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First Rent Appeal No. 208 of 1983, decided on 18th October, 1984.

---S. 15--Ejectment on ground of personal requirement--Shop required by landlord to enable him to set up his business which he had been running since his childhood--Statutory notice regarding change of ownership not given by landlord and property still standing in name of old owner in record-of-rights--Landlord failing to produce any satis factory evidence to convince Court that rent was paid knowingly by tenant to new owners--Landlord also unable to explain how he could carry on business for such a long time since his childhood without using any commercial place or shop--Evidence produced by him on this point hopelessly insufficient and unsatisfactory--Order of Rent Controller dismissing ejectment application of landlord maintained in circumstances.

Zafar Alam Khan for Appellants.

M. Zahiruddin Khan for Respondent.

Date of hearing: 1st October, 1984.

This appeal is filed against the impugned order, dated 14-2-1983 of learned XII Senior Civil Judge/Rent Controller, Karachi whereby application for ejectment of appellant /landlords has been dismissed.

Briefly stated the relevant facts giving rise to this appeal are that respondent before me is tenant of a shop on Plot No. 14/72 in Phool Chowk, Juna Market, Karachi at a monthly rent of Rs.35. Landlords who are in all thirteen are widow and sons and daughters of Abdul Nabi who dies before the filing of application for ejectment. Ejectment application was filed on 6-4-1981 on the grounds firstly that the shop in question was required for personal use of landlord No. 2 namely Bashir Ahmad, who deal in Carpet business and has no shop of his own, secondly that tenant failed to pay rent since March, 1981. Before the learned Rent Controller preliminary objections and parawise comments were filed by the tenant disclosing therein that the landlords who had applied for ejectment were not the owners of the property in question in which the shop was situated for the reason that the property still stood in the name of Abdul Jabbar father of Abdul Nabi. It was further stated by the answering tenant that he was tenant of Abdul Jabbar and was paying rent to him. Landlords, who had filed ejectment application, had never served statutory notice of change of ownership in their names, neither had they received rent from the tenant on any occasion in the past. In parawise comments it was stated that tenant was paying rent to Abdul Jabbar and subsequently at his instance to his Rent Controller.

In the Court of the Rent Controller ejectment application was filed under section 15 of the Sind Rented Premises Ordinance, 1979 and keeping in view pleadings of the parties three issues were framed to the effect firstly whether there exists relationship of landlord and tenant between the parties, secondly whether notice under section 18 of the Sind Rented Premises Ordinance, 1979 was served upon the tenant and thirdly whether landlords required premises in case in good faith for the use of landlord No. 2 namely Bashir Ahmad. In the evidence on behalf of landlords Bashir Ahmad filed his affidavit in evidence and was cross-examined. He produced conveyance-deed in respect of property in question executed on 20-3-1945. between Seth Rahim Ali and Abdul Jabbar, entry from death register of K.M.C. showing death of Abdul Nabi having taken place and reported on 19-7-1968 and photstat copies of rent receipts. On the other hand tenant Muhammad Ishaque filed his affidavit of evidence and was cross -examined. He has produced some old receipts showing payment of rent accepted by Haji Abdul Ghaffar brother of Abdul Jabbar and extract from the property register of Karachi showing property in question still standing in the name of Abdul Jabbar. Tenant has also examined Bakhtiar son of Ghulam Murtaza, who has supported the tenant.

The learned Rent Controller after assessing the evidence came to the conclusion that relationship of landlords and tenant between the parties was not established nor notice under section 18 of the Sind Rented Premises Ordinance, 1979 was served nor landlord Bashir Ahmed required premises for his personal need.

Before me the scope of controversy became very narrow for the reason that there were several points about which no dispute could be made. It was admitted. that property in question is still in the name of Abdul Jabbar grand-father of landlords from No. 2 to No. 13 and it is admitted that mutation in the name of late Abdul Nabi and present landlords have not taken place as yet. Bashir Ahmad stated before the Rent Controller that the property in question was purchased on 20-3-1945 by his grand-father Abdul Jabbar, who died in Karachi in 1962 leaving behind his son Abdul Nabi who also died on 19-7-1968. Late Abdul Nabi left behind widow, sons and daughters who had applied for ejectment as landlords. According to Bashir Ahmad after the death of his grand father, his father Abdul Nabi inherited the property in question and after his death property was inherited by the widow and sons and daughters of Abdul Nabi who are present landlords. Bashir Ahmad further stated before the Rent Controller that tenants used to pay rent to his grand-father during his lifetime and after his death to his father and then to the present landlords. He has further stated that the present landlords authorised Haji Abdul Ghaffar to collect rent on behalf of them from the tenant in the capacity of the Rent Controller. Haji Abdul Ghaffar was real brother of Abdul Jabbar and died in 1975 after which the rent was being collected sometimes through Bashir Ahmad and sometimes through Ghulam Muhammad and sometimes through Aijaz Ahmad. About receipt books Bashir Ahmnd has stated that they were prepared in large number during the lifetime of his father, which were being used after his death. It has been categorically admitted by Bashir Ahmad that since relations between the parties were very cordial, no intimation in writing by way of statutory notice was sent to the tenant about the acquisition of proprietary rights in the property in question by way of inheritance.

