MUHAMMAD SHARIF Versus A.K. KHANUM
These two appeals which arise from the order of the learned
Vth Senior Civil Judge in F.R.A. No. 2399/85 shall, for the sake of convenience, be disposed of by this single order.
2. The facts, briefly stated, are these. The respondent No.l (hereafter called "the applicant") filed an application for ejectment on 4‑11‑1978 against Mohammad Sharif,, the applicant in F .R. A. 530/87 (hereinafter called 'the opponent No.l') and Mohammad Salim, the applicant in F.R.A. 520/87 (hereinafter called 'the opponent No,2') on the grounds of default and subletting. It was averred in the .application ,that the opponent No.1 is her tenant in respect of the disputed premises w.e.f. 10‑11‑1977 by virtue of an agreement dated 9‑12‑1977 executed between the opponent No.1 and the applicant on an agreed rent of Rs.200 plus electricity charges. The rent was being received through one Mohammad Ibrahim son of Habibur Rehman on b4half of the applicant. Default was claimed to be w.e.f. July 1978. With regard to the sub‑tenancy it was stated that the opponent No.1 carried ‑on his business for few months and then sublet the shop in question to opponent No.2 who was then in its occupation.
3. The opponent No.1 in his written statement denied the relationship of landlord and tenant between him and the applicant and claimed that he had been paying rent to one Alam, who is the landlord of the disputed premises at the rate of Rs.200 per month and Rs.25 per month as electricity charges. He denied the allegation of subletting and claimed to be in possession of the shop in question in his own right as a tenant. He pleaded that the opponent No.1 was his relation and an employee. The opponent No.2 did not file the written statement. The learned Rent Controller vide his order dated 31‑8‑1982 ordered the ejectment of both the opponents Nos.l and 2. Against this judgment both the opponents Nos.l and 2 filed appeals, being F.R.As. No.964/82 and 922/82, respectively, in this Court. At the hearing of these appeals the parties filed a compromise and got the impugned order set aside. The case was remanded with a direction to the trial Court for fresh trial according to law. After the remand, the respondent No.2 also filed written statement admitting the fact that the applicant is the landlady of the disputed premises. He denied the relationship of landlord and tenant between the applicant and the opponent No.1 and claimed himself to be the tenant of the applicant in respect thereof. He further pleaded that by virtue of a tenancy agreement dated 1‑3‑1975, (which has not come on record), the disputed shop was let out by the applicant to his deceased father Mohammad Qadir at a monthly rent of Rs.200 plus Rs.25 as electric charges. Late Mohammad Qadir died on 5‑9‑1979 leaving behind him surviving 11 legal heirs, who became the tenants of the applicant in respect of the disputed premises. He asserted that during the life time of his deceased father and even after his death he carried on the business of ornament polishing in the demised premises. He claimed that opponent No.l, who was closely related to him was dealing with the. affairs of tenancy even during the life time of his father who on account of his serious illness was unable to do so and there was no male adult member in the family as he was also a minor at that time. He further claimed to have paid the amount of rent to opponent No. 1. The opponent 'No.l, from September, 1978 onward for depositing the same in court as the applicant had allegedly refused to accept the rent as per statement of the opponent No.l. The respondent No.1 however, according to him, deposited the rent in his name in court in favour of one Alam showing him to be landlord of the premises in question. The opponent No:2 thus claimed that there was a collusion between the opponent No.1 and the applicant who wanted to seek possession of the premises through him (Opponent tVo.2).
4. Upon the pleadings of the parties the learned Rent Controller framed the following issues;
"(1) Whether there exists relationship of landlady and tenant in between the applicant and opponent No.l?
(2) Whether the opponent No.1 has committed wilful default in payment of rent?
(3) Whether the opponent No.1 has sublet the shop in question to the opponent No.2?
(4) What should the order be?
He decided the issues Nos.l, 2 and 3 in favour of the applicant and consequently allowed the application on both the grounds of default as well as subletting and directed both the opponents to vacate the shop within 60 days from the date of the order viz. 31‑3‑1987. It is against this order that the opponent No.1 has filed F.R.A: 530/87 and the opponent No.2 has filed F.R.A No.520/87:
5. When these appeals came up for katcha peshi in court a pre‑admission notice was ordered. It is pursuant to this order that these appeals have come up before me.
6. 1 have heard the learned counsel Mr. Aftab Ahmed, for opponent No.l, Mr. Riazuddin for opponent No.2 and Mr. Bilal A. Khawaja for the applicant in both the cases.
