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Petitioner: Shaikh MUHAMMAD WAHEEDUDDIN VS Respondent: Mst. SAMINA BEGUM and 5 others
Court Name: Sindh High Court Judge(s): Mukhtar Ahmed Junejo Title: Shaikh MUHAMMAD WAHEEDUDDIN vs Mst. SAMINA BEGUM and 5 others Case No.:First Rent Appeals Nos.449, 467 and 485 of 1989 Appeal No, 449/89 Appeal
JUDGMENT
Reported As: 1991 MLD 1898 Result: Appeals dismissed Judgment JUDGMENT ' First Rent Appeals No,449/89, No,485/89 and No,467/89 are directed against an order dated 27-5- 1989 passed by the VIIth Senior Civil Judge and Rent Controller, Karachi South in Rent Case No,1429/88, directing eviction of appellants Muhammad Waheeduddin, Muhammad Ishaq, Muhammad Ali, Mushtaq, Muhammad Sarwar and non-appellant Muhammad Idris from the property in litigation bearing No,PR-2/6/10-V-B-78, Preedy Street, Saddar Karachi. 2. In her rent application No,1429 of 1988, respondent Mst. Samina Begum claimed being owner of the property in litigation, of which 256 sq. Yards were occupied by appellant Muhammad Waheeduddin, 56 sq. Yards were occupied by appellant Muhammad Ishaque, 50 sq.Yards were occupied by appellant Muhammad Ali and, 204 sq. Yards were occupied by Muhammad Idris, as her tenants on monthly rent of Rs, 600, Rs, 200, Rs, 150 and Rs, 450 respectively. Appellants Mushtaque and Muhammad Sarwar were alleged to be sub-lessees in 56 sq. Yards of the property in litigation, having been given possession of the same by Muhammad Idris. Respondent sought eviction of her aforesaid tenants and sub-tenants on the grounds (1) that the three appellants viz. Muhammad Waheeduddin, Muhammad Ishaque, Muhammad Ali and Muhammad Idris had failed to pay rent with effect from 26-4-1983, (ii) that Muhammad Idris had sublet the premises in his possession to appellants Mushtaq and Muhammad Sarwar and (iii) that the respondent intended to erect a residential new building over the property in litigation for personal requirement. Necessary approval and sanction for the new building was said to have been obtained from the relevant authority.
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3. The rent case was contested by all the appellants but not by Muhammad Idris. In their written statements the appellants controverted the grounds taken by the respondent in her application. It was stated that the premises in litigation were basically commercial and not residential. That the premises in litigation were initially owned by one Riaz Shafi who had rented out different portions of the same to Waheeduddin, Haji Ishaque, Muhammad Ali and Muhammad Yaqoob, who raised their own structures over there. It was added that Muhammad Yaqoob and his son Muhammad Idris wound up their business and migrated to Sukkur and delivered to appellants Mushtaque and Muhammad Sarwar with consent of Riaz Shafi, that part of the disputed premises which was in their possession, after getting compenstaion. In this way appellants Mushtaq and Muhammad Sarwar denied being sub-tenants and claimed being tenants of Riaz Shafi, with rent of Rs,825 p.m. Being charged from them. Gift of the disputed premises by Riaz Shafi in favour of respondent Samina Begum was said to be benami. It was alleged that Riaz Shafi had executed a formal gift deed in favour of the respondent, as he could not succeed in doing away with the tenants. It was averred that need of the respondent for the disputed premises was neither genuine nor bona fide. It was stated that the rent paid by appellant Muhammad Idris was Rs,70 per month; whereas appellants Mushtaq, Muhammad Sarwar and their partners jointly occupying a portion of the plot, were paying Rs,825 per month. It was further stated that prior to this, the respondent had filed ejectment cases on the grounds of default and unauthorised construction against the appellants and those cases were still pending. During the pendency of those cases, sanction for new construction was obtained with mala fide intention to make a fresh ground for ejectment as alleged. In respect of the ground of personal requirement, it was averred that the respondent was a married woman living in the house of her husband and she had many other properties at Karachi in excess of her requirement and so also Riaz Shafi, who was said to be real owner of the disputed premises. It was averred that the respondent does not require the premises in litigation for erecting a new building and such ground was not bona fide. It was also stated that the premises in litigation were situated in a commercial area where ground floor cannot possibly be used for residential purpose. The appellants showed their willingness to vacate the disputed premises for the time being, if the respondent was willing to provide them equivalent accommodation on the ground floor in the new building. Lastly it was stated that the original owner and the respondent, avoided receiving the rent and demanded enhanced rent from appellant Muhammad Ali and hence the rent was being deposited in Court. 4. After receiving evidence of the parties, learned VIIth Senior Civil Judge and Rent Controller, Karachi South, under her judgment dated 27-5-1989, accepted the application and ordered eviction of the appellants from the premises in litigation within 60 days of the order. Hence this appeal. 5. Mr. Imtiaz Hussain Gondal, learned counsel for Haji Muhammad Ishaque, appellant in F.RA. No,467/89 argued that Form P.T.-I filed in the appellate Court would show that the respondent owns a Bungalow No,JM-3/307 in Cosmopolitan Society, Karachi, with nine bedrooms and as such she did not require the disputed premises bona fide. In respect of the ground of reconstruction, learned counsel for Muhammad Ishaque argued that on the face of it, the plan about reconstruction of a building in a commercial area with only ground floor and first floor, looked absurd. It was next argued that requirement of the respondent cannot be for the entire ground floor for parking and for the entire first floor for residential purpose, when she did not claim to be having so many members of family and so many vehicles. In support learned counsel cited the case of Haji Gul Muhammad v. Mst. Asmat 1986 SC MR 1651 where it was held that before ordering eviction of a tenant, the Rent Controller is to be satisfied that the rented land is reasonably and in good faith required by the landlady for the reconstruction or erection of a building at site and that necessary sanction for the reconstruction or erection has been obtained.
