1988 PLP 1623 (MLD)

This appeal at the instance of landlady is directed against the order dated 25‑4‑1984 passed by the learned XVIII Senior Civil Judge/A.S.J. and Rent Controller, Karachi, in Rent Case No.699 of 1981 whereby he has dismissed the application of the appellant made under section 15(2) of the Sind Rented Premises Ordinance, 1979 (hereinafter called "the Ordinance").

2. The relevant facts giving rise to this appeal,briefly stated, are these. The appellant filed an application against respondent No.1, Muhammad Salim , for his eviction from the residential premises bearing No.A/828/12, Gulberg, Block‑12, Federal "B" Area, Karachi (hereinafter called "the demised premises") on the grounds of default in payment of seven months' rent, namely, from July, 1980 till January 1981 at the rate of Rs.450 per month, leaving the demised premises and accommodating an unknown woman Mst. Andaz Begum (the respondent No.2). It was further averred in the application that the respondent No.2 is a trespasser and hence not a necessary party but she. was still made opponent No.2 so as to provide her an opportunity to defend herself. The respondent No.1 remained absent and he was directed to be proceeded ex parte by the ‑learned Rent Controller vide his order dated 29‑2‑1981. The respondent No.2, the alleged trespasser, filed written statement on 9‑3‑1981 contending that she is the tenant of the appellant since 1973 alongwith her children including her elder son Muhammad Salim (respondent No.1). She stated that the respondent No.1 had gone out of Pakistan and despite knowing this fact the appellant had filed the eviction application with mala fide intentions. She further pleaded that the monthly rent was regularly tendered to the appellant either through her sot, Muhammad Salim or her son‑in‑law but the appellant never issued a single receipt of rent specifically in the name of respondent No.1. She also claimed to have paid uptodate monthly rent and was in possession of an acknowledgement of payment of rent issued by the appellant upto the month of October, 1980. The appellant then started demanding eviction and also refused to accept the rent for the months of November and onward. The rent for the months of November and December was first tendered by money order to the appellant which she avoided with ulterior motive. This led the respondent to file Rent Miscellaneous Case No.653 of 1981 so as to deposit the monthly rent regularly in Court. She, therefore, prayed for the summary dismissal of the ejectment application. The appellant in support of her case examined on her behalf, her husband, and attorney named A.S.K. Qadri (P.W.1‑Ex.4) and one Yousuf Khan (P.W.2‑Ex.5). The respondent No.2 in support of her case only examined Muhammad Anwar, her attorney and son‑in‑law (D.W.1‑Ex.6). The learned Rent Controller while writing the impugned order formulated the following issues for determination: (1) Whether opponent No.1 is the tenant of the applicant and he has sub‑let the premises in question to opponent No.2? (2) Whether Opponent No.2 is the tenant of the applicant? (3) Whether the tenant of the premises in question is a wilfull defaulter?" Upon perusal of the evidence on record and on the basis of the submissions made before him the learned Rent Controller decided the issues Nos.1 and 3 in the negative and answered the issue No.2 in the affirmative. Consequently, he dismissed the application by his impugned order.

3. I have heard Mr. R.H.Farooqi, learned counsel for the appellant and Mr. Saddique Mirza, learned counsel for the respondent No.2, at length and with their assistance have perused the evidence brought on record by the parties. I have also carefully perused the impugned order and I have reached the conclusion that the appeal must succeed against respondent No.1 and that he is liable to be evicted from the disputed premises for and on account of default in payment of rent. The reasons for my above conclusion are as under. 4.In support of his case as pleaded in the application and mentioned hereinabove the appellant's husband and attorney, A.S.K. Qadri, has filed his affidavit‑in‑evidence. He has reiterated all the facts mentioned in the application. He has also denied the various averments made by the respondent No.2 in her written statement. He has specifically deposed that the respondent No.2 was never and is not the tenant of the appellant. The respondent No.1 was alone the tenant of the appellant. In para 5 of his affidavit he has deposed that the respondent No.1 had paid rent only upto the month of June, 1980 for which he was given usual receipt on plain paper and no further rent was paid by him; hence he was defaulter. In paras 6,7 and 9 of his affidavit, the attorney of the appellant has, undoubtedly stated that the respondent No.2 is sub‑letter whereas in the application it was stated that the respondent No.1 had left the demised premises by accommodating the respondent No.2, who is a trespasser. He was duly cross examined by the learned counsel for respondent No.2 but strangely enough no attempt was made to assail his deposition in any manner whatsoever about the relationship of landlord and tenant between the appellant and the respondent No.1 in respect of the disputed premises and the period for which the respondent No.1 had allegedly committed default in payment of rent. Besides, the case of the respondent No.2 a: pleaded in the written statement riled on her behalf was even not put to him save to the extent that the respondent No.2 is the mother of respondent No.1. Thus, it is evidently clear from the record that the evidence of the husband and attorney of the appellant remained uncontroverted. In his affidavit‑in‑evidence the appellant's witness explicitly deposed that the respondent No.2 had sent money order for two months' rent in the month of February 1981 which he returned as he was not supposed to receive rent from sub‑letter. The evidence of Muhammad Yousuf Khan, another witness of the appellant, in my opinion, is of no value as neither in the eviction application about this witness and/deposition of the appellant s attorney anything has been said about this witness and/or about the matters in respect of which he has deposed Muhammad Anwar, the attorney and son‑in‑law of respondent No.2 has even not said anything about the payment of rent for the entire alleged period in default. 'The only statement made by him in this behalf is that sometimes he, the witness, paid rent to the appellant personally, sometime Muhammad Hanif, son of respondent No.2, used to pay rent and sometimes it was collected by the applicant herself from the disputed house. It would not be out of place to mention here that the collection of rent by the appellant herself from the disputed house was not pleaded in the written statement. In reply to a question put to him in cross‑examination, the witness of respondent No.2 stated that lie could not say if in his written statement he had stated that the rent had been raid upto October 1980 and that he was in possession of the rent receipts. It was, however. for the First time during his cross‑examination that the said Muhammad Anwar, the witness of respondent No.2, produced the rent receipt for the month of October, 1980 (Ex.0/1/1). This rent receipt, as already stated, was not put to the appellant's witness. He also produced another receipt for the month of March, 1980 (Ex.0/1/2). The appellant, it may be stated here, denied the signatures of the appellant on the said receipts. An application was made on her behalf before the trial Court praying that it (Court) may scrutinize the signatures on the rent receipts (Ex.0/1/1/ and Ex.0/1/2) which very apparently appear to be different and in case the Hon'ble Court was not satisfied then they may be referred to the hand writing expert for opinion at the cost of the appellant. It was further stated in the application that the appellant had never issued these receipts to the respondent and that these were forged ones. This application appears at page 5 of the Miscellaneous Cover of the trial Court. No action, however, seemed to have taken thereon.

