1985 PLP 427 (MLD)

Date of hearing: 24th March, 1983. This is an appeal against an order, dated 29th July, 1984 passed by the learned VIIth Senior Civil Judge and Rent Controller, Karachi in Rent Case No. 3378 of 1975 ordering ejectment of the appellant on the ground of default and sub-letting. The brief facts leading to the filing of the above appeal are that the building bearing No. R.B. 6 Survey No. 13, situated at Kutchery Road, Karachi is owned jointly by respondents Nos. 1 and 2 and one Shapurji B. Kharas. It seems that the said Shapurji B. Kharas expired sometimes according to the learned counsel for the respondent in the end of 1974. A notice under section 13-A of the late West Pakistan Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance), dated 17th April, 1975 was sent by the legal heirs of Shapurji B. Kharas through their Advocate addressed to the tenant late Muhammad Bashir Ahmad Khan, which was returned undelivered as he had expired. After that another notice, dated 8-5-1975 was sent by the legal heirs. It is the case of the respondents that in spite of the receipt of the above notice the rent was not tendered, whereas it is the case of the appellant that t e above second notice was not received and money order for the pert, from 1-8-1974 upto 31-8-1975 was sent to above deceased Shapu B.ICharas which was returned undelivered. Be that is it may, the above rent application was filed on the ground of default for the period commencing from 1-8-1974 to 31-8-1975 and sub-letting. The above application was resisted by the present appellant and inter alia it was pleaded that he was not served with a notice under section 13-A of the late Ordinance. The learned Rent Controller by his order, dated 6-10-1977 dismissed the above application on the ground of non-service of notice. The respondents being aggrieved by the above order had filed Rent Appeal No. 442 of 1977, which was allowed by a learned Additional District Judge by an order, dated 28-5-1978, in which it was held that the notice was factually served and the case was remanded back to the learned Rent Controller for proceeding with the case on merits. After the above remand order, the appellant did not appear before the Rent Controller and, t0refore, an ex parte ejectment order, dated 31-3-1982 was passed against which the appellant filed F.R.A. No. 798 of 1983 which was allowed by consent of the parties and the case was again remanded back to the learned Rent Controller by an order, dated 29th May, 1984 by a learned single Judge of this Court. After that the case proceeded with before the learned Rent Controller, who by his order under appeal allowed the above rent application on both the above grounds. The appellant being aggrieved by the above order has filed the present appeal. 2. (a) In support of the above appeal Mr. Mushir Alam, learned counsel for the appellant has urged as follows:-- (i) That there is no default and if there was any, it was technical default. (ii) The learned Kent Controller has wrongly held that there default in. terms of section 15 of the Sind Rented Premises Ordinance, 1979 as section 13(2)(ii)(a) of the late Ordinance was applicable to the present case and factually there was sub-letting. (b) On the other hand Mr. Ikram Ahmad Ansari, learned court for the respondent has contended as follows:-- (i) That there was sufficient evidence on record to prove the deft and (ii) That sub-letting was also proved.

3. Adverting to the question of default, it may be observed 1 the learned Additional District Judge in his order, dated 20-5-1971 above F. R. A. No. 44 of 1977 had held that a notice, dated 15-5-1 under section 13-A of the Ordinance was served on the appellant the legal heirs of deceased Shapurji B. Kharas. The money order sent on 10th June, 1975 addressed to deceased Shapurji B. Kharas was returned undelivered with the remark that he had expired. A that the appellant started depositing rent in Miscellaneous Rent No. 2428 of 1975 in the name of Shapurji B. Kharas. The above def in my view seems to be technical as the appellant parted with money upon the receipt of the aforesaid notice under section 13 the Ordinance. It may be pointed out that in the notice, it was stated as to when Shapurji B. Kharas expired. I would, thereby reverse the finding of the learned Rent Controller on the question default.

4. As regards the question of sub-letting it may be observed in reply to the averment of sub-letting contained in the rent applicant the appellant in her written statement had denied in general U she did not state, what has been averred in her affidavit in evidence namely that in order to look after her and her children, her father lived with her and thereafter her sister sometime. However in cross-examination she admitted the fact that she had allowed her co to live in the tenement for a period of six months and that she shi to her brother's house. However, it has been urged by Mr. Mushir Alam that in order to constitute a sub-letting in terms of sec 13(2)(ii)(a) of the late Ordinance, it is necessary that a tenant should transfer his right or should sub-let the entire building or rented premises or any portion thereof. He has further submitted that a sub-letting cannot be proved unless a landlord proves payment of rent or consideration. Whereas it has been contended by Mr. Ansari that it is proved that the tenant hands over the possession of the tenant exclusively to a stranger the sub-letting stands proved.

5. I am inclined to hold that if a landlord proves the factum the tenant has delivered exclusive possession of the tenement stranger, the sub-letting in terms of the above section of the Ordinance will stand proved. In my view it is generally not pos for a landlord to prove the payment of rent or consideration. It then submitted by Mr. Mushir Alam that factually the appellant's children continued to live in the tenement and that she alone shifted to brother's house temporarily for six months. This submission sees be not plausible as no woman can live for six months without children. The factum that the appellant had transferred the tenement in question at least for a period of six months to her cousin Saeed Ahmad Qureshi who was not even examined by her, the sub-letting of transfer of tenancy stands proved. The finding of the learned Rent Controller on the above ground seems to be in consonance with evidence.

6. It may be observed that it was also contended by Ikram Ansari that the present appeal has been filed by the appellant's alleged attorney which fact lends support that she is no longer in the picture. In my view it is not necessary to go into this question. I would, therefore, dismiss the above appeal with no order as to costs as I have maintained the ground of sub-letting. However, I would allow six months time to the appellant on the condition that she shall continue to deposit rent in terms of the Rent Controller's order in the previous rent appeal, failing which respondent will be at liberty to file an execution application before the expiry of the above period of six months. Furthermore, in case the appellant fails to hand over the vacant possession on the expiry of the above period of six months, the learned Rent Controller shall issue a writ of ejectment without any further notice to the appellant. H. B. T. Appeal dismissed.