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First Rent Appeal No. 935 of 1984, decided on 21st December, 1986

‑‑‑Ss. 15(2)(ii), 18 & 21(1)‑‑Eviction of tenant‑‑Purpose for notice of change of ownership of premises‑‑Purpose for notice under S. 18 was to inform tenant about new ownership of premises so as to avoid default in payment of rent for purpose of S. 15(2)(ii)‑‑Where issue of default had already been decided against landlord, objection on part of tenant that such notice was not served on him, held, would not give tenant any benefit.

‑‑‑Ss. 2(f)(j) & 15‑‑Transfer of Property Act (IV of 1882), S. 122‑ Relationship of landlord and tenant‑‑Proof‑‑Execution of gift‑‑Locus standi of tenant to challenge validity of gift‑‑Execution of gift being matter between donor and donee only, validity thereof, held, could not be challenged by tenant and he had no locus standi to challenge title of landlord in respect of premises duly transferred to him through valid gift.‑‑[Locus standi].

P L D 1964 SC 143; 1983 S C M R 1064; PLD 1984 Kar. 14 and Haji Rehmatullah v. Shaikh Fazal‑e‑Haque 1986 C L C 1731 ref.

‑‑‑S. 15 (2) (vii)‑‑Eviction of tenant‑‑Personal bona fide need‑‑Proof‑ There was nothing on record showing that landlord requiring premises on ground of personal need owned any other house in locality‑‑Landlord living with his father due to non‑availability of accommodation‑ Personal bona fide need of landlord in respect of premises in dispute, held, was proved in circumstance.

1985 C L C 735 ref.

Muhammad Iqbal for Appellant.

Muhammad Rafiq Khanzada for Respondent.

Date of hearing: 10th December, 1986.

Appellant Muhammad Ishaq is tenant of house No. 2/389 Azizabad, Federal B Area, Karachi. He has filed this appeal under Section 21 of the Sind Rented Premises Ordinance 1979 (hereinafter to be referred as 'Ordinance') against the order, dated 27th August, 1984 of IXth Senior Civil Judge & Rent Controller, by which rent application of respondent Khursheed Alam has been allowed and appellant has been directed to hand over vacant possession of the house within 120 days to respondent.

Briefly‑ the facts of the case are that on 26‑3‑1983 respondent Khursheed Alam filed rent case No. 1847/80 under Section 15 of the Ordinance on the ground of personal bona fide requirement and default in payment of rent. Appellant in his written statement stated that it was not in his knowledge as to when respondent purchased the property from previous owner therefore application is hit by the provision of Section 18 of the Ordinance. It is stated that respondent does not require the premises in good faith and that he has not committed any default in payment of rent.

Rent Controller framed the following two issues.

(1) Whether the appellant committed default w.e.f. February, 1980

(2) Whether the case premises is bona fidely required by the respondent in good faith for his personal use and his family

The findings of the Rent Controller in respect of default in payment of rent are against the landlord. While on personal bona fide requirement he has allowed the rent application against which this appeal has been filed.

Before Rent Controller respondent Khursheed Alam filed his affidavit in evidence and in support affidavits of Abdul Hakim, Mussarat Hussain and Muhammad Ghayasuddin have been filed while appellant examined himself. Abdul Hakim and Mussarat Hussain did not appear for cross‑examination.

Syed Khursheed Alam in his affidavit‑in‑evidence stated that he is owner of house as it was transferred in his name by way of gift. He gave notice to the appellant under section 18 of the Ordinance by registered A.D. through his advocate but appellant refused to accept notice. He demanded the premises from the appellant but he refused to vacate the same. He stated that he has no other accommodation throughout Pakistan except the demised premises and this house is required for personal bona fide use for his wife and family members. Muhammad Ghayasuddin Ex. 5 has stated that he knows respondent. He is working as lecturer in Government College for Men Nazimabad. He stated that neither the respondent nor his wife has any house or any piece of land throughout the country and he knows that respondent requires the premises in good faith for his personal bona-fide use and occupation. In his cross‑examination he has stated that property bearing No. 10/645 Liaquatabad is owned by Mr. Saleem father of respondent where respondent is residing with his father. He has admitted that respondent Khursheed Alam is not in Pakistan but he is in Nigeria on Government deputation.

