' The present rent appeal is directed against the order, dated 11-1-1993 passed by the learned I- Senior Civil Judge/Rent Controller, Sukkur in Rent Application No,1 of 1991 (Mst. Shahzadi and others v. Altaf Ali and another) dismissing the application under section 15 of Sindh Rented Premises Ordinance, 1979. The appellants above-named had filed the said application with following prayers:---
(a) To pass the decree and judgment in favour of the applicants.
(b) To pass judgment and ejectment order against the opponent No,1 as wilful defaulter for more than 225 months, and failed to pay the rent arrears from 21-2-1972 till today, and sublet the said disputed shop to his brother namely Feroze Ali, as the same are required by the applicants for their personal use.
(c) To award cost of the present rent application in favour of the applicants Nos.1 to 3.
(d) To award any relief that this Honourable Court deems fit and proper under the circumstances of the case.
2. The facts giving rise to this appeal are that the present appellants are the owners of premises bearing C.S. No, C-3/1 which is situated at Station Road, Sukkur by virtue of inheritance from Lal Bux.
The husband of appellant No,1 rented out a ground floor shop of the abovesaid premises on rental agreement at the rate of Rs,70 per month for 11 months from 20-3-1971 to 20-2-1972 to the opponent No,1 as such agreement of rent was executed between the parties on 15-3-1971. After completion of rent agreement period the opponent No,1 has failed to vacate the said ground floor of rented shop in spite of repeated requests by the appellant's husband and father late Lal Bux and lastly he died in the year 1983. After the death of Lal Bux the respondent No,1 deliberately did not come forward to contact the appellants for fresh agreement nor vacate the said premises, therefore, the appellant No,1 being a widow and Pardanasheen lady approached the respondent No,1 so many times with company of neighbourers namely Khadim Hussain, Nabi Bux and others as the said shop is required for their personal use as the son of appellant No,1 namely Muhammad Ali (appellant No,2) is running jobless and wants to start the business to support the family members as the appellants have no other source of income for lodging and boarding. The respondent No,1 being a Government servant and sourceful personality sublet the said rented shop to his own brother namely Feroze Ali the respondent No,2 who is running his business in the said sublet shop in the style of Altaf Cycle Works. Prior to filing the present application the appellants sent a legal notice to the respondent No,1 for vacating disputed rented shop which was replied by the respondent No,1 through an Advocate. The respondent No,1 is wilful defaulter from 21-2-1972 to 15- 9-1983 at the rate of Rs,70 which comes to Rs, 9,750 and from 16-9-1983 todate which come to about Rs, 6,020 the appellants, therefore, tiled this application.
3. The respondents have contested the matter and filed their written statement at Exh. 8 to which they denied the allegations and stated that in fact the suit shop was rented out by the husband of appellant No,1 to respondent No,2 from 6-5-1971. They further stated that it was the duty of appellants to send intimation regarding the new ownership by way of inheritance after the death of Lal Bux in writing by the registered post to the respondent No,2. According to section 18 of the Sindh Rented Premises Ordinance, 1979, but in fact the respondent No,2 felt it good that the appellants are very poor and he continued to pay the rent regularly to appellant No,2 on the discharge of receipts, being the male members of his family. The respondent No,1 has never remained as a tenant of late Lal Bux or subsequently to the appellants but only the business in the name and style of Altar Cycle Works is being running by respondent No,2 the elder brother of respondent No,
1. The appellant No,1 has sent a notice to respondent No,1 and not to the respondent No,2 while the respondent No,2 is the only tenant of appellants. He was paying the rent regularly to them on discharge of receipts. The appellants have no cause 'of action to file the present application.
4. In further pleas they have stated that no any rent agreement was executed between the respondent No,1 or respondent No,2 and the copy of rent agreement produced alongwith application is a forged document because it does not bear. The signatures of any party nor the same is attested by any one or it is not registered one according to section 5 of Sindh Rented Premises Ordinance, 1979. Actually the suit in dispute was rented out to respondent No,2 Ferozuddin from 6-5-1971 and not from 20-3-1971 by late Lal Bux the husband of appellant No,1 and father of appellants Nos.2 and 3 at the rate of Rs,70 per month. Respondent No,2 had given an amount of Rs, 1,000 as advance to late Lal Bux and out of that amount Rs, 500 were adjusted in monthly rent while the remaining amount of Rs, 500 is still lying with the appellants as security deposit. Thereafter from time to time on one or other pretext the rent was increased and enhanced from Rs, 70 per month to Rs, 100 per month and then Rs,100 per month and finally Rs, 170 per month. Late Lal Bux died on 5-1-1985 and after his death the respondent No,2 became the tenant of appellant No,2 who being the only male member of his family. The respondent No,2 was regularly paying the .Rent each and every month against the discharge of valid receipts and the rent was accepted by the appellant No,2 up to September, 1987 at the rate of Rs,170 per month but he refused to receive the rent for the months of October, 1987. Subsequently the respondent No,2 started remitting the rent to the appellant No,2 through postal money orders and as such he remitted the rent for the months of October, November and December, 1987 through postal money orders for each and every months but the appellant No,2 has refused to receive and accept the said money orders and all the money orders were returned to the respondent No,2. Thereafter, the respondent No,2 filed Rent Application No,4 of 1988 Ferozuddin v. Muhammad Ali for depositing the rent which was allowed vide order dated 20-1-1988 and since then the respondent No,2 is depositing the subsequent rent before Court regularly. The appellants have also another shop adjacent to the shop in question which has been given by them to one Lutufullah Siddiqui on rent who runs his business in it known as Indus Electric Trading Company. The appellants have also tiled the application for ejectment on the ground of personal bona tide use against said Lutufullah which is also pending in the Court of law.
