1998 PLP 894 (CLC)

This first rent appeal is directed against the judgment, dated 19‑5‑1996 passed in Rent Case No.495 of 1990, by the learned First Senior Civil Judge and Rent Controller, Karachi (East). The brief facts as per Memo. of the Appeal are that one Mr. Faizul Hasan Ansari owner/landlord of House No.1182/22, Block No.1, P.I.B. Colony, Karachi ('the Premises') had let out the said premises to the appellant's father (late) Professor Muhammad Ali Alavi in the year 1967 and the family including the appellant has been living in the premises since then. In the year 1979 Professor Muhammad Ali Alavi the original tenant expired at Karachi but his family continued to live in the said premises and thus, became statutory tenants and in the said capacity continued paying rent to the said Faizul Hasan Ansari, but no receipts of rent were ever issued in spite of demands. On 28‑7‑1990 an ejectment application being No.495 of 1990 was filed against the appellant and it was through this application that the appellant came to know about the present respondent Mst. Ayesha Sultana who is the new owner and the wife of Faizul Hasan Ansari. The appellant had no statutory notice of change of ownership in respect of the premises as no notice was ever served on the appellant or his deceased father. The rent case was also filed against one Muhammad Ahmad Alavi son of Muhammad Ahmad Alavi with tnala fide intentions to obtain ex parte decision. Although the notices of the said rent case were returned with an endorsement of the postal authorities that "no one of such name is residing in the premises" but the appellant filed his written statement on 6‑1‑1991. After filing of written statement in the Court by the opponent/respondent applicant made an application for amendment/correction of the name of the opponent/respondent which was granted and the name was corrected accordingly. On 16‑12‑1991 the Rent Controller passed tentative tent order for depositing the rent in Court. The opponent/respondent in compliance of Court's order deposited the amounts as directed i.e., the arrears of rent amounting to Rs.26,500 at the rate of Rs.500 per month from July, 1987 to December, 1991 and future monthly rent on or before the 10th of every succeeding month. On 17‑10‑1991 Faizul Hasan Ansari as an attorney of the applicant filed his affidavit‑in‑evidence. After the Order of remand, dated 14‑2‑1994 the applicant also filed her affidavit‑in‑evidence and both were cross‑examined. The opponent also submitted his affidavit‑in‑evidence, dated 7‑9‑1994 and was cross‑examined and the judgment .was announced on 19‑5‑1996. The points formulated by the Court are as under:‑‑‑ "(1) Whether there exists no relationship between the parties as landlord and tenant? (2) Whether opponent has committed default in payment of monthly rent from January, 1986 onwards? (3) Whether opponent has damaged the premises in question and by that impaired the value and utility of premises? (4) What should the order be?" The two pronged attack of Mr. Muhammad Akram Shaikh, the learned counsel for the appellant/opponent is firstly that learned trial Court failed to take notice of the fact that the rent application was filed against a fictitious person and as such the case was not maintainable. Secondly, that the learned Court failed to appreciate that no notice of change of ownership, which is mandatory, was served on the appellant/opponent and the alleged letter, dated 20‑6‑1975 produced as Exh.A/2 bears forged signatures of the appellant's father. On the other hand Mr. Akhlaq Hussain Qureshi, the learned counsel for the respondent while generally denying all the allegations contended that the respondent/applicant being the owner of the property was the proper person and that the name of the appellant/opponent was corrected as soon as the correct name was available and as such the case was maintainable as rightly held by the Rent Controller. I have heard both the learned counsel and perused the record. Admittedly, the letter, dated 20‑6‑1975 (Exh.A/2) was not sent by registered post but according to the respondent/applicant was delivered by hand as such even if it is presumed that the intimation notice in respect of change of ownership was not served on the present appellant and he came to know about the change of ownership only after the service of notice of the rent case, which according to the principles laid down by the Court can be treated as notice of such transfer. The conduct of the appellant is to be seen whether subsequent to this service rent was paid regularly to the owner or any default was committed. Further even it is admitted that the intimation of transfer of ownership was not served on the appellant whether he continued to pay rent to the previous landlord. The definition of 'landlord' as given in section 2(i) of the 5indh Rented Premises Ordinance, 1979, is wide enough to include a person who is for the time being authorised to receive rent as held in the case of Gopaldas v. Riaz Ahmad Qureshi (1990 MLD 2212). The dispute raised in the application is default for the period of 1st January, 1986 to February, 1990. According to the respondent/applicant a notice, dated 8‑2‑1990 was served on the appellant/opponent which indicates that Ayesha Sultana is the owner and claiming rent from January, 1986 to February, 1990. This letter was sent by registered post A.D. but the same was returned as it was addressed to Mahmood Ahmed Alavi which according to the opponent is not his name. Faizul Rasan Ansari landlord/attorney of the present owner deposed that he was the attorney and rent collector of the appellant and that he collected rent up to December, 1985 as an attorney/rent collector for the applicant. According to his statement the opponent used to pay accumulated rent through cheques and he further deposed that the rent was not paid till December, 1991 when his affidavit‑in -evidence was filed. He deposed that rent was always paid through cheques and as such no receipts were issued. However, he admitted that he never informed the opponent that he was collecting rent as attorney/rent collector. This statement establishes that the rent was not paid even to Faizul Hasan Ansari who was always considered as the owner/landlord. However, from July, 1987 to December, 1991 rent was deposited in the Court after the tentative order was passed by the Rent Controller. The appellant has filed five money order receipts for April, May, June, August and September, 1990, indicating that Rs.500 per month were sent to Faizul Hasan Ansari but nothing is on the record to show that these were returned by the said person. In the light of evidence and pleadings, the two points determined by the learned Rent Controller that there existed relationship of landlord and tenant between the parties and the appellant/opponent had committed default in payment of monthly rent from January, 1986 onwards is correct. The above findings of the Rent Controller are not in conflict in either way whether any intimation in regard to the transfer of ownership was served on the opponent or not. As far as the question of maintainability is concerned, the application was admittedly filed by the owner of the property. If the appellant/opponent's name was wrongly written, the same was corrected immediately and, as such, there is no question of filing of case against a fictitious person. Since I find no merit in this appeal, the same is dismissed alongwith Civil Miscellaneous Application No.586 of 1996. However, the appellant is granted sixty days' time to vacate the premises subject to deposit of rent for this period. The appellant will be entitled to withdraw the rent which has been deposited under the tentative order passed by the Rent Controller. A.A./M‑259/K Appeal dismissed.