5. Mr. Siddiq Mirza, learned counsel for the respondent No.2 had, firstly, drew my attention to an application, under Order V1I Rule 11, C.P.C. moved on behalf of the respondent No.2 before the trial Court for summary dismissal of the application on consideration of the facts that the appellant had no cause of action against respondent No.2 and that the Rent Controller had no jurisdiction under the provisions of the Sind Rented Premises Ordinance, 1979, to restore possession to the appellant from a trespasser. This application, the learned counsel submitted, was wrongly dismissed on 17‑11‑1981. He supported impugned judgment. He stated that the affidavit of the attorney of the respondent No.2 is to be read in conjunction with the written statement hence the failure of the attorney of the respondent to state in his affidavit‑in‑evidence that the rent for the months of July, 1980 to February, 1981 had been duly paid is of no me trial consequence. He then urged that in the application the appellant had stated the respondent No.2 to be a trespasser but during the evidence and proceedings she changed her stand and admitted the respondent No.2 to be sub‑letter of respondent No.1. He then urged that the rent for the months of November and December had been remitted to the appellant by the respondent No.2 through money order which she refused to accept and hence she cannot be allowed to take benefit of her own wrong. The residence of respondent No.2 in the disputed premises eversince 1974 is fully proved from the evidence brought on record. Lastly, the learned counsel submitted that the liability of the respondent No.2 to pay the rent to the appellant arose only with effect from the date of the impugned order and the learned trial Court declared her to be a tenant of the appellant.

6. I do not find any merit in any of the contentions of learned counsel for the respondent No.2. The evidence of the appellant has remained uncontroverted and so also the case as set up in the written statement by the respondent No.2 remained unsubstantiated or unproved inasmuch as even the witnesses examined on behalf of respondent No.2 failed to depose about the alleged facts mentioned in the written statement. A perusal of the impugned order clearly shows that the learned Controller allowed his mind to be influenced by two factors, namely, that the receipts of February, 1980 and that of September and October, 1980 which IA did not bear the name of the tenant, had come from the possession of the respondent No.2 hence it gave rise to a presumption that they were issued to the I respondent No.2. Secondly, he observed that the appellant had failed to produce any documentary proof showing that the respondent No.1 is her tenant. The learned Lower Court, in my opinion, manifestly erred in ignoring the basic facts that the evidence of the appellant on all material aspects, namely, regarding the relationship of landlord and `tenant between her .and the respondent No.1 and the period of default from July, 1980 to February, 1981 had remained uncontroverted and hence there was no legal justification to have ignored the same, The learned Rent Controller also failed to appreciate that the said rent receipts were neither filed with the written statements nor they were filed alongwith the affidavit of the witness of the respondent No.2. They were for the first time produced during the cross‑examination. The witness of the appellant was not confronted therewith and hence no reliance could be placed on them. Having held, in my opinion, rightly too, that the respondent No.2 is the mother of respondent No.1 and she is neither a trespasser nor a sub‑letter, the learned Rent Controller has fallen into an error in holding that the respondent No.1 is not the tenant of the appellant and that the respondent No‑2 is her tenant. On the basis of the evidence produced on record and discussed above, I would reverse the above. noted findings of the learned Rent Controller and hold that the respondent No.1 is the tenant of the appellant. Consequently, the finding on issue No.3 cannot also be sustained. I am of the view that on the issue of default the appellant has proved her case satisfactorily against the respondent No.1 in the ex parte proceedings adopted against him.

7. In the result, the appeal is allowed and the impugned order is set aside. Accordingly the rent application of the appellant against the respondent No.1 is allowed with no orders as to costs. S.Q./Z‑59/K Appeal allowed.