1988 PLP 2056 (CLC)

Shafat Hussain for Appellant (in F.R.A. No. 766 of 1984) and the Respondent No. 2 (in F.R.A. No. 781 of 1984). Saleem Karamally for Respondent No. 1 (in F.R.A. No. 766 of 1984) and Appellant (in F.R.A. No. 781 of 1984). Both the appeals are directed against an order dated 25th July, 1984 of learned VIIth Senior Civil Judge/ Controller, Karachi in Rent Case No. 4589 of 1978. The facts in the background are briefly stated below: Dr. Shirin Jaffer Valliani, the respondent No. 1 in F.R.A. No. 766 of 1984 and appellant in F.R.A. No. 781 of 1984 (hereinafter referred to as the landlady) filed Rent Case No. 4589 of 1978, on 4‑10‑1978, against Pal Singh son of Poor Singh, who is a respondent in both the appeals (hereinafter referred to as the first tenant), and Muhammad Zaheer Khan, who is the appellant in F.R.A. No. 7E6 of 1984 and respondent No. 2 in F.R.A. No. 781 of 1984 (hereinafter referred to as the second tenant) for their eviction from her shop No. 6 in Jaffer Building, Frere Street, Saddar, Karachi on the grounds of default in payment of rent for more than three years and subletting. Her case was that she had let out the shop No. 6 i.e. the rented premises to Pal Singh (first tenant) at the monthly rent of Rs.43 and he had not paid rent for more than three years. She further alleged that Muhammad Zaheer Khan (second tenant) was inducted in rented premises as sub‑lettee by the first tenant (Pal Singh) without her consent and authority. The first tenant remained ex parte. The second tenant resisted the eviction case. He contended that he was tenant in the shop in his own right and denied the allegations of his induction in the sbop as an unauthorised sub‑tenant through the first tenant (Pal Singh). He maintained that he had paid rent to the landlady through cheques and money orders and no default was made in payment of rent. On behalf of the landlady, her brother Qamaruddin filed affidavit in evidence in reiteration of the facts stated in the ejectment application. On behalf of the second tenant, his attorney by name Syed Sharafat Hussain filed his affidavit in evidence in denial of the allegations of subletting and default in payment of rent. The learned Controller held, by the impugned order, that the second tenant, Muhammad Zaheer Khan, was inducted in the rented shop as the sub‑tenant by the first tenant Pal Singh without the consent of the landlady, but there was no default in payment of rent and he passed the order of eviction. on the issue of subletting of the rented premises to the second tenant Muhammad Zaheer Khan. The F.R.A. No. 766 of 1984 is directed against the findings of the learned Controller on the issue of subletting; whereas the F.R.A. No. 781 of 1984 has been filed by the landlady against the findings on the issue of default in payment of rent. In F . R. A . No. 781 of 1984 the learned counsel for the appellant (landlady) has urged that the learned Controller was at error in holding that no default was committed in payment of rent as the landlady had not disclosed the period for which default was committed. He has also urged that the learned Controller should not have considered tender of rent by Muhammad Zaheer Khan as valid tender of rent by the tenant as he held Muhammad Zaheer Khan as the sub‑tenant through the first tenant Pal Singh without permission of the landlady. He has contended that Muhammad Zaheer Khan had not tendered rent on behalf of ‑Pal Singh (first tenant), remittances of rent by money orders and tender of cheques by him did not amount to valid tender of rent by the tenant and it was clearly stated in the ejectment application that the rent of the premises was Rs. 43 p. m. and that the arrears of rent had accumulated to Rs.4,687 till 30‑9‑1978 and by simple arithmetical calculation it was obvious that rent had not been paid for 109 months and the learned Controller should have held that there was default in payment of rent. Or, the other hand, the learned counsel for the respondent Muhammad Zaheer Khan (the second tenant) has contended that Qamaruddin, the attorney of the landlady, has admitted that he had received several money orders from Muhammad Zaheer Khan towards the rent of the premises and he had accepted them, and he has further admitted that Muhammad Zaheer Khan had sent to him several cheques towards