2004 PLP 328 (MLD)

(1) Whether the opponent No.1 has committed wilful default in payment of rent? (2) Whether the opponent No. 1 has sub‑let the case premises to opponent No.2? (3) What should the order be? Both the parties adduced evidence in support of their respective pleas. The trial Court ultimately dismissed the ejectment application of petitioners on 30‑9‑1998. Being dissatisfied by the judgment, the petitioner filed an appeal in this Court being First Rent Appeal No.657 of 1999 which was subsequently transferred to the Court of learned District Judge after the amendment came in Sindh Rented Premises, 1979. This appeal was assigned to 1st Additional District Judge Karachi South being First Rent Appeal No.253 of 2001 who by order dated 7‑2‑2002 dismissed the appeal of petitioners. Against the said two orders, the present petition has been preferred. The learned counsel for respondent No.2 remained absent without any intimation. Respondent No.1 was although served but she chose to remain absent. I have heard Mr. Badar Alam learned counsel for petitioner who asserted that the respondent No.1 (the original tenant) never appeared in the Court. Respondent No.2 (sub‑lettee) filed written statement on his behalf claiming himself as General Attorney but he failed to file his General Power of attorney in the Court of learned Rent Controller. It is that the petitioners acquired full ownership of the demised on 27‑2‑1997 and sent a legal notice to the respondent No. 1 on but he failed to pay even future rent to the applicants. As he made a clear violation of section 10 of Sindh Rented Premises 1979. It is argued that respondent No.2 has paid income tax, the copy of which is produced on record. Respondent No.2 in written statement that he was looking after the business of No.1 as her attorney and same plea was reitereated in affidavit in evidence but when he was cross‑examined he changed his version and stated that he was servant of respondent No.

1. Although it was testified by respondent No.2 that after receipt of notice they tendered rent to petitioner but on his refusal, money order was sent to him but no such receipt has been produced on record. He further submitted that MRC No.1364 of 1997 was filed by one S.A. Suleman and no plea was taken in that application that the respondent No.2 was partner of tenant or that he was attorney and/or servant. The said MRC was filed on 26‑8‑1997 after more than 60 days of the legal notice, although, sub‑lettee cannot take benefit of sub-clause (ii) of subsection 2 of section 15 of Sindh Rented Premises Ordinance, 1979. It is stated that he made a clear default and violation of section 10 as upon receiving legal notice, the tenant was bound to tender rent directly to the landlord and he was not supposed to deposit the same in MRC unless he refused to receive. The reliance is placed upon the cases of Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447, Abdul Majeed v. Iftikhar Ahmed and 5 others 2002 CLC 1206, Ghulam Samdani v. Abdul Hameed 1992 SCMR 1170, Muhammad Yousuf v. Mehraj ud Din 1986 SCMR 751, Syed Azhar Imam Rizvi v. Mst. Salina Khatoon 1985 SCMR 24, Saeeda Begum v. Shameem Ahmed 1994 SCMR 791, Arbab Jamshed Ahmed and another v. Ghazan Khan and others 1995 CLC 695 and Muhammad Said Khan and 32 others v. Abdul Qayyum Khan 2001 YLR 3253. First I take up the point of sub‑letting. The original tenant was the respondent No.1 but instead of him the business is being carried on by the respondent No.2 in the demised premises. He took a plea in the written statement that he is attorney of respondent No.1 and carrying on business in that capacity. He reiterated the same plea in affidavit in evidence but in his cross‑examination he took a new turn realizing that the business is to be run either through a family member, partner or a servant. Then he stated that he was her servant as well as attorney. The power of attorney was not filed in the Court of. Rent Controller; Income tax return assessment form has been produced which shows that he is carrying on business in his own name and paying income tax as well. This fact clearly proves the independent business being carried on by respondent No.2 in his own name. Original tenant respondent No.1 did not come in Court to substantiate the pleas taken by sub‑lettee. In case of sub‑letting, non‑appearance‑of original tenant in witness‑box itself is a factor of great significance which makes the case of tenant dubious. The allegation of sub‑letting is a kind of charge against original tenant which is to be denied through direct evidence of tenant or at least some strong reason be given for his non‑appearance and for examining another person on his behalf. Para 9 of power of attorney dated 12‑5‑1975 which was produced at later stage reads the attorney has all the powers to dispose or leasehold rights in the said shop or mortgage the shop. Such type or terms and conditions in general power of attorney do not fulfil the requirements of a servant or the attorney in the business. In this view of the matter, the finding of two Courts below to the effect that possession of premises is with respondent No.1 and the respondent No.2 is her attorney is not sustainable. The next point to be resolved is the wilful default on the part of tenant. I would like to reproduce the contents of section 10 of the Sindh Rented Premises Ordinance, 1979 which reads as under:‑‑ "

