ABDUL KHALIQ Versus HAJI MEHDI
1. The ejectment application was filed in 1973 by the appellants/ landlords in respect of the premises in question, which are located on the ground floor of a building in Kharadar, Karachi. Two parties were made opponents in the ejectment application, namely, Haji Mehdi, as the tenant, and Haji Muhammad Ibrahim, as the unauthorized sub‑tenant. There were four grounds, on which ejectment was sought by the appellant namely, conversion of the premises into an "Imam Bara"; on account of conversion of the premises into an "Imam Bara" the utility of the property had been impaired; unauthorized subletting and personal requirement. Respondent No. 1 Haji Mehdi, who had been joined as the tenant, remained ex parte during the proceedings before the Rent Controller. Respondent No. 2 Haji Ibrahim filed a written statement taking up the plea that the tenants were Anjuman‑e‑Imamia Askaria and that Haji Mehdi was the treasurer of the Anjuman and as he had left Karachi, he ceased to be the treasurer of the Anjuman and it was further averred that respondent No. 2, Haji Ibrahim, was the treasurer of the said Anjuman, and Haji Mehdi and respondent No. 2 had been holding the property on behalf of the said Anjuman and in fact the ' Anjuman were the tenants. Relationship of landlord and tenant was denied.
2. It may be observed here that an application under Order I, rule ,10, C.P.C. had been filed simultaneously with ‑the filing of the written statement of respondent No. 2 by the said Anjuman that it may be made a party, as it was the tenant of premises. The said application was dismissed on merits by the Rent Controller by order, dated 13‑2‑1.974. An appeal was filed against the said order, dated 13‑2‑1974 by the Anjuman but the same was dismissed for non‑prosecution by the learned Add1. District Judge, Karachi, on 18‑11‑1974. No further proceedings were filed against that order under the provision of the 1959 Rent Ordinance. Another application, under Order I, rule 10, C.P.C. was filed by the said Anjuman before the Rent Controller but the same was dismissed on the same day, on which it was filed i.e. on 20‑3‑1978. After the dismissal of the appeal by the learned Addl. District Judge, Karachi; the Anjuman filed a civil suit claiming a declaration that the Anjuman was the tenant of the premises and seeking a permanent injunction that the respondent/ landlord be restrained from ejecting the Anjuman without impleading the Anjuman as a party to the ejectment case. The said suit was dismissed under .Order VII, rule 11, C.P.C. by the Civil Judge. An appeal was filed by the Anjuman but the appeal was also dismissed by the Addl. District Judge, Karachi. Being aggrieved, the Anjuman filed Revision Application No. 358/81, which was admitted to regular hearing and the arguments on the said revision application were heard alongwith. the arguments in the present first rent appeal. By judgment produced today, Revision Application No. 358/81 has been dismissed. In the said judgment it has been held that the order, dated 13‑2‑1974 of the Rent Controller dismissing the application under Order I, rule 10, C.P.C. had become final inasmuch as the appeal filed against that order was dismissed for non‑prosecution and no further appeal was filed against the said order.
3. Respondent No. 2, Haji Ibrahim, died during the pendency of the rent case and an application was filed by Ali son of Karim for substitution of his name for Haji Ibrahim. The said application came up for hearing before the. Rent Controller on 19‑12‑1981 when the application was allowed without prejudice .to the rights of the appellants/ landlords, and Ali son of Karim was brought on record as opponent No. 2.
4. On preliminary issue; evidence of one of the appellants namely, Gul Hamid, was recorded. He was cross‑examined and then the case was adjourned for the evidence of respondent No. 2 but before such evidence could be recorded, the 1979 Sind Rent Ordinance was enforced and, therefore, the Rent Controller decided not to give a finding on the preliminary issue first but recorded the entire evidence. In such evidence, Gul Hamid again appeared as a witness on behalf of the appellants and apart from him another appellant, Abdul Khaliq, and one Suleman also gave evidence on behalf 'of the appellants. On behalf of respondent No. 2, Ali son of Karim himself and one Haji Ashraf, President of the Anjuman gave evidence: By the impugned order of the Rent Controller, dated 31‑5‑1982, the ejectment application filed by the appellants had been dismissed. Hence the present appeal.
5. The impugned order shows that according to the Rent Controller four issues arose out of the pleadings of the parties, namely:
(1) whether there exists relationship of landlord and tenant between the parties?;
(2) whether the opponent No. 1 un-authorizedly sublet the premises in dispute to opponent No. 27;
(3) whether the premises are being used by the opponents for the purpose other than for which it was let out; and
(4) whether the applicants require the premises in good faith and bona fidely for their personal use?
