2005 PLP 744 (MLD)

1. This appeal has been directed against the order of eviction passed by the Civil Judge-II/Rent Controller Quetta whereby eviction has been directed against the appellant to vacate the premises within a period of 60 days.

2. Facts of the case are that an eviction application was filed by the predecessor-in-interest of the respondents in respect of a property bearing Khasras No.249/250 and 251 Khewat No.92 Khatooni No.139 measuring 938 Sq.ft Ward No.19 Tappa Urban Tehsil and District, Quetta situated at Chohar Mal Road, Quetta. It was stated that on the said piece of land there are five shops with a basement and 10 rooms on Ist Floor situated towards Chohar Mal Road Quetta. It was averred that ten rooms, two bath rooms and two toilets, which are in the shape of Musafirkhana over shops were leased out to the appellant at a monthly rental of Rs.2000. It was also alleged that the rent deed was executed between the parties on 19-4-1983. The grounds urged by the respondents for eviction of the appellant are:-- (i) That the tenant has failed to make payment of the rent from April, 1999 to 14-12-2000, till the date of filing of application. (ii) The appellant has handed over/sublet the premises to respondent No.2 without the written consent or permissions of appellant/landlord. (iii) The respondent has damaged the water tank and failed to re-construct the same and thus materially impaired the value and utility of the premises. Rejoinder to the said application was filed by the appellant alleging therein:-- (i) Haji Muhammad Gul has forged his signature on the application as well as on the Vakalatnama. (ii) The Civil Judge and Controller has no jurisdiction to adjudicate upon the matter. (iii) The application is bad for misjoinder of the parties. (iv) The applicant suffers from concealment of facts.

3. On merits of the case it was alleged that the said premises were obtained after payment of Rs.1 lac as goodwill amount and also denied that the appellant is a defaulter. It was contented that the amount of rent used to be paid in lump sum and had never taken receipts, however, he used to give later on the some Kacha receipts were used to be issued. With regard to non-payment, it was urged that the amount was paid but no receipt was issued. Allegations of subletting were also strongly denied. On the basis of the pleadings of the parties initially following six issues were framed on 6-8-2001:-- (1) Whether this Court has no jurisdiction according to P.L.O. "B" that being Musafar Khana the disputed restriction Ordinance? (sic) (2) Whether respondent No.1 has sublet a portion of rented premises to respondent No.2?: (3) Whether the respondents have caused damage to the property? (4) Whether the respondents have not paid rent amounting Rs.42,000? (5) Whether the applicant is entitled for the relief claimed for? (6) Relief? The record shows that following two additional issues were also framed on 7-9-2001:-- (1) Whether the eviction application is signed and filed by the applicant and he is same and is competent to initiate legal proceedings? (2) In case the issue No.1 is decided against the applicant, then whether the eviction application is maintainable?

4. In order to prove the case the applicant has produced following witnesses:-- AW-1. Malik Sadullah, he stated that the premises in dispute consists of 10 rooms 2 bath rooms, latrine were leased out in the year 1983 at monthly rent of Rs.2000 was used to be received through sons of the appellant namely Rashid and Tahir. It was stated that rent up to March, 1999 was paid and thereafter the rent has not been paid. It was further stated that the said premises were sub-letted to respondent No.2, who is in possession of the same. He further stated that this fact came to knowledge of the appellant in October, 2000, and they have caused damage to the water tank and rent from April, 1999 was asked to be paid. In cross-examination he denied suggestion that the rent was paid as also he denied that the amount of Rs.1 lac as goodwill was paid to landlord. He also denied that no subletting was made. In the cross-examination stand was taken the Respondent No.2 is working as a Munshi of the Hotel, which fact was also denied by the witness. AW-2. Yousaf Khan appeared and made similar statement. He also contended that the rent from April, 1999 was not paid as also a Musafirkhana was leased out to respondent No.2, which fact came to the knowledge in October, 2000. He also contended that damage to the Tank has been made. In cross-examination he denied the suggestion that no subletting has been made. He also denied the suggestion that the rent was continuously being paid. AW-3. Muhammad Tahir appeared and made statement in support of the application and reiterated the same version of having not paid rent, subletted the premises and damage cause to the tank. He has also produced Exh. A/1, Special Power of Attorney, Exh. A/2 Agreement of tenancy and Exhs. A/3 and A/4 receipts of rent received by landlord. He admitted that application is signed by his father. It was suggested to him that the rent receipts were used to be issued in respect of the rent of the premises. He denied the suggestion that rent to the tune of Rs.16,000, 10,000 and 6000 were paid, for which receipts were issued subsequently; no receipts were confronted.