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6. Mr. Muhammad Jamil, learned counsel for Muhammad Ali, Mushtaq and Muhammad Sarwar appellants in F.RA.No,485/89 argued that the trial Court had not given any finding on the point of rate of rent, or subletting, or unauthorised construction or default in payment of rent. It was added that the trial Court had not given any finding if appellants Mushtaq and Muhammad Sarwar were sub-tenants. It was next argued that the Rent Controller had to give due consideration to a point that had been raised by a party. Exception was taken to non-examination of Riaz Shafi, brother of the respondent, when there was an allegation that appellants Mushtaq and Muhammad Sarwar had entered in possession of the premises in litigation with consent of Riaz Shafi. The respondent was alleged to have created the ground of default in payment of rent by declining to receive the rent, which was consequently being deposited in Court by the appellants of F.RA. No,485 of 1989. Rent Cases No,1022/86 and No,1025/86 filed earlier by the respondent, were said to have been decided against her. Mr. Muhammad Jamil contended that in said cases, the respondent had not taken the grounds of bona fide personal requirement or of reconstruction, although such grounds would have been taken, had there been a genuine need. Learned counsel referred to para. 3 of the written statement and argued that apparently the present litigation was mala fide, because the old grounds put forth for eviction of the appellants, were realized to be hopeless. Mr. Muhammad Jamil further argued that mala fide intention of the respondent was further clear from the fact that on a valuable piece of land she proposed to raise only a ground floor and a first floor, with no other floor. It was next argued that the respondent cannot be expected to live in a congested locality, like the one, in which the disputed premises were situated. Mr. Muhammad Jamil counsel for appellants Muhammad Ali, Mushtaq and Muhammad Sarwar cited the cases of: (i) Muhammad Hussain v. Mst. Hatuk 1984 CLC 2682. (ii) Muhammad Mushtaq v. Muhammad Ahsanul Haq Khaki 1984 CLC 2684. (iii) Dost Muhammad v. Mst. Ramzan Bibi and others 1990 MLD 1667. (iv) Sultan Press Ltd. v. Muhammad Hassan PLD 1985 Kar. 624. (v) Mst. Farukh Nisa v. Safdar Ahmed and others PLD 1985 Kar. 639. (vi) Syed Anisur Rahman v. Mst. Sara Bai PLD 1985 Kar. 714. 7. Mr. Faizuddin, learned counsel for appellant Muhammad Wahiduddin in F.RA. No,449/89 argued that the respondent could not have filed a single ejectment application with different causes of action against the different occupants of the property in litigation. Referring to para. 6 of the rent application, learned counsel argued that it had not been mentioned in said para, as to, when the unauthorised constructions were made over the premises in litigation. Mr. Faizuddin further argued that Riaz Shafi had mala fide gifted to the respondent the property in litigation value of which was shown to be Rs, 33,000 and where the respondent wished to raise a huge building with shops on the ground floor and that such a construction cannot be for personal use. Mr. Faizuddin further argued that his client became lessee of original owner Riaz Shafi and hence he could not be sued by the respondent, who had no locus standi to file ejectment application against tenants of Riaz Shafi. Learned counsel next argued that the rent application itself showed that there was no demarcation of different areas occupied by the different occupants, and that with the allegation about raising of unauthorised structures the rent application was not maintainable. It was contended that the cause of action, cannot be bifurcated in respect of each of the appellants. It was alleged that the respondent had not come to the Court with clean hands or with bona fide intention or with 'good faith' defined by section 52 of P.P.C. It was further argued that the rent was being paid to Riaz Shafi and that the disputed property was not residential one as it was being used as a commercial one. Learned counsel for appellant Wahiduddin added that the latter was
