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First Rent Appeal No. 705 of 1983, heard on 13th May, 1986.

‑‑‑Ss. 13 & 13‑A‑‑Default in payment of rent‑‑Change of ownership‑ Tenant, having some dispute with previous landlady, continued to deposit rent regularly with Rent Controller‑‑‑ Appellant landlady, who claimed to have purchased property, failing to supply copy of Sale‑Deed to tenant even on his demand‑‑Conduct of tenant showing that he had no intention to commit default‑‑Appellant also making allegation of subletting against tenant but not leading sufficient evidence in conclusive proof on point‑ Order of Rent Controller dismissing ejectment application upheld in circumstances.

‑‑‑S. 13‑‑Subletting‑‑Document of installation of Gas company connection, in demised premises issued by said Co. in name of third person, held, could not be treated as conclusive proof in respect of alleged subletting.

Mirza A . Rashid for Appellant.

Raja Haq Nawaz for Respondent.

Date of hearing: 13th May, 1986.

This appeal calls in question the order passed by the learned Xth Senior Civil Judge and Rent Controller, Karachi, dated 12‑4‑1983.

The facts giving rise to this appeal are that the appellant is the landlady of premises situated on Plot No. 5/‑B, Muhammad Ali Housing Society Karachi, having purchased the same from one Mst. Surraya Khan, the previous landlady. The respondent is tenant of the appellant on a monthly rent of Rs.250 in the said premises. The premises were rented to the respondent for commercial purposes. After sale of the premises in question both the previous and the new landladies sent notices to the respondent informing him about the sale transaction and such notices were sent by them on 8‑9‑1977 and 20‑9‑1977 respectively. In the notice dated 20‑9‑1977 which was under section 13‑A of the West Pakistan Urban Rent Restriction Ordinance, 1959 the respondent was asked to pay future monthly rent to the appellant within thirty days of the receipt of the notice. The appellant was also informed that if he failed to pay rent he would make himself liable for ejectment from the demised premises. The appellant then filed an ejectment application averring, that despite the said notice the respondent failed to tender rent to the appellant as directed in the notice. Additionally, it was alleged that the respondent had also sub‑let the premises to some other person without written consent and permission of the appellant.

The respondent in his Written Statement denied the allegations and stated that the appellant had failed to supply him a copy of Sale Deed in respect of the premises which was earlier demanded by him from the appellant and further, that the respondent prior to the receipt of the notice, dated 20‑9‑1977, had been depositing rent with the Rent Controller since 1976 in Miscellaneous Rent Case No. 2018 of 1976 and as such he was not a defaulter as alleged in the eviction application.

The appellant examined two witnesses namely Fayyaz Ahmad, her Attorney and Muhammad Ashraf. The respondent examined one Chaudhry Rahimuddin besides himself. The learned Rent Controller after considering their evidence came to the conclusion that the case of the appellant had not been proved and consequently her eviction application was dismissed.

I have heard Mr. A.R. Mirza the learned counsel for the appellant and Mr. Raja Haq Nawaz, learned counsel for the respondent. The contentions of Mr. A.R. Mirza have been, firstly, that after receiving notice Under section 13‑A of the above‑said Ordinance by the respondent, the later failed to tender rent to the appellant but instead continued to deposit the same with the Rent Controller in the name of the previous landlady, therefore, default on the part of the respondent has been clearly proved. Next contention of the learned counsel was that the appellant had clearly established from evidence that not only another person namely Rehmat Ali was running the respondent's shop in question but even the gas connection was taken in his name, therefore, the learned Rent Controller was in error while holding that sub‑letting had not been proved.

The contention of Mr. Raja Haq Nawaz on the other hand was, that since before the premises in question changed hands, the respondent already had a dispute with the previous landlady and, therefore, he was depositing rent with the Rent Controller and when the respondent was informed about the sale of the premises to the appellant, he was justified in demanding copy of the Sale‑Deed in proof of the alleged sale and since no such copy was supplied by the appellant to the respondent, the respondent was justified in not paying rent to the appellant. On the point of sub‑letting the contention of Mr. Raja. Haq Nawaz was that the burden of proof to prove sub‑letting was clearly on the appellant which she had failed to discharge as no clear cut evidence could be produced on the point by the appellant.

As far as the first contention of Mr. A.R. Mirza is concerned. the learned counsel has failed to establish any case of wilful default against the respondent. It has not been disputed that the respondent was already depositing rent with the Rent Controller in Miscellaneous Rent Case which shows that he already had some dispute with his previous landlady. Under such circumstances, when the respondent asked for copy of the sale‑deed in proof of the transfer of ownership of the premises he was fully justified in doing so. When such a demand was made by the respondent, then it was the duty of the new landlady to send him a copy of the sale‑deed. Since admittedly no such copy was sent to the respondent, the respondent was justified in continuing to deposit rent with the learned Rent Controller. The very fact that the respondent had been regularly depositing rent with the learned Rent Controller shows that he had no intention to commit default. Even otherwise it does not appeal to reason that the respondent in spite of depositing rent regularly in the miscellaneous rent case would have wilfully incurred liability to be ejected from the premises by failing to make direct payment to the appellant. I am, therefore, convinced that no wilful default was committed by the respondent and the default, if any, was at the most, of a technical nature. The finding of the learned Rent Controller on the point does not appear to be erroneous.

As far as the question of sub‑letting is concerned, once again the appellant has failed to lead sufficient evidence on the point. Although her witnesses have stated in their respective affidavit that the premises in question were sub‑let by the respondent to another person, but such assertions have been completely denied by the respondent in his evidence. The respondent also produced a witness, namely Chaudhry Rahimuddin, according to whom the respondent was always seen in his shop, carrying on his milk business. The witness also stated categorically that the premises were not sub‑let by the respondent to any person. Mr. Raja Haq Nawaz, learned counsel for the respondent, has pointed out to me that this statement of the witness was not contested by the appellant as during the cross‑examination of the witness not a single question was asked in rebuttal. Mr. A.R. Mirza however, has laid much stress on the document issued by the Gas Company in the name of one Rehmat Ali which according to the learned counsel conclusively proved that the premises in question had been sub‑let by the respondent. This argument, in my opinion, appears to be completely misconceived because the document referred by Mr . A . R . Mirza may be a circumstance against the respondent, but the same cannot be treated as conclusive proof in respect of the alleged sub‑letting. If the appellant wanted to eject the respondent on the basis of sub‑letting then the same must have been proved by sufficient and conclusive evidence which, it appears, the appellant has failed to do.

For the aforesaid reasons this appeal was dismissed and the findings of the learned Controller were maintained.

M. Y. H. Appeal dismissed.

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