6. Issues Nos. (1) and (2) were taken up together and the finding of the Rent Controller was as follows:‑
7. "From the above discussion I conclude that there . exists relationship of landlord and tenant between the parties and that opponent No. 1(i.e. Haji Mehdi) has not unauthorizedly sublet the premises in dispute to opponent No. 2. Both these issues are decided accordingly."
8. The entire discussion and finding on issue No. (3) in the impugned order of the Rent Controller is contained in the following paragraph of the impugned order:‑
9. "Issue No. (3).‑‑ In view of my findings on issues Nos. 1 and 2 which show that premises was let out to the Anjuman and further that the Anjuman being a religious type of Anjuman would naturally hold religious functions such as NIAZ AND MAJLIS so I hold that the premises are not being used by the opponents for the purposes other than that for which it was let out. This issue is answered accordingly."
10. Issue No. (4) was about the personal requirement of the appellants. The entire part of the impugned order, dated 31‑5‑1982 of the Rent Controller dealing with and disposing of issue No. 4 is reproduced hereinbelow:‑
11. "ISSUE NO. 4.
12. The applicant's case is that the applicants constitute 6 independent families having 27 family members and the present accommodation consisting of 5 small rooms in the possession of the applicants is inadequate.
13. The applicant Gul Hameed reiterated the same facts in his affidavit in evidence. In cross‑examination he admitted that there are 2 other storeys above the ground floor. In cross‑examination he stated that the applicants are in possession of 8 rooms. He has thus contradicted his own case in which he stated that the applicants are residing in 5 small rooms in para. 7 of his rent application.
14. He denied that he constructed some rooms on the third floor also. The applicant Abdul Khaliq also stated in cross‑examination that 8 rooms are in possession of the applicant. The applicant's witness Muhammad Suleman in his affidavit‑in‑evidence stated that the applicant's family consists of 35 members, whereas the applicant's own case is that the family consists of 27 members. The applicant's witness appears to be very much enthusiastic by giving more number of family members than what the applicants have stated in their main rent application.
15. The opponent has denied the allegations of the applicant regarding personal requirement and stated that the applicants want to let out ground floor on Pugri and higher rent.
16. It is an admitted position that the premises were rented out to the opponent in 1946 i.e. even before the creation of Pakistan. There is long‑standing tenancy. A tenant of the premises for more than 35 years ought not to be ejected on the ground of personal requirement till the applicants prove their case strongly. The premises is situated on the ground floor of a 3‑storeyed building. A religious type of ANJUMAN is the tenant of the premises. The applicants are already in possession and in occupation of 2 storeys of the building. Thus the applicants have already sufficient accommodation being in possession of 2 storeys of the building, I decide this issue in negative."
17. I have heard at length the arguments of Mr. Ahmad Saeed, learned counsel for the appellants and Mr. Aftab Alam Kizilbash, learned counsel for respondent No. 2. As observed earlier, Haji Mehdi respondent No. 1 has remained absent.
2. From the discussion and finding on issues No.1 and 2 by the Rent Controller and also the discussion on issue No. 3 it follows that according to the .Rent Controller the said Anjuman was the tenant and respondents Nos.1 and 2 were the office‑bearers of the Anjuman, For this conclusion the Rent Controller has relied upon 13 rent receipts (Exhs. 0/1 and 0/13). Mr. Ahmad Saeed Qureshi, learned counsel for the appellants, had contended that these receipts had not been proved and as such no reliance could be placed upon these receipts. The contention of the learned counsel for the appellants is correct. These 13 receipts are written in hand and alleged to have been signed by Din Muhammad, who is not a party to these proceedings or to the proceedings before the Rent Controller. He is the uncle of the appellants Nos. 1, 3 to 10. These receipts are for 13 months from September 1970 to September, 1971. No other receipt was produced or relied upon by the respondent No. 2. The Rent Controller in his order has stated that these 13 rent receipts had been produced by P.W. Gul Hamid (appellant No. 3). In fact receipt books, exhibits A/3 and A/4, containing counterfoils of receipts were produced by Gul Hamid in his evidence. Exhibit A/3 contains the counterfoils showing receipts having been issued by Abdullah, predecessor‑in‑interest of the appellants, to Haji Mehdi (respondent No. 1) with effect from February, 1955 upto September, 1960. After these counterfoils, counterfoil for December, 1960, also shows the receipt having been issued to Hap Mehdi and it is for December, 1960. (exhibit 0114). Thereafter also counterfoil show that receipts had been issued to Haji Mehdi as tenant of the premises in question. These receipts go upto December, 1965. The last counterfoil in this receipt book is Exh.0/19. Mr. Aftab Alam Kizilbash, on a question from the Court, had stated that all the counterfoils in this receipt book i.e. Exh. A/3 are admitted. This shows that from 1955 to 1965 Haji Mehdi was the person to whom receipts were being issued as the tenant of the premises in question and that it was Hap Mehdi who was paying the rent. It has also come in the evidence on behalf of the respondent No. 2 that receipts used to be issued on printed forms. Apart from these receipts, the appellants had produced another receipt book, which contains counterfoils showing receipts having been issued in respect of the premises in question from October, 1971 to June, 1973. These are contained in Exh. A/4. These counterfoils have been denied by Mr. Aftab Alam Kizilbash. These counterfoils do not contain the signatures of the tenant. Much reliance cannot be placed upon the counterfoils contained in Exh. A/4.