They further stated that the application is not maintainable, therefore, it may be dismissed with special costs.
5. The learned trial Court framed the following issues:---
(1) Whether there exists any relationship of landlord and tenant between the applicants and opponent No,1?
(2) Whether there exists any relationship of landlord and tenant between the applicants and opponent No,2.?
(3) Whether the opponent No,1 or 2 have defaulted the rent from the month of February, 1972?
(4) Whether the applicants have required the shop in question for their personal bona tide use in good faith?
(5) Whether the applicants are entitled to grant of relief prayed by them in prayer clause (b)?
(6) What should the order be?
6. The learned Rent Controller after hearing the parties and evaluation of the evidence brought on record by the respective parties dismissed the rent application tiled by the appellants by impugned judgment. The appellants being aggrieved with the said judgment have preferred this appeal.
7. The trial Court while deciding the Issue No,1 has highlighted the existence of relationship of landlord and tenant between the applicants/appellants and respondent No,1 is disputed. The claim of appellants is that the shop in question which was inherited by them from deceased Lal Bux the actual owner of the property was originally rented out by late Lal Bux to the respondent No, 1 from 20-3-1971 to 20-2-1972 at the rate of Rs,70 per month for 11 months and such rent agreement was executed between late Lal Bux and respondent No,1. The respondent No,1 after the completing the period of rent agreement failed to vacate the shop in question in spite of repeated requests by the appellant's husband late Lal Bux. Lal Bux died in the month of September, 1983, leaving behind the appellants as legal heirs and respondent No,1 neither vacated that shop nor paid the rent from 21- 2-1972 to 19-9-1983. The respondent No,1 after the death of Lal Bux deliberately did not come forward to contact the appellants for fresh agreement nor vacated the said shop, therefore, the appellant No,1 approached the respondent No,1 so many times alognwith Khadim Hussain, Nabi Bux 'and others as the said shop is required for their personal use as the son of appellant No,.1 namely Muhammad Ali is running jobless and she wants to set him in business to support the family members as they have no other source of income. The said shop has been sublet by the respondent No,1 to respondent No,2. The respondent No,1 has defaulted the rent, therefore, the ejectment application was filed with the prayer that respondent No,1 be ejected from the said premises.
8. The respondent No,1 has contested the pleadings and denied the relationship of landlord and tenant between him and late Lal Bux and so also the appellants. It was stated by the respondent No,1 that neither any rent agreement was executed between him and late Lal Bux nor he is the tenant of the shop in question to his brother namely Feroze the respondent No,2 who is regularly paying the rent. It is stated that the respondent No,2 paid the rent to late Lal Bux and after his death the son of Lal Bux namely Muhammad Ali had received the rent from the said respondent No,2. As there are valid receipts up to September, 1987. The respondent No,2 has also remitted the rent through postal money orders. The appellant No,2 had refused to receive the money orders, the respondent No,2 had filed Rent Application No, 40 of 1988 for depositing the rent which was allowed and the respondent No,2 is depositing the rent regularly in the Court.
9. The Trial Court after examining the evidence brought on record by the parties has formed its opinion that the appellants have failed to prove that respondent No,1 as a tenant of the said premises through documentary evidence, whereas the opponents through the rent receipts Exh. 18 to Exh. 22 proved that the respondent No,2 is the real tenant as the evidence of witnesses does not fully support the alleged rent agreement. Therefore, it is evident that the respondent No,1 Is not a tenant of the appellants, and relationship between the respondent No,1 with the appellant is not established.
10. Since the appellants in their case have not accepted the respondent No,2 as their tenant and they claim that the shop was rented out by late Lal Bux to the respondent No,1 for 11 months from the month of March, 1971 to February, 1972. As there is documentary evidence brought on record by respondent No,2 about the payment of rent through other modes. The trial Court has observed that from the circumstances of the case, it appears that the relationship of landlord and tenant is actually existed between the respondent No,2 and the appellants for the shop.
11. It is admitted fact that respondent No,2 had paid the rent to appellant No,2 and such receipts have been brought on record from very beginning 6-5-1971 up to September, 1987. After September, 1987 appellant No,2 had issued such receipts. Thereafter, the respondent No,2 has remitted the rent through money orders as Exhs.167 to 172 and thereafter, the respondent No,2 had filed a rent application for depositing the rent in the Court and he is depositing the rent in the Court.
In light of rent receipts produced by the respondent No,2 issued by the appellants in his favour the question of default in payment of any rent does not arise.