5. The Agreement produced by the said witness clearly contemplates that he will not sublet the premises without permission of the landlord and he will make regular payment of the rent on Ist of each month. Receipts Exhs. A/3 and A/4 are receipts of rent in respect of February, 1999 and March, 1999.

6. In rebuttal the appellant produced following witnesses:-- RW-1. Khiyal Muhammad Son of Abdul Jan. (i) He stated that the rent was being regularly paid, (ii) Respondent No.2 is running Musafirkhana on behalf of respondent No.1 and not sublet the premises to respondent No.2. In cross-examined he has admitted that the rent receipts were used to be issued by the sons of the appellant regularly. The suggestion that the same have been sublet to respondent No.2 has also been denied. RW-2. Muhammad Asif, who produced rent receipts in respect of the rent paid from April, 1999 to September, 2001 on 13th. September, 2001. The second receipts are Exh.R/2 produced for the month of March, 2002, Exh.R/3 is receipt in respect of the rent for the month of January and February, 2002. RW-3. Abdullah, who stated verbatim statement as that of RW-1 having paid Rs.1 lac as goodwill and has deposited more money in the shape of rent amount. Statement of Abdul Salam was recorded, who has not produced any receipts, which statedly are Kacha receipts.

7. The learned Trial Court after appraisal of the evidence has decided Issue No.1 with regard to jurisdiction of the Court in favour of the landlord. Issue No.2 with regard to subletting of the premises has been decided against the tenant in affirmative. So far as the issue of damage to the property is concerned it has been decided against the landlord, while issue of non-payment of rent has been decided against the appellant vide Order dated 15-6-2000. Being aggrieved of the Judgment passed by the Civil Judge-II/Rent Controller, Quetta the present appeal has been filed.

8. I have heard Mr. Kamran Murtaza, Counsel for the appellant and Mr. Amin-ud-Din Bazai, Counsel for the respondents and perused the record. It has been contended by the learned Counsel for the Appellant that in view of the Local Commissioner s report the signatures of late Gul Muhammad on the eviction application have been forged and the same was not filed by the applicant Gul Muhammad himself and thus the application was not competently filed and having approached with unclean hands. It was further alleged that the amount of rent was used to be paid in lump sum against Katcha receipts and amount in this behalf having been paid was deposited for the second time in the Court. It was further stated that respondent No.2 is their Munshi and thus the premises were not sublet to Respondent No.2.

9. On the other hand the learned Counsel for the respondents alleged that the appellant stated in his suit that the amount of rent was not paid. It was further stated that subletting has been made and respondent No.2 was never produced in witness box to substantiate his claim i.e. he was working in the capacity of Munshi or any record was produced with regard to entries made in the register of occupants of the rooms of Musafirkhana has been produced (sic). It was further stated that the default has been proved. The learned Counsel for the respondents has also referred (1995 SCMR 262), (1984 CLC page 2420) and (1981 CLC Page 669). Initial burden was discharged by the landlord by making statement that the amount of rent was not paid. The first question arises is as to whether the respondent has failed to discharge the burden with regard to payment of the rent for the period alleged in the application. The appellant lend (sic) specifically urged in his written statement that the rent having been paid, and receipt was not issued the burden was upon the respondents to prove same. In the statement recorded by the respondent has admitted that the rent of April, 1999 till date has not been paid and further stated that he is depositing same in the Court.

10. Suffice to observe that the rent for the first time in the Court was paid vide Exh.R/1 from April, 1999 to September, 2001 in the sum of Rs.60,

000. In view of the above admission the contentions raised by the learned Counsel for the appellant in the rejoinder have been found to be incorrect and are repelled having failed to pay or tender rent within a period of 60 days the date the rent is payable. The appellant is proved to be a defaulter the explanation offered by the appellant for failure to make payment of the rent seeking exercise of discretion is found to be incorrect. Thus the Issue of default is decided in favour of the landlord. So far as the Issue of subletting is concerned; it is admitted feature of the case that the appellant and his witnesses have categorically stated that respondent No.2 is occupying the premises, burden to prove shifts upon the tenant to explain the same. In case in hand neither the respondent appeared in the witness box nor the record prepared in this behalf by the respondent No.2 in the capacity of Munshi was produced. The tenant has failed to discharge his burden to prove that respondent No.2 is working as a Munshi and is not user of premises as a subletter.