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not concerned with other appellants, as the portion occupied by him was distinctly demarcated. It was averred that the rent application could not have been filed in respect of the premises which were contended to be unauthorised. Legality of the gift was challenged on the ground that possession of the disputed premises being with the tenants, could not have been transferred from donor Riaz Shafi to donee Mst. Samina Begum. The gift in question was alleged to be inconsistent with case of the respondent. Learned counsel for Waheeduddin referred to the evidence of respondent Mst. Samina Begum and argued that her evidence showed that the property in litigation was not an open plot. It was pointed out that in her affidavit Mst. Samina Begum had given her address of 38 M, Block-6, P.E.C.H.S., while she had mala fide sought eviction on the ground of personal requirement. Appellant Muhammad Ishaque was said to be in possession of 56 sq. Yards only. Mr. Faizuddin further argued that the respondent while denying tenancy of appellant Muhammad Wahiduddin, had sought his eviction on the ground of having defaulted in payment of rent. Learned counsel referred to section 105 of the Transfer of Property Act which defines "lease" and to section 60 of the Easements Act which speaks about revocation of licence and argued that a licence may be revoked by the granter unless it is coupled with a transfer of property and such transfer is in force. It was further argued that if the respondent calls construction over the disputed property, to be 'unauthorised' it means that such construction does not belong to her. Learned counsel pointed out that the entire ground floor measuring 5,580 sq. Yards cannot be used for car parking. Reference was made to section 122 of Transfer of Property Act which defines "Gift" and to section 123 of the said Act, which says that for the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by the donor and attested by at least two witnesses. Referring to the affidavit of respondent Mst. Samina Begum, learned counsel for Muhammad Wahiduddin argued that the respondent had not stated whether she required existing building or new building for personal need. It was added that whole construction was to be removed if reconstruction was desired. It was also argued that two adults and four minor members of a family cannot require four kitchens and six bath rooms. In support learned counsel for appellant Waheeduddin cited the cases of: (i) Kalimuddin Ansari and another v. Director Excise & Taxation and another PLD 1970 Kar. 1. Rasool Bakhsh v. Ghulam Qadir and another PLD 1960 Kar, 741. Sarwar Bano v. Muhammad Anwar 1987 CLC 650. (iv) Shafqat Hussain v. Sakina Begum and others 1987 CLC 664. (v) Fazal Karim and another v. Ghulam Jilani and others 1975 SCMR 452. (vi) M.S. Khan v. S.M. Sirajuddin 1985 CLC 562. (vii) Noor Muhammad v. Iqbal Ahmed 1985 CLC 1007. (viii)Naqvi & Co. v. Haji Abdul Aziz 1985 CLC 1032. (ix) National Bank of Pakistan v. Wadhumal and others 1985 CLC 1053. (x) Province of East Pakistan v. Muhammad Hossain Mia PLD 1965 SC 1. (xi) Hashwani Sales & Services Ltd. v. Karachi Building Control Authority and others PLD 1986 Karachi 393. (xii) Province of Balochistan v. M/s. Tribunal Friends Company, Loralai PLD 1986 Quetta 321. (xiii) M/s. Mehran Shoes v. Muhammad Ismail and others 1987 CLC 148. (xiv) Muhammad Babir v. Jehangir 1987 CLC 447. (xv) Amir All and others v. Jan & Company 1987 CLC 442. (xvi) Moinuddin v. Master Bashir Ahmed 1987 CLC 472. (xvii) National Bank of Pakistan and another v. M/s. Film Exhibitors Ltd. 1987 CLC 1547. (xviii) Major Jamshed Khudadad Irani v. Abdul Rahman 1987 CLC 1988. (xix) Dr. M. Murtaza Hussain v. Muhammad Mustafa PLD 1986 Kar. 199.
