1986 PLP 955 (CLC)

‑‑‑Ss. 15 & 21‑‑Appeal by tenant‑‑Landlord's right to assail finding on default‑‑Landlord, held, was entitled to assail finding on issue relating to default in appeal sled by tenant, without himself filing appeal. 1983 C L C 2020; 1984 C L C 2554; 1985 C L C 1429 ref. (d) Sind Rented Premises Ordinance (XVII of 1979)‑ ‑‑‑S. 15‑‑Default‑‑Proof of‑‑Tenant's failure to establish plea of having tendered rent at expiry of every month and refusal of landlord to accept same, held, would establish default entitling landlord to ejectment of such tenant. S. Inayat Ali for Appellant. Ashiq Ali Abdullah for Respondent Date of hearing: 5th and 9th December, 1985. One Mahmood Mian, predecessor‑in‑interest of the respondent filed an application for ejectment against the appellant on the grounds of default in payment of rent subletting to other person without written permission of the landlord and personal bona fide requirement. Mahmood Mian died during the pendency of the case and his legal heirs have been brought on record who are respondents. The appellant filed written statement and denied the relationship of landlord and tenant with Mahmood Mian. The other allegations were also denied. It was pleaded that one Nazar Muhammad son of Ahmad Mian was the owner of the property and was collecting the rent. After the death of Nazar Muhammad his son Muhammad Hanif used to collect the rent. It was averred that Mahmood Mian was not the owner/landlord of the premises. If at all any .interest was created in his favour, no notice under section 13‑A of the Sind Urban Rent Restriction Ordinance was served on the appellant. The learned Controller by order, dated 3‑5‑1982 decided the preliminary issue in favour of the respondent and disposed off the ejectment application holding that no further inquiry regarding default was necessary. The appellant was accordingly ejected. He filed an appeal which was allowed, and the case was remanded to the learned Controller for recording evidence that may be adduced by the parties, and decide the case on merits. It was further ordered that if a final order is passed against the appellant by the Rent Controller, and if an appeal against that ejectment order is filed by the appellant, it will then be open to him to raise plea challenging the decision of the Rent Controller about relationship of landlord and tenant between the parties. Accordingly the evidence of the parties was recorded by the Controller, and by the impugned order, dated 16‑5‑1984 the ejectment has been granted on the ground that the premises has been sublet by the appellant, but as regards default, the finding is in the negative. The issue relating to bona fide requirement was dropped. Mr. Syed Inayat All the learned counsel for the appellant has challenged the finding of the learned Controller on the ground that there is no evidence to establish that the relationship of landlord and tenant existed between the parties. According to the learned counsel Mahmood Mian was not in the picture either as an owner or as a person recovering the rent. The entire dealing was between the appellant and Nazar Muhammad and Muhammad Hanif. In these circumstances the finding of the Controller is liable to be set aside. On the other hand Mr. Ashiq Ali Abdullah the learned counsel has referred to the oral and documentary evidence on record to show that Mahmood Mian was the owner and landlord of the premises. From the evidence it is clear that Muhammad Hanif son of Nazar has not claimed the ownership of the property. He has stated that he was only recovering the rent on behalf of Mahmood Mian. In fact he has stated that Mahmood Mian was the owner of the property. All these persons are closely related. Hanif is the brother of the respondent No. 1 who is the widow of Mahmood Mian. The counterfoils produced by the respondent show that they were signed by Mahmood Mian. However, the learned counsel for the appellant has contended that the appellant is concerned with the receipts in his possession which are signed by Hanif and Nazar. In this regard about 58 receipts and money order coupons had been produced. Exh. 0/2 to 0/16 are the receipts signed by Nazar. Exh. 0/17 to 0/30 are the receipts singed by Hanif, but none of them establish that either of them is the owner of the property. These receipts only show that Nazar and Hanif had recovered the rent. The appellant had sent money orders which seem to have been refused by the respondent. Except 0/31 to 33 which are addressed to landlord /landlady c/o Mahmood Mian Exh. 0/33 to 54 are addressed to owner/landlord Mahmood Mian. Exh. 0/55 to 0/58 are addressed to Mansa House c/o Mahmood.Mian. Froml those money order coupons one fact is common that either it has been addressed to the landlord /landlady or owner, but it is c/o Mahmood A Mian. 0/34 to 54 have been addressed to Mahmood Mian. It, therefore, seems clear that the appellant has been paying rent directly or indirectly to Mahmood Mian. None of the money orders were addressed to Hanif. If the appellant had been under the impression that Nazar and after him Hanif had been the owner or landlord, rent ought to have been paid to Hanif. The appellantc's own conduct shows that he has treated Mahmood Mian as owner/landlord of the property in dispute. The respondents have produced sufficient evidence on record from which the ownership of property in the name of Mahmood Mian is established. The respondent has also produced a photo copy of foundation stone fixed in the building in which hlahmood Mian, Ahmed Mian has been described as landlord. In these circumstances