1991 PLP 1229 (CLC)

This First Rent Appeal is directed against the order dated 30‑5‑1989 passed by the learned VIllth Senior Civil Judge and Rent Controller, South Karachi. The brief facts giving rise to the present application are that the appellant filed ejectment application against the respondent on the ground of default and failure to pay water and conservancy charges. The notices were issued against the respondent, who filed his written statement in which he denied the allegations. He has further stated that originally P.A. Dobash was the tenant in the demised premises and after him the tenancy has been changed in his favour since November, 1976, and he is in exclusive possession since then. That the amount of Rs.73.50 includes taxes, water and conservancy charges. That he has paid rent to the applicant up to June, 1.982 but thereafter he proceeded to India in the end of July, 1982 for eye operation, authorising his attorney Misc. Jasmine to remit the rent to applicant, who offered rent of July 1982 and onwards to the applicant but the same was refused by him. Thereafter the rent was sent through cheques on their account which were also refused by the applicant. Thereafter he started depositing the same in Misc. Rent Case No.458/83. The ground that the tenancy presides are lying vacant does not fall within the purview of section 15 of Sindh Rented Premises Ordinance, 1979 and the applicant is not entitled to relief claimed by him. The appellant filed affidavit of one Sycd Abid Ali Zaidi, Managing Director of the applicant, and he was cross‑examined. However, no affidavit was filed nor evidence was produced in rebuttal by the opponent/respondent. On the pleadings of the parties the following issues were framed:‑ (1) Whether the Opponent has committed default in payment of rent of tenancy premises? (2) Whether the water and conservancy charges are payable by the Opponent and he committed default in payment of' the same as alleged? (3) What should the order be ? Since the evidence of PW Syed Abid Ali Zaidi had gone unchallenged inasmuch as no evidence was produced in rebuttal the Issue No.1 was decided in affirmative, however, Issue No.2 was decided in negative. As far as Issue No.3 was concerned, it was observed as under:‑ "Although the default in payment of rent by the Opponent has been clearly proved by the applicant, yet since his prayer in eviction application is for directing the Opponent to hand over the vacant possession of the disputed premises to him but in cross‑examination of P.W. Syed Abid Ali Zaidi, he has admitted that the opponent is not in occupation of' the tenancy premises, therefore, this application becomes infructuous and is accordingly hereby dismissed." The present appeal is directed against the above order of dismissing the ejectment application. It has been contended by Mr. S.F. Abdullah learned counsel appearing for the appellant, that once the Issue No.1 regarding default was decided in favour of the appellant/landlord, the learned Rent Controller had no other alternative but to direct that the landlord should be put in possession of demised premises and the learned Rent Controller has erred in dismissing the ejectment application. I have considered the contentions and have gone through the R & P of the case. In view of the fact that the learned Rent Controller has decided Issue No.1 in affirmative holding the Opponent as defaulter, there was no reason to dismiss the ejectment application on the ground that tile demised premises were lying vacant. No evidence was produced in rebuttal by the respondent, and according to the appellant the demised premises were lying vacant, therefore, the applicant/appellant was entitled to possession. The appeal is accordingly allowed, and the order passed by the learned Rent Controller is set aside. The appellant shall be put in vacant possession of the demised premises immediately. H.B.T./A‑1023/K??????????????????????????????????????????????????????????????????????????????? Appeal allowed.