1994 PLP 592 (CLC)

This appeal under section 21 of the Sindh Rented Premises Ordinance, 1979, hereinafter to be called as the Ordinance, is directed against an order dated 30‑12‑1992 passed by the Ist. Senior Civil Judge and Rent Controller, Karachi‑South in rent case No. 26/86, directing appellant's eviction from the disputed premises.

2. Facts of the case in brief are that respondent M/s. Hotel Metropole Ltd. filed an application under section 15 of the Ordinance, seeking appellant's eviction from room No. 145 of the Hotel Metropole Building, Karachi, on the ground of default in payment of rent. It was the case of the respondent that through an agreement/letter dated Ist. February, 1975, appellant was inducted as a tenant in room No. 145 at the rate of Rs.500 per month. By mutual agreement respondent had been billing at flat rate of Rs.700 per month for electricity inclusive of an air‑conditioner not exceeding 1600 BTU. The agreement was confirmed in writing by the parties. Right from the inception of tenancy, as stated, appellant was defaulter in payment of rent and various letters had to be addressed to him for payment of rent as well as electricity charges. Some of the letters were replied by the appellant who admitted default, in writing. However, on 8‑6‑1985 last payment of Rs.1200 being the rent and electricity charges for May, 1985 was made through a cheque and with effect from June, 1985, no payment either towards rent or electricity charges was made by the appellant. The ejectment was, therefore, sought on the ground of default only.

3. Appellant filed written‑statement and challenged the maintainability of the rent application on the sole ground that the respondent herein being a limited company, incorporated under the Companies Act, could not file the application in its present form. With regard to the default, it was stated that the proprietors of the respondent were family friends of appellant and no particular mode of payment of rent was settled but the respondent used to receive accumulative rent and never objected to such accumulation. It was admitted by the appellant that total arrears of rent and electricity charges up ‑to 31‑12‑1985 being Rs.8,400 being due against him were not disputed. On these pleadings appellant sought dismissal of the application.

4. One Imtiaz Mughal, an Executive Vice President of respondents filed his affidavit‑in‑evidence and stated that he was competent to file and defend rent case on behalf of Hotel Metropole Ltd. On behalf of the appellant, affidavit‑in‑evidence of one Ahmed Khan Gabol was filed. Alongwith an application under section 1.9 of the Ordinance, appellant filed a copy of an application under section 10 of the Ordinance, and some other documents. An additional affidavit‑in‑evidence was also filed on behalf of the appellant but the witness did not appear before the Rent Controller for cross‑examination and such affidavit‑in‑evidence was rightly ignored by the learned Rent Controller. Appellant also filed some documents suggesting that the respondent was asked to disconnect electricity connection and, therefore, whatever arrears on that account would not be deemed as due against him nor he would be termed as a defaulter. The learned trial Court framed the following points for determination. (i)???????? Whether the ejectment application was not maintainable? (ii)??????? Whether the opponent had committed wilful default in payment of rent from June, 1985 to December, 1985 and also after the filing of this rent case? (iii)?????? What should be the order?

5. On assessment of evidence, the learned Rent Controller held that the ejectment application was maintainable, that default was duly proved and in the result directed appellant's eviction.

6. I have heard the learned counsel for the parties and have perused the judgment impugned in this Appeal and the evidence. It is contended by the appellant's learned advocate that the respondents being a limited company, no resolution by the Board of Directors of respondents, authorising Imtiaz Mughal to file the application or give evidence was produced: In the circumstances, the very application was not maintainable. In support of this contention, the learned advocate referred to Khan Iftikhar Hussain Khan of Mamdot v. M/s. Ghulam Nabi Corporation Ltd. Lahore (1`1,13 1979 SC 550). It is also contended that a plea of this nature, challenging the maintainability of rent case can be raised in rent proceedings and for that reliance is placed on Mst. Akhtari Begum v. Muhammad Kassim (1987 CLC 157). On the issue of default, it is contended that there was a practice established between the parties, whereby accumulated rent was being received and no exception was ever taken by the respondent. The learned advocate has referred to some portions of evidence of the respondent and has suggested that respondent admitted that the bills of electricity etc. were not filed with the refit proceedings suggesting thereby that no arrears on account of electricity were due against appellant. He has also referred to a letter dated 16‑12‑1986 sent by the appellant, intimating respondent that he would not be using air‑conditioner and for disconnecting the electricity connection. No case‑law on the point of default has been cited by appellant's learned advocate.

7. The learned counsel appearing for the respondent has contended that in para. 14 of the application, it is specifically stated that Imtiaz Mughal was authorised to. file the ejectment application and he signed the application in his capacity as the Executive Vice President of the respondent. It is also pointed out that alongwith application under section 16 (1) of the Ordinance, power of attorney was also filed, which was never objected and the power of attorney was duly taken into consideration by the learned Rent Controller while deciding issue No.l. It is also argued that once it is established that Imtiaz Mughal was duly constituted attorney who could file application and give evidence and such status of Imtiaz having never been. objected to by the appellant, no objection regarding maintainability of proceedings could be taken either before the trial Court or before this Court. Reliance in this respect is placed on AIR 1939 Bombay

347. On the issue of default the learned counsel argued that from June, 1985 rent .was not paid by the appellant and this fact has been admitted by appellant in the written? statement.

8. The application on behalf of the respondent was filed under the signature of Imtiaz Mughal in his capacity as the Executive Vice President of Hotel Metropole Ltd. Karachi and such particulars are given in the title page of the application as also under the verification of application. The power of attorney is on the record which authorised Imtiaz Mughal to file the ejectment application and to pursue or defend the matter. No objection was taken to the power of attorney so filed and the learned Rent Controller, therefore, rightly discarded the objection regarding the maintainability of application taken by the appellant.

9. On the point of default there is a clear admission by the appellant in paragraph 11 of the written‑statement that total arrears of rent and electricity up to 31‑12‑1985 of Rs. 8,400 is not disputed. Even in evidence appellant admitted the default in payment of rent as also the electricity charges. As to the practice of payment of accumulated rent, as pleaded by the appellant, it would suffice to say that burden of proving this was on appellant and no evidence in that regard has been adduced. The case of the respondent on the contrary is that right from the inception appellant was irregular in payment of rent as well as the electricity charges and it was after persistent demands that the appellant would pay the amount due against him. The letters addressed by the respondent to appellant in that behalf have not been challenged. As to the notice dated 1b‑12‑1986 sent by the respondent to appellant that lie would not use air‑conditioner and requested disconnection of electricity, it would suffice to say that the said notice is subsequent to the filing of rent proceedings. Filing of 'an application under section 10 of the Ordinance by the appellant would also not absolve him of the default which was committed long before the filing of the application. It is on the contrary a documentary proof against the appellant that he was defaulter. No interference with the findings of the learned Rent Controller on the issue of default is called for. The case‑law referred by appellant's learned advocate is distinguishable and is not attracted to the facts of the case in hand. In the result, I find no merit in this Appeal, which is hereby dismissed with no order as to costs. H.B.T./G‑356/K????????????????????????????????????????????????????????????????????? ??????????? Appeal dismissed.