1986 PLP 805 (CLC)

2. The facts relating to filing of this appeal are that on 8‑6‑1980 respondent Mir Muhammad and two others filed an application under section 15 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as Ordinance) through Mr. A. Razak Khokhar, Advocate before the Rent Controller, Jacobabad. It is stated that property bearing City Survey No. 314/2, Ward 2, Jacobabad originally belonged to Haji Ali Muhammad Khan Balouch and after his death the property has teen inherited by the respondents Nos.l to

3. One Hazoor Bux husband of appellant Mst. Zainab was a tenant of the premises at the rate of Rs.65 p.m. as per rent‑deed dated 28‑4‑1960. The rent was paid upto April, 1978 and valid receipts were issued by respondent Mir Muhammad. Tenant Hazoor Bux died about 4/5 years before filing of this rent application and it is alleged that Mst. Zainab again married with one Ramzan s/o Muhammad Azim Chana who used to run the shop. In the month of February, 1980 the respondent No.l visited the shop and found respondent No.4 in. possession. On enquiry he was informed that Mst. Zainab had sublet the shop. Mir Muhammad the owner rented out shop to respondent No. 4 Ramzan Khan son of Kadir Bux as per rent‑deed, dated 22‑2‑1980. It is alleged in the rent application that Mst. Zainab/appellant used to get enhanced rent from Ramzan Khan (respondent No 4). Subsequently it is alleged that Ramzan Khan refused to pay enhanced rent to appellant, she approached police and got possession from respondent No.4. Default in payment of rent is shown against respondent No.4. The eviction was prayed in the Rent application against Mst. Zainab and Ramzan Khan.

3. Appellant Mst. Zainab filed her written statement on 26‑8‑1980. Muhammad Ramzan neither filed written statement nor took part in the proceedings. The Rent Controller on the pleadings of the parties framed the following issues:‑ (1) Whether the application is not maintainable as there exists no relationship of landlord and tenant between the respondent NO‑1 and appellant. (2) Whether the respondent No.4 has failed to pay the rent to the respondent No.l from 23‑3‑1980. (3) Whether the respondent No.4 Ramzan Khan has sublet the dispute shop to appellant Mst. Zainab. The Rent Controller decided all the issues in favour of respondents and directed the appellant and respondent No.4 to hand over vacant possession of the shop to them. I have heard Mr. Wahid Bux Balouch, Advocate appearing for the appellant and Mr. Mir Muhammad respondent No.l who argued his case. Respondent Ramzan Khan did not appear. Respondent Mir Muhammad examined himself before the Rent Controller and produced original rent‑deed, dated 28‑4‑1960 Exh.20 executed between, late Hazoor Bux, husband of appellant and late Ali Muhammad Balouch. The photo copy of agreement between Mst. Zainab and Jiand, dated 19‑12‑1979 is at Exh.27. The third agreement dated 6‑3‑1980 Exh.28 is between respondent No.l Mir Muhammad and Respondent No.4 Ramzan Khan. Respondent Mir Muhammad has stated in his affidavit‑in‑evidence that appellant had sent him rent through two money orders which he refused. He has admitted that he received the rent from the appellant upto April, 1978. The appellant paid rent of said shop at the rate of Rs.65 per month. The date on which Hazoor Bux died is not shown in the rent application nor in the affidavit but it is stated that he expired 4‑5 years back. Appellant Zainab stated before the Rent Controller that after the death of her previous husband Hazoor Bux, she became statutory tenant of the premises and employed respondent No.4 Ramzar Khan as her servant to look after her business but he misappropriated sum of Rs.6,000 or 7,000 during the period of his service and also tried to usury the shop in collusion with respondent No.l and his other relatives Gads Ali, Jiand and Mahar. She therefore, moved higher authorities against respondent No.4 Ramzan Khan. She has stated in her cross-examination that she tendered the rent to respondent No.l by way of money order which he refused. Therefore, she stopped payment of rent. She has denied to have sublet the disputed premises to Ramzan Khan s/o Kadir Bux Chana. She has also denied to have entered into an agreement Exh.21 with one Jiand but she made an application against Ramzar and Jiand to the Martial Law Authorities for restoration of possession of the disputed shop. She has examined Muhammad Ramzan s/o Muhammad Azim, her second husband and one Muhammad Hussain in support of her case. Muhammad Ramzan Exh.81 stated that appellant hay never sublet the shop to Ramzan s/o Khuda bux respondent No.4. but he misappropriated her amount during her service. Muhammad Hassan Exh.82 in his evidence stated that the appellant had not sublet the shop to respondent No.4 Rarrzan Khan. It is an admitted position that Hazoor Bux was a tenant of the premises and after his death the landlord continued to receive the rent from appellant upto April, 1978 as such she became statutory tenant of respondents Nos.l to 3 (hereinafter referred to be landlord). The landlord without terminating the tenancy of appellant entered into fresh agreement with respondent No.4 Ramzan Khan s/o Kadir Bux. He did not file any rent case against the appellant nor took any legal steps to evict her from the above‑said premises. The circumstances further show that landlord only got rent for one month only from respondent No.4 frorr which it is clear that Ramzan Khan was not his tenant but with his collusion they wanted to evict appellant from the premises. I have also perused the document Exh.27 which is photostat copy. This document relates to the agreement between Jiand and appellant. The landlord has failed to examine any witness who attested the document Exh.27. It was not executed before any Magistrate or Notary Public. Therefore, no reliance could be placed on this document. There is no evidence again:>E the appellant that she sublet the premises to Jiand or any other person. From the circumstances it is clear that appellant being a lady might have engaged Ramzan Khan as her servant as she is not supposed to run the shop herself. Ramzan Khan in collusion with the landlord forcibly occupied the premises and got tenancy agreement changed in his favour. She got that premises back through Martial Law Authorities and on this point appellant has produced an agreement, dated 26‑4‑1980 attested by the Mukhtiarkar and F.C.M., which is signed by Ramzan Khan respondent No.4, Jiand, Gada Ali and Mahar in which they have stated that appellant Mst. Zainab is the tenant and they will not interfere with her peaceful possession. For the reasons stated above, I am of the view that appellant has not sublet the premises to any person. The landlord himself refused to receive rent and considered Ramzan Khan as his tenant. In spite of that appellant tried to tender the rent which he refused and there was no issue before the Rent Controller on point of non‑payment of rent by appellant Mst. Zainab. On the contrary the appellant in the Rent application sought eviction of both opponents namely Ramzan Khan and 2ainab from the premises. There is a male fide on the part of landlord. The appellant is statutory tenant, I, therefore, set aside the impugned order dated 13‑3‑1983 of eviction passed by the Senior Civil Judge Rent Controller. The appeal is allowed Respondents 1 to 3 to pay the cost. However during appeal course argument the learned counsel appearing for appellant offered the respondent Mir Muhammad enhanced rent and also arrears which he refused. M. Y. H. Appeal allowed.