SHAHID MIAN Versus STATE LIFE INSURANCE CORPORATION OF PAKISTAN
1. This is an appeal under section 21 of Sindh Rented Premises Ordinance, 1979 (hereinafter called the Rent Ordinance) directed against an order dated 19‑3‑1998 passed by VIIth Senior Civil Judge and Rent Controller, Karachi‑South, in Rent Case No.1217 of 1991 (State Life Insurance Corporation v. Shahid Mian and another) whereby an eviction application under section 15 filed by the respondents/applicants was allowed and the appellants/tenants were, directed to vacate the premises within a period of two months from the date of impugned order.
2. The brief facts of the case are that. the respondents/applicants filed eviction application under section 15 of Rent Ordinance in respect of Shop No.13, State Life Building No.8, situated at Dundas Street, Off Zaibunnisa Street, Saddar Karachi, against the appellants/tenants on the grounds that appellant No. l being tenant has committed default in payment of rent from January 1991 to April 1991 and further that the Appellant No.1 has passed on possession of the said premises to Appellant No.2 without consent or permission in writing of respondent/applicants. The appellants filed written statement stating therein that the Appellant No. l was not the tenant in respect of shop in question and it was in the knowledge of respondents that name of Appellant No. l was entered in place of Appellant No.2 in respect of shop in question to fulfill legal requirements as a result of compromise arrived at between the parties in the execution proceedings of Rent Case No.2494 of 1985 and as such the status of appellant No. 1 was nothing but like a person behind the curtain as a pro forma person who never was in physical possession and occupation of the said shop whereas the Appellant No.2 continued to be in physical possession of the shop in question where latter had been carrying on business for more than 35 years. It is further stated in the written statement that the respondents/applicants were in practice of collecting rent in lump sum and there was no date fixed for payment of monthly rent and the respondents used to collect rent for numbers of months together and that rent for the month of January, 1991 to June, 1991 was paid through pay‑order but it was returned hence rent was deposited in M.R.C. No. 1420 of 1991.
3. The respondents/applicants filed affidavit‑in‑evidence of Peer Khan, Deputy Manager and Attorney of the respondents/applicants, who produced photo copy of letter, dated 31st December, 1988 Exh.A/2, photo copy of proceedings in respect of handing over of possession, dated 3‑1‑1989 Exh.A/1, photo copy of inventory of handing over of premises, dated 3‑1‑1989 Exh.A/4, photo copy of handing over of possession, dated 27‑2‑1988 Exh.A/5, photo copy of inventory, dated 27th December, 1988 Exh.A/6, memorandum of authority, dated 28‑3‑1994 Exh.A/7, photo copy of general power of attorney, dated 10th January, 1991 Exh.A/8, Appellants/opponents filed affidavit‑in‑evidence of Shahid Mian who produced a letter, dated 22nd December, 1988 Exh.0/1, photo copy of national identity card Exh.0‑2 letter, dated 31st December, 1988 Exh.0/3, two cheques, dated 30‑11‑1989 and 11‑12‑1989 Exhs.0/4 and 0/5, letter, dated 3‑12‑1989 Exh.0/6 bearing the seal of the respondents/applicants, filed affidavit‑in‑evidence of Appellant No.2 Shafiq Yar Khan who produced photo copy of letter Exh.0/1, letter, dated 15th July, 1991 Exh.0/6, photo copy of pay order, dated 2‑7‑1991 Exh.0/7, photo copy of rent receipt deposited in the bank‑in Miscellaneous Rent Case No. 1420 of 1991 Exh.0/8, photo copy of electricity bill in the name of Shafiq Yar Khan Exh.0/9, filed affidavit‑in‑evidence of Abdul Wase, affidavit‑in‑evidence of Mukhtiar Ahmad. The deponents who filed the affidavits‑in‑evidence were cross examined by the learned counsel for the adversary parties. After recording the above evidence and hearing the counsel for the parties the impugned order was passed.
4. I have heard the learned counsel fox the parties and perused the record and proceedings of the case.
5. The first contention of learned counsel for the appellants is that the learned Rent Controller has erred in holding that Appellant No.l was the tenant while Appellant No.2 was put in possession by the former. I do not find substance in this contention. The averments made in the eviction application are corroborated by the affidavits‑in‑evidence and same are consistent and the testimony of the said witness could not be shaken in the cross‑examination by the learned counsel for the appellants. Exh.A/2 letter, dated 31st December, 1988 addressed to Appellant Nor 1 clearly states that Appellant No. l was the tenant and he was to pay rent as well as arrears which stood prior to the inception of tenancy against Appellant No.2. Exh.A/3 and Exh.A/4 also, proved that the possession of shop premises was handed over to Appellant No. 1. Exhs.A/5 and A/6 would show that prior to that it was the Appellant No.2 who was given the possession of shop premises. Exh.0/3 is the same as Exh.A/2. Exhs.0/4 and 0/5 are the cheques dated 30‑11‑1989 and 11‑12‑1989 issued by Appellant No.I. So far the Exh.0/1 which was tendered towards the rent for three months through Cheque No.12711683 said to have been paid by Appellant No.2 to respondents on 7th May, 1990 would on comparing number of said cheque to the cheques Exhs.0/4 and 0/5 would appear that the said cheque was taken from the same series of cheque book which were issued by the Appellant No. 1, therefore, it could not be said that this cheque was issued by Appellant No.2 but was issued by Appellant No.l from his account, therefore, it was acknowledged by the respondents/applicants. All these above documents without any doubt prove that the Appellant No.l was tenant of the respondents/applicants. The Appellant No.2 admits to be in possession of shop premises which stood proved to have been passed on by the Appellant No.l, therefore, no exception could be taken to the finding of learned Rent Controller consequently the contention of learned counsel for the appellants has no merit and substance.
6. The next contention of, learned counsel for the appellants is that the learned Rent Controller has erred in holding that the Appellant No.2 has committed, default in the, payment of rent. I also do not find merit and substance in the said contention. Admittedly the rent for the month from January 1{191 to April 1991 was tendered through pay‑order on 2nd July, 1991 and not before the date by any of the appellants when the monthly rent for the months of January 1991 to March, 1991 became due for payment in terms of section 15(2) (ii) of Rent Ordinance, Learned counsel for the appellants admitted Lhat rent for the month of January, 1991 was payable by 11th March, 1991 and rent for the month of February, 1991 was payable by 9th April, 1991 and rent for the month of March, 1991 was payable by 9th of June, 1991 and rent for the month of April, 1991 was to be paid by 9th of July, 1991 but rent for the said months was tendered on 2nd July, 1991 through pay‑order, therefore, there was default from January 1991 to March, 1991 towards non‑payment of rent. The contention of learned counsel for the appellants is that the rent was being collected by the respondents in lump sum, therefore, there could not be default in the payment of rent. No reliable and satisfactory evidence has been produced to show that there was a practice which could be said to have overruled the legal provisions of sections 10 and 15 of Rent Ordinance.
7. In view of aforesaid, reasonings no exception could be taken to the finding of default in the payment of rent of the learned Rent Controller. Consequently the same is maintained. In the result the appeal is dismissed along with the listed application. However, three months period is given to the appellants to vacate the premises subject to payment of rent.
8. H.B.T./S‑14/K Appeal dismissed.