1989 PLP 1002 (CLC)

By this judgment I propose to decide F.R.As. Nos.80 of 1986 and 107 of 1986 as both the appeals arise out of the same order and are in respect of same premises. These First Rent Appeals are directed against the order dated 30‑1‑1986, passed by the learned VIII Senior Civil Judge and Rent Controller, Karachi, (South), by which ejectment of the appellants has been allowed on the ground of default. The brief facts giving rise to these appeals are that the respondents filed an ejectment application on 7‑2‑1984, against the appellant /(Baluch Art Centre) inter alia alleging therein that they are owners /landlords of the premises in question described as shop No.C/l, situated on the premises of Palace Hotel, Annexe, Dr. Ziauddin Road, Karachi. That the Opponent is the tenant of the above premises at the rate of Rs.500 p.m. and the rent was being paid by the Opponent to one Ishaque the representative of the applicant. That the Opponent has failed to pay rent for the months of November, December, 1983 and January, 1984 and the electricity charges of Rs.2,168.34. The appellant Anwar Ali Baloch was served and he filed his written statement in which the tenancy between the. parties was denied. It was further submitted that the Opponents were tenants of Palace Hotel, Karachi. There was no fixed period prescribed for payment of rent as such the rents were collected by the applicants according to their own convenience. That it was the practice of the applicants to allow rent of several months to accumulate and then to collect the rent. However, whenever applicants sent their rent collector/ representative to collect the rent, the opponents tendered the same. The allegation regarding wilful default was denied so also the allegation regarding the non‑payment of electricity charges. It was further stated that on or about 6‑2‑1984 the applicants sent their representative /rent collector to the opponents with the inflated bill of Rs.5,168.34 towards the electricity charges, to which the opponents raised the objections and asked the applicants' rent collector to correct the bill. He assured the opponents that he will look into the matter and accepted Rs.3,000 as ad hoc payment towards the electricity charges. That there is sub‑meter installed in the shop in dispute as such the electricity bills issued by KESC to the applicants who on receipt of bill recover electricity charges from every shopkeeper in accordance with the readings of sub‑meter. That for the last two years, the applicants have been recovering inflated electricity charges from the tenants including the opponents. That the opponents offered rent for November, December, 1983 and January, 1984 to the said rent collector of the applicant who refused to accept the rent and told the opponents that he will come with corrected bill, and then he will accept the rent as well. But thereafter the rent collector did not come to collect the rent but the present application was filed. That the application was misconceived and mala fide. That the application was not filed/signed by a competent person, as such, the application is liable to be rejected. The applicants were not the owners of the premises in dispute and that they had no cause of action to file the present application. The application has been filed by a wrong person. Hence the application is liable to be rejected. On the pleadings of the parties, the learned Rent Controller framed the following issues:‑ (1) Whether the opponent has committed default in payment of rent? (2) What should the order be? The applicants examined Aijaz Mansoor Shaikh one of the owners of the premises in question, and Muhammad Ishaque their rent collector. They have also produced sale‑deed in respect of the property in dispute as Exh.A‑2, extract from survey sheet as Exh.A‑3, rent receipt for July, August, September, October, 1983 as Exh.4‑A and rent receipt for Rs.900 as Exh.5. On the other hand Anwar Ali Baloch proprietor of the appellant has filed his own affidavit and that of one Syed Murawat Shah. That the learned Rent Controller after taking into consideration the evidence produced by the parties, ordered the ejectment of the appellants and the present appeal is directed against the said order. The F.R.A. No.107 of 1986 has been filed by one Muhammad Hamza Baluch father of Anwar Ali appellant in F.R.A. No.80 of 1986 against the same ejectment order which has been impugned in F.R.A. No.80 of 1986. The case of appellant Muhammad Hamza is that he is tenant of shop No.C/I, situated in Palace Hotel Annexe, Dr. Ziauddin Road, Karachi, at monthly rent of Rs.500 for the last 60 years. The ownership of the premises had changed hands number of times and there was no written tenancy between the tenant and landlord including the respondent who have purchased this property in question on 21‑5‑1978 by way of sale‑deed. That the Rent Case No.463 of 1984 was filed by Palace Hotel Annexe through Tariq Atta son of Atta Muhammad against Baloch Art Centre, and thus the identity of the party was vague as they were not the legal persons. That the appellant was running the above business and his sons Mehboob Hamza, Anwar Hamza, Munawar Hamza, and Naseer Hamza are working on salary basis, as the appellant 'was detained in jail for a long time during the PPP Regime, and under Martial Law. Thereafter, also the appellant mostly remained out of Karachi as he was Public Relation Officer attached with Mr. Mohiuddin Baloch, Minister of State. That his son Anwar Hamza had no authority or power to defend the case and the appellant was not impleaded as party nor served with any notice. That the rent case was filed by respondent No.2 as director of limited Firm and identity of the applicant was not properly defined. That latter on respondents' firm changed into limited company under the name of "Aizaz Brother Limited" and the appellant /tenant was unaware of this change as no intimation was sent to him. The resolution of company authorising director or managing director was necessary, and in the absence of the same, proceedings instituted in the name of Palace Hotel Annexe against the appellant were illegal and ultra