7. 1 shall first take up the appeal of opponent No.2 (F.R.A No.520/87). The applicant's case against him was, as already stated that he was occupying the shop in question as a sublessee of the opponent No.l; whereas he pleaded that he was tenant of the disputed premises through his father who had been paying rent to the applicant. It is, however, evident from the written statement filed by opponent No.2 that he paid the amount of Rent to the Opponent No.1 even during the life time of his father for depositing it in court as the applicant had allegedly refused to accept the same. He has also in clear terms pleaded in his written statement that the opponent No.1 played a fraud upon him and did not deposit the amount of rent paid to him in court in the name of the applicant. He could not, however, substantiate his version through any reliable evidence either documentary or otherwise. On the contrary, by virtue of his own admission that he is in occupation of the shop in question and has been paying rent to the opponent No.l, (allegedly for depositing it on his behalf) lends support to the plea of the applicant about subletting of his being (Opponent No.2) in occupation of the shop. Moreover, he has in his cross‑examination admitted that he had received notice of the ejectment application during the life time of his father yet he did not contest the proceedings' until April 1985. He has also not produced the alleged agreement of tenancy executed between the applicant and his deceased father although he had specifically pleaded in his written statement that the agreement of tenancy dated 1‑3‑1975 had been allegedly executed. On the contrary, in his cross‑examination he himself denied this alleged fact.
8. There is thus no merit in this appeal. Hence it is dismissed in limine.
9. It takes me to other appeal No. 530/87 filed by the opponent
No.l. The opponent No.l, as stated above, claimed tenancy of the disputed premises through one Alain by virtue of an agreement allegedly executed between him and Alam on ‑ 15‑2‑1977 which has been filed alongwith his affidavit as per, annexure 0/2, whereas the case of the applicant was that he was inducted as a tenant in the premises by virtue of an Agreement of tenancy executed between her and the opponent No.l on 5‑12‑1977 (Exh.0/1). The opponent No.l denied the execution of Ex.0/1. It is, however, proved beyond doubt by virtue of the lease agreement Ex. 9/2 executed between the KMC and the applicant that the applicant is the owner of the disputed premises. Mohammad Ibrahim, the attorney of the applicant, deposed that she is the landlady of the property in question in his affidavit‑in‑evidence dated 7‑4‑1980. This statement was not sought to be controverted in cross‑examination and thus it remained unrebutted. Similarly, the statement on oath made by Khawaja Allauddin the‑husband and attorney of the applicant, in his affidavit in evidence dated 23‑4‑1985 to the effect that the applicant is the landlady of the disputed premises was not challenged during cross‑examination. Anyhow in presence of Exh. 0/2 there is no escape from the conclusion that the premises in dispute are owned by the applicant and she is the landlady of the premises within the meaning of the Ordinance. It is, however, to be observed that the opponent No.l in categorical terms pleaded that one Alain was his landlord in respect of the premises in dispute. It is pertinent to note that in so far as the rate of rent is concerned it is mentioned as Rs.200 plus Rs.25 per month electricity charges in the application and so also it is admitted by the opponent No.l that the rent of the premises was Rs.200 plus Rs.25 per month as electric charges.
10. No evidence worth reliance has been brought on record by the opponent No.l to establish that Mr. Alam was the owner landlord of the premises. A suggestion to this effect was made to the witnesses of the applicant but they denied the same as being incorrect. Mohammad Ibrahim, the attorney of the applicant, in his deposition did admit that Alam was his son but he did not say that he was the owner or~ the landlord of the premises in question. The finding on Issue No.l as recorded by the learned Rent Controller is based on proper! appreciation of the facts and the evidence on record and hence it does not call for any interference.
11. Having upheld the finding of the learned Rent Controller that the opponent No.l is the tenant of the applicant, there is no escape from the conclusion as arrived at by the ‑learned Rent Controller, that the opponent No.l committed wilful default in payment of rent. The opponent No.l has not even pleaded that he had paid the rent for the months in question to the applicant. The learned Rent Controller has thus rightly answered the issue No.2 in the affirmative.
12. With regard to issue No. 3 1 have already recorded my reasons for agreeing with the learned Rent Controller that the premises in question were in occupation of the opponent No. 2 as a sub‑lessee o If opponent No.l Hence the appeal fails on this issue as well.
13. Under the aforesaid facts and circumstances of the case I do not feel hesitant to hold that the opponent No.l has also failed to make out a case for admission of this appeal. It is, therefore, also dismissed in limine.
14. The learned counsel for the opponent No.2 at this stage prays that he may be allowed six months time to vacate the disputed premises) so as to enable the opponent No. 2 to find out a place for his business. Mr. Bilal A. Khawaja', learned counsel for the applicant (landlady); has no objection if the request as made by Mr. Riazuddin is acceded to. He, however, prays that it may be ordered that if the opponents fail to vacate the premises by and before six months from today then the writ of possession would. issue without notice. The counsel for the opponents agree to it. It is, therefore, ordered accordingly. It is further ordered that in the meanwhile the opponents shall continue to deposit the monthly rent regularly by and before the 10th of each subsequent month and if they fail to do so they would be liable to be evicted forthwith and the concession of six months' period as given to them would stand withdrawn. Mr. Riazuddin on the instruction of his client states that rent for the month of Sept. 1987 has already deposited in Rent Misc. Application No. 4599/78. Mr. Riazuddin has no objection if the rent already deposited is withdrawn by the applicant.
15. Since the main appeal has been dismissed, this application has become infructuous and it is accordingly dismissed.
A.A./M‑425/K Appeals dismissed.