11. I am fortified with view expressed by his lordship in case Masroor Hassan v. Abbas Ali Khan reported in (1081 CLC page 669). The relevant observations are as under:-- "In my view once a landlord proves that somebody else is using the rented premises either exclusively or jointly with the tenant, the burden of proof shifts on the tenant to explain the relationship between him and the persons using the tenement. The fact that the appellant No.2 is the father-in-law of the appellant No.1 does not make any difference, it is the nature of the use which determines the point of relationship which reference to a premises and not the personal relationship." While following above dictums, it has been established that the respondent No.2 is occupying as a sublettee in the premises. So far as the objection of the learned Counsel for the appellant is concerned that the application and Vakalatnama were not properly signed by Late Gul Muhammad and Local Commissioner s report contemplates that it was not signed by him. It is observed that Gul Muhammad has died and the respondents have come forward as legal heirs and own the said application as having been filed by or on behalf of their father. If there was any irregularity in the filing of application as urged by the counsel for the appellant was ratified by filing the power of attorney at subsequent stage. The relevant observations of (sic) in case titled as Malik Sajawal Khan v. The Deputy Commissioner Sargodha and others (PLD 1968 Lahore Page 527) are reproduced as under:- "Even in the case of Order VI, rules 14 and 15, C.P.C. there is ample authority for the view that signing and verification of plaints or mere matters of procedure, and even if a plaint is not properly signed and verified, but it is admitted and entered in the register of suits, it does not cease to be plaint, and the suit cannot be said not to have been instituted, because of the defect or irregularity in the mater of signing and verification of the plaint. In this connection All India Report, Bombay v. Ramchandra, Dhonda Dater, Ganpati Nana Power and another v. Jiwanabai Kom Subanna, Bandi Portland Cement Ltd. v. Abdul Hussain Essaji and Nanjibhai Jethabhai v. Popatlal Shiraj and others, may be referred. In Shib Deo Misra and others v. Ram Prasad and others, it was held that a plaint is not void merely because it does not contain the verification clause as required by the Code of Civil Procedure. The omission to verify it is a mere irregularity, which could be cured even at later stage. Merely on the ground of such defect the plaint cannot be treated as altogether invalid. In Secretary of State for India v. Dinshaw Navroji and another, it was also stated that the provisions of Order 6, Rule 11, C.P.C. relate to a mere matter of procedure and any mistake or omission therein may be amended at any time subsequent to the institution of the suit. In Mohiuddin and others v. Prathi Chand Lal Chaudhary, it was held that even an Appellate Court should not dismiss a suit on the ground that the plaint was not duly signed and verified by such a defect does not affect the merits of the case or the jurisdiction of the Court. As a general proposition it was stated in it, that though no hard and fast line could be drawn between a nullity and irregularity, and non-compliance with every requirement of statute does not universally make the proceedings a nullity, and when the provisions of statute have been contravened, if a question arises as to how far the proceedings are affected thereby, it must be determined with regard to the nature, scope and object of the particular provision violated. In Rejabali v. Messrs Gujrat Bus Service, Karachi, a Division Bench of this Court held on a consideration of Order VI, Rule 14, C.P.C. that the omission of plaintiff No.1 to sign the plaint was of a minor nature and the objection being of a minor technical nature, which had no bearing on the merits of the case, the Court could even at the appellate stage get the plaint signed from plaintiff No.1. The objection was overruled." (1) AIR 1961 Bom. 292, (2) AIR 1923 Bom. 44(1), (3) AIR 1936 Bom. 41, (4) AIR 1932 Bom. 367, (5) AIR 1925 All, 79, (6) AIR 1925 Sindh 275, (7) PLD 1961 Kar. 486." Although the provisions of C.P.C. and rules of strict pleadings are not applicable but still principles of C.P.C. could be followed. I am in respectful agreement with the observations of the Division Bench and adopt the same for application to the present case.

12. In view of the above reasons stated I have no hesitation in concluding that the appellant has committed default and has also sublet the premises to respondent No.2, consequently the appeal has no merit, which is accordingly dismissed with no order as to costs. However, the appellant is provided four months time to hand over the vacant possession of the premises. H.B.T./61/Q Appeal dismissed.