SIRAJUDDIN Versus MUHAMMAD USMAN

1. The appellant filed an ejectment application against the respondent in respect of Shop No. 2/19, Bismillah Market, Commercial Area, Shah Faisal Colony, Karachi which was let out on monthly rent of Rs.250. It was pleaded by the appellant in the ejectment application that the appellant has impaired the value and utility of the said Shop No. 2/19 by demolishing internal wall of Shop Nos. 2/19 and 2/18, he requires the premises for his own personal bona fide requirement and that the appellant has failed to pay the rent from 1‑4‑1981 to 31‑7‑1981. The appellant filed written statement denying all these allegations. It was pleaded that he is a tenant of Shop Nos. 2/18 and 2/19, Bismillah Market, at the rate of Rs.100 p.m. for each shop. It was averred that the action is mala fide and counterblast for the suits filed by the appellant in the Court of Civil Judge. The learned Controller passed an order under section 16(1) for deposit of rent from April, 1981 at the rate of Rs.200 p.m. The arrears upto 28‑2‑1982 were to be deposited within 45 days and future rent was to be deposited on or before 10th of each following months. The respondent filed an application under section 16(2) of Sind Rented Premises Ordinance alleging that the appellant has committed default in depositing the rent. The appellant filed objection stating that he has deposited rent in Rent Case No. 3910 of 1981 as the previous Advocate had not communicated the order of the Controller. He further stated that under an agreement Rs.5,000 has been paid to the respondent. He also filed photo copy of the receipts showing payments from 12‑2‑1981 till May, 1982 and thereafter another receipt, dated 15‑9‑1982 to show that he has made deposit in Rent Case No. 3910 of 1981. The learned Controller came to the conclusion that default has been proved and ordered for ejectment of the appellant.

2. Mr. Amir Ahmed Khan the learned counsel for the appellant has contended that the appellant had agreed to purchase the property from the respondent under agreement, dated 3‑6‑1981 and, therefore, the relationship of landlord and tenant ceased to exist. The learned counsel further contended that in view of section 53‑A of the Transfer of Property Act the appellant could not have been ejected. From these contentions it is clear that the appellant is denying the relationship of landlord and tenant between the parties. The appellant had filed his written statement on 13‑10‑1981 but such plea was not raised. In fact he has admitted the relationship of landlord and tenant. In the objections to application under section 16(2) filed by the appellant no such plea was raised only a vague objection was taken that the respondent is holding Rs.5,000 as earnest money. Even in this objection it was not suggested that he is not a tenant. It seems that he wanted to get adjustment of Rs.5,000. It was also stated by the appellant that he has been depositing rent in Miscellaneous Case No. 3910 of 1981 continuously which shows that at all material time the appellant has considered himself to be a tenant of the respondent. In these circumstances the plea that by virtue of sale‑deed the appellant has ceased to be a tenant cannot be accepted. The learned counsel has referred to P L D 1971 S C 114 in which it has been held that section 53‑A is a valid defence in a case for ejectment. However, in 1976 S C M R 152 while taking note of P L D 1971 S C 114 it was observed that where a tenant purchases the disputed property from the landlord he shall cease to be the tenant if under the agreement he is exempted from payment of rent, .he has obtained possession under the agreement and he is ready and willing to perform his part of the agreement. The agreement produced by the appellant does not exempt the appellant from payment of rent and the possession with the appellant is as a tenant. It seems that the appellant is not ready and willing to perform his part of the contract because firstly the suit for specific performance of the contract filed by him has been withdrawn and secondly, on querry, Mr. Amir Ahmed Khan, the learned counsel for the appellant, stated that presently the appellant is not in a position to pay the sale consideration. In these circumstances the appellant cannot take benefit of section 53‑A of the Transfer of Property Act.

3. The learned counsel also pointed out that the appellant had been depositing rent in miscellaneous rent case which should have been taken into consideration. Even if this plea is accepted it is clear that the appellant started depositing rent in another case from August, 1981 whereas the direction was to deposit the rent from April, 1981. The appellant has, therefore, committed default in complying with the order passed under section 16(1). The appeal is, therefore, dismissed. However, it is made clear that this ejectment order relates to Shop No. 2/19 in respect of which the ejectment application has been filed.

4. The appeal is dismissed.

5. H.B.T ????????????????????????????????????????????????????????????? Appeal dismissed.

6. ?