18. Reverting to the 13 receipts purportedly issued by Din Muhammad on behalf of the appellants/landlords in favour of Anjuman (Exh. 0/1 to 0/13), It may be observed here that during the cross‑‑examination of P. W. Gul Hamid these 13 receipts were shown to him but he denied the said receipts but then these receipts were taken on record subject to proof. By merely confronting the said receipts to the appellants' witness, who denied them, such receipts did not stand proved and then these receipts were taken on record subject to proof. Apart from putting the said 13 receipts purportedly issued in favour of the Anjuman by Din Muhammad, to Gul Hamid during his cross‑examination, who denied the said receipts, there is no evidence , on the basis of which it could be said that the said receipts had been proved. Two witnesses had appeared on behalf of respondent No. 2, namely, respondent No. 2 and Hap Ashraf. Haji Ashraf was the President of the Anjuman at the time he gave evidence. In his cross‑examination he says that the said 13 rent receipts were the only receipts, which were available in the office when he took over as a President of the Anjuman. He further stated that prior to these receipts, receipts were not being issued regularly and the rent receipt that were issued previously were not available in the office and that none of the aforesaid 13 receipts was written in his presence. According to him, he used to send the rent and receipts used to be delivered by Din Muhammad but he could not say that Din Muhammad was one of the owners of the property. He further stated in the cross‑examination that he did not know Faiz Muhammad son of Abdullah, whose name appears on the 13 rent receipts. Other witness is respondent No. 2 himself namely, Ali son of Karim. He stated that these 13 receipts had been filed in Court by deceased Haji Ibrahim, the original opponent No. 2 in the rent case. He further stated that he was illiterate but he could sign his name and he could not say what was written in Exh. 0/1 to 0/13. He also stated that he could not produce any other receipts except the receipts which have already been filed in Court by deceased Haji Ibrahim.
19. Mere production of the 13 receipts through P.W. Gul Hamid during cross‑examination, who denied the said receipts, did not prove the said receipts, as observed earlier. Reference has also been made to the evidence of the two witnesses on bahalf of respondent No. 2 and their evidence also does not prove the 13 receipts. The 13 receipts should have, therefore, been excluded from consideration by the Rent Controller on the ground that the said receipts had not been proved. Apart from the 13 receipts, there are counterfoils of receipts from 1955 to 1965 and all these counterfoils give the name of Hap Mehdi as the tenant. All these counterfoils are admitted documents. The evidence on record, therefore, clearly established that Hap Mehdi was the tenant of the premises from 1955 till at least 1965. If after 1965 the tenancy had changed from Hap Mehdi to the Anjuman there should have been evidence on record to prove such averment. There is no admissible documentary evidence on record to show that the tenancy had changed hands from Hap Mehdi to the Anjuman. The oral evidence led on behalf of the respondent No. 2 was that from 1946 the Anjuman was the tenant but this assertion in the oral testimony on behalf of respondent No. 2 is not acceptable on the face of the evidence on record. No document has been produced to show that Anjuman had become a tenant from 1946. On the other hand, the Exh.A/3, which contains the old counter‑foils, shows that prior to February, 1955, there were some other tenants in the premises and in February, 1955, the first rent receipt was issued in the name of Haji Mehdi. If the Anjuman had become the tenant initially, there was no reason for receipts having been issued w.e.f. February, 1955, in the name of Hap Mehdi from the oral as well as documentary evidence, therefore, it had been established that Haji Mehdi was the tenant of the premises, rent receipts were being issued in the name of Hap Mehdi and that tenancy had not changed from Hap Mehdil to the Anjuman.
3. Reference may also be made here to the efforts made by the Anjuman to become a party to the ejectment proceeding on the ground that it was the tenant and not Haji Mehdi in his personal capacity.
