1986 PLP 2016 (CLC)

3. The appellant is the landlord of the disputed premises and respondent No. 1 was a tenant of the same at Rs.600 per month. The appellant had alleged that the respondent No. 1 had failed to pay the rent since November, 1979, and that she had sublet the premises to opponent No. 2 who was in exclusive physical possession of the same. It was further alleged that the opponent No. 1 had, without the written consent or otherwise of the applicant, handed over the possession to opponent No. 2.

4. The written statement on behalf of both the respondents was filed by the opponent No. 2 for self and as attorney of respondent No.

1. It was denied that there was any default in payment of rent and asserted that the appellant had avoided to accept the rent and, therefore, Rent Application No. 149/80 had been moved. It was further stated that the opponent No. 2 had been unnecessarily joined in the proceedings. Subletting was also denied.

5. Two issues in respect of the default in payment of rent and subletting of the premises to respondent No. 2 were framed.

6. The appellant filed his affidavit in support of his application and stated that rent has not been paid since 1‑11‑1979 and since the middle of 1979 the premises had been sublet to respondent No. 2 without permission and that respondent No. 1 had gone over to U.K. to reside with her children and had taken British nationality and that respondent No. 2 was in exclusive possession of the premises without his consent or permission and he had been given his Telephone No. 432626. It was deposed that respondent No. 2 had offered to pay the rent through cheque drawn by him and wanted receipt in his name. The appellant had refused to accept that cheque. The statement of opponent No. 2 as attorney of respondent No. 1 was denied and it was asserted that respondent No. 2 was either a sub‑tenant or had been inducted unauthorisedly by respondent No. 1 who had parted with the possession without permission of the appellant. The appellant admitted in cross examination that he has refused to accept an envelope sent by respondent No. 2 and admitted that the rent was being deposited in Miscellaneous Rent Application No. 149/80 and that he had withdrawn the amount deposited there. He inferred that the premises were sublet as the same was told to him by the neighbours. He asserted in his cross‑examination that the opponent No. 1 had not returned to Pakistan for 31 years and he had heard that she sold away her belongings. In his affidavit in defence the opponent No. 2 Javed Khawaja took upon the position that he was the constituted attorney of opponent No. 1 and that rent has been regularly paid and he is looking after her premises and her belongings as her attorney and was in possession of the same as her care‑taker It was denied that opponent No. 1 had gone to England on permanent basis and she had acquired British Nationality. He asserted that he has not acquired any interest in the premises and that he had offered rent but applicant had refused to accept it. He denied that he had asked the Applicant to issue the receipt in his name. He also stated that he has been unnecessarily joined. In cross‑examination Javed admitted that opponent No. 1 had gone to U.K. in November, 1979. He admitted that she had not come back since then. He asserted that she has gone for her treatment and denied that she had gone for settling over there. He admitted that he was living in the disputed premises and further admitted that he previously used to reside in Nazimabad and came into this flat in October, November, 1979 and that he had paid rent of November, 1979 on her behalf. He asserted that she had given him Rs.30,000 for payment of rent. He admitted that he was having telephone connection in his name bearing No.432626 in this flat which has since been disconnected. He admitted that he had advertised in Newspaper "Jang" for selling of household effects. He also admitted that she had left the house of Nazimabad but denied that he wanted to permanently reside in this flat and, therefore, he had obtained general power of attorney. He asserted that as soon as opponent No. 1 recovered she will come back.

7. The Rent Controller decided both the issues of subletting and default in favour of the respondents. He held that the appellant had merely inferred from the information supplied by his neighbours and that the inferences might be surmised and the possibility of Mrs. C.M. Lovacach returning back to Pakistan could not be ruled out altogether. He held that there was no default in the payment of rent as the same has been deposited in Miscellaneous Rent Proceedings.

8. I do not find any justification to differ from the finding of the Rent Controller in respect of the rent not being in default. Once the rent was deposited by opponent No. 2 in his alleged capacity as general attorney of opponent No. 1 then the same relieves the respondent No. 1 from liability of default.

9. However, I am of the view that in respect of the finding of subletting or handing over of the possession of the premises by respondent No. 1 to the opponent No. 2, the Rent Controller has failed to examine the case in juxtaposition to the allegations made by the appellant in his application and affidavit and the rebuttal provided by the written statement and the deposition of Javed. In para. 3 of the application a definite statement has been made by the appellant that opponent No. 1 had handed over the possession of the premises to the respondent No.

