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First Rent Appeals Nos. 834 and 958 of 1982, decided on 26th February, 1984.

‑‑‑Ss.15 & 21‑‑‑Application for ejectment on ground of default‑‑Tenants' application for production of additional documents in form of receipts and coupons of money order rejected by Rent Controller‑‑Statement of attorney of landlady on question of default not challenged by tenant ‑‑Question of producing additional documents raised in appeal‑‑Held, it would not be just and proper to reopen question of default by allowing tenant to produce alleged additional documents in circumstances.‑[Evidence],

‑‑‑S.15 ‑‑Ejectment‑‑Subletting‑‑ Sub‑tenants deposing in Court that they were in possession of premises with knowledge of landlady for last 10 years‑‑Rent Controller refusing ejectment‑ ‑Order of Rent Controller, held, was without exception in circumstances.

Mehre Alam Siddiqui for Appellant.

Mehar Hussain A.Mesawa for Respondent.

Date of hearing: 26th February, 1984.

These are two connected appeals arising out of the same order dated 31st July, 1982, passed by the learned VIIIth Senior Civil Judge and Rent Controller, Karachi in Rent Case No.1011/79 and Rent Case No. 2472/78. The first rent case was filed on the grounds of subletting, alterations and additions and personal requirement. The second rent case was filed on the ground of default for the period commencing from February, 1979 to April, 1979. Both the above cases were resisted by the tenant i.e. appellant in Appeal No. 834/82 and the respondent in the other appeal. The learned Rent Controller on the basis of pleadings of the parties framed the following five issues:‑

(1) Whether the opponent has violated the terms of the tenancy agreement If so its effect

(2) Whether the opponent has sublet the premises in question

(3) Whether the applicant requires the premises in question for bona fide use of her children

(4) Whether the opponent is a wilful defaulter If so, since when

(5) What should the order be

The respondent in FRA 834/82 examined her attorney and son Abdul Rasul. On the other hand the appellant/tenant examined himself and two witnesses Mohammad Saeed and Abdul Majid. The learned Rent Controller allowed Rent Application No.2472/79 on the ground of default but dismissed the other rent application on the other grounds. The appellant/tenant being aggrieved by the above order on the ground of default filed above FRA 834/82 whereas respondent/landlady being aggrieved by the dismissal of her Rent Application 1011/79 has filed FRA 958/82.

(2) In support of the appeal filed by the tenant Mr.Mehar Alam Siddiq learned counsel for the appellant has invited my attention to an application filed by the appellant for the production of the additional evidence in the form of alleged receipt and coupon of the money order. He has, therefore, requested and urged that the case may be remanded to the learned Rent Controller for res judication on the question of default.

On the other hand Mr.Mehar Hussain Mesawa learned counsel for the respondent/landlady has submitted that since the statement of the respondent/landlady on the question of default was not challenged in the cross‑examination, it will not be just and proper either to allow the production of the additional evidence in the appeal or to remand the case.

Mr. Mesawa in support of the appeal of the respondent/landlady has contended that since the two witnesses produced by the appellant/tenant have themselves admitted the fact that they were paying rent to the tenant, the ground of subletting was proved and therefore, the learned Rent Controller should have allowed the first rent application at least on the above ground.

(3) I have gone through the affidavit of the landlady's son and attorney and the cross‑examination and I find that the statement of the respondent's attorney that there was default for the period in question remained unchallenged in the cross‑examination. No question was put either to suggest that the rent for the above period was tendered or was remitted through money order. It is true that in the affidavit filed by the tenant, it has been averred that the landlady refused to accept the rent and in the cross‑examination, however, he stated that he had remitted the rent through money order on refusal. Since the statement of the respondent's attorney as to the question of default was not challenged in the cross- examination in my view it will not be just and proper to reopen the question of default by allowing the tenant to produce the alleged additional documents. The ground of default stands proved and, therefore, the finding of the learned Rent Controller seems to be in consonance with the evidence.

(4) Reverting to the appeal filed by the landlady, it will suffice to observe that the two witnesses who were produced by the tenant had averred that they were in possession of the portion of the tenement to the knowledge of the landlady for about 10 years. If this statement is to be accepted as correct, in my view the learned Rent Controller was justified in declining to grant the ejectment order on the ground of subletting. The other grounds have not been pressed.

(5) For the aforesaid reasons both the appeals are dismissed with no order as to costs. However, I allow six months time on the condition that the appellant/tenant shall continue to deposit rent in terms of the Rent Controller's order, failing which the landlady/respondent shall be at liberty to file an execution application before the expiry of the above period of six months. Furthermore, in case the appellant/tenant fails to hand over the vacant possession on the expiry of the above period of six months, the learned Rent Controller shall issue a writ of ejectment without further notice to the appellant.

M.B.A. Appeal dismissed.

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