case of Shariyar A.I Patandi and others v. M/s. Deccora Furnishers (PLD 1985 Karachi 47), the view taken was that attendant cannot challenge that the landlords were not in possession of the property and therefore, gift in their favour was invalid. Such stand on the part of the tenant challenging the title of landlord amounts to a contumacious conduct. In case of Quraisul Mujtaba (supra), the tenant challenged the gift to be invalid for want of registration etc. The contention raised was repelled by observing that the appellant (tenant) has no locus standi to challenge the gift in favour of the respondent (landlady) even if such gift may not be legally correct. In view of the observations made in the cited cases the appellant being outsider having no locus standi to challenge the gift in favour of the respondent.
15. The admitted facts are that Mst. Wahida Rehman, mother of the appellant was inducted as tenant at the rental of Rs.185 per month due to gradual increase it came to Rs.650. It is also almost admitted fact that Ahmed Bux, as well as, Ejaz Ahmed used to collect the rent in respect of the premises. The case of the respondent was that the tenancy was created in favour of said Mrs. Wahida Rehman vide agreement, dated 29th March, 1974 (Exh. A/4). The plea of the appellant was that it is a forged document. One of the attesting witness of Exh. A/4, namely Mst. Zubaida was examined, who deposed that on 29th March, 1974, her daughter, the appellant let out the said premises to the mother of the opponent namely Waheeda Rehman in her .Presence by way of written agreement dated 29-3-1974 and she signed the agreement as witness. The witness was cross--examined but only suggestion given to her was that it was a forged document. On the contrary this agreement was admitted by appellant by putting suggestion to Mst. Zubaida, the witness of respondent, replied by her as follows:-- "It is a fact that after tenancy agreement between the applicant and the mother of the opponent my late husband used to collect the rent. "
16. By above suggestion to witness Mst. Zubaida the plea taken by the appellant about non-existence of relationship of landlord and tenant stand raised to the ground. The collection of rent by Ahmed Bux is not disputed, even the appellant has admitted that after the death of Ahmed Bux his son was collecting the rent on behalf of the applicant.
17. Thus, the finding of learned Rent Controller about the existence of relationship of landlord and tenant between the respondent and appellant does not suffer from any legal infirmity and is based on evidence on record.
18. Mrs. Suryyia Rahim learned counsel for the respondent contended that the appellant has not tendered the rent to the respondent but to her mother, thus, tender of rent to a person other than the landlord would not be tender in law.
19. Deposit of rent under the provisions of section 10 of the Ordinance, is subject to refusal or avoidance on the part of landlord to accept the rent. She further contended that there was no tender to the respondent-landlord hence, the deposit by appellant will not mitigate the effect of default.
20. On the point of default, the learned Rent Controller has recorded the following findings:-- "In view of the above admission there remains no doubt that there exists relationship of landlord and tenant between the parties, in spite of that opponent has deposited the rent in M.R.C. In the name of mother of the opponent which is not a valid payment of rent to the applicant. Since the opponent has denied the relationship of landlord and tenant between the parties the question of payment of rent does not arise, Consequently, I am of the view that there exists relationship of landlord and tenant between the parties and the opponent has committed willful default in payment of rent."
21. The rent receipts in respect of the payment of rent have been produced by the appellant, Exhs. O/3, O/4, O/7, O/8, O/9, O/11, 0/12, 0/14, 0/15, 0/16 and O/18 were issued by Ahmed Bux, Exh. O/6, by M.
22. Naeem: Exh.0/10, Rent receipt for the month of April, 1984 to November, 1984 was issued by respondent Rukhshanda Tahira, whereas, Exh. 0/13 for June and July, 0/17, for the month of April and May, 1982 and Exh. 0/22 for the months of November and December, 1978, were issued by Ejaz Ahmed, the attorney of the respondent.
23. Perusal of above rent receipt would show that rents were received periodically ranging from two months to eight months. It is also evident that apart from Ahmed Bux, the respondent herself received the rent, as well as Ejaz Ahmed. The appellant has also admitted that after the death of Ahmed Bux, her son (Ejaz Ahmed) used to collect the rent. Thus, the plea of the appellant that after the death of Ahmed Bux he tendered the rent to his widow Mst. Zubaida for the month of January, 1989 which was accepted will not make her landlord. The rent could have been tendered to respondent Rakhshanda Tahira or to Ejaz Ahmed as they had received the rent during the lifetime of Ahmed Bux. Consequently, the tender of rent by M.O. In the name of Zubaida and subsequent deposit in Court will not absolve the appellant of the penal consequence of the default.