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(xx) Abu Bakar Khan v. Qamruddin PLD 1986 Kar. 353. (xxi) Barkatullah Khan v. Mirza Muhammad Hassan PLD 1986 Kar. 309. ' Mr. Hafiz Abdul Baqi learned counsel for the respondent controverted the legal objection that there cannot be one ejectment case for eviction of different tenants. He challenged F.RA. No,449 of 1989 to be time-barred having been filed on 4-7-1989 against the impugned judgment dated 27-5- 1989. Learned counsel for the respondent denied the property in litigation to be commercial and argued that section 15 of the Rent Ordinance does not say if clauses (vi) and (vii) of its subsection (2) applied to the residential property only or to the commercial property only. It was next argued that production of a duly sanctioned plan of the proposed building would raise presumption in favour of the landlord that he requires the premises in litigation for reconstruction. Reliance was placed on affidavit of respondent Mst. Samina Begum whose evidence was said to have remained unrebutted. Right of the appellants to challenge the gift was controverted and it was argued that after transfer of the property in litigation in favour of respondent Mst. Samina Begum under the deed copy ExhA/1 she had become owner of the same and entitled to receive its rent in accordance with section 55(6)(a) of Transfer of Property Act and she had become 'landlord' of the property within the meaning of section 2(f) of the Rent Ordinance. It was further argued that evidence of respondent Mst. Samina Begum on the point of personal requirement was consistent with contents of the rent application and it was not shattered in cross-examination or disproved by any evidence and hence it was sufficient for a finding in her favour. It was denied if the respondent was in possession of any bungalow or any other property. Learned counsel for the respondent referred to copy ExhA/3 of PT-I showing that the property in litigation was an open plot measuring 566-02 sq. Yards and further showing appellants Waheed, Muhammad All alias All Muhammad, Muhammad Ishaq and one Muhammad Yakoob to be occupying the said plot besides respondent Samina Begum. Learned counsel for the respondent was of the view that for seeking eviction of her tenants on the ground of reconstruction the respondent need not prove good faith, and that the grounds of reconstruction and requirement for personal use, were sufficiently proved. It was further argued that validity of the sanctioned map cannot be challenged except through a Constitution Petition or a Civil Suit. That the appellants Muhammad Waheeduddin and Muhammad Ishaq had admitted in their cross-examination that they had not objected to approval of the site plan for construction. It was added that the requirements of clause (vi) of section 15(2) of the Rent Ordinance were fulfilled. Learned counsel for the respondent concluded by saying that no defect was pointed out in the impugned order. In support learned counsel for the respondent landlady cited the cases of: (i) Khurshid Ahmed and others v. Nadeem Iqbal and others 1985 SCMR 41. (ii) Anwar Ahmed v. Ghulam Qadir and another 1988 CLC 2338. (iii) Abdul Ghaffar and others v. Mst. Mumtaz PLD 1982 SC 88. (iv) All Muhammad and others v. Fazal Hussain and others 1983 SCMR 1239. (v) Kisan Lal Hanuman-bux Firm v. Tansukhrai Binraj and others AIR 1941 Nag 216. (vi) Muhammad Raghib v. M/s. Services Industries Limited and another 1984 CLC 1. (vii) M/s. Service Industries Ltd v. Muhammad Raghib and another 1986 SCMR 637. (viii)MA. Aziz Choudhry v. Syed Amjad Ali Shah and others PLD 1988 Quetta 46. (ix) Abdul Aziz v. Rent Controller and others 1987 SCMR 2074. (x) Abdul Hadi and others v. Syed All Haider and others PLD 1983 SC 342. (xi) Ch. K.A.M. Bajwa and others v. Asghar All and others 1987 CLC 2256. (xii) Muhammad Ishaq v. S. Khurshid Alam PLD 1989 SC 353. (xiii)M/s. Pak Army Furnishing Stores v. Syed Ali Abbas Rizvi and others PLD 1985 Karachi 201.