there can be no escape from the conclusion that at the material time Mahmood Mian was the owner and landlord of the disputed property, and after his death, the respondents have inherited it. The relationship of landlord and tenant exists between the parties. The next contention of the learned counsel for the appellant is that subletting has not been established. In this regard the learned counsel for the respondent has contended that the case will be governed by the provision of Sind Rented Premises Ordinance, 1979, where a landlord can eject the tenant if he has handed over the premises to some other person without the consent of the landlord. The plea of the learned counsel for the respondent is not tenable as the ejectment case was filed under the Sind Urban Rent Restriction Ordinance, 1959 which did not contain such a provision for ejectment. Therefore, the new plea for ejectment introduced by Sind Rented Premises Ordinance, 1979 g cannot be pressed in service in these proceedings. Under section 13. subsection (2)(ii)(a) if a tenant has without the written consent of the landlord transferred his right under the lease or sublet the entire building or rented out land or any portion thereof, then he is liable to be ejected. The question for consideration is whether the appellant has transferred his right under the lease, or sublet it to some other person. From the evidence of the appellant it is clear that he has left they premises and is living in his own house. It is also establish that in the disputed premises the parents, brother and sister of the appellant are residing. The respondents have admitted that when the appellant first occupied the premises, the persons who are residing in it had come alongwith him. The person living in the premises are living with them from the inception of the tenancy. Now the appellant has left his brother, sister and parents and has gone away in his own house. He had been paying rent even after leaving the premises to the respondent. In order to pre less section 13(2)(ii)(a), it is necessary to establish that the right in the lease has been transferred or unauthorisedly sublet. So far the transfer of right in the lease is concerned the same has not been established as appellant's family members are residing there anal the appellant had been paying the rent. So far subletting is concerneal it is proper to point out that when any person other than the tenant is occupying the premises it is for the tenant to explain in what capacity he is occupying it. Here the appellant has explained in clear record to show that the terms. No evidence has been I produced on rent appellant is realising any rent from the persons who are residing in that premises. In these circumstances, the subletting has not been established. Mr Ashiq Ali Abdullah the learned counsel for the respondent has challenged the finding of the learned Controller on the point of default. Relying on 1983 C L C 2020, 1984 C L C 2554 and 1985 C L C 1429, the learned counsel for the respondent has contended that the respondent is entitled in this appeal to assail the finding on issue relating to default without filing any separate appeal as it is not permissible in law. The contention of the learned counsel seems to be correct. The respondent had claimed ejectment on the ground of default in payment of rent from July to October, 1976. In written statement the appellant had pleaded that "the landlord used to collect the rent periodically at his convenience. He collected rent for four months from March to June, 1976 on 12‑6‑1976 and did not care to collect it after‑ wards. Rent for July, August, and September, was offered on the expiry of each of the said months but the landlord put off collection saying that there was no particular hurry about it as he was busy in demolishing structure on a portion of the plot". The appellant, therefore, remitted rent for the month of July to October by money order which was declined but the same was repeated several times with the same result. In his affidavit of evidence he has denied that he has defaulted in payment of rent. He has produced money order coupons Exh. 31 and Exh. 0/32 in which the following note has been made:‑ "Rent for July to October, 1976 is sent herewith as you did not accept rent on the pretext that rent receipts were not available in spite of several persons tenders." Now the plea raised in the written statement, and in evidence seem contradictory, as it was pleaded that the rent was to be collected for several months, and the respondents did not collect it, and when it was offered, he refused on the pretext that he was busy in constructing the house. Here the plea is completely different. No independent evidence has been produced to show that the rent was tendered by the appellant every month. If the plea in the written statement is to be taken to be correct, then there was no occasion to tender every month as the landlord was in the habit of collecting after several months, and no reason has been given for departing from this manner of dealing between the parties and offering the rent every month. It clearly shows that the defence put in evidence is an after thought. The appellant has failed to establish that he has tendered the rent On the expiry of every month which was refused by the respondent. In these circumstances I hold that the appellant has defaulted in payment of rent. The ejectment order passed by the Rent Controller is, therefore, maintained on different grounds. The appeal is dismissed. The appellant should vacate the premises within three months. A.A. Appeal dismissed.