1990 PLP 1511 (CLC)

‑‑‑‑S. 15‑‑‑Default in payment of rent‑‑‑Proof‑‑‑Landlord's evidence that tenant had committed default in payment of rent having not been refuted by tenant in his evidence, default in payment of rent was established. P L D 1904 SC 410 and P L D 1981 Kar. 225 and PLD 1981 Kar. 622 ref. S. Amjad Hussain for Appellant. Muhammad Akram for Respondent. Date of hearing: 21st April, 1985. Appellant Muhammad 1qbal is doing business in a Shop No. 11'i‑A, Saddar Co‑operative Market, Karachi. He is occupying the shop in pursuance of two agreements dated 10th June, 1972 and 18th March, 1973 whereby he was authorised by the respondent Mst. Amtul Basir to use the shop on certain settled terms and conditions which, inter alia, included payment by him to the respondent a fixed sum per month. The shop was constructed by the c `o‑operative Development Fund and Project, Super Market Building, Karachi and was raised out to the respondent on perpetual basis. The respondent filed Rent Case No. 1334 of 1980 for ejectment of the appellant on the grounds of non‑payment of "rent" from 1st February, 1978 and requirement of the shop for her son Abdus Salam. The appellant resisted the application. He denied relationship of tenant and landlord between them, contending that the respondent was not legally competent to let out the shop and there was a contract between them in running; the business in the shop. He denied that he had made default in the monthly payments. He alleged that monthly payments were made upto April 1980 and the respondent refused to accept the payments thereafter. The matter was contested on the issues of (i) relationship of landlord and tenant between the parties; (ii) alleged default in payment of rent and (iii) the respondent's pica of requirement of the shop for her son. Parties adduced evidence. The learned Controller/Senior Civil Judge VII, Karachi, by his order dated 30th July, 1984, decided all the issues in favour of the respondent and ordered the appellant to hand over vacant possession of the shop to her (the respondent) within thirty days. The appellant has preferred the appeal against the said order of ejectment. The learned counsel for the appellant has contended that there was no relationship of tenant and landlord between the parties but there was a contract between them for running business in the shop and the respondent was to get a fixed sum as profits from the business. He has made reference to the two agreement entered into between the parties. On the other hand, the learned counsel for the respondent has urged that there was a contract of partnership between the parties but both the agreements were rent deeds establishing relationship of landlord and tenant between the parties. 1t appears from the two agreement which are titled as "Agreement of Thika" that the appellant was put in possession of the shop for doing his business in handicrafts and pay a fixed sum of H 27r per month for use of the premises for the period of first 12 months, and sum of Rs.325 per month for the period of next 2 years and two months. In addition thereto, the appellant had deposited Rs.2,500 as security for the period first year and the amount of Rs.2,500 more for the extended period of two years and two months. There is no stipulation in either of the two agreements that the monthly payments were the fixed profits from the business. Nature of document is deducible from its title and text. This view stands highlighted in a Abdur Rehman v. Haji Mir Ahmad Khan and another (P L D 1982 Kar. 532) by Division Bench comprising their Lordships Mr. Justice Abdul Hayee Qureshi, CJ. and Mr. Justice Ali Nawaz Budhani, J. Reading in between the lines the two agreements, it is crystal clear that the parties had established tenancy for the use of the shop by the appellant on payment of a fixed sum with the requisite obligations and liabilities usually attached to the relationship of landlord tenant but the title of the agreements and few expressions like "Thika' etc. were employed in order to obviate the restrictions imposed on the perpetual lease the shop in favour of the respondent by the owners, namely the Co‑operative Development Fund and Project, Super Market Building, Karachi, against the Ann of sub‑lease. The learned Controller rightly held that there existed relationship of landlord and tenant between the parties. As regards the second issue relating to default in payment of rent, the respondent alleged that rent was not paid to her since Feb.1978. The appellant contended that the rent had been paid through the respondent's sons Abdus 11, and Abdul Jabbar and also through one Khalil‑ur‑Rehman, Secretary Cooperative Market and his son Syed Fazal‑ur‑Rchman. The applicant examined both Syed Khalil‑ur‑Rehman and Syed Fazal‑ur‑Rehman and also her Abdus Salam. All the three denied that the rent was paid to the respondent through them. The appellant could not refute their evidence. The learned controller was justified in holding that the appellant had made default in payment of rent. The third issue related to the respondent's plea that she needed for her son Abdus Salam for doing business there. She filed her own affidavit and that of her son Abdus Salam in support of her plea. The appellant could not rebut their evidence by any substantial evidence. The Controller rightly held that it was established by the respondent that the shop was bona fide needed for the use of respondent's son Abdus Salam. It may, however, be mentioned that the learned counsel for the appellant made grievance that the appellant was not afforded sufficient opportunity of adducing evidence as his side was closed and an application under section 2(1 of the Sind Rented Premises Ordinance, 1979 for reopening the respondent's side was dismissed. He placed reliance on the cases reported in P L D 1964 SC 410; and P L D 1981 Kar. 225 and

622. In all the three cited case, it was held that none is to be condemned unheard. But, in the instant case, it appears from the record that the appellant was afforded reasonable opportunity of producing evidence and he and his own witnesses were actually examined but he failed to produce the remaining witnesses and the learned Controller was not unjustified in closing his side. For the reasons recorded above, there is no merit in appeal and it stands dismissed with costs. The appellant is allowed two months time to put the respondent in vacant possession of the shop. A.A/M‑I 135/K Appeal dismissed.