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Civil Petition for Special Leave to Appeal No. K‑108 of 1984, decided on 11th April, 1984.

‑‑‑S. 13‑‑Ejectment of absentee tenant sought on grounds of non‑payment of rent and unauthorized subletting of premises‑‑Mere fact that tenant had left demised premises, held, would not render ejectment application as incompetent in circumstances.

Gharib Nawaz; Advocate‑on‑Record for Petitioner.

Nemo for Respondent.

Date of hearing: 11th April, 1984.

.This petition arises out of application filed by respondent for eviction of his tenant Carmo A. Faria on the ground of non‑payment of rent and unauthorised sub‑letting of the demised premises. Since the tenant Carmo A. Faria could not be served, he having left the premises, the Rent Controller ordered service of notice on him by substituted mode of publication in a newspaper. Thereafter, Mr. Qu,drutullah Advocate and Mr. Azar Ali Siddiqui Advocate filed Vakalatnama on behalf of the tenant which was signed by the petitioner, and they took time for filing written statement on his behalf. Mr. Azar Ali Siddiqui Advocate then filed an application on behalf of the petitioner on 5‑7‑1978 for his joinder as a party in the proceedings on the ground that the landlord had dishonestly filed the ejectment application against Carmo A. Faria, well knowing that he was out of Pakistan, and that petitioner was duly authorised by the tenant to look after the premises. The application was dismissed by the Rent Controller by the order, dated 25‑4‑1979. Since written statement was not filed by Carmo A. Faria, or by petitioner who was claiming to be the agent and, an attorney of the tenant, the Rent Controller passed an ex parte order of ejectment against the tenant on 26‑1‑1980. Petitioner then filed an appeal against this order to the Sind High Court which was dismissed by the judgment, dated 13‑12‑1983, and he now seeks leave to appeal.

Mr. Gharib Nawaz learned counsel appearing in support of the petition submits that the High Court has failed to appreciate that the ejectment application against the absentee tenant was not competent, and in any cage the ex parte order of eviction against the absentee tenant could not be executed against the petitioner. In this connection the following observations of the learned Judge of the High Court may be usefully reproduced:

"In this case the appellant was claiming to be in occupation of the premises and had entered appearance in the ejectment application as the authorised agent of the tenant, holding a power‑of‑attorney from the tenant and also stating in his affidavit that he was entitled to defend the proceedings. In these circumstances the appellant was claiming his occupation as agent and attorney of the tenant and not in any independent capacity. In these circumstances, the appellant was claiming his occupation as agent and attorney of the tenant and not in any independent capacity. In these circumstances, being the attorney and agent of the tenant and also claiming the right to defend the proceedings, a written statement should have been filed by the appellant for and on behalf of the tenant and the ejectment proceedings should have been defended. As has already been noticed, the ejectment proceedings were not defended and in these circumstances I find no illegality having been committed by the learned Rent Controller in granting the ejectment application ex parte."

Since Carmo A. Faria was respondent's tenant, no fault can be found with respondent‑landlord to have filed the ejectment application against him, and the mere fact that he had left the demised premises would not render the ejectment application as incompetent; in fact it was the complaint of the landlord that he had unauthorizedly sublet the premises.

The view that has prevailed in the High Court not open to any just exception. The petition is, therefore, dismissed.

M . B . A . Petition dismissed.

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