NIRMALA ALIAS NIMKI Versus GHULARN RASOOL

This appeal is directed against the order of the learned Ist Senior Civil Judge and Rent Controller, Hyderabad, passed in Rent Application No. 217/79 whereby she has allowed the ejectment application of the respondent.

2. The brief facts giving rise to this appeal are these. On 3‑4‑1979 the respondent filed an application under Section 13 of the Sind Urban Rent Restriction Ordinance, 1959 (hereinafter called "the Ordinance") against the appellant stating that he is the landlord of premises bearing No. C/2877, Ist Floor, Chutt Jo Pir, Hyderabad, (hereinafter called "the demised premises" and the appellant is his ‑tenant in respect thereof on a monthly rent of Rs.225 (excluding electricity charges) payable on every 5th of the English calendar month. The tenancy was originally oral but, later on, in December 1978 a Rent Note was executed by the appellant and in which stress was laid on the infringement of the terms in the past and they were specifically reduced into writing. It was agreed as per rent note that the demised premises will be used strictly for residential purposes and the rent will be paid regularly by 5th of every month. The appellant, however, had not only used the demised premisses as a prostitution den but had also failed to pay the rent for January, February and March, 1979. She had allowed her daughter Lata to live with her in the demised premises who stands on the balcony for hours together with a nude attire to attract passers by and converts the demised premises into a prostitution den which had created a problem for the locality. The demised premises was also reported to have been damaged and its value had been impaired materially. The respondent was not allowed to inspect the demised premises despite requests.

3. The appellant filed objections to the said application. It was denied that the respondent was the landlord of the demised premises. It was stated to be owned by one Mst. Shamsunnissa sister of the respondent. The demised premises was let out to the appellant by the said Mst. Shamsunnissa orally at a monthly rent of Rs.100 including electricity charges. The tenancy was claimed to be' oral and was said to have at no time been reduced into writing. Some litigation between the appellant and the said Mst. Shamsunnissa was stated to be pending in the Court in respect of disconnection of electric connection. On 10‑7‑1978 an application under Section 10 for restoration of electric connection (R.A. No.389/1978) was filed. In the meanwhile the respondent alongwith the said Mst. Shamsunnissa filed a joint application for ejectment of the appellant being R . A . No.400/ 1978. The appellant filed objections contending that the respondent above named was not landlord and that only Mst. Shamsunnissa was the landlady. Those proceedings were subsequently withdrawn by the respondent without any condition or assurance from the appellant. It was further averred that in those rent proceedings, tentative rent order was passed whereby the appellant was required to pay rent in the Court at the rate of Rs.150 per month and all the deposits were subsequently withdrawn by the respondent. However, later on in reply to para. 5 of the application, the appellant stated that the respondent had no business to demand the rent from her nor has he ever done so. It was, therefore, asserted that the question of refusal by the appellant did not arise. In the additional pleas, the appellant further averred that the copy of the Rent Agreement produced by the respondent alongwith the application was forged and fabricated and the signatures thereon shown to be that of the appellant are not her signatures. The appellant stated to have never signed any such Agreement. In short, the relationship of landlord and tenant between the parties was denied.

4. After framing the issues and recording the evidence of the parties the learned Rent Controller vide his order dated 7‑2‑1983 allowed the Rent Application and directed the appellant to hand over its vacant possession to the respondent. By this order the learned Rent Controller held that there existed relationship of landlord and tenant between the parties and so also that the appellant had committed default in payment of rent. The appellant thereupon filed F.R.A.59/1983 in this Court. It was disposed of in terms of compromise between the parties vide order dated 13‑4‑1986 by virtue whereof the case was remitted to the Rent Controller for fresh adjudication of issues No.2 and 3, namely, on the point of rate of rent and alleged default in payment of rent. The issue No.l regarding existence of relationship of landlord and tenant between the parties, which was decided in the affirmative was not disturbed. So also the issue No.4 which pertained to the appellant's having converted the demised premises as prostitution den and which was decided in the negative was not disturbed.

5. After recording the evidence of Mst. Shamsunnissa on commission the learned Rent Controller vide his impugned order dated 30‑9‑1987, firstly, declined to decide the issue No.l regarding existence of relatonship of landlord and tenant between the parties in view of the fact that this issue was not set aside by the High Court and that it had already been decided in favour of the respondent. The learned Rent Controller further considering the Rent Note executed between the parties to be genuine relied upon it and consequently held that the appellant had committed default in payment of rent for the month of January 1979. He held the rent of the premises was Rs.150 only. Hence this appeal.

6. Having heard the arguments of Mr. Ejaz Ali Hakro, the learned counsel for the appellant, I passed the following short order:‑

"For reasons to follow, the appeal is dismissed in limine."

Now I proceed to record my reasons for the above decision.

7. Mr. Ejaz Ali Hakro, it may be mentioned at the outset, attempted to urge that there was no relationship of landlord and tenant existing between the parties. I, however, declined him to argue this point as the issue No.l relating to the existence or otherwise of such relationship between the parties which had been decided in favour of the respondent and against the appellant by the learned Rent Controller vide his above‑referred former order dated 7‑2‑1983 was not interfered with by the High Court by its order dated 13‑4‑1986 passed in terms of the compremise of the parties. Realising the legal position, the learned counsel for the appellant also gave it up.

8. The only other argument pressed by the learned counsel for the appellant before me was that since there vas a default in payment of rent only for the month of January 1979, the learned Rent Controller should have exercised his discretion in favour of the appellant inasmuch as it was not a wilful default. He, however, did not dispute the fact that the appellant was a defaulter in payment of rent for the month of January 1979. His only argument, as already observed, was that the default was only for one month hence the ejectment of the appellant could not be ordered on that score. He sought to support his contention by citing an authority of this Court reported in 1981 C L C 1747.

10. I have given my earnest consideration to the submissions made by the learned counsel for the appellant and I have also carefully perused the authority relied upon by him. I am clearly of the opinion that the said authority is distinguishable on its own facts. In the instant case the appellant had clearly denied the existence of relationship of landlord and tenant between her and the respondent and as such there was no question of her being not a wilful defaulter in payment of rent. The issue regarding the existence of relationship of landlord and tenant between her and the respondent has been decided against her which she has accepted as has been explained above.

10. In this view of the matter there is no iota of evidence available on record to reach the conclusion that the appellant had defaulted in payment of rent in the month of January 1979 for reasons beyond A her control or that it was at all a case wherein a discretion could be exercised in her favour for non‑payment of rent of one month. Since it is an admitted fact and the learned counsel for the appellant, as already pointed out, has not challenged the finding of the learned trial Court with regard to the appellant's having committed default in payment of the rent for the month of January, 1979, I do not find any justification to interfere with the finding of the learned trial Court. There is no legal provision to the effect that the ejectment cannot be ordered if there is a default in payment of only one month's rent. However, in the facts and circumstances of this case the appellant has no real, cause of grievance.

11. In the result, the appeal fails and is dismissed in limine with no orders as to costs.

12. Notwithstanding the fact that the learned counsel for the appellant did not ask for it, I, however, consider it expedient and in the interest of justice to allow three months' time to the appellant to vacate and hand over the vacant possession of the demised premises to the respondent, subject to her depositing the future monthly rent regularly in Court. In default, she would be liable to be evicted forthwith without notice.

H. B. T./N‑96/K Appeal dismissed