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(xiv) Sh. Muhammad Riaz v. Mst. Naseem Akhtar and others 1981 SCMR 979(1). (xv) Haroon Kassam and another v. Azam Suleman Madho PLD 1990 SC 394. (xvi) Muhammad Akbar and another v. Dr.Muhammad Rafiq etc. 1980 SCMR 483. (xvii) Sh. Muhammad Rafiq v. Sh. Muhammad Ismail and others PLD 1988 SC 91. (xviii) Yousif v. Hashimbhoy and Co. And others PLD 1966 Karachi 456. (xix) Mian Muhammad Amin and others v. Amanat All 1982 CLC 1770. (xx) Fateh Gul v. M. Anwarul Huda and another NLR 1987 Civil 179. (W) Allah Ditta v. Mst. Rasoolan Bibi and others 1976 SCMR 459. (xxii) Ehsan v. Mst. Maimoona 1991 SCMR 243. 9. The legal objection was raised only in respect of F.RA.No,449/89 being time-barred. Said appeal was filed on 4-7-1989 in respect of an order dated 27-5-1989 and it was contended to be time- barred by six days. On this point, learned counsel for the respondent cited the case of Abdul Ghaffar and others v. Mst. Mumtaz PLD 1982 SC 88 where it was held that the period of thirty days provided in section 21 of Sindh Rented Premises Ordinance is not the same as is provided for first appeal under Article 156 of Limitation Act and hence section 3 of Limitation Act would apply to such a situation but subject to the exclusions contained by section 29 itself. It was also held that clauses (a) and (b) of section 29(2) of Limitation Act when read together in the context of Sindh Rented Premises Ordinance exclude section 5 of the Limitation Act. In the case of Ali Muhammad and another 1983 SCMR 1239 it was held that since the time allowed for filing an appeal under section 15(4) of West Pakistan Urban Rent Restriction Ordinance was. 30 days and the period of limitation for filing appeal to a High Court under Civil Procedure Code was 90 days as per Article 156 of the Limitation Act, hence section 5 of Limitation Act stands excluded by virtue of section 29(2) of said Act. In the case of Kisanlal Hanumanbux Firm v. Tansukhrai Binjraj and others AIR 1941 Nagpur 216 the view taken was that where the notification relating to the disposal of work during summer vacation has provided that the Court would be closed except for certain business which includes filing of Letters Patent Appeals, the Court cannot be said to be closed for purpose of filing Letters Patent Appeals and hence section 4 of Limitation Act cannot be applied in such a case. As against said authorities Mr. Faizuddin cited certain cases which require discussion. In the case of Fazal Karim and another 1975 SCMR 452 it was held that a notification providing that during the period of vacation the petitions will be received daily by the Court, cannot take precedence over the statutory provisions contained by section 4 of the Limitation Act and that an appeal even though filed during the vacation could be filed on the reopening of the Court and was therefore well within time. It was observed in the case of Sarwar Bano 1987 CLC 650 that when the period of limitation prescribed for filing appeal expires during the vacations the matter would be within time if it is instituted on the first day on the reopening of the Court after the vacations although certified copies were ready for delivery during the vacations. In the case of Shafqat Hussain Shah 1987 CLC 664 the view taken was that in computing the period of limitation the day on which the application for copy is made and the day on which the copy is granted are both part of the time requisite for obtaining the copy and thus We petitioner was entitled to have both these days excluded while computing the period of limitation. Perusal of file of F.RA. No, 449/89 shows that application for impugned order was moved on 29-5-1989 and the copy was supplied on 31-5-1989. The High Court of Sindh remains closed for summer vacation during the months of June and July. Moreover if two of the three appeals directed against the same order are within time, the third appeal even if time- barred by a few days cannot be thrown away on technical ground of limitation when the cause of action qua the appellants is indivisible because acceptance of two appeals and rejection of the third appeal on ground of limitation, would be preposterous and would create a situation where implementation of Court's order would be difficult if not impossible. 10. Learned counsel for the appellants challenged maintainability of the rent application on the ground that it was filed against different persons with the respondents having different causes of
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action against them. On this point learned counsel for the respondent cited the case of Anwar Ahmed 1988 CLC 2338 where the view taken was that although joint ejectment application by landlord against tenants may have created some difficulties in proceeding with the case but if the application related to the same premises in which there were seven tenements and the ground for ejectment was common, such application could not have been rejected. In the case of Khurshid Ahmed and others v. Nadeem Iqbal and others 1985 S CM R 40 it was held that one single composite application for ejectment of several tenants by the landlord on ground of default and reconstruction of building, was maintainable when common questions of fact and law would have arisen for determination if separate applications were filed by the landlord against each tenant and when no prejudice is shown to have been caused to the tenants. In the present case the grounds of ejectment against the various tenants and the sub-tenants were common viz. Reconstruction and bona fide personal use. Moreover the premises in litigation are parts of the same plot where a single building is proposed to be constructed for which one sanctioned plan is obtained. The causes of action against the appellants and Muhammad Idris appear indivisible. The defence pleas taken by the appellants are also identical. Hence joint litigation is convenient not only for the respondent but also for the appellants, to whom no prejudice is caused. There was no legal impediment for maintaining joint application for ejectment against the appellants and Muhammad Idris. This objection, therefore, stands overruled. 11. In their written statements appellants Wahiduddin, Muhammad Ishaq, Muhammad All and Muhammad Idris admitted being tenants of Riaz Shafi. Respondent produced deed of gift copy Exh.A/1 showing that she was donee of the property in litigation which was gifted to her by Riaz Shafi on 26-4-1983. The C gift deed has not been rebutted by the appellants. In the case of Muhammad Ishaq v. S. Khurshid Alam PLD 1989 SC 353 it was held that once the property is transferred by registered gift deed, the donee becomes the owner of the property and is…
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