2. The same had been denied as false in para. 3 of the written statement but in the affidavit of Javed the possession of respondent No. 2 was admitted and it was tried to be explained on the ground that he was looking‑after the premises as a care‑taker. There was a very important admission made by Javed in his cross‑examination that he had left the possession of his own house in Nazimabad. He had also admitted that he had taken a temporary telephone in his own name in the same premises. Javed has also admitted to have advertised for self of the domestic and household effects from the same flat. These were important admissions which had to be seriously considered but' they were left out of consideration. The fact that Javed had left the possession of his own house in Nazimabad clearly shows that he had" permanently shifted to the present disputed premises as otherwise he, would have definitely retained the possession of his own house in Nazimabad, if there was any intention to return to the same.

10. The learned Rent Controller has merely commented upon the statement of the appellant that it was based on inferences. In the circumstances of the case the appellant could not have made any better statement except that he had inferred from the factum of the going away of respondent No. 1, and remaining in the premises of the respondent No. 2 that there was either subletting or the transfer of possession. The burden of proof in such circumstances was really upon respondent No. 2 to sufficiently explain as to how had been put inter the possession of the premises.

11. The fact that the previous occupant was a Christian and old lady while the respondent No. 2 was Muslim, evidently having no connection with the previous tenant, was itself sufficient to put the Rent Controller on guard and unless and until respondent No. 2 had given a reasonably plausible explanation of his position being merely a temporary one, the same would have been treated to be a clear case for transfer of possession. A mere issue of general power of attorney by the previous occupant in favour of the new occupant can hardly have the effect of explaining the possession unless the whole circumstances were explained by the new occupant and he was able to establish that he had any such connection or relationship with the previous occupant that his present occupation or possession of the premises should be regarded as really not his own but that of the previous occupant.

12. The respondent No. 2 had miserably failed to prove any such circumstance on record. He failed to bring out any relationship between him and the previous occupant. He had omitted to mention in the written statement that Mrs. Lovacach had left for treatment but hey merely introduced the sickness and treatment in his cross‑examination, to explain the long absence of Mrs. Lovacach. Even the general power of attorney in his favour given by Mrs. Lovacach did not show that she was going abroad for treatment and it had only stated that she was an old lady and was going abroad. The reason of going in the power of attorney had corroborated the statement of the appellant thati, Mrs. Lovacach had intended to permanently reside in U.K.

13. The further fact that from November, 1979 till September, 1982, when Javed was cross‑examined Mrs. Lovacach, was still abroad, had clearly established that she has gone away permanently and there was no possibility of her return. Even at the time of hearing of this appeal, there was no statement made by the respondents' counsel that Mrs. Lovacach had returned to Pakistan, which 'means that she had been now abroad for 6 years. In these circumstances the Rent Controller should have reasonably inferred that the respondent No. 1 had left for good and had parted with possession in favour of respondent No. 2.

14. Javed had evidently advertised in "fang" for selling of domestic appliance like furniture, crockery fridge and clothes and this also showed that Mrs. Lovacach who was an old lady had left for good and had sold her household effects to Javed.

15. Javed had taken a very strange position that Mrs. Lovacach had given him Rs.30,000 to pay the rent of the premises. The same is a very big amount but no explanation was given as to in what manner toe said amount had been paid to Javed and why such a confidence had been placed in him without there being any apparent relationship' established. This was a sufficient circumstances to doubt the bona' fides of the respondent No. 2, particularly when such a position had not been taken either in the written statement or in the affidavit filed by Javed.

16. I was, therefore, of the view that considering the overall circumstances of the case there was sufficient justification to infer that Javed had in fact been transferred the possession of the premises by respondent No. 1 on a permanent basis and not temporarily and that the sickness of Mrs. Lovacach alleged by Javed was merely an after thought and that unexplained absence of Mrs. Lovacach from Pakistan for more than 31/2 years fully justified the ejectment case that she had left for good from Pakistan and that Javed having left the possession of his own house in Nazimabad was evidently a person, who had been handed over the possession of the premises by the respondent No. 1 without the written consent of the appellant and, therefore, it was a fit case in which ejectment should have been allowed. These are, therefore, the reasons of the following short order passed by me on 13‑1U‑1985:‑ "Heard Mr. Sultan Ahmed Shaikh and Syed Inayat Ali. For reasons to be recorded this appeal is allowed but the respondent is given 8 months time to vacate the premises provided the rent is deposit in the Court regularly. Direct writ of possession without notice would be issued thereafter or earlier if there is default in deposit of rent." A . A . Appeal allowed.