HULAIL AHMAD NAQVI Versus AHMAD ALI KHAN

1. This First Rent Appeal is directed against the order passed by the Additional Controller of Rents, Clifton Cantonment, Karachi whereby the eviction application filed by the respondent was allowed and the appellant was directed to vacate the premises and to peacefully hand over vacant possession thereof to the respondent within 45 days of the date of the order.

2. The facts leading to the filing of the above appeal are that the respondent is the landlady of the residential building situated at R‑3, 10th East Street, Defence Housing Authority, Karachi and Messrs Hashmi Can Company is the tenant of the respondent at the monthly rental of Rs.5,000. The Hashmi Can Company Ltd. is hereinafter called Hashmi. The appellant was an employee of Messrs Hashmi Can Company. The respondent filed an eviction application bearing Rent Case No.. 45 of 1984 on the ground that Hashmi did not pay rent since January 1984 and also on the ground of personal requirement. The respondent filed the eviction application against Hashmi and the appellant. The said Hashmi filed written statement and stated therein that the appellant is the tenant in possession in respect of the premises in dispute since the very inception of the tenancy. It also stated therein that he is not the licensee nor he is an unauthorised occupant of the premises. It was. also stated that "Opponent No. 2 being at one time general manager in the company of opponent No. 1, was given a house on rent in the account of opponent No. 1 but subsequently w.e.f. June, 1983, the opponent No. 2 became the direct tenant of the applicant with which she is fully aware and she also wrote a letter to the opponent No. 2 and made arrangement for exchange correspondence and payment of rental monthly dues. The applicant was also informed by the opponent No. 1 about the termination of the tenancy agreement with a copy of the letter endorsed to the opponent No. 2." The appellant also filed written statement wherein he stated that he was and is never unauthorised occupant of the premises and even after the termination of the tenancy agreement the respondent started collecting rent from the . appellant and until December 1983 the respondent accepted rent and thereafter refused to accept the same and insisted on increase in rent. The respondent filed her own affidavit‑in‑evidence in support of the eviction application and the appellant filed his own affidavit‑in evidence. They were cross‑examined by the‑learned counsel for the respective parties. On the pleadings of the parties the learned Additional Controller of Rents framed the following preliminary issue."

3. "Whether there is relationship of landlord and tenant between the parties?"

4. The learned Rent Controller on the basis of evidence adduced by the parties and taking into consideration the arguments of the learned counsel for the parties decided that Messrs Hashmi Can Company was and is in fact the tenant of the respondent and the appellant was and is in occupation of the premises in dispute as a licensee of Messrs Hashmi Can Company Limited. The Additional Controller further observed as follows:‑‑

5. "As a matter of fact, the acceptance of refund of rent by opponent No. 1 from opponent No. 2, without the permission of the applicant, could well be construed as subletting of the disputed premises by opponent No. 1 to opponent No. 2. The issue thus stands decided accordingly."

6. The appellant abovenamed being aggrieved against the order dated 13‑4‑1985 of the Additional Controller of Rents has preferred this First Rent Appeal on the grounds mentioned in the memo of appeal.

7. Mr. Hafiz Abdul Baqi, the learned counsel for the appellant, has contended that failure on the part of the Additional Controller of Rents to frame an issue on the ground of personal requirement and to record evidence amounted to refusal of affording reasonable opportunity as provided by section 17 of the Cantonments Rent Restriction Act. He has argued that the plea was genuinely taken by Hashmi as the respondent accepted rent directly from the appellant and had evidence been recorded the appellant would have so proved to the Controller that the requirement was not bona fide, but since no evidence was recorded the appellant as well as Hashmi were deprived of this opportunity and, therefore, the straightaway eviction of the appellant as well as Hashmi was improper, unjustified and was unsustainable in law.

8. Mr. Qamar Abbas the learned counsel for the respondent, on the other hand, has submitted that the recording of evidence on the ground of personal requirement was wholly unnecessary in the circum stances of the case and the learned Controller was perfectly justified in directing straightaway eviction of the appellant as well as Hashmi. He has argued that the premises in dispute was rented out to Hashmi for providing accommodation to its executives. His submission is that the respondent was not aware that the appellant had tendered his resignation and had started living in the accommodation independently.

9. The question for consideration is whether the Controller was right and justified in directing straightaway eviction of Hash mi as well as appellant without recording evidence in the matter:

10. I have taken into consideration the arguments advanced by the learned counsel of both the parties and have perused the pleadings and the evidence led before the Additional Rent Controller and have also gone through the impugned order.

11. Hashmi agreed to take on lease the premises in dispute for the purpose of providing residential accommodation for its senior executives for a period of two years commencing from 1st January, 1982 and ending on 31st December, 1983. It is the case of Hashmi that with effect from June 1983 the appellant left its service and from July 1983 started paying rent directly to the respondent.

12. The learned Controller found it unnecessary to record evidence in the matter and directed straightaway eviction of Hashmi as well as of the appellant for the reason that Hashmi had denied the relationship of landlord and tenant which was found to exist between the parties. It is to be seen firstly whether Hashmi's denial of the existence of relationship of landlord and tenant between the parties lacked bona fides and secondly, whether the acceptance of rent by the respondent from the appellant termed it as her tenant.

