1984 PLP 545 (MLD)

Khaliq Humayun for Respondent. Date of hearing: 29th April, 1984. This First Rent Appeal has been filed by the appellant Fariduddin through his general attorney Muhammad Waqaruddin, Ejectment Appli cation No. 1866/78 was filed by the appellant for the eviction of the respondent /tenant from the flat in question on the grounds of personal requirement and default in the payment of rent since August 1977. The ejectment application was filed on 13-4-1978. The wife of the respondent filed a written statement in which she stated that the respondent was out of Pakistan in connection with his employment in a foreign shipping company and a preliminary objection was taken that it had been admitted by the attorney of the appellant Fariduddin Ahmed that the premises in question was owned by the wife of the attorney and was rented out to the respondent by the attorney and therefore applicant Fariduddin was neither the owner nor the landlord of the disputed premises, and he was not competent to file the ejectment application. On merits also the ejectment application was resisted. On personal requirement it was averred that there was only the word of the attorney that the premises were required by the appellant and .on default it was averred that the rent had been paid upto July and subsequently a money order was sent-on 15-8-1978 and subsequently the wife of the appellant deposited monthly rent from` August 1 977 with the Rent Controller in Misc. Rent Case No. 3297/7 A preliminary issue was framed about the relationship of landlord and tenant between the parties and by order dated 14-5-1979 the preliminary issue was decided in favour of the applicant Fariduddin Ahmed and then the case was posted for evidence of the parties. Waqaruddin attorney. of the applicant Fariduddin examined himself and the respondent examined himself in defence, By the impugned order dated 31-5-1980 the Rent Controller dismissed the ejectment application. Being aggrieved, this appeal has been filed by Fariduddin Ahmed through his attorney Waqaruddin. I have heard Mr. Muhammad Ishaque Shams, learned counsel for the appellant and Mr. Khaliq Humayun, learned counsel for the respondent.

2. On the question of personal requirement this appeal is not pressed by the learned counsel for the appellant. Even otherwise I find no ground to disturb the finding of the Rent Controller on the ground of, personal requirement. There is only one line in the affidavit of the attorney of the appellant that the premises are required by the appellant and appellant Fariduddin Ahmed did not come in the witness-box. On such evidence the application could not have been granted on the ground of personal requirement of Fariduddin Ahmed.

3. Reference may be made here to the exchange of legal notices between the Advocate of the respondent's wife and the attorney of Fariduddin. In the notice dated 21-8-1977 (Exh. A-6) on behalf of the respondent's wife addressed to Waqaruddin it was mentioned that she was wife of respondent Sadruddin who was in a foreign country and who was the tenant in respect of the flat in question. In this notice it was mentioned that the tenancy agreement had been entered into by Waqaruddin and it was averred that because of certain dispute between the parties rent was not being accepted by Waqaruddin. He was to accept the rent, failing which the respondent's wife would have no alternate but to deposit future rent in Court. A reply dated 31-8-1977 (Exh. A-7)' was received from the Advocate of Waqaruddin. In the reply dated 31-8-1977 it was admitted that the flat in question was owned by the wife of Waqaruddin and was rented out to the respondent by an agreement of tenancy dated 2-10-1974. It was further admitted that the original tenancy agreement was with Waqaruddin. It was further stated in the reply dated 31-8-1977 that whenever Waqaruddin went to collect the rent from respondent's wife it was given to understand that she was unable to make the payment as remittance from abroad was awaited. It was further pointed out that Waqaruddin was not ready to receive the rent by belated payments. The reply dated 31-8-1977 shows that Waqaruddin had inducted the respondent as a tenant in the premises, that according to Waqarud din, his wife was the owner of the flat in question and therefore Fariduddin was neither the owner of flat nor Fariduddin had inducted the respondent as a tenant in the flat in question. Reference here may also be made to the Registered General Power-of-Attorney, dated 3-7-1979 executed by Fariduddin in favour of Waqaruddin. A copy of this power of attorney was produced as (Exh. A-2) which is irrevocable General power-of-attorney also indicates very clearly that the flat in question had been sold by Fariduddin to Waqaruddin. In these circumstances the learned Rent Controller was not correct in deciding the relationship of landlord and tenant to be existing between Fariduddin and the respondent. Fariduddin-has not appeared in this case. As noted earlier, the reply dated 31-8-1977 (ExbA-7) and the General Power-of-Attorney, dated 3-7-1974 (Exh. A-2) clearly establish that Fariduddin was not the landlord of the respondent. The order dated 14-5-1979 of the Rent Controller holding that relationship of landlord and tenant existed between Fariduddin and the respondent is therefore set aside. As a result the ejectment application should have been dismissed on the preliminary, objection raised on behalf of the respondent. Even otherwise I, find on the evidence that a case of default had not been established. Admittedly the rent had been deposited in a miscellaneous rent case regularly. The only argument of the learned counsel for the appellant in this regard was that the appellant had not been given any notice that the rent was being deposited with the Rent Controller. Firstly this is not a fault of the respondent. On his application for deposit of rent with the Rent Controller, the Rent Controller should have issued notice to the appellant. Secondly the documents on record and the evidence of the parties show that the dispute had arisen between the parties and in fact in the legal notice dated 21-8-1977 (Exh. A-6) on behalf of the respondent's wife to Waqaruddin it had been mentioned that the rent was not being accepted and if it was not accepted, the rent would be deposited with the Rent Controller. On the stage of evidence on record, the Rent Controller had come to the correct conclusion that no default has been established. I find no merits in this appeal. F.R.A. No. 708 of 19.80 is dismissed with costs. M. I. Appeal dismissed.