Now since it is admitted that statutory notice as contemplated under section 18 of the Sind Rented Premises Ordinance, 1979 was not served upon the tenant then the question will arise whether the tenant has willingly and voluntarily paid rent to the new landlords knowing that they have become owners by way of inheritance. Tenant has taken a plea that Abdul Jabbar who was the owner of the property had two wives and children from both. Tenant used to pay rent to Abdul Jabbar who directed him to pay rent to his brother Abdul Ghaffar as Rent Controller. Late Abdul Jabbar lived in the same building and then shifted to another house far away after that rent used to be collected by Abdul Ghaffar brother of Abdul Jabbar. After sometime Abdul Ghaffar became ill and proceeded to Hyderabad and instructed tenant to pay rent to his place to Abdul Lateef or to Muhammad Ramzan. Tenant has further stated that the property in question has not been mutated in the name of present landlords as such they are not entitled to recovery rent. Tenant has further not admitted to the position that rent was being collected on behalf of the present landlords by any person authorised by them. As against this evidence the present landlords have produced no evidence whatsoever. It is in disputable that mutation still stands in the name of Abdul Jabbar. Tenant claims that he had no knowledge of death of Abdul Jabbar. On behalf of landlords photostat copies of printed receipts have been produced from C.1 to C.24, which show rent being accepted in the name of Abdul Nabi Building for A. Nabi son of Jabbar. Signatures of persons who received the rent are not clearly legible, no attempt was made to show as who had signed those receipts, Bashir Ahmad stated before the Rent Controller in his evidence that after 1975 rent used to be collected through his brother Ghulam Muhammad and sometimes through another brother Aijaz Ahmad and sometimes through him. Bashir Ahmad has himself admitted in his evidence before the Rent Controller that Abdul Ghaffar used to collect rent till the time he had fallen ill and went away to Hyderabad where he died. He further denied that while leaving for Hyderabad, Abdul Ghaffar told the tenant to pay rent to the brothers' of Bashir. He admitted that his father Abdul Nabi also died after sometime. Receipts showing property in the name of Abdul Nabi were never put to the tenant in the cross-examination, nor any attempt was made to show as to who had signed those receipts accepting rent. It is also not clear whether these receipts relate only to the shop in question of the tenant. In any case the property stands mutated in the name of Abdul Jabbar and not in the name of Abdul Nabi. In this context it is admitted by Bashir Ahmad that it is correct that till today property in question is in the names of Abdul Jabbar. He has admitted that it is correct that after the death of Abdul Jabbar no notice was issued to the tenant regarding the transfer of property in the name of legal representatives of Abdul Jabbar. It is also admitted that Abdul Ghaffar used to collect rent on behalf of Abdul Jabbar. Section 18 of Sind Rented Premises Ordinance, 1979 very clearly provides that in case of change of ownership, the new owner to whom possession has been transferred by way of Sale, Gift, inheritance or by any such other mode, shall send an intimation of such transfer in writing by registered post to the tenant and the tenant shall not be deemed to have defaulted in the payment of rent if the rent due was paid within 30 days from the date when the intimation in normal course has reached to the tenant. In the instant case since statutory notice under section 18 of the said Ordinance is admittedly not served upon tenant regarding change of ownership and the property still stands in the name of Abdul Jabbar in the record-of-rights and further since the landlords have failed to produce any satisfactory evidence to convince the Court that the rent was paid knowingly by the tenant to the new owners, it can be said that the Rent Controller has given correctly negative findings on the first two issues.

So far the plea of requirement of premises for personal need of landlord is concerned, it is the case of landlords that the shop in question is required by Bashir Ahmad to enable him to set up his own business. Bashir Ahmad claims that he deals in Carpet business but has no shop of his own. First of all it is difficult to say on the basis of material available in the record of the Rent Controller that Bashir Ahmad is a landlord or is one of the landlords. Secondly he has stated before the Rent Controller in his evidence that he has been doing Carpet business from his childhood. He had given the value of one Carpet to be at the rate of Rs.80 per sq. feet and stated that about Rs.40,000 to Rs.50,000 would be the sale for the year. He could not produce any receipts of sale. He admitted that he did not pay Income Tax and he did not file any Income-tax return. He expressed ignorance whether there was any other Carpet shop in the whole area of Juna Market where the shop in question was situated. He did not offer any explanation as to how he could carry on Carpet business for such a long time since his childhood without using any commercial place or shop, evidence produced by him on this point is hopelessly insufficient and unsatisfactory. In the circumstances and for the reasons and facts stated above no exception can be taken to the impugned order which is hereby maintained and in the result appeal is dismissed with no order as to costs.

M.Y.H. Appeal dismissed.

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