20. Such attempts made by the Anjuman failed. The application under Order I, rule 10, C.P.C. moved on behalf of the Anjuman was dismissed on merits by, the Rent Controller by order, dated 13‑2‑1974. In that application under Order I, rule 10, C.P.C. reliance had been placed upon the same 13 rent receipts but the case of Anjuman was not accepted. The Anjuman being aggrieved, resorted to the correct procedure against the said order, dated 13‑2‑1974 by filing an appeal before the learned District Judge but that was not pursued and the appeal was dismissed for non‑prosecution. As observed earlier, no further proceedings were taken for filing a second appeal before the High Court. The order that Anjuman was not a tenant of the premises and was, therefore, not entitled to become a party to the rent proceedings became final. In the face of the said finding in the order, dated 13‑2‑1974 which had become final, the Rent Controller, in his final order passed in the ejectment case, could not come to the finding that Anjuman was the tenant. The finding of the Rent Controller, that Anjuman was not a tenant and not entitled to become a party, had attained finality. The Rent Controller could not review such finding under the provision of the Rent Controller. On this ground also the Rent Controller's finding that Anjuman was the tenant is liable to be set aside.
21. Mr. Aftab Alam Kizilbash had argued that counterfoils or receipts from 1955 to 1965 had been produced by appellant and then some receipts from October, 1971 upto June, 1973 and that no explanation has been given for not producing the counterfoils for the intervening period. In answer to a question in respect of this submission‑of the learned counsel for the respondent No. 2, Mr. Ahmad Saeed Qureshi, learned counsel for the appellants, stated that whatever counterfoils were available, the same had been produced. This factor may have helped the respondent No. 2 if there had been other evidence on record in his favour. The non‑production of the other counterfoils by the appellants by itself does not demolish the case of the appellants that Haji Mehdi was the tenant, which assertion on behalf of the appellants has been proved by admitted documents namely counterfoils contained in Exh. A/3 and oral evidence also. Then there is no explanation on behalf of the respondent No. 2 as to non‑production of any other receipts except Exhs. 0/1 to 0/13. If the Anjuman or respondent No. 2 were the tenants of the premises in question from 1946 there should have been more receipts in possession of respondent No. 2 or the Anjuman and the only 13 receipts produced by them have not been proved. ,
22. From the above discussion it follows that Haji Mehdi was the tenant of the premises in question and the premises had been unauthorizedly sublet to the Anjuman by respondent No. 1. The evidence does not prove that this subletting had been with the consent or approval of the apellants or Abdullah predecessor‑in‑interest of the appellants, who died in 1960.
4. It is not necessary to comment upon the finding on issue No. 3 given by the Rent Controller. This finding on issue No. 3 was based on the earlier finding of the Rent Controller that Anjuman was the tenant of the premises. I have already found that on the evidence it had not been established that Anjuman was tpe, tenant and it was Haji Mehdi who was the tenant.
23. Issue No. 4 relates to personal requment. One reason for deciding this issue against the appellants is given in the impugned order of the Rent Controller as contradiction in the case of the appellants. According to the Rent Controller, the appellants' witness Muhammad Suleman in his affidavit‑in‑evidence had stated that the appellant's family consisted of 35 members, whereas the appellants own case was that the family consisted of 27 members. There is no contradiction in the everment of the appellants in para. 7 of the ejectment application that the appellants are six independent families having 27 family members and the evidence led on behalf of the appellants to the effect that the family members are 35. The learned Rent Controller failed to notice that the ejectment application had been filed in 1973, wherein the evidence had been recorded in 1982. The evidence on behalf of the appellants that in 1982 the number of their family members had increased to 35 is, therefore, not contradictory to the statement made about 9 years earlier when the strength of the six families was 27. The case of the appellants was that they were residing in two‑storeys namely first floor and second floor of the premises in question and according to the Rent Controller 8 rooms were sufficient for the accommodation of all the families of the appellants. The evidence of the appellants that their families comprise of 35 members and they require more accommodation for accommodating their family members had more or less gone uncontroverted. The plea of personal requirement, which was supported by the evidence on behalf of the appellants was wrongly brushed aside by the observations of the Rent Controller that the appellants "are already in possession and in occupation of two storeys of the building, thus the applicants have already sufficient accommodation being in possession of the two storeys of the building." The finding on the personal requirement is also liable to be set aside.
5. As a result, F.R.A. No. 732/82 is allowed and the order, dated 31‑5‑1982 of the Rent Controller, Karachi, is set aside and the ejectment application filed by the appellants is granted on the grounds of subletting and personal requirement. Admittedly, the Anjuman is in possession of the premises in question. They are allowed time till 31‑8‑1986 to vacate the premises.
24. There will be no order as to costs.
25. A.A. Appeal allowed.