13. It is not disputed that the premises in dispute was rented out to Hashmi for providing accommodation to its executives. It is also not disputed that appellant was the General. Manager of Hashmi and he was accommodated in the dispute premises. It is also not disputed that he had tendered his resignation which was duly accepted by Hashmi. It is also not disputed that the appellant had directly tendered rent. to the respondent which was duly accepted by her. It is the case of Hashmi that appellant is the tenant in possession in respect of the premises since the very inception of the tenancy. It is also the case of Hashmi that the respondent was duly informed by Hashmi about the termination of the tenancy agreement with a copy of letter endorsed to the appellant. It is also the case of Hashmi that she accepted rent from the appellant which is evidence from the corres pondence exchanged between her and the appellant.

14. The above facts and conduct would indeed show firstly, that Hashmi did not dispute the relationship of landlord and tenant between the parties. This can be legitimately maintained by the appellant that there was genuinely a bona fide plea taken by Hashmi. The Hashmi did continue to challenge the relationship of landlord and tenant between the parties. I agree with the learned counsel for the appellant that the learned Controller was not justified in holding that Hashmi's denial of relationship of landlord and tenant lacked bona fide.

15. It last remains for determination whether in spite of the above further enquiry was called for and it was necessary to record evidence in this case. For the main point involved in the proceedings being the commission of wilful default by Hashmi, subletting without permis sion and personal requirement and Hashmi's liability to be evicted front the premises on that account, holding of enquiry would have only determined whether Hashmi had committed default and whether it was wilful or not which in turn would have depended on whether Hashmi had paid any rent or not and whether it was not paid for any bona fide reason. It has however been shown above that Hashmi had admittedly not paid any rent to the respondent nor did it deposit any rent in Court and that its denial of the existence of relationship of landlord and tenant was not frivolous and mala fide because appellant had tendered rent to the respondent which was accepted by her. According to the appellant she had accepted the rent from him but according to her she had accepted the rent from Hashmi through the appellant. According to Hashmi the respondent had accepted the appellant as her tenant. For this relationship Hashmi has placed reliance on the correspondence exchanged between the appellant and the respondent. That being so, silful default on the part of Hashmi was not established.

16. Under section 17(2) a landlord who seeks to evict his tenant shall apply to the Controller for an order in that behalf, and if the conditions laid down in subsection (2) are satisfied the Controller can make an order directing the tenant to put the landlord in possession. If this Act is applied to the parties the only Tribunal could order the eviction of the appellant would be. the Controller and if the Act does not apply then the Controller would have no jurisdiction to pass the order. It was admitted by both the parties that the premises i1n dispute was taken on rent for providing accommodation to the appellant, It is also an admitted position that the appellant signed the tenancy agreement on behalf of Hashmi in the capacity of General Manager. It was also admitted by the respondent that the appellant was occupying the premises in dispute from the commencement of the tenancy agreement. It was true that the consent of landlady in writing has not been obtained to the occupation of the premises in dispute by the appellant, but it appears that the appellant has been in occupation of the premises with knowledge and tacit consent of the landlady since Ist July, 1982. In fact the respondent by her letter, dated 29‑10‑1983 addressed to the appellant, has stated "also as you are now occupying the upper room and bath‑room, I request that the rent be increased by Rs.1,000 per month and a year's rent given in advance". She has also stated "in case you wish to continue the tenancy of the house I would like the new agreement to be made with your company's employer". The respondent by letter, dated 27‑11‑1983, addressed to the appellant, has stated "I have not yet received any reply to my letter sent to you last month but from the conversation I had with you on the telephone a few days ago, I understand that it is not possible for you to increase the rent. I, therefore, request to kindly vacate the premises when the lease expires on the 31st of December". A perusal of the tenancy agreement shows that the lessee (Hashmi) will use the premises specifically as a private dwelling house for use by the senior executives of the lessee and will not assign, sublet or part with the possession of the demised premises or any part thereof without the prior written consent of the lessor. It is an admitted position that the respondent had accepted a sum of Rs.30,000 being rent from January to December 1983 in cash from the appellant. Neither in these letters nor otherwise has any objection been taken by her to the occupation of the premises in dispute including a room and bath‑room on the upper flats: by the appellant. The tacit consent of the respondent must therefore be assumed and it has further to be assumed that condition of writing has been waived by the landlady. It may be pointed out that the premises in question was taken on rent for providing an accommodation to the appellant who was an executive of Hashmi. It may also be pointed out that the appellant in his written statement before the Controller has stated that he had paid rent in cash to the respondent. He has also stated that he sent a cheque for Rs.60,000 on account of an advance rent for the year which was refused by her and thereafter he had started deposing the same with the Nazir of Civil Court. I am accordingly of the view that the relationship of landlady and tenant has been established between the appellant and the respondent. I am accordingly of the view that in the circumstances of this case this is a fit case in which further inquiry was necessary as to whether the respondent required the premises for her bona fide use.

17. For the above reasons I accept this appeal and Rent Case No.45 of 1984 is remanded to the Additional Controller of Rents, Clifton Cantonment. The application for eviction of respondent shall be treated as pending and disposed of on merits after affording opportunity of leading evidence and hearing of arguments. I direct that the eviction application should be disposed of in accordance with law. In the circumstances of the case the parties shall bear their own costs. Office is directed to send the R s P immediately to the concerned Additional Controller of Rents.

18. H.B.T./H‑68/K Appeal accepted. Case remanded.