P L D 2001 Karachi 41 (PLP)

(4) What should the order be?

6. After assessing the evidence led by both the parties, the Controller gave findings in affirmative on the aforementioned points Nos. 1 and 2, whereas, on point No.3 the finding of Controller was in negative. Resultantly, the Controller passed the impugned order with directions as stated above.

7. I have heard learned counsel for the parties and with their assistance, I have also examined the material available on record.

8. Learned counsel for the appellant, in his arguments, submitted that there is no relationship of landlady and tenant between the parties. Therefore, neither the respondent could file the rent application nor the Controller could order for ejectment of the appellant on such incompetent application. He contended that since the respondent was not landlady of the premises in question the appellant was not under legal obligation to pay rent to the respondent. Tracing the background of the case, he submitted that the premises were let out to the respondent by one Abdul Majeed Memon to whom the appellant used to pay the agreed rent till he was alive and thereafter, the rent up to October, 1994 was paid to his son and legal heir Shunaid to whom an amount of Rs.3,850 was also paid as rent for the months of November, 1994 to December, 1995 in advance in presence of witnesses without any receipt issued by the said Shunaid. He, however, admitted that after December, 1995, neither the rent has been paid by the appellant nor it has been deposited in the Court and viewed that this default in payment is subsequent to the filing of Rent Application, therefore, no cause had matured at the time of filing said application. He placed reliance on following cases:-- (i) Haji Fakir Muhammad v. Hazaratullah 1989 CLC 252. (ii) Bahadur Ali v. Raja Fazal Hussain 1990 CLC 1529. (iii) Syed Anwer Ali Shah v. Syed Habib Hussain 1991 MLD 945.

9. Learned counsel for the respondent at the very outset, referred to the preamble of the agreement dated 1-3-1975 produced in evidence of respondent as Exh.17 to contend that it is abundantly clear from it that the said agreement was executed in-between Mrs. Abdul Majeed and appellant. He added that late Abdul Majeed used to collect the rent as husband and attorney of the respondent who is landlady of the premises in question. He also referred to a document (Exh.16), produced in evidence, to show that the respondent Mst. Rashida w/o late Abdul Majeed is owner of premises in question and according to section 2(f) of the Sindh Rented Premises Ordinance she is landlady of the said premises and entitled to file ejectment application and ask for the prayer of ejectment of appellant on the ground of default etc. He placed reliance on case of Muhammad Abdul Aleem v. Sayed Wajahat Ali reported in 1988 MLD 1942. He added that the contention of appellant that the rent was paid in advance for the months of November, 1994 to December, 1995 is totally false. According to him no concrete evidence in shape of valid receipt has been produced by the appellant to prove his contention and that there is also contradiction in oral evidence of appellant advanced on this point. He submitted that the appellant is defaulter in payment of the rent from November, 1994 till filing of the rent application on 11-1-1996 and thereafter, till today, he has paid no rent and is an admitted defaulter. He argued that it is the case of appellant that he paid monthly rent of the tenement in question to deceased Abdul Majeed who is admittedly husband of the respondent and father of one Shunaid to whom it is stated by the appellant that the rent was being paid as his legal heir. He submitted that in case the contention of the appellant is taken as true then also the respondent and said Shunaid both are the legal heirs of the late Abdul Majeed and entitled to all the rights which he used to enjoy during his lifetime. He defended impugned order stating that it has been passed justly and legally by the Controller. He placed reliance on following case-law:-- (i) 1996 MLD 1141; (ii) 1986 SCMR 751; (iii) 1988 MLD 1942; (iv) 1992 SCMR 871; (v) PLD 1996 Kar. 526; (vi) 1997 CLC 623; (vii) 1998 CLC 529 and 1998 CLC 894.

10. The respondent claims to be landlady of the premises in question. To support her contention an agreement executed on 1st March, 1975 has been produced as Exh.17 in the evidence of her son. Perusal of this agreement reveals that it has been executed in-between Mrs. Abdul Majeed and Messrs Latif Brothers namely the appellant. Execution of this document is not denied, instead, D.W. Abdul Rasheed who is son of Haji Muhammad Shafi proprietor of the appellant, admits in his evidence that the disputed shop was obtained in the name of Latif Brothers and that written agreement was executed in the month of March, 1971 and his father had put signature on the rent agreement after it was read over. Aforesaid Haji Muhammad Shafi has also admitted that rent agreement was executed between the parties and that Exh.17 bears his signature. Ownership of the tenement by the respondent is also not denied. All these facts go to indicate that late Abdul Majeed used to collect the rent on behalf of the respondent as her husband as is customary in our social set-up. Be that as it may, the respondent claims ownership of tenement. Her son in his evidence has categorically stated that she is owner of the premises in question. He has also produced certified true copy of Extract from city survey record as Exh.16 which explicitly bears the name of the respondent as holder of the said property by virtue of gift dated 17-8-1971 constituting her ownership. Aforementioned statement of son of the respondest has gone unchallenged, rather, ostensibly on a suggestion, in his cross-examination he has stated that it is correct that his mother was owner of disputed shop in. the year 1971. Beside, the existence and authenticity of aforementioned document Exh.16 has not been challenged. Thus, for the purposes of this case, the respondent is owner of the premises in question and by virtue of being so she is landlady as per definition of landlord provided by section 2(f) of the Sindh Rented Premises Ordinance, 1979, which reads as follows: "Landlord means the owner of the premises and includes a person, who is for the time authorised or entitled to receive rent in respect of such premises."

