1991 PLP 1348 (MLD)

However, the learned Rent Controller after taking into consideration the evidence produced before him, came to the conclusion that there was no relationship of landlord and tenant between the applicants/appellants and respondents therefore, the application was barred by section 18 of Sindh Rented Premises Ordinance, 1979, and as such the ejectment application was dismissed. The present appeal is directed against the above order of dismissing ejectment application of the appellants. I have heard Mr. A.Q. Halepota, learned counsel appearing for the appellants, and have gone through the R & P of the case as well as the certified copies of ejectment application in Rent Case No.2118 of 1985 filed by Dr. Zubeda Hamid Ali Khan against Ali Azhar Nasir and Mr. Fazal Karamali, written statement filed by the opponent in the said ejectment application, affidavit-in -evidence filed by Dr. Zubeda Hamid Ali Khan, affidavit-in-evidence filed by Fazal Karamali, and judgment. It was contended by Mr. A.Q. Halepota, learned counsel appearing for the appellants, that the respondent Ali Azhar Nasir had admitted the relationship of landlord and tenant between the parties in Rent Case No.2181/1985 an it was not necessary to serve a fresh notice on him under section 18 of Sindh Rented Premises Ordinance. It was further contended that the evidence produced by the appellants had gone unchallenged inasmuch as neither Dr. Zubeda was cross-examined nor any evidence was produced by the respondent in rebuttal and therefore, the learned Rent Controller has erred in dismissing the ejectment application. I have considered the contentions of the learned counsel and have gone through the R & P of the case including the certified copies of Rent Case No.2181 of 1985. The previous ejectment application No.2181 of 1985 was filed by Dr. Zubeda D.A. Hamid Ali Khan on behalf of the Trust on the ground of default and subletting. The written statement was filed by present respondent Ali Azhar Nasir and one Mr. Fazal Karamali in which it was admitted that Opponent No.1 Ali Azhar was tenant of the Trust, while Mr. Fazal Karamali Respondent No.2 was looking after the house on his behalf as Ali Azhar is working at Muscat. That the Opponent No.2 is Attorney of Opponent No.1. In affidavit-in-evidence Mr. Fazal Karamali has stated that he is General Attorney of Ali Azhar Nasir who is working in Muscat. He is looking after the family affairs of Ali Azhar Nasir. In para. 13 of his affidavit, respondent Fazal Karamali attorney of respondent Ali Azhar has stated:-- "That the Trust has seized to exist and has been revoked by the trustee and now the property vests in (a) Muhammad Ali son of Dr. Hamid Ali Khan and Abbas Ali, who have neither been cited as applicants nor have signed the above application. Even it was suggested to Dr. Zubeda Hamid Ali Khan in cross-examination in Rent Case No.2181 of 1985 that the Trust known as Dr. Zubeda Hamid Ali Khan Trust is changed, and now property has been divided among two sons. In the year 1983, the property which was being managed by Trust devolved upon two sons namely Muhammad Ali and Abbas Ali. The deed of revocation of Trust was got registered also." From the cross-examination and the admissions of Fazal Karamali attorney of respondent, it is clear that respondent knew that the-Trust was revoked, and the property had devolved on the present appellants. After coming to know that the Trust was revoked, and the property had devolved on the appellants, it was the duty of the respondent to have paid rent to the appellants. Because, admittedly the respondent was tenant of Dr. Zubeda Hamid Ali Khan Trust and alter the Trust was revoked, the property had devolved on the appellants, and therefore, it was the duty of the respondent to have paid rent to the appellants as soon its he came to know that they had become the owners of the property. (1) In the case of Major (Rtd.) Muhammad Yousaf v. Mehrajuddin and others it was observed by their Lordships of the Supreme Court that:- "Mere non-service of notice would not amount to absence of relationship 4 landlord and tenant, the rent having not been paid even after institution of application for eviction, which was also treated as notice, the respondent held liable to eviction." (2) In the case of Syed Azhar Imam Rizvi v. Mst. Salma Khatoon 1985 S C M R 24, it was observed by their Lordships of the Supreme Court that:-- "Receipt of copy of earlier ejectment application having been admitted wherein factum of sale in favour of respondent had clearly been mentioned, the tenant was not entitled to any other formal notice under section 13-A of West Pakistan Ubran Rent Restriction Ordinance." (3) In the case of Mst. Amina Begum and others v. Mehar Ghulam Dastgir (P L D 1978 S C 220); it was observed that:-- "it is now well-settled that in proper cases, the Court is entitled to take note of subsequent events and grant relief to the parties accordingly, if by so doing it can shorten litigation and best attain the ends of justice." In view of the fact that respondent was admittedly tenant in the demised premises and knew that the Trust was revoked, and the property including the demised premises had devolved on the appellants, it was the duty of respondent to have paid the rent accordingly. However, the respondent has failed to pay rent and, as such, he is a defaulter. The evidence of Dr. Zubeda Hamid Ali Khan on the point of subletting has also gone unchallenged and no evidence was produced in rebuttal and, therefore, it has been proved that the demised premises have been sub-let by the respondent. The appeal is, therefore, allowed, the impugned order is set aside, and the ejectment application is allowed on the grounds of default and subletting. H.B.T./M-1365/K Appeal allowed.