12. It is contended by the learned counsel for the appellants that learned Rent Controller has wrongly held while deciding the Issue No,1 that there is no relationship between the appellants with respondent No,I as both the respondents are the tenants of the appellants. It is further urged that the respondents have committed wilful default as there is sufficient evidence for the ejectment of the respondents from the said shop. It is further stated that the appellant No,1 is a widow and appellants Nos.2 and 3 have no other source of livelihood as they wanted the premises for their personal bona fide use.
13. Mr. Abdul Fateh Malik, learned counsel for the appellants has placed reliance on the case (unreported authority) of Civil Petition No, 348 of 2000 (Chaudhry Ghulam Ghous (through L.Rs,) v.
Saifullah and another). Another judgment in F.R.A. No,79 of 1987 of the same case decided by the High Court on 6-5-2000.
14. Mr. Manzoor Ahmed Junejo, learned counsel for the respondents has supported the order passed by the learned Rent Controller. The respondent's counsel has relied upon the following case-law:--- ' Muhammad Alam through Legal Heirs v. Sultan Shah PLD 1988 Kar. 369; ' 1982 MLD 2011; Dost Muhammad v. Mst. Ramzan Bibi and 9 others 1990 M LD 1667; Deedar Ahmed and another v. Cooperative Engineers Limited 1992 M LD 1049 and Rahmat Khan v. Mst. Hamida 1992 M LD 1685.
15. I have gone through the judgment, evidence brought on record and contentions raised by the learned counsel for the parties and the case-law cited by the learned counsel in this case.
16. In the cited authority of the Honourable apex Court was highlighted which is reproduced as under:--- "With regard to third and the last contention it would be pertinent to note that Chaudhry Ghulam Ghous the original tenant, in his affidavit-inevidence filed in the rent case admitted that the demised premises were in his possession as tenant and he was not defaulter of the respondents and on the contrary when order of depositing rent under section 19(1) of the Ordinance was passed he was depositing the rent all along. He also in para. No,4 of the affidavit said that the respondents as well as Altaf Ahmed had many houses in Sukkur Town and also in the same Muhalla as such the demised premises were not required for their personal use. He categorically admitted the receipt of notice sent to him by the respondents/landlord. Further admission that the demised premises were situated in street and the rent of Rs,300 per month was maximum, goes to show that there existed relationship of tenant and that of landlord in-between them and the demised premises were let out to Chaudhry Ghulam Ghous, the husband and father of the petitioners on rent. On the death of Chaudhry Ghulam Ghous the tenancy devolved upon the petitioners. Admittedly since 1- 3-1976 neither Chaudhry Ghulam Ghous nor the petitioners have paid any rent either to Altaf Ahmed or to the respondents or any other owner as such they are defaulters and liable to be ejected. As regards personal bona fide need the respondents have been able to place on record sufficient evidence to that extent."
17. But in F.R.A. No,79 of 2000, the judgment passed by this Court in the same matter as above, the High Court has decided the issue as under:--- "It is also an admitted position that Ghulam Ghous did not pay any rent to either Altaf Ahmed or Mst. Munawar Sultana and other cosharers/transferees until the tentative order was passed by the Rent Controller on 18-3-1982. This is quite clear from the contents of the written statement wherein he has in para.2 of the. Same flatly denied any liability at all for the payment of rent. Similarly in cross-examination Ghulam Ghous has admitted that he has never paid the rent to any person before he remitted the same in the Court. Consequently, in my view Ghulam Ghous has committed a default in the payment of rent and has thus, rendered himself fit to be ejected from the rented premises."
18. In the above-cited case, admittedly since 1-3-1976 neither Chaudhry Ghulam Ghous nor the respondents had paid the rent either any one, as such they were termed as defaulter and liable to be ejected. There was an order of depositing the rent under section 16(1) of the Ordinance was passed by the learned Rent Controller, Sukkur. The respondent No,2 had paid the rent to the appellant by way of rent through receipts, money orders and by way depositing the rent in the Court. Therefore, the respondent No,1 cannot be presumed as defaulter whereas the respondent No,2 has categorically accepted the tenancy which has been proved by way of evidence brought on record. There are rent receipts from 6-5-1971 to November, 1991 and he has filed a rent application under section 10(3) of Sindh Rented Premises Ordinance, 1979. In view of the finding on Issue No,1 the trial Court has rightly observed that the appellants have failed to prove the relationship of landlord and tenant between respondent No, 1 . There was only prayer against the respondent No,1 for ejectment from the shop of C.S.No, C-3/1, Station Road, Sukkur, but not against the respondent No,2 who has proved his tenancy and there is no default on his part when the rent is being paid by way of other modes. The appellants in view of the finding of learned Rent Controller are authorized to initiate the proper proceedings against the respondent No,2 for the purpose of eviction if the demised premises is required for personal bona fide use for setting the appellant No,2 in the business to support the family members.
19. In these circumstances, I am of the view that there is no violation of settled principles of law. This is not a fit case to interfere in the impugned order passed by the Seamed 1-Rent Controller, Sukkur dismissing the ejectment application for the demised premises.
20. Resultantly, this appeal is dismissed and impugned order passed by the said Court is maintained.