payment of rent but he had not encashed them and, therefore, the rent had been paid/tendered and there was no default in payment of rent. In F.R.A. No. 766 of 1984, the learned counsel for the appellant Muhammad Zaheer Khan), has contended that there is no evidence that the appellant was unauthorised sub‑tenant in the shop. According to him, the appellant Muhammad Zaheer Khan was in occupation of the shop since 1967 and he had paid rent which was accepted by or on behalf of the landlady and it is an admitted fact that the rent remitted by him through money orders was accepted by the rent collector of the landlady in the year 1969. On the other hand, the learned counsel for the landlady (respondent No. 1) has urged that the appellant Muhammad Zaheer Khan was inducted in shop as the sub‑tenant without the permission of the landlady and there was no tangible evidence that there was relationship of landlord and tenant between the landlady and the appellant. He has contended that remittances of rent by money orders by the appellant Muhammad Zaheer Khan were on behalf of the original tenant Pal Singh and their acceptance by the landlady or on her behalf did not create tenancy between the landlady and the appellant Muhammad Zaheer Khan. He has cited several authorities which are mentioned below:‑‑ P L D 1971 Quetta 10, 1986 S C M R 586, 1988 SCMR 305, 1985 M L D 427, P L D 1985 S C 38, P L D 1986 Kar. 117, 1981 C L C 669, 1979 C L C 575, 1968 9 C M R 734, P L D 1968 Lah. 20 and 1982 C L ,C 1618. The ejectment case was filed in the year 1978. The appellant Muhammad Zaheer Khan was in occupation of the shop earlier than the year 1969. It is an admitted fact that he had made remittances of rent by money orders in the year 1969 and they were accepted on behalf of the landlady by her brother/ attorney Qamaruddin. No objection to his remaining in occupation of the shop was taken by or on behalf of the landlady for about 10 years. There is no evidence that Pal Singh had at any time during that period remained in touch with the landlady or her attorney. It is, therefore, apparent that the appellant Mohammad Zaheer Khan was accepted as a tenant. The learned Controller did not take into consideration the aforesaid circumstances and evidence, while holding that the appellant Mohammad Zaheer Khan was in occupation of the shop as unauthorised sub‑tenant having been inducted these by Pal Singh. The cases relied upon by the learned counsel for the landlady had distinguishing facts. In the first case reported as P L D 1971 Quetta 10 (Agha Mohammad ‑v. Haji Moladad), it was held that mere drawing by landlord of rent deposited by sub‑tenant in response to Controller's order under subsection (6) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 did not create tenancy. unless money was received by landlord with intent to create tenancy. In the instant case, the attorney of the landlady had accepted several money orders remitted by the appellant Mohammad Zaheer Khan in the year 1969 in his own name and that fact indicates that he was treated as the tenant. In the second case, cited as 1986 S C M R 586 Mohammad Aslam and others v. Mohammad Ashraf and another, tender of rent by sub‑tenant on behalf of the tenant was refused by the landlord and it was held that such tender of rent could be lawfully refused by the landlord and eviction was maintained on the ground of default in payment of rent. In this case, there is no evidence that remittances of rent b5l the appellant Mohammad Zaheer Khan were made on behalf of Pal Singh. In the third case 1988 SCMR 305, Mrs. Dhunmai Phiroze Dalal v. Mrs. Freny A Cavina, it was urged that the landlord had acquiesced in subletting of the rented premises and it was held that there should be concrete evidence to the alleged acquiescence by the landlord. In the instant case, there is no evidence that there had been subletting of the rented shop to the appellant by Pal Singh. In the fourth case viz. 1985 MLD 427 Maqsooda Begum v Mrs. Himai Jal Vania and others, it was held that subletting stands proved in case it is established that tenant had delivered exclusive possession of the rented premises to a stranger. In this case, there is hardly any evidence the t Pal Singh was original tenant. In the fifth case reported in P L D 1985 S C 38 Arshad Omer and another v. Begum