ABDUL LATIF Versus BASHIRAN BEGUM

1. This First Rent Appeal is directed against the order dated 23rd September, 1984, passed by the learned Senior Civil Judge and Rent Controller, Karachi, by which he has ordered ejectment of the appellant on the ground of personal bona fide use.

2. The brief facts giving rise to the present appeal are that the respondents filed an ejectment application against the appellant inter alia alleging therein that the opponent /appellant was their tenant in the premises bearing Flats Nos.3, 4 and 5, situated in building on Plot No.82‑D/6, P.E.C.H. Society, Karachi, at the monthly rent of Rs.500. That the applicants had become the owners of the premises by the order of the Hon'ble High Court of Sind in Appeal No.329 of 1973. The applicants Nos.2 to 10 were residing in a two‑roomed flat in 14‑Moolchand Chanderbhan Building, Bunder Road, Karachi, which is quite insufficient for their need. The marriage of son of applicant No. 1 is held up for want of accommodation. The applicants required Flats Nos. 3 , 4 and 5 in good faith for the bona fide personal use of applicants Nos. 3, 4, 7, 9, and 10, and for the bona fide use and occupation of Naim Akhtar, the son of applicant Noel. The opponent owns a house bearing No.133‑E, Block VI, P.E.C.H. Society, Karachi. The opponant/appellant filed written statement in which it was stated that applicants have failed to establish their bona fide title to the property. The attorney of landlord and himself as applicant No.2 had no locus standi to act in the instant matter. The applicants Nos.2 to 10 have feigned claim since there was litigation between them, and have joined hands over illegal venture. On the pretext of bona fide requirement, the‑ applicants Nos.2 to 10 want to enhance the rent. The applicants did not maintain harmony between themselves, and entered into a long litigation on the question of title in respect of the subject property for many years and admittedly obtained some sort of decree. The opponent does not own the house bearing No.133‑C, Block VI, P . E. C . H . Society, Karachi, in his individual and personal capacity. That the application was liable to be dismissed.

3. The learned Rent Controller framed the following issues:‑

(1) Whether the applicants require the premises in good faith for the use of applicants Nos.2 to 10 and that of the son of the applicant No.l ?

(2) What should the order be ?

4. In support of the ejectment application, the applicant No.2 filed his own affidavit‑in‑evidence as Ex.l, and has produced photostat copy of plaint in Suit No.603 of 1980 as Ex.l/1, simple copy of written statement filed in the above suit as Ex.l/2, copy of judgment in the above suit as Ex.l/3, photostat copy of application under Order 39, Rules 1 & 2 as Ex.l/4, photostat copy of the judgment of the Hon'ble High Court in IInd Appeal No.329 of 1973 as Ex.1/5, two rent receipts as Exs.l/6 and 1/7. In addition thereto the affidavits of Akhtar Mahmood Khan and Abid Majid were also filed as Ex.2 and Ex.3. On the other hand, opponent/ appellant filed his affidavit as Ex.4. However, he was cross‑examined on commission.

5. The learned trial Judge while relying upon the above evidence answered Issue No.l in affirmative, and allowed ejectment application as indicated above.

6. I have heard Mr. Mohammad Ashraf Kazi, learned counsel appearing for the appellant, Mr. Mohammad Mahfoozul Haq, learned counsel for the respondent and have gone through the R & P of the case.

7. It was contended by Mr. M.A. Kazi learned counsel for the appellant that the compromise decree obtained by the applicant from the High Court in June 1979, was not a proof of title. That the decree was not yet registered nor the names of applicants were entered into relevant record. That the Rent Controller had erred in not framing the issue regarding the ownership and, therefore, the case of the appellant was seriously prejudiced. Specially in view of the paras Nos.2 and 3 of the compromise application which shows that the respondents Nos.l and 2 shall assign and execute such papers and documents in favour of appellants. That the ejectment could not be granted for bona fide requirement of respondents Nos. 3, 4, 7, 9, 10 and son of respondent No.l and this aspect of the case was not considered by the learned Rent Controller. In this connection Mr. M.A. Kazi has relied upon clauses (f) and (g) of section 2 of the Sind Rented Premises Ordinance, 1979. He has also relied upon PLD 1974 Quetta 1; 1972 S C M R 437; P L D 1976 Kar. 696; P L D 1985 Kar. 624; P L D 1984 S C 208; PLD 1972 Quetta 42; 1987 C L C 333. In reply he has further contended that excluding the time spent on obtaining copies, the appeal was in time.