11. In case of Muhammad Abdul Aleem v. Sayed Wajahat Ali reported in 1988 MLD 1942, my respectable brother Justice Saleem Akhtar (as he then was) while considering the relevant provisions of Urban Rent Restriction Ordinance, 1959 as well as provision of section 2(f) of Sindh Rented Premises Ordinance, 1979 observed as follows:-- "Under both these Ordinances owner is a landlord and thus ejectment application can be filed by him. In the relevant statute there is nothing to indicate that only such landlord can file ejectment application with whom the tenant has entered into a tenancy agreement. A landlord whether he is an owner or entitled or authorised to receive rent is competent to file ejectment application irrespective of the fact, whether the agreement of tenancy is with the owner or his attorney or such person who is authorised or entitled to receive rent. In the present case the appellant has produced sufficient evidence to prove that he is the owner of the premises in dispute therefore within provision of law he is the landlord and competent to file ejectment application." I also find myself in full agreement with the above observations and hold that the respondent is a landlady and can file rent application before the Controller.

12. Having dealt with the above point next question shall be whether the appellant is defaulter in payment of monthly rent. The respondent has alleged the default on the part of appellant in payment of rent from November, 1994 till filing of rent application on 11-1-1996. Haji Muhammad Shafi proprietor of the appellant has stated in his evidence that an amount of Rs.3,850 was paid by his son Abdul Rasheed alias Baboo to one Shunaid son of the respondent in the month of October, 1994 in presence of Fazal Ahmad and Muhammad Ali, being advance rent from November, 1994 to December, 1995 at the rate of Rs.275 per month. He has however, admitted that nether any rent receipt was issued nor did he press for the same. He has examined said Abdul Rasheed and Muhammad Ali, on this point. Said Abdul Rashid is his son and Muhammad Ali is his nephew and cannot be termed to be independent witnesses. It is not the case of the appellant that in the past also it had been the practice on the part of Rent Collector not to issue receipt on' payment of rent. Thus, there seems to be no occasion not to issue the receipt for the disputed rent which according to the appellant was paid in advance for not less than 13 months strangely ending with the month of December, 1995 immediately proceeding the filing of rent application. It will be pertinent to note that in the face of denial of the appellant of rent for the aforesaid period concrete evidence is required to prove the payment of disputed rent which admittedly is extinct in this case. Reference is made to case-law reported as Jabar Ahmed v. Abida Ismail 1987 MLD 114, Abdul, Rauf Khan v. Syed Abdul Hassan Naqvi 1990 ALD

226. Added to it is the fact that there are conflicting statements of appellant and his son Abdul Rasheed in their cross-examination as to disputed rent which also cast doubts on veracity of their testimony. Haji Muhammad Shafi has stated in his affidavit that Rs.3,850 were paid as advance rent by his son to the respondent whereas in his cross-examination he has given conflicting statement voluntarily stating that he paid Rs.3,850 as advance loan to son of (applicant) respondent but not arrears of rent. D.W. Abdul Rasheed in his cross-examination has denied a suggestion stating that it is incorrect to suggest that he paid Rs.3,850 as advance rent from November, 1994 to 1995 and in same breath he has also admitted that it is correct that he never paid any advance rent. He has also denied a suggestion by saying that it is incorrect to suggest that he did not obtain receipt for payment of Rs.3,850 conversely speaking as if receipt was obtained by him. Thus somersaults in the evidence of appellant are obvious which are never expected from true witnesses. Be that as it may, it is an admitted fact that the appellant has not paid monthly rent to the respondent or to her son Shunaid after filing of rent application. Haji Muhammad Shafi proprietor of the appellant in his cross examination has admitted in clear terms that after filing of ejectment proceedings neither he paid rent to the applicant nor he is depositing the rent before the Court. Learned counsel for the appellant during the course of his arguments has also very candidly admitted that no rent has been paid by the appellant after filing of ejectment application. He, however, was of the view that at the time of filing of Rent Application there was no default and the cause had not matured to file rent application: I am afraid, I do not find myself inclined to agree with him. I have already held that the respondent is landlady and she could file the Rent Application. Being a widow she has already suffered tremendously having been deprived of the rent for not less than 4 years in the face of admitted default. It will be an act of great injustice if on a technical ground she is non-suited and asked to start anew by filing fresh rent application and suffer rigors of litigation when results on merit are not likely to be different. In this view, I am fortified by the dictum laid down in case of Raj Muhammad and 11 others v. Haji Muhammad Zareen and 3 others reported in 1980 SCMR

339. It shall be pertinent to reproduce the observation of my lords as follows:-- "We do not agree with the learned counsel. It was held in the case of Mst. Amina Begum and others that the fourms acting under the Rent Restriction Law were not, in exercise of discretion vested in them, precluded to take note of events taking place during the course of the proceedings after the institution of an ejectment petition so as to suitably mould the relief on the basis of the altered circumstances in order to avoid multiplicity of litigation and shorten the proceedings. It was also observed that compelling the applicant landlord to withdraw ejectment petition which has already been tried, merely on the technical ground of the cause of action not having matured at the time it was filed so that it may be filed again, would not advance the interest of justice as results on merits were not likely to be different. Learned counsel has not satisfied us that if the ejectment petition was withdrawn and refiled, the results on merits would have been different." 14, I have also gone through the case-law cited by learned counsel for the appellant. With due respect, it is stated that it is in different circumstances and is not applicable to this case.

15. Considering the above facts and circumstances and after going through the case-law cited above, by my short order dated 3-2-2000, I had) dismissed this appeal and these are the reasons for the same. , Q. M. H. /M. A. K./L-6/K Appeal dismissed.