GHAFFAR Versus GHAFOOR BHAI

Ghafoor Bhai son of Hashim Bhai filed an application under section 15 of the Sindh Rented Premises Ordinance, 1979 in the Court of 111rd Rent Controller, Karachi, seeking ejectment of his tenant Ghaffar son of Haroon from a shop situated on plot bearing survey No.183, sheet No. O.T. III, near Mithadar Chowk, Karachi. The shop in question was let out to the said tenant at a monthly rent of Rs.42 per month. The said tenant failed to pay rent from 19‑9‑1960 up to the date of filing of the rent application. The landlord accordingly sought ejectment of his tenant on the ground that the tenant had failed to pay rent from 19‑9‑1960 and also on the ground that the shop in question was needed by the landlord for the use of his eldest son.

2. During the course of the proceedings, the applicant Ghafoor Bhai expired and his legal heirs were joined as applicants in his place.

3. The tenant in his written statement denied the existence of relationship of landlord and tenant between them and asserted that the rent application was not competent as no notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1959 was given to him. He further contended that the applicant had previously filed similar application being Rent Case No.240 of 1963 against a dead person viz. Haroon, on the same ground. His son Muhammad Ramzan was then joined as a party and he was directed to deposit rent at the rate of Rs.15 per month. The said Ramzan deposited rent from 19‑9‑1960. The rent case was ultimately dismissed and thereafter Ramzan started depositing rent in Rent Case No.390 of 1963 filed by him as the applicant refused to accept rent from him. Thereafter, the applicant. filed another Rent Case being Rent Case No.1055 of 1979 against his said tenant Ramzan. After notice was issued in that case, it was found that Ramzan had already died on 10‑1‑1976. This case was, therefore, dismissed on 15‑10‑1979. It is after such litigation that the present frivolous application has been filed against him.

3. The Rent Controller on the basis of pleadings of the parties settled following issues;

(i) Whether there exists relationship of landlord and tenant between the parties?

(ii) Whether the opponent has made a default in payment of rent as alleged?

(iii) Whether the applicant requires the case premises for personal bona fide requirement?

(iv) What should the order be?

4. Both the parties led their evidence in support of their stands. The Rent. Controller on the basis of evidence produced by the parties answered the first three issues in affirmative and directed ejectment of the appellant and passed an order on 8th July, 1987 to that effect. It is against this order that the present appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 has been filed by the tenant/appellant.

5. Mr. Mehar Hussain Masawa, the Advocate for the appellant raised the following pleas in support of the appeal;

(i) The Rent Controller had failed to comply with the mandatory provisions of law contained in Order XX, rule 4, Civil Procedure Code in writing the judgment in the case. He relied on cases reported as 1982 C L C 663 and 1989 C L C 1542 in support of his contention.

(ii) The Rent Controller had misread evidence and passed an erroneous order.

(iii) That application for ejectment was filed against the wrong person.

6. Messrs S. Inayat Ali and Muhammad Mu7affarul Haque the Advocates for the respondents argued that according to the facts brought on record, one Haroon father of the appellant was originally the tenant of the shop in question. He had committed default in payment of rent and an application for his ejectment was filed before the Rent Controller. After the filing of that case it transpired that he was dead and his son Ramzan was in possession of the shop. Proceedings were, therefore, initiated against Ramzan. Ramzam too expired and the shop admittedly came in possession of the other son of original tenant, the present appellant in the case. It is also an admitted position that the appellant neither paid rent to the respondent nor tendered rent in any permissible manner. In view of such admitted position, the rent case was competently filed and the respondents proved their case on both the grounds.

7. As regards the first contention of Mr. Masawa, Advocate for the appellant that the Rent Controller has not complied with the provisions of Order XX rule 4 (2) Civil Procedure Code he has not been able to show as to how the Rent Controller has failed to do so. Even otherwise the Rent Controller is required by section 19 of the Sindh Rented Premises Ordinance, 1979 to follow the procedure laid down therein. The provisions of Civil Procedure Code are applicable to cases before a Rent Controller only to the extent as provided by A section 20 of the Ordinance. In fact a Rent Controller can deviate from the normal mode of dealing with issues in a suit and follow the procedure laid down in section 19 (5) of the Ordinance for writing judgments. Under the circumstances, no exception can be taken to the manner of writing judgment in the case by the Rent Controller and such an argument has no force.

8. Nothing has been pointed out by the Advocate for the appellant in support of his second contention.

9. In order to appreciate third contention of Mr. Masawa, the Advocate for the appellant it will be necessary to examine the definition of "tenant" as given in section 2 (j) of the Sindh Rented Premises Ordinance, 1979 which is reproduced herein;

(j) "tenant" means any person who undertakes or is bound to pay rent as consideration for the possession or occupation of any premises by him or by any other person on his behalf and includes‑.

(i) any person who continues to be in possession car occupation of the premises after the termination of his tenancy;

(ii) heirs of the tenant in possession or occupation of the premises after the, death of the tenant."

From the definition of "tenant" reproduced above it will he seen that following persons will be taken to be the tenants for the purpose of the Sindh Rented Premises Ordinance 1979:‑

(i) A person who either undertakes to pay rent of a premises or is bound to pay rent as consideration for being in possession or occupation of a premises. He can be another person too who acts on his behalf.

(ii) A person who continues to be in possession or occupation of a premises even after the termination of his tenancy.

(iii) Heirs of a deceased tenant.

The above definition is also not exhaustive as tenant as defined in subsection (j) `includes' categories at (ii) and (iii) above. Term "include" has been used to give the subsection an extended meaning. There can be other categories of persons to come within the definition of a "tenant". The appellant in this case admittedly is the son of the original tenant, Haroon. Ramzan occupied the shop on death of his father and appellant the other son of Haroon occupied it on the death of his brother Ramzan. Appellant, therefore, is a tenant within the definition contained in section 2 (j) of the Sindh Rented Premises Ordinance, 1979, and he had clearly committed default, in payment of rent as no rent was ever paid by him. The third contention too, therefore, has no force.

10. For the foregoing reasons, I find no force in this appeal, which is dismissed. The appellant will hand over the vacant possession of the shop to the respondents within three months.

.

H.B.T./G‑173/K Appeal dismissed.