1990 PLP 1320 (CLC)

(e) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑ ‑‑‑‑Preamble‑‑‑Cross‑objections cannot be filed in appeal.‑‑‑[Cross‑objection]. Imran Ahmed for Appellant (in F.R.A No. 521). M.L. Shahani for Appellant (in F.RA. No. 462). M.L. Shahani for Respondent (in F.R.A. No. 521) Imran Ahmed for Respondents (in F.RA.No. 462) Date of hearing 11th December, 1986. These are two First Rent Appeals Nos. 462 and 521 of 1984. The First Appeal arises out of Order dated 20‑3‑1984 passed by the 10th learned Rent Controller, Karachi, allowing Rent Case No. 2018/79 on the ground of subletting only. F.R.A. No. 521/84 has been filed against the same order of the learned Rent Controller refusing ejectment on the grounds of default and personal requirement

2. In First Rent Appeal No. 462 of 1964 Mr. M.L. Shahani, learned counsel for the appellant submitted that the finding of the learned Rent Controller 'carding subletting is not based on evidence. He further submitted that the leared Rent Controller ought to have made J. Santa Rita a party to the case.

3. The facts, briefly stated, are that several years ago, the tenement in question bearing No. 2/27‑1/J, P.E.C.H.S. Karachi was let out by the predecessor, of the respondents to one Alex Dessa at the rate of Rs. 100 per month. By letter, dated 4th March, 1979, the respondents came to know that the said tenement was sublet by the outgoing tenant to respondent No. 2 and so a Rent Case No. 2018/79 was filed against the said outgoing tenant. The appellant filed, an application under Order I, Rule 10, C.P.C. claiming to be tenant of the premise in question. She was, therefore, made a party to the said rent case. The outgoing tenant, though served, did not appear in the case. He was, therefore, declared ex parte. The appellant who was made party to the said case as opponent No.2 contested the matter.

4. The submission of Mr. M.L. Shahani has no force. The appellant herself admitted in cross‑examination that Alex Dessa, the original tenant, handed over possession of the premises to her, which according to her was with verbal permission of the respondent. It was also stated by her that the respondent issued the receipts separately in respect of both the tenements, but she has failed to produce receipts of rent in respect of the tenement in question in her name. She has failed to produce any evidence in support of her contention that the possession was handed over to her by the outgoing tenant, Alex Dessa, with the permission of respondent. She has only stated about oral permission which is A even disputed. The law requires that the permission should be in writing. Moreover, if she was a tenant and the receipts were issued to her she ought to have produced the same.

5. Mr. Imran Ahmad, learned counsel for the appellant submitted that the respondents came to know of the subletting only after they received letter dated 4‑3‑1979 sent to the respondents by the appellant. Learned counsel relied on a case reported as Ghulam Muhammad and another v. Haji Muhammad Jamil (1982 C L C 1042). Admittedly the original tenant (opponent No.l) is not in possession of the tenement and opponent No.2 is in possession. In this B circumstance, the onus of proof as to the capacity is on her. She alleges to be a tenant by oral permission of the landlord which, as I have already observed, she failed to prove and more over the requirement of law as embodied in section 15 (2), clause iii (a) does not seem to have been fulfilled I, therefore, find myself in agreement with the Controller's finding on subletting.

6. First Rent Appeal No. 521 of 1984 has been filed by the landlady against the findings of the learned Rent Controller on the issues of default and requirement for personal use. The appeal, I am afraid, as such, is not maintainable in law. However, Mr. Imran Ahmad, learned counsel for the appellant submits that the same may be treated as cross‑objections to the Appeal No. 462/84. There seems to be no provision in the Sindh Rented Premises Ordinance, 1979 for filing cross‑objections too. However, he may, perhaps, make his submissions on the finding negatived by the learned Rent Controller. Mr. Imran Ahmad, thus, submitted that the outgoing tenant, was present in Karachi as is evident from letter dated 31‑3‑1979 received from him through his Advocate by the landlady complaining about disconnection of water‑supply, filed as `A' alongwith the affidavit‑in‑evidence of her Attorney. The learned Rent Controller ought to have given finding of default in payment of rent against opponent No.l. Opponent No.2 is not a tenant. She could, thus, not tender the rent either in her own name or on behalf of J. Santa Rita. Mr. Imran Ahmad further submitted that the landlady did not encash the cheque for Rs. 230 sent to her as this was a cheque including the tenement in question on behalf of someone else who is not a tenant. It is, therefore, apparent that opponent No.l, the outgoing tenant, failed to pay or tender the rent to the landlady. In so far as opponent No. 2 is concerned, she in fact, tendered the rent but that was not made on behalf of the outgoing tenant as is evident from her letter dated 4‑3‑1979 Exh. "2/1‑B". In the circumstances, it may not be described as mere technical default, as held by the learned Rent Controller. Furthermore, opponent No.2 does not contend that the rent for the month of February, 1979 was tendered on behalf of the outgoing tenant. It was tendered on behalf of opponent No.2 or for that matter J. Santa Rita who, not being tenant in respect of the tenement vacated by Alex Dessa had 'C no locus standi to offer the rent in her own right or on behalf of J. Santa Rita. 1; therefore, hold that opponent No.l committed wilful default in payment of rent to the landlady.

7. As regards the question of bona fide requirement of the landlady, the attorney of the landlady has himself stated in cross‑examination that the premises on the first floor was let out by him to the tenant after the rent case was filed. The submission of the learned counsel that it is open to the landlady to make a choice of the premises best suited to her requirement though seems to be correct as held in the case reported as Sabu Mal v. Kika Ram alias Heman Das (1973 S C M R p 185), yet, I am afraid, there is little evidence to convince me that the premises on the first floor was not suitable to the requirement of the appellant. Furthermore, the case seems to be distinguishable as in the case cited the premises was not let out during pendency of the rent case. The appellants have failed to prove bona fides. I, therefore, maintain the finding of the learned Rent Controller on this issue.

8. In the result, F.R.A. No. 462 of 1984 fails and is dismissed. F.RA. No. 521 of 1984 stands disposed of as observed above.

9. Mr. Shahani requests for four months' time to vacate the premises in question. Since the matter is sufficiently old, I allow only two months time to Mrs. Ruby Misso appellant in F.RA. No. 462 of 1984, to vacate the premises in question previously under the tenancy and occupation of Alex Dessa and hand over peaceful and vacant possession of the same to the landlady, failing which Writ of Ejectment be issued against her without notice in respect of the said premises. AA/R‑123/K Order accordingly.