2012 PLP 1532 (CLC)

SALMAN HAMID, J.

It is the case of the petitioner that in the first instance Rent Case No.457 of 2004 (Rent Case) against the petitioner for eviction from two shops situated on ground floor of the building on Bambino Chamber, 70 Garden Road, Karachi, (Demised Shops) on the grounds of default in payment of rent from October, 1999 upto filing of MRC No.1218/1999 and thereafter in payment of rent from January, 2003 upto the filing of Rent Case was filed through an unauthorized person and that even no default had been made as alleged in the Rent Case. However, the Rent Case was allowed by Vth Rent Controller, Karachi, South (Rent Controller) in terms of Order dated 16-3-2011 (Order) and eviction was ordered. Petitioner preferred First Rent Appeal No.123 of 2011 (FRA) agitating the same grounds which were raised in the Rent Case by way of filing of written statement but to no avail inasmuch as FRA was dismissed by the Vth Additional District Judge, Karachi, South (V-ADJ) in terms of impugned judgment dated 22-11-2011.

2. Mr. Lakhani argued that the petitioner was not a wilful defaulter and the same was made because of the circumstances created by the respondent No.2 and therefore, the default cannot be thrusted on the petitioner. It was further contended by the learned counsel for the petitioner that the impugned judgment is a result of non-reading and misreading of evidence and non-appreciation of the laid down principles when it comes to maintainability of the Rent Case and filing of the same by an unauthorized person. It was therefore, asserted that the decisions of the two courts below need to be set aside.

3. On the other hand learned counsel for the respondent argued that when the petitioner had admitted default in payment of rent of the Demised Shops, and it was also admitted by the witness of the petitioner that rent altogether of 21 months from January, 2003 upto the date of filing of Rent Case was not paid and that even no money order was sent before depositing rent in MRC No.1218 of 1999 and it (rent) was never refused by the respondent No.2 the Rent Controller had no choice but to order eviction of the petitioner upon such admission. As to the filing of the Rent Case by an unauthorised person, it was pointed out by learned counsel for respondent No.2 that the resolution clearly empowered the respondent No.2's authorized officer, Mr. Kashif Imtiaz to file ejectment application before the Rent Controller and also to sign affidavit in evidence and subject himself for cross-examination which was sufficient power for the purposes of Rent Case.

4. I have looked into the cross-examination of the petitioner's attorney available at page 209 of the file. Relevant para whereof reads as under:

"It is fact I have paid the rent upto the February, 1999 to the applicant directly. It is fact that I have deposited the rent of March, 1999 to September, 1999 collectively for the first time in MRC No.1218/99 on 8-10-1999. It is incorrect to suggest that I deposited the said rent collectively after the default. It is fact the applicant had not filed any rent case against us prior to our MRC No.1218/99. It is fact I have deposited the rent in MRC upto January, 2003. It is fact that thereafter I deposited the rent after the lapse of 21 months in said MRC. It is fact I have not even sent the rent through money order during those 21 months. It is fact after the default of 21 months the applicant filed this case. It is fact I have not produced any evidence to show that during those 21 months we tried to pay the rent, vol. says but we asked him for the bill of rent. It is fact I have not produced any evidence to show that the cheque (Exhibit 0/21) was refused to accept by the applicant."

5. Bare perusal of the above cross-examination of the petitioner's witness would show that it was categorically admitted by him that rent of February, 1999 was paid and/or tendered in March, 1999 upto September, 1999 in consolidated manner and was deposited in MRC 1218/1999 on 8-10-1999 and thereafter the petitioner discontinued to make payment of the rent and thereafter once again started depositing the rent from January, 2003 till date of filing of the Rent Case which comes to 21 months.

6. Under the circumstances, the arguments of the learned counsel for the petitioner that there was no wilful default does not hold the field inasmuch as once the landlord for any reason refused to receive payment of rent (which in the present proceedings is not the case) under law i.e. section 10 of the Sindh Rented Premises Ordinance, 1979 (SRPO 1979) such rent could have been deposited in MRC after it being tendered through money order and its refusal. Cross-examination of the petitioner's witness would show that no money order was ever sent to establish that it was refused by landlord/respondent No.2. This being the position, according to me, there was wilful and deliberate default on the part of the petitioner from which they cannot escape.

7. As to the argument that Rent Case was filed without authorization, suffice to mention that resolution especially says that Mr. Kashif lmtiaz had the authority to appear and file ejectment proceedings and that he was also empowered thereunder to lead evidence and subject himself for cross-examination. It may be noted that section 188 of the Contract Act stipulates that the agent has authority to do every thing which is necessary in order to do such act shows that Mr. Kashif lmtiaz had the power to file the Rent Case and pursue it. Thus Rent Case was filed with authorization of the principal. It may be noted that despite raising objection on the maintainability of Rent Case on the ground that it was filed by an unauthorized person, no objection had been raised by the principal and/or respondent No.2 company, which shows that they had rectified the act of filing of the Rent Case and leading of evidence and cross-examination by not raising any point with regard to such an authority, if there was any unauthorized act on the part of Mr. Kashif Imtiaz.

8. Such being the position, neither, according to me, Rent Case was filed unauthorisedly nor there was any justification for the Petitioner to have stop depositing rent. If for any reason once rent was not accepted by the respondent No.2, as alleged, in such a situation the petitioner was duty bound to deposit the rent in Court after following the machinery provided under section 10 SRPO 1979. This was not followed.

9. In this view of the matter the petition being meritless is hereby dismissed in limini.

10. At this stage learned counsel for the petitioner says that at least a year's time may be provided to the petitioner to evict the Demised Shops. It may be noted that at the time of commencement of the arguments an offer was made to the petitioner to evict Demised Shops within a period of one year subject to the condition he does not press this petition which offer was not accepted. Therefore, such a request now cannot be entertained. However, in the interest of justice 60 days time is allowed to the petitioner to vacate the premises. K.M.Z./M-30/K Petition dismissed.