1986 PLP 720 (CLC)

(c) Sind Rented Premises Ordinance (XVII of 1979)‑‑ ‑‑‑Ss. 15(2)(ii) & 21(1)‑‑Default‑‑Authority of husband of landlady to collect rent‑‑Status of husband and wife‑‑Relationship of husband and wife was a contract whereby they agreed to marry each other and live like husband and wife‑‑Status of wife was not merged into personality of husband‑‑Husband and wife were two independent, natural and separate persons who had their own legal rights, independent of each other‑‑Agency between them was created by agreement or by operation of law‑‑There being no such agreement on record and relations between landlady and her husband being strained it, held, could not be, said that simply by virtue of relationship of husband and wife, husband had authority to collect rent as her agent‑‑Contention that husband of landlady had authority to collect rent of premises as her agent and mere relationship of husband and wife made husband ipso facto agent of wife, repelled. S.A. Saeed for Appellant. S. A . Lari for Respondents. Date of hearing: 10th September, 1985. The respondent filed an ejectment application against the appellant on the ground that she has defaulted in payment of rent from August, 1978 till the filing of the ejectment case i.e. 9‑7‑1979. The respondent claimed rent @ Rs. 1,

000. The appellant filed written statement in which she denied that the rent is Rs. 1,000 p.m. According to her, the rate of rent is Rs. 500 p.m. and no default in payment of rent has been made. It was further pleaded that the rent‑ is being deposited income regularly and the rent receipts have been filed in Rent Case No 2409 of 1979. The learned Controller by the impugned order held that the rate of rent is Rs. 500. p.m., and passed order for ejectment as the appellant has failed to pay the rent. Mr. S.A. Saeed the learned counsel for the appellant contended that the learned Controller has not correctly appreciated the evidence on record. According to him from the evidence it is established that the rent for the months of August and September, 1978 was paid directly to the respondent, and thereafter rent from October, 1978 to March, 1979 was paid to the husband of the respondent, who had executed valid receipt in her favour. After notice was served on the appellant a money order was remitted on 29‑4‑1979 which was not accepted by the appellant's attorney, and thereafter the appellant started depositing rent in Court. Mr. Shamshad Alam Lari, the learned counsel for the respondent contended that the relations between the respondent and her husband were strained to such an extent that suit for dissolution of marriage was filed in August, 1978 and, therefore, there was no question of authorising the husband to receive the rent. It may be mentioned here that during the pendency of the suit the respondent's husband died on 24‑3‑1979. The appellant, and the respondent both have examined their attorneys. In the facts and circumstances of the case two questions rise; whether the rent for August and September was paid to the respondent directly, and whether the rent from October, 1978 to March, 979 was paid to the husband of the respondent and was he authorised to receive the rent? The burden is entirely on the appellant to establish these facts. So far the rent for the month of August and September, is concerned, it has been stated that no receipt was executed by the respondent. Besides the words of the appellant there is no independent evidence to show that this rent was paid to the respondent. The appellant's attorney in her statement has stated that it was paid in the end of August or September to the respondent. On the other hand from the evidence of the respondent's attorney it is clear that the respondent left for London somewhere on 31‑8‑1978. It seems that at the same time the suit for dissolution of marriage had also been filed. The appellant is not sure on which date and in which month the rent fo7 August and September was paid. If it was paid in early September, the question does not arise, because the respondent was not in Pakistan. In the presence of such uncertain evidence, and there being no evidence of corroborate these facts, the appellant has failed to establish that he rent for the months of August and September was paid to the respondent. In this regard reference can be made to a notice issued the respondent's Advocate, which is sufficiently vague, and uncertain and it seems that he was trying to probe and fish out certain facts from the appellant, but the appellant has also given an equally vague reply. Again in the ejectment application, the respondent has made a clear allegation that he left for U.K. in the month of August and during her absence from Karachi, the appellant has not paid or tendered any rent. In reply the appellant denied these facts, and stated that the respondent is aware that her husband has collected rent from the appellant on her behalf. It is pertinent to see that particulars of the payment of the rent have not been given in the written statement, no it has been stated that the rent for the months of August and September was paid to the respondent directly. This was stated for the first time in the affidavit of evidence, but no proof was produced to establish it. Now coming to the second leg of the case it is clear that the respondent had filed a suit for dissolution of marriage which according to Mr. Lari was instituted in July or August, 1978. This clearly stows that there had been strained relations between the respondent and tier husband. In the affidavit of evidence the respondent's attorney had only stated that Khalil‑ur‑Rehman, the husband of the respondent was not authorised to receive rent from the appellant, but in cross- examination, a suggestion was made to him that suit for dissolution of marriage had been filed. This clearly shows that although the respondent's attorney had not stated this fact, it was within the knowledge of the appellant that the respondent and her husband were not on good terms. In these circumstances it is difficult to believe that the respondent had authorised her husband to receive rent on her behalf. Mr. Saeed, the learned counsel for the appellant has contended that being the husband of the respondent Khalilur Rehman had the authority to collect the rent as her agent. According to the learned counsel mere relationship of husband and wife makes the husband ipso facto the grant of the wife. I am unable to agree to this proposition of law, which does not seem to have any legal basis. The relationship of husband and wife under Muslim Law is a contract whereby they agree to marry each other and live like husband and wife. The status of the wife is not merged into the personality of the husband. They are two independent, natural and separate persons who have their own legal', rights independent of each other. The agency is created by agreement or by operation of law. There is no agreement on record to show that Khalilur Rehman being the husband was appointed as an agent of the respondent nor Mr. Saeed has been able to produce any provision of law that by virtue of marriage they became agents of each other. In view of the fact that the relations between the husband arid wife were strained it cannot be presumed that by virtue of relationship of husband and wife the respondent had permitted Khalilur Rehman to collect the rent on her behalf from the appellant. As the appellant has failed to establish that Khalilur Rehman was acting as an agent of the appellant for collecting rent, even if the appellant has paid rent to him, it will not amount to a due discharge of liability towards the respondent. The appellants have, therefore, failed to establish that the rent has duly been paid to the respondent. The finding of the learned Controller, therefore, needs no interference. The appeal is dismissed and the appellant is allowed to vacate the premises on or before 31‑12‑1985. H.B.T Appeal dismissed.