8. Mr. Mahfoozul Haq, learned Counsel appearing for the respondents has contended that the appeal was time‑barred inasmuch as the order was passed on 23‑9‑1984. , the copy was applied for on 16‑10‑1984, while costs were paid on 10‑11‑1984, copy was ready on 13‑11‑1984. It was taken by the appellant on 21‑i1‑1984; and the appeal was filed on 25‑11‑1984. That the evidence produced by the respondents clearly proved that the premises in dispute were required by them in good faith for personal bona fide use. The ownership was not denied even by the appellant in cross‑examination. I have considered the contentions of the learned counsel and have gone through the R & P of the case.

9. The affidavit‑in‑evidence filed by respondent No. 2 Abdur Rashid shows that he is applicant No.2 and duly constituted attorney of the other applicants. That he and applicants Nos.3 to 10 are sons and daughters of late Abdul Majid Khan. That he and applicants Nos.3 to 10 and their mother (since deceased) filed a Suit No.603 of 1968 in the Court of Vth Senior Civil Judge, Karachi, against applicant No.l and her husband Akhtar Mbhammad, alleging therein that the plot of land bearing No.82/D, Nursery Market, P.E.C.H. Society, Karachi, was jointly acquired by their father late Abdul Majid Khan and Akhtar Mahmood Khan, husband of applicant No.1, and the building was jointly constructed on the said plot. They filed a suit for the recovery of 50$ share of the rent recovered from the said building and the photo copy of the plaint has been filed as Ex.8. The photo copy of the written statement has been filed as Anexure 'B'. That the above suit was decreed on 8‑2‑1972 and it was held that they had 50 paisas share in the said property. He has produced copy of judgment as Exs. 'C'. The other side filed an appeal against the said judgment and decree, which was allowed by the Ist Additional District Judge. That they fiied IInd Appeal in the High Court being IInd Appeal No.329 of 1973, and that during the pendency of the IInd Appeal there was a compromise between them and Akhtar Mohammad Khan and his wife Bashiran Begum in which their ownership to the extent of 50$ share in the said property was admitted and acknowledged. Consequently, a decree in terms of compromise was passed by the Hon'ble High Court. The photostat copy of the compromise application and decree have been produced as Exs. 'D and 'E' and thus the applicant No. l and applicants Nos. 2 to 10 are co‑owners of the property in question, each of them held 50‑Paisa share in the said property. That the opponent was tenant in respect .of the residential Flats Nos.3, 4 and 5 in the said building at the monthly rent of Rs.500. That he, (deponent) and applicants Nos.3 to 10 are residing in a two‑roomed flat in 14, Moolchand Chanerbhan Building, Bunder Road, Karachi. That the premises in their possession are quite insufficient for their use and occupation and they were facing great Hardship and inconvenience. That the applicant No.3 intends to get married but the same cannot be arranged due to lack of accommodation. That they require 'the above flats in good faith for the bona fide personal use and occupation of applicants Nos. 3, 4, 7, ,9 and 10, and for the bona fide use and occupation of Naim Akhtar, the son of applicant No. 1. That‑ the opponent has his own house bearing No. 133‑E,. Block VI, P.E.C.H.S., Karachi. Akhtar Mohammad Khan Ex.2 had stated in his affidavit, that he is husband of applicant No.l,and was conversant with the facts of the case. The applicants Nos. 2 to 10 are the sons and daughters of Abdul Majid who was his real uncle. That the applicants Nos.2 to 10 and their mother (since deceased filed a suit bearing No.602 of 1968 in the Court against him and his wife, applicant No.1; claiming 50% share as heirs of late Abdul Majid, and they claimed the 50$ share of rent. That ultimately, the parties compromised before the High Court in IInd Appeal No.329 of 1973, and that he and his wife applicant. No.l admit, and Acknowledged 50% share in the said property and such comp ‑ imise was filed in the Court. That thus the applicants Nos.2 to 10 are co‑owners of the property and have 50 Paisas share 1 the said property. That the opponent is tenant in respect of the flats bearing Nos. 3, 4 and 5 situated in the said building at the rite of Rs.500 per month. That the applicants Nos.2 to 10 are residing in a two‑roomed flat in 14 Moolchand Chanderbhan Building, Bunder Road, Karachi. The premises in possession of the applicants Nos.2 to 10 are quite insufficient for their use and occupation and they are facing great hardship and inconvenience. The applicants intend to marry applicant No.3 but cannot do so due to lack of accommodation. The applicants required the above flats for the personal use and occupation of applicants Nos. 3, 4, 7. 9 and 10 and for the use and occupation of Naeem Akhtar, the son of applicant No.l. The opponent has his own house bearing No.133‑E, Block VI, P.E.C.H. Society, Karachi. Abid Majid Son of late Abdul Majid has also filed affidavit, fully supporting the contention of applicant Abdur Rashid and Akhtar Mahmood husband of applicant No.l.

