MUHAMMAD YOUSUF Versus GL:ULAM RASOOL
1. This first rent appeal is directed against the order, dated 23‑5‑1987. passed by the 'learned IIIrd Rent Controller, Karachi in Rent Case No.2107 of 1987.
2. The facts of the case are that on 9‑2‑1985 the respondent filed an application under section 15(2)(ii) and (vii) of the Sindh Rented Premises Ordinance, 1979 stating that he is the landlord in respect of Plot No.D‑38, GRE‑269, Roshan Shah Colony, Soldier Bazar, Karachi and the appellant a tenant, firstly at a monthly rent of Rs.30 and thereafter at a monthly rent of Rs.120. The appellant had been a habitual defaulter and in this regard the respondent moved. an application before Chairman Panchayat Committee No.107, Union Committee No.90, Jamshed Quarters, Soldier Bazar, Karachi, who passed an order, dated 2‑1‑1982 to vacate the premises in question. The appellant, however, filed Miscellaneous Rent Case No.1199 of 1982 seeking permission of 1st Rent Controller, Karachi to allow him to make payment of monthly rent which was allowed but subsequently from August, 1984 the appellant stopped tendering rent. As such the appellant committed default in payment of monthly rent. Further, it was averred by the respondent that the appellant was residing in a rented premises and the premises in question was required by him for his parents, who are very old. The mother being a heart patient and also suffers from high blood pressure, it is most inconvenient for her to reside on 4th floor where respondent was residing.
3. This application was contested by the appellant. According to him, out of his own funds in 1967 be constructed two rooms, one kitchen and one bath room on the said plot with the permission of the respondent who used to represent himself as landlord of the land. He was paying Rs.30 per month for occupying the land till April, 1981 when the Director, Katchi Abadi, Government of Sindh, Karachi made general survey of the area for regularisation of the entire colony. On 26‑1‑1981, the appellant was called by the Councillor of Halqa No.107 and informed him that the respondent had made an application that the appellant should either receive Rs.5,000 from the respondent and vacate the premises or pay Rs.7,000 to the respondent towards the price of the land. On 26‑2‑1982 the appellant appeared before the Panchayat Committee and raised objection as to his jurisdiction to‑decide the dispute relating to tenancy. Further, he was paying rent to the respondent and the price of the land demanded by respondent was very high and arbitrary. The Chairman, Panchayat Committee, however, on 2‑1‑1982 orally pronounced an order directing the appellant to vacate the premises within 15 days. Thereafter the appellant offered to pay rent for January, 1982 to the respondent who refused to accept it which was subsequently remitted by him by money order, dated 10‑1‑1982 which too was refused by the respondent. Again rent for the month of January, 1982 was sent by him by money order, dated 18‑1‑1982 but that too was not accepted by the respondent. Again on 28‑1‑1982, the appellant by another money order sent rent for the months of January and February; 1982 which too was not accepted by him. Under these circumstances the appellant deposited rent in the said Miscellaneous Rent Case No.1199 of 1982 filed by him on 14‑3‑1982 in the Court of 1st Senior Civil Judge, Karachi. The appellant deposited in the said Rent Miscellaneous Case No.1199 of 1982 a sum of Rs.180 being rent from January, 1982 to June, 1982. It is further averred that the respondent instituted a criminal case against the appellant pressurising him to enhance the rent from Rs.120 to Rs.180 per month, which he did not accept. However, as a precautionary measure he started depositing rent in the said miscellaneous rent case at the rate of Rs.120 per month and up to July, 1982 he deposited a sum of Rs.2,760. It was on 18‑3‑1984 that the Chief Administrator Auqaf Sindh, Hyderabad in exercise of power conferred by the subsection (1) of section 7 of Sindh Local Property Ordinance, 1979 took over the Administrator Central Management (sic) and members of Dargha Roshan Ali for Auqaf property attached thereto. The appellant was contacted by one Muhammad Hanif Ismail acting on behalf of Board of Trustees; not to pay rent to anyone as the matter was sub judice in Suit No.1536/79 in the Court of XXXIst Civil Judge, Karachi. Further, the Auqaf East Circle by a notice, dated 2‑7‑1984 called upon the appellant and other occupants to deliver possession of the house/plot or to execute rent/lease agreement with the department. In view of the said notice, the appellant did not deposit any amount from 1‑8‑1984 to 31‑12‑1984 till the matter was settled between Auqaf Department and others, including the respondent. As a precautionary measure, however, the appellant deposited a further sum of Rs.1,200 on 21‑1‑1985. It was pointed out that 14 houses had been taken over by 'the Auqaf Department.
4. With regard to the alleged personal bona fide requirement of the respondent, it was submitted by the appellant that the respondent is residing in a luxury flat and he and his family cannot live in a small house in occupation of the appellant. The personal bona fide requirement of the respondent was also seriously questioned by the appellant.
5. On the pleadings of the parties, the following issues were framed by the learned Controller:
6. "(1) Whether there is relationship of landlord and tenant between the parties?
(2) Whether the opponent has committed' default in payment of monthly rent?
(3) Whether the appellant required the premises for personal use in good faith?
(4) What should the order be ?"
7. Learned Controller decided all the issues in favour of the respondent and ordered eviction of the appellant.
8. During the pendency of this appeal an application under Order 4.1, rules 1 and 2, C.P.C. was filed by the appellant stating that the respondent cannot invoke the provisions of section 15(ii) and (vii) of the Sindh Rented Premises Ordinance, 1979 seeking ejectment on the ground of personal use as he is not the owner of the premises. Relying upon the judgment reported in 1983 CLC 317, I rejected the said application.
9. While hearing this appeal under section 21 of the Sindh Rented Premises Ordinance, 1979, I was mindful that it was incumbent upon a person seeking eviction of a tenant to first of all establish that he is a landlord of the former in respect of the "premises" in question. The definition of a landlord appearing at section 2('7) is restricted to an owner and includes anyone who is authorised or entitled to receive the rent in respect of the premises. The definition of the premises as given under section 2 `is a building or land, let out on rent, but does not include a hotel'. Since the appellant had been paying rent to the respondent the learned Controller decided the issue as, to the relationship of landlord and tenant in favour of the respondent. What, however, the learned Controller lost sight of was the fact that the respondent s neither the owner of the land nor of structures raised thereon. In his cross -examination he admitted not owning the land. The appellant's plea in his written statement, that he himself had constructed two rooms, one kitchen and one bath room and re‑affirmed it in examination‑in‑chief, has gone unrebutted. Despite this stand, there is not a word by the respondent landlord that he had raised the construction himself or that he got it from someone else. His mere denial of appellant having raised it that too in his cross‑examination, is of no evidentiary value. How can then it be said that he had authority or right to receive the rent, when neither the land nor the building raised thereon belongs to him. Here it may be argued that once the appellant admitted the payment of rent to the respondent, his relationship with the appellant as his landlord is established and he is estopped from denying the title of the latter. But in the present case the very title of the respondent as landlord of the premises stands rebutted by the record. He thus had no locus standi to file the ejectment proceedings against the appellant relating to the premises in question. Resultantly the appeal is accepted and the impugned order, dated 23‑5‑1987 is set aside, but with no order as to costs.
10. H.BA./M‑1571/K Appeal accepted.