24. Learned counsel for the appellant has contended that the respondent has not appeared to give evidence in the case and only her special attorney had filed his affidavit-in-evidence, a presumption had to be drawn against her on account of her non-appearance in the witness-box, therefore, bona fide need for personal use has not been established. He also contended that the case can be remanded to the learned Rent Controller for examination of respondent to prove her case of bona fide personal requirements. He referred the case 'of Muhammad Abdul Karim v.
25. Muhammad Saleem (PLD 1996 SC 252), wherein case was remanded back to High Court to record the statement of respondent (landlord) on oath with opportunity to appellant to cross-examine him, then to decide the appeal afresh after rehearing the arguments. The order of remand was passed in the following circumstances:-- .
26. "At the time of arguments before the learned Single Judge, strong exception was taken by learned counsel for the petitioner to the failure of the respondent to enter the witness-box. The learned Judge in Chambers sent for the respondent who gave explanation in regard to his requirement which was referred in the judgment. The learned counsel for the petitioner had taken exception to the mode adopted by learned Single Judge in providing an occasion to support his plea without affording an opportunity to the petitioner. Finding force in the point canvassed, the petition was converted into appeal and ultimately remand order was passed. "
27. The respondent has put up her case for personal requirement for residence and clinic purpose, she being M.B.B.S. Doctor, in para.4 of the application as follows:-- "That, the applicant is M.B.B.S. Doctor and is practising at Karachi, further she is now married and mother of one son. The applicant is presently residing with her in-laws in the house owned by her mother-in-law at the address mentioned in the title of this case. The said house is consisting of only 3 rooms, out of said three rooms, one is used as drawing-room, the other is used by the mother-in-law of the applicant, her husband and her child. Being professional doctor, the applicant also attends her patients at home but due to shortage of accommodation in the said house she is facing great difficulty, she has no place to use for attending the patients and/or to use her clinic. Her clients are mostly women and children and she requires at least two rooms for her clinic. "
28. Witness, Ejaz Ahmed, special attorney of the respondent has stated in his affidavit-in-evidence, that appellant is a M.B.B.S. Doctor and is practising at Karachi. She is married and mother of two children. She is residing in house owned by her mother-in-law, in the house bearing No.R-333/14, F.B. Area consisting of three rooms one room is shared by her with her husband, and children another occupied by mother-in-law. Third room is being used as Drawing Room. She also attends patients at house due to shortage of accommodation, she is facing great difficulties. She has taken a flat for clinic in Block No.9, Dastgir Society. The witness has not been cross-examined on above facts except suggestion to the extent that she owns House No.R-333/14, which is owned by her mother-in-law. She is not owner of House No.492 of Block 13 nor she resides in the said house. The said house is owned by Ahmed Bux according to appellant.
29. Second witness examined by her is her own mother, Zubaida. She has stated the same fact. Same suggestion was given to her as well which has been replied in negative i.e. About ownership of House No.R-333/14 and her residing in B/49-2/13, F.B. Area. The appellant has shown his ignorance about the bona fide requirement of the respondent.
30. It appears no merits in this objection as well because Ejaz Ahmed is the brother of the respondent and her special attorney he used to collect the rent on her behalf. All the facts which were known to the respondent-lady were for obvious reasons equally well-known to him. It cannot be said that there was something within her exclusive personal knowledge which was not known to her special attorney. According to section 2 of Power of Attorney Act, the statement of a special attorney Ejaz Ahmed is to be considered as the statement of the respondent-lady. It is only when something which was not known to him and which was in exclusive knowledge of the respondent then such objection can be considered to be valid. It is common knowledge that womenfolk of our country normally entrust all their jobs in respect of their property to their male members of the family and it is normally they who appear on their behalf to avoid unnecessary trouble to the women folk. When presumptions are to be drawn they can be drawn consistence with the ways of life of inhabitants of the country. On account of said normal conduct of womenfolk of our country, no presumption can be drawn against the respondent-lady, merely on account of her non-appearance before the Rent Controller to support her case. Reference can be made to the cases of (i) Muhammad Umar and others v. Dr. A. Ameena Ashraf (1982 CLC 410), (ii) Abubaker v- Sadaqat Begum (PLD 1983 Lahore 320). The respondent being owner of the premises in litigation, she is living with husband and two kids in a room of her-in-law's house. She is also medical practitioner running a clinic in a rented flat she has every right to live a decent life in her own house and run the clinic who usually attends female patients. Such facts have been established. Therefore, the finding of the learned Rent Controller needs no interference.
31. With the above observations, the appeal stands disposed of.
32. H.B.T./A-167/K