MUHAMMAD SAEED DAFTRI Versus RAZIA BEGUM

1. By this common judgment I propose to dispose of F.R.A. No.446/87 and F.R.A. No.483/87 as both these appeals arise out of the judgment passed by the 1llrd, Senior Civil Judge/Rent Controller, Karachi East, on 18‑3‑1987 in Rent Case No.G77 of 1985. The facts leading to the filing of these two appeals briefly stated are as under:‑

2. Appellant, Muhammad Saeed Daftri, in F.R.A. No.446 of 1987 is the tenant while Respondent Mst. Raria Begum is the landlady who is appellant in F.R.A. No.483/1987. The premises in dispute, House No.7/74, Block III Delhi Merchantile Cooperative Housing Society, Karachi originally belonged to one Mst. Bismillah Jan. On the death of her husband she alongwith her children inherited various assets and properties left by him. By a deed of settlement dated 9‑1‑1979 she distributed the properties among her children. The premises in question though owned by Mst. Bismillah Jan was given to Mst. Razia Begum in settlement of her share. Mst. Bismillah Jan therefore had to transfer it by way of oral lift and she handed over its possession to her. Such fact was incorporated in the deed of settlement.

3. Muhammad Saeed Daftari the appellant in F.RA. No.446 of 1987 was earlier inducted as a tenant of a portion of tenement on the ground floor of the said premises on payment of rent of Rs.150 per month by Mst: Afroze Begum, sister of Razia Begum and daughter of Mst. Bismillah Jan.

4. By her application filed under section 15 of the Sindh Rented Premises Ordinance, 1965 on 4‑7‑1975 before the VIIth Senior Civil Judge/Rent Controller, Karachi Mst. Razia Begum sought ejectment of her tenant, Muhammad Saeed Daftari from the. said premises. on the grounds of default. in payment of rent with effect from 9th January 1979, alteration made by hint in .the premises without her permission and on the ground that she needed the premises for her own use.

5. The tenant gener4lly denied the everments made in the application and stated in his written statement as a preliminary objection, "there is no relationship of landlord and tenant between the parties and consequently the application for ejectment is not maintainable".

6. The Rent Controller on the basis of pleadings of the parties framed the following issues:

7. "(1) Whether the present application is maintainable.

(2) Whether opponent has committed default in payment of rent?

(3) Whether opponent has made alteration and addition in the premises which impair the value and utility?

(4) Whether applicant requires the premises bona fidely for her personal use and occupation and for the use and occupation of her children?

(5) What should the Order be?"

8. Both the parties led evidence before the Rent Controller. The IIIrd Senior Civil Judge/Rent Controller, Karachi East, who was seized of the case in due course passed the judgment on 18‑3‑1987 directing the tenant to vacate the premises and hand a order to tae landlady Mst. Razia Begum within GO days of the date of his order, the Rent Controller ordered the ejectment of the tenant as according to his ending he had impaired the value of the premises by carrying out alteration without any authority and that the premises were required bona fide for the use of the landlady. Both the landlady and the tenant felt aggrieved by the judgment mentioned above and have filed these two appeals.

9. Mr. Rehmat Ellahi, Advocate appearing for the tenant, mainly took the plea that the judgment impugned in these appeals is liable to be set aside as the learned Rent Controller had not properly framed and decided the issue regarding existence of relationship of landlord and tenant. He referred to issue No.1 reproduced hereinabove in that context. According to him the Rent Controller was under an obligation to have recorded a clear finding on such. issue before he could proceed to decide the remaining issues. He further contended that direct evidence has not been led in the case to prove damage to the property. Similarly no evidence has been recorded to prove that the premises were required for personal bona fide use of the landlady. As regards default. in payment of rent, he stated that the rent since the commencement of tenancy was collected by Mst. Afroze Begum and not by Mst. Razia Begum. The tenant had paid rent regularly till December 1973 when Mst. Afroze Begum refused to accept the rent, he started depositing rent in Court and it cannot therefore be said that the tenant was a wilful defaulter in payment of rent.

10. Mr. Abrar Hassan, Advocate appearing for the respondent in F.RA. No.446/87 and for the appellant in F.RA. No.483/87 contended that the premises in question were originally owned by Mst. Bismillah Jan, the mother of Mst. Razia Begum and was validly transferred to Mst: Razia Begum according to family settlement. The settlement was made on 9‑1‑1977 and change of its ownership was. duly intimated to the tenant through a notice dated 2‑5‑1975 '(Exh.4/F) addressed on behalf of her Advocate. The tenant in reply to this notice asserted that Mst. Afroze Begum continued to be owner and that rent was being deposited in the Misc. Rent Case. Mst. Afroze Begum then intimated the tenant that she was not the landlady of the premises in question as property was transferred to Mst. Razia Begum. These documents have not been disputed by the other side. The two notices mentioned according to him were given in compliance with the provisions made in section 13‑A, West Pakistan Urban Rent Restriction Ordinance (at the relevant time the Ordinance prevailed) and the tenant had to attorn to the new landlady and pay her rent. Since the tenant persisted to deposit rent in the name of previous owner even after the intimation was duly received by him such payments cannot be taken to be defence to the allegation of default in payment of rent. In support his submission, he relied on Muhammad Ashraf v. Abdul Hamid and others reported in 1982 SCMR 237(2).

11. As regards the main contention advanced by Mr. Rehmat Illahi Advocate for the tenant regarding failure of the Rent Controller to specifically and expressly frame an issue regarding existence of relationship of landlord and tenant I find such controversy is covered by issue No.1 reproduced hereinabove. The provisions of Civil Procedure Code are not required to be followed in toto by the Rent Controller though he can always adopt such provisions and apply the same in proceedings before him. In the present case I the Rent Controller has applied his mind consciously to such aspect of the case and recorded his finding that such issue was, neither contested nor pressed during the recording of evidence:. Under such circumstances the Rent Controller had adverted to such objection consciously and no objection can be taken if the issue was not happily worded.

12. In spite of receipt of intimation of transfer the tenant continued to deposit the rent in the name of previous owner and his such conduct could‑not have been condoned by the Rent Controller in order to absolve him of consequences of default having been made in payment of rent.

13. In view of above and as Mr. Rehmat Ellahi, Advocate for the tenant has not been able to point out any other infirmity to enable this Court to disturb the finding of the Rent Controller on the points decided by him I dismiss his appeal.

14. As regards the appeal riled by the landlady I am inclined to hold that the tenant had wilfully committed default in payment of rent and the finding of the Rent Controller on such point is not correct. I therefore set aside the judgment of the Rent Controller to that extent and accept her appeal. The tenant is ordered to vacate the premises and hand over its peaceful possession within 4 months provided he regularly pays the monthly rent to the landlady. In case the execution application is filed either in case of default in payment of , rent or failure of tenant to hand over possession after four months of passing of this order the Rent Controller shall allow it without any notice to tenant.

15. H.B.T./M‑1520/K Order accordingly.