Nazeerul Askari, there was no question of subletting. Similarly, no question of subletting was involved in the case reported in P L D 1986 Kar. 117 Abdul Rauf v. Nawab Ali and 3 others. In the case at serial No.7, 1981 C L C 669 order of eviction on the ground of subletting was maintained on the basis of evidence that the tenant had sublet the rented premises. There is no such evidence in the instant. case. No question of subletting was involved in the case reported in 1979 C L C 575 Mohammad Hafeez v. Mohammad Suleman and another. In the case at Serial No.9 viz. 1968 S C M R 734 Mohammad Yaqoob and another v. Sheikh Abdul Raheem and others, it was held that a sub‑tenant inducted 'in the rented premises without consent of landlord was mere a licensee and had to live alongwith the tenant, but there is no independent evidence in this case that Pal Singh was original tenant. In the case at serial No.10 viz. P L D 1968 Lah. 20 Merajuddin v. Mohammad Yaseen and two others, it was held that unauthorised sub‑tenancy gave jurisdiction to the rent Controller to pass an order of eviction. But question of jurisdiction is not involved in this case. In the last case viz. 1982 CLC 1618 Rashid Ahmad v. Khushee Mohammad there was no question of subletting. It would appear that none of the cases cited by the learned counsel is attracted on the facts of this case and the facts discussed above do not prove the case of subletting of the shop to the appellant Mohammad Zaheer Khan by Pal Singh but the evidence and the circumstances reveal that the appellant was treated as a tenant and rent was accepted from him. As regards default in payment of rent, the attorney of the landlady, namely Qamaruddin, has admitted in cross‑examination that he had received several money orders from Mohammad Zaheer Khan (the second tenant) towards rent of the premises and he had accepted them. He has produced 14 money order coupons (Exhs.5 to 18) bearing his signatures in token of receipt of their proceeds. Four of those money orders coupons relate to the year 1968 and the rest to the year 1969. Of course, he had not accepted four money orders (Exs. Nos.19 to 25) sent during the year 1969. He also admitted that he had received from Mohammad Zaheer Khan (the second tenant), several cheques towards the rent of the premises but he had not encashed them. He has .produced copies of the letters whereunder the cheques were forwarded to him and the postal 'receipts (Exhs. Nos. 26 to 33). It appears from those letters that the rent was being sent to the landlady for each year in advance. The landlady's attorney Qamaruddin has stated that he had not encashed those cheques but has admitted that he had nor returned them to the drawer. It has been discussed above that the attorney of the landlady had accepted that rent had been tendered by Mohammad Zaheer Khan by money' orders in the years 1968 and 1969 and even cheques tendered by him in' respect of rent for subsequent period were received by him and retained, although were not encashed, and. it is apparent that there was honest efforts on the part of Mohammad Zaheer Khan to pay the rent but he was kept in dark and the cheques sent by him were neither encashed nor they were returned to him. Of course, tender of rent by cheques was not tender of rent as envisaged in sub‑clause (ii) of explanation below subsection (2) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, whereunder the rent case was filed but the cheques were retained by the landlady and therefore no wilful default in payment of rent is attributed to the second tenant i.e. Mohammad Zaheer Khan, who is the appellant in F.R.A. No.766/1984. For the reasons recorded above F.R.A. No. 766/1984 is allowed and the finding of the learned Controller in Rent Case No.4589/1978 that the appellant Mohammad Zaheer Khan was in occupation of the shop as sub‑tenant without permission of the landlady is set aside and F.R.A. No. 781/1984 is dismissed and the finding of the learned Controller that the respondent Mohammad Zaheer Khan had not committed default in payment of rent is maintained. In the result, the Rent Case No.4589/1978 stands dismissed in its entirety. In view of peculiar circumstances of the case the parties are left to bear their own costs. The appeals stand disposed of accordingly. H.B.T/M‑326/K s ‑‑‑‑‑ Appeal allowed.