IRFAN Versus GUL AHMAD PARACHA
1. This appeal under section 21 of the Sind Rented Premises Ordinance, 1979 is directed against the order of VIII Senior Civil Judge/ IInd Rent Controller Karachi dated 14‑2‑1980 whereby he struck off the defence of appellant and ordered his ejectment from the premises.
2. The facts giving rise to this appeal briefly stated are that Gul Ahmed Paracha/Landlord (hereinafter called to as respondent) filed an application for eviction against tenant Irfan son of Jan Muhammad (hereinafter referred to as appellant) and Hilal Travel Service on 4‑8‑1976 before Rent Controller on the various grounds including wilful default on behalf of the respondent Irfan and Hilal Travel Services. Written statement was filed on 20‑11‑1977, wherein they stated that Irfan is minor of 12 years old and the contract is not valid between the parties. There is no relationship between landlord and tenant, the application is not maintainable.
3. The learned Rent Controller on 4‑7‑1978 passed tentative Rent Order and directed the respondent to deposit the arrears of Rent amounting to Rs.729 before 15‑8‑1978 and continue to deposit the future monthly rent from July, 1978 before 15th of each succeeding month. The respondent failed to deposit rent as directed. Accordingly the defence of respondent was struck off and ejection was ordered.
4. Mr. Abdul Sattar Pingar the learned counsel for appellant submitted that Irfan/tenant is minor, therefore, every order against him is without jurisdiction and application is barred under Order XXXII, rule 3, C.P.C. He has relied upon P L D 1963 Pesh. 93.
5. Mr. Habibur Rehman the learned counsel for the respondent contended that Jan Muhammad who now claims to be the father of Irfan himself took the premises representing himself to be Irfan and used to pay rent and sign rent receipts as Irfan, therefore, the rent application is competent and the order of Rent Controller is maintainable.
6. The record of Rent case shows that on 24‑11‑1976 the appellant filed application under Order XXXII, rule 3, C.P.C., 151, Cr.P.C. supported by affidavit of Jan Muhammad claiming to be father of Irfan. On this application counter‑affidavit was filed by respondent on 11‑1‑1977 in which he stated that Jan Muhammad himself had contracted the tenancy of the case premises on 9‑4‑1969 and he himself had paid the rent of Rs.25.50 and issued first rent receipt and given his name as lrfan Jan Muhammad and put his signature and such document i.e. receipt was filed with main application and that appellant himself has been paying the rent. He has denied to have rented the premises to a boy who now claims to be Irfan. No rejoinder was filed by appellant. The above application was fixed for hearing on 14‑7‑1977, the appellant and respondent were called absent. The application was dismissed. Once again appellant on 13‑9‑1978 after lapse of more than a year of passing earlier order, the appellant filed application under section 151, C.P. C. supported by affidavit stating therein that rent order was passed it the absence of opponents or their counsel and appellant was not aware and the order passed before joining the guardian of appellant is nullity in law. Under the provisions of Order XXXII, C.P.C. The counter affidavit was filed by the respondent. This application was also finally dismissed by the Rent Controller on 21‑5‑1979.
7. For the reasons mentioned as under. I am of the view that Jan Muhammad himself took the premises declaring himself to be Irfan and there is no contract between son of Jan Muhammad and respondent.
(i) that the premises were taken on rent on 9‑4‑1969 and age of Irfan Jan Muhammad is given 12 years in written statement which was filed on 20‑11‑1977, therefore, at the time of lease the age of Irfan may be about 3 years and 1. months and first receipt produced with rent application is signed by Jan Muhammad, showing himself to be Irfan Jan Muhammad.
(ii) that respondent filed two counter‑affidavits on the application filed by appellant under Order XXXII, rule 3, C.P.C. In affidavits it was mentioned that Jan Muhammad himself took the premises showing himself as Irfan but Jan Muhammad has not filed any rejoinder on the affidavits, therefore, there is no reason to disbelieve the two counter‑affidavits of respondent filed on 11‑1‑1977 and 22‑3‑1979.
(iii) Rent receipts signed in the name of Irfan was produced by respondent alongwith rent application purported to have signed by Irfan but no explanation of this document has deliberately been given in written statement realizing the situation that how an infant of 3 years 5 months could sign the receipt. Therefore, there is no hesitation in saying that contention of respondent is correct that Jan Muhammad has been declaring himself to be Irfan.
8. Under these circumstances I am not inclined to discuss the case cited by learned counsel of appellant as there is no contract between the boy namely Irfan and respondent. Moreover no proof whatsoever has been produced by Jan Muhammad about the age of Irfan. In the present case as the rent has not been paid since July, 1976 and there is wilful default of the premises. In case reported in NLR 1982 Appeal Cases 447 it has been held that deposit of rent is a condition precedent to his seeking relief in eviction proceedings and failure by him to fulfil his obligation disentitles him to any relief.
9. In view of the foregoing reasons I maintain the order of eviction passed by the Rent Controller on 14‑2‑1980 and dismiss the application and order that possession of premises be given to respondent within three months. In the end I may mention that "opponent No. 2 in the Rent Application Hilal Travel Services" has not filed any appeal against order of the Rent Controller. Therefore, the order of eviction against him has remained unchallenged and, therefore, he is also liable to be evicted even if he is in possession of the premises.
10. H . B. T . Eviction order maintained.