vires. That applicant Tariq Atta did not file his own affidavit but one of the landlords Aijaz Mansoor submitted his affidavit‑in‑evidence and did not say a word regarding authority of applicant or his own authority for filing affidavit. That the appellant had paid an amount of Rs.3,000 in lump sum prior to the institution of the rent case and allegation of default in respect of Rs.2,168.30 was false as the appellant had paid excess amount of Rs.831.66. That on his return on 7‑2‑1986 the appellant came to know about rent case against "Baloch" Art Centre" without impleading the appellant as a party, although he was a tenant. In support of his claim he has produced copy of letter dated 17‑1‑1980 issued by Mayor Karachi. Thereafter, he obtained the copy of the impugned order and has filed the present appeal. In support of the above assertion the appellant has produced a photo copy of receipt dated 6‑2‑1984 regarding the payment of Rs.3,000 photo copy of letter dated 17th January, 1980, addressed to the Director Master Plan Karachi, by Mayor Karachi, and photo copy of notice, dated 29th June, 1987, sent to "Baloch Art Centre" by Aijaz Mansoor intimating them about the purchase of the above property. It has been contended by Mr. Ahmad Yousuf Ali Rizvi learned counsel for appellant Muhammad Hamza that the applicant and the respondent as described in the application were not living or juristic persons and, therefore, application was not maintainable having not been filed by proper person. In this connection he has relied upon 1982 C L C 1241; It was further contended that the opponent was statutory tenant after the death of his father and, therefore, was a necessary party. That the orders were obtained ex parte and behind the back of the appellant. In support, of his contention the learned counsel has further relied upon 1984 C L C 2684 and P L D 1983 S:,

155. In F.R.A. No.80 of 1986 it was contended by Mr. S.A. Jalib Chaudhry appearing for appellant Anwar Ali that there was no rent agreement nor date for payment of rent was fixed. That the rent was being collected by Rent Collector of the respondents after intervals of 3/4 months. That after the Palace Hotel was demolished, the address of the landlords was not known, and that whenever their Rent Collector came to collect rent it was paid. That the rent was offered to Rent Collector on 6‑2‑1984 when he was paid Rs.3,000 but he avoided to accept rent. Looking to the circumstances, the appellant was not a defaulter on 7‑2‑1984 when the application was filed. That the subsequent default if any could not be taken into consideration. Mr. Gulab M. Rang, learned counsel for respondent has contended that the appeal was not maintainable in law as the same could be filed only by a person who was party to the proceedings before the trial Court. That the pleas taken in appeal were not taken before the Rent Controller and the matter was contested by Anwar Ali Baloch son of the appellant. That the ejectment application could be filed in the name of the firm as envisaged by Order 30, Rule 10, C.P.C. That the present appeal was mala fide and was filed in collusion with Anwar Ali Baloch to save him from the ejectment. A s far as F . R . A . No. 80 of 1986 filed by Anwar Ali was concerned, it was contended by Mr. Gulab M. Rang that the appellant was in clear default from November 1983 to June, 1984, as the rent was deposited on 11‑7‑1984. That the tenancy being statutory, the appellant could not claim practice of paying rent after intervals, and since there was default of 9 months, discretion could not be exercised in favour of the tenant. In support of his contention he has relied upon 1983 S C M R 1205, 1986 C L C 1527 1987 C L C 1547. I have considered the contentions. In view of the order which I propose to pass in these two appeals, it is not necessary to consider the merits of the case and the law cited at the Bar. In F.R.A. No.107 of 1986 filed by Muhammad Hamza Khan, it is the case of the appellant that he was tenant of the respondent and that he was never served with any notice. That the order was obtained behind his back, and Anwar Ali had no authority to represent him in Court. In support of his contention he has produced copy of letter dated 17‑1‑1980 issued by Mayor of Karachi, to Director, Master Plan Department, Karachi, forwarding his complaint and that of his son Mahmood in respect of disputed shop. Letter dated 29th June. A 1978 sent to "Baloch Art Centre" by respondent, and receipt dated 6‑2‑1984 regarding payment of Rs.3,000 towards electric. The letter dated 17‑1‑1980 issued by Mayor of Karachi to Director, Master Plan Department, Karachi shows that appellant Muhammad Hamza and his son Mahmood were tenants in the shop in dispute. The letter dated 29th June, 1978, sent by the respondent to the tenant is also addressed to "Baloch Art Centre" but it does not show that Anwar Ali Baloch the tenant of the above shop. The Photostat copy of receipt date 6‑2‑1984 regarding payment of Rs.3,000 towards electric charges also shows that the electric charges were paid by "Baloch Art Centre". The above documents prima facie support the contention of appellant Muhammad Hamza. However, the above documents have to be proved in accordance with law. The premises in question are being used as commercial premises, and therefore, it will be appropriate and in the interest of justice that the appellant Muhammad Hamza should be given an opportunity to prove his contention and the same can only be done through an elaborate inquiry. Apart from the Judgment of the Rent Controller passed against Anwar Ali who was also not shown as tenant in the application, there is no other document produced by the respondent to show that Anwar Ali was the tenant. I, therefore, allow the above F.R.As. Nos.80 and 107 of 1986, set aside the impugned order dated 30‑1‑1986 and remand the Rent Case No.463 of 1984 to the learned Rent Controller for further inquiry. F The learned Rent Controller shall join appellant Muhammad Hamza as respondent in the case and allow the parties to lead further evidence and thereafter to decide the case in accordance with law. M.Y.H./B‑95/K Case remanded.