10. On the other hand appellant /opponent Abdul Latif has filed his own affidavit in evidence in which he has stated that the applicants have not filed any documents to show their ownership except the document of IInd Appeal No.329 of 1973, and it was doubtful as to whether the applicants are in possession of any title document to prove themselves as owners of the property. He had acquired the property in dispute from Akhtar Mohammad, a retired Deputy Superintendent of Police on lease in perpetuity about 21 years ago by written agreement which he had in his possession, and was not produced deliberately before the Rent Controller. It was not an oral agreement for five years as admitted by him in cross‑examination. That the applicants Nos.2 to 10 are co‑owners of the property and have neither arranged the marriage of the applicant No.3 so far, nor any marriage has taken place. It was only an intention .to marry him. The share of applicant No.3 comes to 9.08 Paisas in a Rupee according to Muslim law, and' since he is not a child of any of the applicants Nos.l, 2, 4 to 10, his need cannot be considered as need of the other applicants. That the applicants are greedy people and they want to increase the rent in wrongful manner. The applicant Abdul Rashid had called upon him to increase the rent. That a similar rent case was filed against another tenant who is running a hotel on the ground floor and the same was withdrawn after the rent was increased. The applicants do not need the premises for personal bona fide use of applicant No.3, while in repectO of remaining applicants, paras. 3 and 4 of the written statement may be considered. That he was a tenant unto perpetuity and deserved not to be ejected under the circumstances. That the application was not maintainable and was liable to be rejected.

11. So far the question of ownership of the premises in dispute was concerned, the evidence of applicant /respondent No.2 Abdul Rasheed, Akhtar Mohammad Khan, Abdul Majid, and the documents produced by the respondents specially the photo copy of judgment of the High Court in IInd Appeal No.329 of 1973 Ex.l/5 and the two rent receipts Ex.l/6 and Ex.l/7 clearly show that the respondents were the owners of the premises in dispute. It was further proved from the evidence of Akhtar Mohammad Khan that his wife applicant/ respondent No.l had 50 Paisas share in the building where the flats in dispute are situated, while the respondents Nos.2 to 10 were A heirs of late Abdul Majeed his uncle, and they had inherited 50'Pais share in the premises being the share of late Abdul Majeed Khan. The judgment of the Court produced as Ex.1/3 in S4it No.603/196 clearly shows that Plot No.82/B was jointly acquired by Akhta Mohammad Khan and late Subedar Abdul Majeed Khan, and the compromise application Ex.l/4 in Ilnd Appeal No.329 of 1973 clearly proves that the property in dispute was owned by Mst. Bashirar:

12. Begum respondent No.l, and the present respondents Nos.2 to 10 equal shares having 50$ share with effect from the date of the order Even it has been admitted by the appellant in cross that the applicant are landlords.

13. From the above ocular as well as documentary evidence it had been proved beyond doubt that the respondents were the owners of the premises in dispute and since there was ample evidence availabl on the point of ownership, the mere fact that the learned Ren Controller did not not frame issue about ownership will not affect the decision in the present case. The decision in Safdar Ali v. Mohamma Ali P L D 1974 Quetta 1 relied upon by Mr. M.A. Kazi with grea respect states the position about the framing of issues which is clea from the following passage:‑

14. "As subsection (6) of section 13 merely refers to the framing of issues, it is clear that the Controller's power to framing issues is unfettered. Of course this does not mean that his discretion is arbitrary, because discretion must always exercised according to law. At the same time, we are boun by the view of their Lordships that the Rent Controller is no Court. In this view of the matter, in my humble view the requirement about framing of issues cannot be put higher than this."

15. It was further observed that:‑

16. "If the tenant raises an objection about jurisdiction, which not a frivolous or sham objection, as in the present case, the Rent Controller should decide this objection first, provide his attention is drawn to it by the tenant, and if the tenant wishes to produce evidence he should be allowed to do so. But if the tenant does not make any effort to have his objection about jurisdiction decided as a preliminary legal objection, the Rent Controller is under no obligation whatever to frame an issue merely because an objection to jurisdiction has bee pleaded by the tenant in his written statement, more so a many objections taken in written statements are frequent dropped even in suits in the regular Courts."

