1989 PLP 1128 (CLC)

Date of hearing: 19th February, 1989. The present appeal has been filed to challenge the orders of the Rent Controller directing the ejectment of the appellants on the grounds of default and sub‑letting. The facts are that the present respondent had filed the application for ejectment on 5‑6‑1983. His case is that the appellant No.l is his tenant in premises No.24 and 24‑A on the plot known as Masood Chambers situated at Wadhumal Quarters off M.A. Jinnah Road, Karachi, at the monthly rent of Rs.126 and that he has defaulted in payment of rent since March, 1982 and also he has sub‑let the premises to the respondent No.2. The appellants filed a joint written statement. denying that they had committed any default in payment of rent.' Their case is that the appellant No.l as the permanent tenant of the premises in dispute at the said monthly rent ever since he was inducted as a tenant by the previous landlord. It is further contended by the appellants that in reply to the legal notice of the respondent dated 15‑6‑1982 they had informed them that the monthly rent of the premises was being deposited by them in Court of XVth Senior Civil Judge and Rent Controller at Karachi, under Misc. Rent Case No.2154/1982. It was further contended by the appellants that the appellant No.l being Secretary of the appellant No.2 having organized the said group kept the office of the appellant No.2 in the part of the premises which were in his occupation till they made their own arrangement and that the respondent No.2 have since shifted. It was specifically denied that any rent for occupation of the part of the premises was received by the appellant No.l. The learned Rent Controller holding both the issues of default and sub‑letting against the present appellants, ordered their ejectment. I have heard the learned counsel for the parties. Mr. U. Niamat Moulvi appearing for the appellant while dealing with the issue of default has argued that the rent in the present case was being deposited in the Court of Rent Controller from 15‑5‑1982 which included the rent for the month of March 1982 and this fact has not been denied by the other side. Mr. Rehmat Elahi appearing for the respondent has very frankly conceded that in such case the period of 60 days not having elapsed, it could not be said that any default in payment of rent had been committed but he has taken the stand that the respondent vide their notice dated 26‑1‑1983 had required the appellants to stop the payment of rent in Court and to pay the amount directly to the respondents. By this notice the respondent had also called upon the appellants to give them a detail of the rent deposited in the Court. This notice was duly replied.. Mr. Rehmat Elahi has contended that since the appellants failed to comply with the requirements of the above said notice, mere fact that the rent was being deposited in Court will not wipe of the default incurred in this respect. He has relied upon the case of Muhammad Vakil v. Muhammad Yasin 1986 CLC 1530. Mr. U . Niamat Moulvi repelling the above said contention, has argued that as far back as 28‑6‑1982 the appellants had informed the respondent that the rent was being deposited in Court by giving them the particulars of the rent case etc., and that in such case there would be no default on the part of the appellants. He has further argued that in such case where factually the rent amount has been deposited in Court as required under section 10 of the Sind Rented Premises Ordinance, the default if any would be only of technical nature and the tenant would not be liable to be penalised for the same. He has further argued that the appellants had specifically contended that the practice was that the Rent Collector of respondent would come and collect the rent and it was only when he stopped to come and collect the rent, they sent the rent through money‑order which was also refused and thereafter, the appellants deposited the rent in Court. The burden in such case was on the landlord to prove through Rent Collector that either there was no such practice or the Rent Collector had never refused to receive the rent. He has placed reliance on the case of Jalilur Rehman v . Joher Trading Company 1982 CLC

219. I am of the view that in the instant case the appellants having deposited the rent in Court on account of refusal of the landlord to receive the same which fact has been supported by the money‑order coupon etc., no default in payment of rent has been committed. The findings of the Rent Controller on this issue are set aside. As far as of the issue of subletting is concerned Mr. U . Niamat Moulvi, has argued that no specific plea or fact with regard to the act of subletting have been mentioned in the application under section 15(2) of the Sind Rented Premises Ordinance, moved before the Rent Controller. He has contended that only a vague plea has been taken in paragraphs 4 and 5 of the said application which read as under:‑ "

4. That the Opponent above‑named without any authority has subletted the premises to Pakistan Plastic Merchants Group, the Opponent No.2 in the above case and hence the Opponent has contravened the terms of tenancy and is liable to be ejected. Hence this ejectment application.

5. That the cause of action has arisen in the month of April, 1982 when the monthly rent for the month of March, 1982 becomes due and payable on June, 1982 when the Applicant came to know about subletting and on the 10th of each subsequent month when the monthly rent for subsequent month becomes due and payable and finally in the month of May, 1983 when the Opponent failed to pay the rent within P.S. Risala where the property is situated and hence this Court has jurisdiction to try the case." The above contents of the application would show that the entire premises consisting of tenements No.24 and 24‑A have been sublet. Whereas the applicant in his affidavit in evidence has stated that the appellant No.l had sublet the disputed premises to the appellant No.2 without any authority from the landlord. Mr. U. Niamat Moulvi has argued that the word subletting has not been defined anywhere in the Sited Rented Premises Ordinance. He has contended that, therefore;, its dictionary meaning should be taken into consideration. The word sublet has been defined in Oxford English Dictionary Volume II as under:‑ "Sublet. Tolet (property, a tenement) to a sub‑tenant; to lease out (work, etc.) under a sub‑contract; to underlet, sub‑lease. Hence sublet a sub‑lease." From the above meaning of word sublet, it is clear that sublet means the act of sub‑leasing which would involve an element of rent or lease money. In the present case there is no such allegations. It would also be advantageous here to reproduce the provisions of section 15(iii)(a) of Sind Rented Premises Ordinance 1979, as under:‑ "15(iii) the tenant has, without the written consent of the landlord: (a) handed over the possession of the premises to some other person." The above provisions show that the tenant will be liable to ejectment in case he has handed over the premises to some other person. In the present case the appellant No.l has explained that it was he who had organized the group of appellant No.2 and being the Secretary of the said group he had the office in his premises temporarily which has since been shifted away to different premises. As against this Mr. Rehmat Elahi has referred to the case of M/s. Premier Mercantile Services v. S.M. Yousaf PLD 1982 SC

79. In my humble view the facts of the above case are different and would not be applicable to the present case. In the present case the important factor is that the tenant is the same person who being a Secretary and Organizer of the appellant No.2 had for the time being placed his office as such in portion in the premises under his tenancy. There is no evidence on the record to show as to what were the terms and conditions of the tenancy of the appellant No.l. Mr. U . Niamat Moulvi has drawn my attention to a letter dated 1‑10‑1981 written by the previous landlord, to the appellant No.l (Exh.5/C). In this letter it has been clearly stated that father of the present appellant No.l was the general attorney of the previous landlord and that he and the appellant No.l had the permission to use the premises in dispute for any lawful purposes for themselves or for any firm, association or organization that they may be interested in. From the above facts and discussion I am of the view that there has been no subletting in the present case and I would set aside the findings of the Rent Controller on this point also. For the said reasons the present appeal is allowed. The application for ejectment filed by the respondent is dismissed. However, there will be no order as to costs. H. B. T./S‑349/K Appeal allowed.