10. Payment of rent.‑‑‑(1) The rent shall, in the absence of any date fixed in this behalf by mutual agreement between the landlord and tenant, be paid not later than the tenth of the month next following the month for which it is due. (2) The rent shall, as far as maybe; be paid to the landlord, who shall acknowledge receipt thereof in writing. (3) Where the landlord has refused or avoided to accept the rent, it may be sent to him by postal money order or, be deposited with the Controller within whose jurisdiction the premises is situate. (4) The written acknowledgement, postal money order receipt or receipt of the Controller, as the case may be, shall be produced and accepted in proof of the payment of rent: Provided that nothing contained in this section shall apply in the case pending before the Controller on the commencement of this Ordinance." Subsection (1) postulates that in absence of any mutual agreement, the rent is to be paid not later than 10th of the month next following the month for which it is due.. Subsection (2) expresses that tenant has to pay rent to landlord who shall acknowledge receipt thereof in writing. The contents of subsection (3) comes in service after the landlord has refused or avoided to accept the rent, then only the rent is to be tendered through postal money order or to be deposited with the Controller. For the proof of such exercise, the receipts are to be produced in evidence. In the instant case notice was served upon respondent No.1 on 21‑6‑1997 but she failed to pay rent to the applicants. Instead of paying rent directly to the landlord, some stranger deposited rent in MRC No. 1364 of 1997 in the Court of Rent Controller on 26‑8‑1997. This act of respondent No.2, even if, he is accepted to be attorney, shows default on his part for two reasons. Firstly on receipt of notice, he should have paid rent directly to the landlord and in case he avoided to receive the rent, then only he was supposed to tender that rent through money order or deposited it in the Court. Admittedly he has not filed any postal money order receipt. The rent was deposited directly in MRC but than too was not deposited in time. Secondly the tenant received notice on 21‑6‑1997, he was bound to pay rent on/or before 10th of July, 1997 but instead of it some stranger other than respondents Nos.1 and 2 deposited the rent in MRC on 26‑8‑1997 after expiry of 65 days. As such sub‑letee/or a stranger (third party) cannot even claim the benefit of clause tit) of subsection (2) of section 15 of Sindh Rented Premises Ordinance 1979. This was another fraud with the landlord by the tenant. This type of tender of rent is not valid. He has, therefore, committed wilful default in payment oil rent. The Courts below have neither considered nor discussed the aforesaid points. Such type of appreciation of evidence cannot be approved which has caused miscarriage of justice. Grant of relief under the writ jurisdiction is intended to foster the administration of justice and turn down the orders which are manifestly, arbitrary, capricious and misreading as obvious on the record. Under Constitutional jurisdiction we have to protect the rights of the parties, which has been denied to the petitioner by two Courts below and have not used their discretion for fostering justice. The respondent No. 1 has committed default in payment of rent as well as he has been guilty of sub‑letting the demised premises to the respondent No.2. For the aforesaid reasons, the judgments of two Courts below cannot be sustained which are set aside. This Constitution petition isle allowed with no order as to costs. The respondent Nos.1 and 2 are directed to hand over the vacant possession of demised premises to the applicant forthwith. Since the respondent No.2 is not legally entitled to retain the possession, as such no time can be granted to him under the law. H.B.T./M-569/K Petition allowed.