1998 PLP 1088 (MLD)

This appeal is filed by landlady against the judgment dated t3-9-1990 dismissing the Rent Case No.348 of 1990 filed in the month of May, 1990, by the appellant on the grounds of default with effect from 15-1-1990. This matter is repeatedly called since morning. The respondent and his counsel are called absent. Learned counsel for the appellant informs me that he has informed to Mr. Muhammad Amin Lakhani, learned counsel for the respondent personally that this case was adjourned for today on 12-9-1997. Since the learned counsel for the respondent is not available, therefore, I am constrained to hear the learned counsel for the appellant and since the respondent's counsel was not available I have gone through the evidence with the assistance of the learned counsel for the appellant very minutely. The respondent contested the case inter alia stated that the relationship of landlord and tenant is wanting, therefore, the Rent Controller had no jurisdiction. The Rent Controller framed preliminary jurisdictional issue and vide order dated 15-1-1992 concluded that the relationship of landlord and vide tenant exist between the parties and assumed the Jurisdiction. Thereafter the appellant examined her attorney and since in the meantime the respondent expired, therefore, his son Syed Sabtain Hyder was The witnesses were cross-examined by the respective counsel appearing for the parties. The learned trial Court in view of obliging statement in the cross -examination to the extent that "it is correct that the opponent has already sent rent through money order to me but refused to accept the same," dismissed the rent application. On the record of the trial Court the copy of said money order coupon was not filed. I went through the evidence of the respondent who has stated in paragraph 9 of the affidavit-in-evidence in the following manner:--

9. That, however, the rent of October, 1989 to December, 19B9 was sent again to the attorney by money order on 23-1-1990, after deducting property taxes etc. of the demised property but he again refused to accept. And, as an alternate we started depositing with same in Court in Miscellaneous Rent Case. No. 117 of 1990 with the Court of Rent Controller IV, Karachi East as permitted w.e.f. 4-2-1990 in the name of Noor Fatima, the landlady of the demised premises in the light of taxes paid." In this para. it will be seen that there is no mention that the rent was tendered through any money order. I would hold, therefore, that the learned Rent Controller has not applied his mind and has not appreciated the evidence in its proper perspective. Perusal of the Miscellaneous Rent Case would reveal that the rent was deposited in the name of owner other than the appellant. It was only through the intervention of the court order that the rent so deposited in Miscellaneous Rent Case. No. 117 of 1990 was allowed to be withdrawn by the appellant. I would, therefore, hold that the respondent did not pay, nor deposited the rent in the name of the appellant. Admittedly, the respondent had denied the relationship of landlord and tenant. After the Rent Controller came to the conclusion that the appellant is landlady and since the rent was not tendered to the landlady on the face of record default was apparent. In view of the fact that the rent was not said to the appellant, it was deposited in the Court through M.R.C. No.117 of 1990 not in the name of the appellant. Therefore, it cannot be deemed to be proper tender of rent. Assuming that the rent was paid to the attorney of the applicant through cheques earlier, it is not known why the rent was deposited favouring Mst. Noor Fatima, not a landlady. Assuming that the rent was tendered through money order (although there is no proof on the record) again the rent application for deposit of rent was not made in the name of the appellant or the attorney to whom the rent was tendered through money order. The upshot of the above discussion is that the respondent has committed default and liable to be ejected. This appeal is, therefore, allowed and ejectment is ordered. The respondent shall vacate the premises by the 31st December, 1997. Since the respondent and his counsel are absent and, therefore, did not contest the case, as such no order as to costs is being passed. H.B.T./H-45/K Appeal allowed.