Appellant in his evidence has stated that he is tenant in respect of premises in question on monthly rent of Rs.215 but property was of Qadir Ahmad Ansari who earlier filed rent case which was dismissed. He has stated that he has no knowledge of transfer of the property to the respondent and he has never been served with any notice as required under section 18 of the Ordinance. It is stated that personal requirement of respondent is not bona fide as he is residing in his own house 10/645 Liaquatabad, Karachi.

I have heard Mr. Muhammad Iqbal appearing for the appellant. It is argued that there exists no relationship of landlord and tenant between the parties, therefore, the rent application is not maintainable. He argued that Rent Controller should have framed preliminary issue, on relationship. It is contended that gift of Qadir Ahmad Ansari in favour of Respondent Khursheed Alam is illegal and not in accordance with law, therefore, appellant should prove his title in Civil Court. He has referred to the case reported in P L D 1964 SC 143 and 1983 S C M R 1064 with regard to the personal bona fide requirement. He has only stated that respondent has not proved the case.

Mr. Muhammad Rafiq Khanzada appearing for the respondent contended that appellant has admitted tenancy in respect of the house in dispute. It is argued that title of the property has been established as recorded has been mutated in favour of Khursheed Alam on registered gift‑deed. He has referred to the cases reported in 1986 CLC 1731 and PLD 1984 Kar 14.

This First Rent Appeal came up for regular hearing on 16‑3‑1986 when counsel of both the parties filed a compromise application. It was allowed. In terms of that statement the appellant was required to vacate the premises within 6 months. In these circumstances the appeal was withdrawn. On 26‑10‑1986 a review application was filed by the appellant. It was held that the matter does not seem to have been validly compromised and or having been validly withdrawn on the ground that some minors were not made as party in the compromise application.

The main contention of Mr. Muhammad Iqbal is that respondent is not the owner of the property. The respondent has produced registered deed of gift executed by Qadir Ahmad Ansari on 24‑11‑1979 in favour of the respondent and subsequently the record has been mutated in his name on 24‑4‑1981. The original deed was perused in this Court photostat copy Ex. 4‑A is on record. Mr. Khanzada has also produced an extract by which the mutation has taken place. The original registered letter which was returned un-served has been produced and is on the record from which it is clear that notice under section 18 of the Ordinance was sent to the appellant which he refused to accept. However, purpose for this notice under Section 18 is to inform the tenant about the new ownership so as to avoid the default in payment of rent for the purpose of clause (ii) of subsection (2) of section 15 and not for other purpose. In the present case the issue of default has already been decided against the respondent therefore this objection cannot give any benefit to the appellant. With regard to the proof of ownership the registered gift deed has been produced and on this I refer to a case of Haji Rehmatullah v. Shaikh Fazal‑e‑Haque reported in 1986 C L C 1731. The validity of the gift cannot be challenged by the tenant. It is between the parties who has executed the gift deed. The definition of landlord has given in clause (f) of Section 2 of the Ordinance reads as under:‑‑

"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."

Therefore, the appellant/ tenant cannot be allowed to challenge the title for which he has no locus standi. He is tenant of the premises for which he admits. The ownership has been proved from the documentary evidence produced by the respondent.

Now I come to the personal bona fide requirement of the Respondent. On this evidence appellant is supported by one Ghayasuddin. There is nothing on the record to show that respondent owns any house in the locality. He was living with his father when his evidence was recorded. He had gone Nigeria on deputation for 3 years, it was the year 1981. On this Mr. Khanzada has referred to a case reported in 1985 C.L.C. 735.

I have no reason to disbelieve the evidence of Khursheed Alam and his witnesses on the issue of his personal bona fide requirement. For the reasons stated above the appeal is dismissed and order of the Rent Controller is maintained.

H.B.T./M‑119/K Appeal dismissed

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