1984 PLP 1181 (MLD)

This is a Second Appeal filed under section 15(4) of the West Pakistan Urban Rent Restriction Ordinance, 1959 against the judgment, dated 14-5-1979 passed by the learned Ilnd Additional District Judge, Karachi in Rent Appeal No 158 of 1974 allowing the respondent's appeal and dismissing the appellant's Rent Case No. 1894 of 1969.

2. The facts leading to the present appeal, briefly stated, are that the appellant Mst.Zubeda Begum is landlady of the commercial premises bearing Room No.4 on the ground floor of Idrees Chambers situated at Wood Street, Off McLeod Road, Karachi. Respondent No. 1 Messrs S.S. Miranda (Pak.) Ltd. was inducted by the appellant as a tenant in respect of the aforesaid room on monthly rent of Rs.75 under a tenancy agreement, dated 25-5-1959. In September, 1965, consequent upon the war between India and Pakistan, respondent No.1 being comprised of Indian national was declared as enemy and its assets and business including the tenancy rights were taken over by the Custodian of Enemy Property for Pakistan under Enemy Property (Custody and Registration) Order, 1965.

3. On 2-8-1979 the appellant filed a Rent Application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 against respondent No.1 as well as respondent No.2, Muhammad Younus Khan to whom the tenancy rights had been transferred by the Custodian of Enemy Property, on the grounds of default and subletting, in the Court of Rent Controller, Karachi. The learned Rent Controller after recording evidence of the parties allowed the Rent Application by his order, dated 27-2-1974 directing the respondents to put the appellant in possession of the room in question. This order was set aside by the learned Additional District Judge holding that there was no relationship of landlord and tenant between the appellants /opponents and the respondent /applicant. This order is impugned in this find Appeal.

4. I have heard Mr. Muzaffarul Haq, learned counsel for the appellant and Mr. Ramchand, learned counsel for the respondents.

5. Mr. Muzaffarul Haq contended that the respondents were liable to pay the rent to the appellant and since they committed default they are liable to be ejected from the premises.

6. It is admitted that the tenancy rights on promulgation of Enemy Property (Custody and Registration) Order, 1965 on 9-9-1965 had vested in the Custodian of Enemy Properties. The said tenancy rights were, then assigned and transferred by the Custodian, Enemy Property in favour of respondent No.2 who was put in possession of the premises in question on 18-3-1969. Thereafter he (respondent No.2) sent a cheque for Rs.184 being the rent due from 18-3-1969 to 31-5-1969 vide his letter, dated 10-6-1969 addressed to the attorney of the appellant. By this letter respondent No.2 admitted himself to be the tenant of the appellant. This cheque has, however, not been encashed by the appellant as it was not in satisfaction of her full claim of rent.

7. As regards the arrears during the period that the property was in the custody and administration of the Custodian of Enemy Property, a number of letters were issued by the Secretary of Enemy Property Management Board to the attorney of the landlady/appellant for verification and confirmation of certain amounts of rent due and ultimately by a letter, dated 25-3-1969 issued by the Vice-Chairman/Additional Custodian addressed to the attorney of the appellant it was intimated that the payment of Rs.2,100 has been authorised to be made to the appellant on account of the rent of the premises in question for the period from 1-11-1966 to 28-2-1969. Mr. Muzaffarul Haq has stated before me that the cheque for Rs.2,100 being the amount of rent from 1-11-1966 to 28-2-1969 was returned by the appellant as it was not in payment of the entire amount of rent due from respondent No.1. Mr. Muzaffarul Haq submits that the Custodian of Enemy Property was liable to pay rent of the premises in question to the appellant from 9-9-1965 till the property remained vested in the Custodian. The offer of the rent with effect from 1-11-1966 to 28-2-1969 was not in full discharge of his liability. He, however, concedes that respondent No.2 will be liable to pay rent of the premises in question to, the appellant as on and from the day the custodian transferred the tenancy rights to him.

8. Giving my anxious thought to the facts of this case, I am of the view that the Custodian of Enemy Property is liable to pay the rent due as on and from the date of notification whereby the tenancy rights of the property in question vested in the Custodian till they were transferred to respondent No.2. If the rent still remains unpaid for one reason or the other the appellant shall have her remedy to claim the rent from the Custodian of Enemy Property and if not paid may take legal proceedings for recovery of the same as provided in law. In so far as the rights and liabilities of respondent No.2 are concerned, he has become the tenant of the appellant in respect of the premises in question by virtue of the order of transfer of the tenancy rights made in his favour by the Custodian of Enemy Property under the provisions of Enemy Property (Custody and Registration) Order, 1965. By acquiring the said tenancy rights on 18-3-1969 he is subjected to the provisions of Sind Rented Premises Ordinance, 1979 and is liable to be ejected under provisions thereof if he is shown to have committed default in payment of rent. Admittedly there is no written tenancy agreement between the appellant and respondent No.2. The tenancy will be deemed to have commenced from 18-3-1969 and unless otherwise shown it will be a monthly tenancy and the liability to pay the rent will thus be recurring from month to month. The rent for the month commencing from 18-3-1969 and ending to 17-4-1969 can be paid within sixty days of the date when the rent becomes due. In this case the rent for the first month becoming due on 18-4-1969 may be paid within sixty days from the said date. The rent due was tendered by cheque accompanied by letter, dated 14-6-1969 which is within sixty days. In view of this, respondent No.2 cannot be held to be a defaulter in terms of section 15 of the Sind Rented Premises Ordinance, 1979. Respondent No.1 had ceased to be a tenant on the promulgation of emergency on 6-9-1969 and his rights of tenancy had vested in the Custodian of Enemy Property. Respondent No.1 is, therefore. non existent and no order is called for against respondent No.1 as no question of sub-letting by respondent No.1 in favour of respondent No.2 arises in the circumstances of the case.

9. In the result, respondent No.2 is held to be the tenant of the appellant and as no default has been proved against him the appeal is dismissed. There will, however, be no order as to costs.

10. Mr. Muzaffarui Haq seeks a clarification that this Court may observe that he is entitled to make fresh application for ejectment. Needless to say that the appellant is always at liberty to institute ejectment proceedings on the grounds available to him under provisions of Sind Rented Premises Ordinance, 1979. if she is so advised. M.I. Appeal dismissed.