17. In the present case the record does not show that the appellant made any application to the Rent Controller that the issue regarding ownership should be decided as a preliminary issue and therefore i my humble view, the Rent Controller did not commit an illegality be not framing the issue regarding ownership. Specially looking to their circumstances of the case, mere non‑framing of issue regarding ownership does not affect the order passed by the Rent Controller. As discussed above there is sufficient ocular as well as documentar evidence on record to show that the respondent No.l had 50 Paisa' share in the premises in dispute, while the remaining 50 Paisas share belonged to the respondents Nos.2 to 10. It is further supported by a question put by the appellant in cross‑examination to respondent Abdul Rasheed that the appellant was paying rent to respondent Abdul Rasheed. If he was not one of the owners of the premises in question, the appellant would not have paid rent to him, although initially according to him he had occupied the premises as tenant through Abdul Majeed Khan husband of the Respondent No.l. Coming to the next contention of Mr. M.A. Kazi that the respondents Nos.3 to 10 were occupying another house and did not require the premises in dispute bona fide for their personal use and for the son of respondent No.l. Of course the burden was on the respondents to prove that their need was bona fide as alleged. It has been the case of the respondents that the respondents Nos.2 to 10 are residing in a 2‑roomed flat in 14, Chander Bhan Building Bunder Road Karachi. That the respondent No.3 intends to marry but because of paucity of accommodation he cannot marry. It is supported from the evidence of respondent No.2, and their witnesses Akhtar Mohammad Khan an Abid Majeed. Their evidence appears to be straight‑forward, natura and reliable. It has not been shaken in anyway in spite of long cross‑examination. Respondent Abdul Rasheed has deposed that the flat occupied by them consists of 2 rooms and a gallery, kitchen an bath. The first room admeasures 10 x 10 sq. feet, and second room admeasures 10 x 12 sq. feet. There was no suggestion to him that cross‑examination that the flat occupied by them consisted of more rooms than 2, nor even it was suggested to him that the presen accommodation in their possession was sufficient for their needs. The evidence of respondents Abid Majeed was also not seriously challenge and it was not put to him that the accommodation in their possession was sufficient for their needs. In fact the appellant has admitted cross‑examination that respondents Nos.2 to 10 were living in 2‑roonhe flat.

18. In order to appreciate the legal objection of Mr. M.A. Kazi was essential to consider the provisions of clauses 'F' and 'G' o Section 2 of the Sind Rented Premises Ordinance, which are as under:

19. Section 2‑F : ‑

20. "Landlord" means the owner of the premises and includes a person who is for the time being authorised or entitled to receive rent in respect of such premises;'G' "Personal use" means the use of the premises by the owner thereof or his wife (or husband), son or daughter;

21. Naim Akhtar is son of respondent No.l, therefore his case is fully covered by clause 'G' of section 2 of the Ordinance, while respondents Nos.3, 4, 7, 9 and 10 are brothers and sisters, and are co‑sharers in the property in dispute, and they require the premise in dispute for their personal use, as they were living in 2‑roomed house, which is admitted even by the appellant.

22. The decisions reported as Dr. A.R. Khan v. Mohammad Ishaque 1972 S C M R 437, Mohammad Siddiq v. Abdul Hameed P L D 1976 Kar.696, P L D 1972 Quetta 39, 1987 C L C 333, Khalilur Rehman v. The Controller of Post Offices, General Post Offices, Karachi, lay down a principle regarding burden of proof that the landlord had to prove that he required the premises in question bona fide for his personal use or for the bona fide use of the persons mentioned in clause 'G' of Section 2 of Sind Rented Premises Ordinance. With great respect, there is no cavil with the above proposition. As discussed above there was ample evidence that the respondents/applicants were owners of the property in dispute. That the respondents Nos. 3, 4, 7, 9 and 10, and Naim Akhtar son of applicant/ respondent No.l required the premises in question for their bon fide personal use. Therefore the learned Rent Controller was right in deciding the issue No.l against the appellant.

23. As far as the question of limitation was concerned, the ejectment application was decided on 23‑9‑1984, an application for copies was filed on 16‑10‑1984, and the fees were estimated on 17‑10‑1984, but the same were deposited on 5‑11‑1984. The copies were prepared and were ready for delivery on 10‑11‑1984, but the stamps were supplied on 13‑11‑1984, while copy was delivered/taken on 21‑11‑1984 and the, appeal was filed on 25‑11‑1984. From the above narration of dates, is clear that the application for copies was made after 23 days. The fees were estimated on 17‑10‑1984 but the same were deposited o 5‑11‑1984, i.e. after 18 days. The copy was prepared on 10‑11‑1984. but the stamps were supplied on 13‑11‑1984, and the copy was actually taken/delivered on 21‑11‑1984 i.e. there was another delay of 1' days after the copy was made ready. Again the appeal was filed o 25‑11‑1984 i.e. 4 days after the receipt of copy. The appeal had t be filed within 30 days and, therefore from the above discussion is clear that the appeal was clearly time‑barred.

24. The order passed by the Rent Controller does not call for interference, therefore the appeal is accordingly dismissed.

25. However, I allow three months time to the appellant to hand over vacant possession .to the respondents, on his failure, it will no be necessary to issue any prior notice to the appellant if any execution application is filed.

26. The appeal is dismissed with no order as to costs.

27. A.A./A‑294/K Appeal dismissed.