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First Rent Appeal No.666 of 1982, decided on 19th April, 1987.

---Ss.14 & 21--Ejectment on ground of default in payment of rent--Rent Controller found to have rightly held that there existed relationship of landlord and tenant between respondent and appellant--Default in payment of rent also proved--Case of eviction had been made out and Rent Controller had rightly allowed the rent application of respondent--Order of Rent Controller, held, called for no interference--Appeal dismissed.

1984 C L C 1035; 1984 C L C 1506 and 1982 C L C 1383 cited.

Khalid Humayoon for Appellants.

K.A. Wahab for Respondent.

Date of hearing: 6th April, 1987.

This First Rent Appeal under section 21 of the Sind Rented Premises Ordinance, 1979 arises out of the order, dated 24-5-1982 of XII Senior Civil Judge and Rent Controller, Karachi whereby he allowed the rent application of the respondent and directed the appellant to hand over the vacant possession of the demised premises to the respondent within sixty days.

The facts brief are that on 5-1-1977 Mst. Farida Bano/respondent filed Rent Case No.69 of 1977 against Mst. Halima Bai/appellant on the grounds of default in payment of rent from 1-3-1976 to 31-12-1976 amounting to Rs.4,000 and personal bona fide requirement. The disputed premises situate at 13-C Muhammad Ali Memorial Cooperative Housing Society, Commercial Area, Karachi.

During pendency of rent case on behalf of Mst. Halima Bai an application under Order 32 Rule 15 C.P.C. was filed claiming that Mst. Halima is insane. This application was allowed and her son Umer Farooq was appointed as guardian ad litem. On the same day i.e. 29-10-1977 appellant No.2 Umer son of Hashim also moved an application under Order 1 Rule 10 C.P.C. in which he stated that he is the real tenant and as such he may be impleaded as party. His application was also allowed. The rent case proceeded and finally the order as stated above was passed.

Before the Rent Controller Abdul Hameed attorney of respondent Mst. Farida Bano and one Muhammad Ameen were examined while from appellants' side Umer son of Hashim and Farooq gave their evidence.

I have heard Mr. Khalid Humayoon for appellant and Mr. K.A. Wahab for the respondent respectively.

Mr. Khalid Humayoon argued that demised premises were taken by the appellant No.2 Umer from Abdul Karim, father of Mst. Farida Bano on tenancy and rate of rent was Rs.200 per month which ha was paying' regularly. It is argued that Mst. Halima Bai was mentally deranged and had never entered into the agreement of tenancy with the respondent and whatever is stated in the rent application about the relationship of Mst. Halima Bai, and respondent is not correct.

Mr. K. A. Wahab argued that there exists relationship between Mst. Farida Bano landlady and Mst. Halima Bai in view of declaration (agreement) executed by Mst. Halima Bai duly attested by the two witnesses Ex.A-3. It is argued that father of Mst. Farida Bano never entered into the agreement of tenancy with Umer and no documentary evidence has been produced in this respect. He has referred to the cases reported in 1984 C L C page 1035, 1984 C L C 1506 and 1982 C L C 1383.

Umer son of Hashim, intervenor is husband of Mst. Halima Bai. He claims to be the tenant. He was not a party in the rent case instituted by the appellant but subsequently his application under Order 1 Rule 10 was allowed. Umer has not produced a single document in respect of tenancy taken from Abdul Karim. It is on the record that Abdul Karim, father of landlady Mst. Farida Bano is dead and that landlady has denied to have empowered her father to enter into an agreement with Umer. Appellant No.2 Umer has failed to produce any evidence in this respect, therefore, without any hesitation I hold that Umer is not a tenant of the premises but, as rightly observed by the learned Rent Controller, his wife Mst. Halima Bai was the tenant. Respondent in support has produced documentary evidence i.e. Receipt Book Ex.A-4 showing that rent receipts were being issued by the attorney of the respondent in the name of Mst. Halima Bai. Respondent has also examined one Abdul Hameed, her attorney and brother who produced the receipts and Book and stated that Mst. Halima Bai was a tenant and he used to collect the rent and issue rent receipt. Attesting witness of the Declaration Muhammad Ameen has deposed that the declaration Ex.A-3 was signed in his presence and presence of Ghaffar, Fatah and attesting witness Ismail. The evidence adduced by the appellants consists of Farooq son of Mst. Halima Bai and his father. Rent Controller in his order has rightly stated that no document was produced that at the time of declaration executed by Mst. Halima Bai she was insane. The plea taken by appellant Umer is afterthought.

Appellant No.2, Umer in his written statement stated that he paid Rs.2,400 as security to Abdul Karim but no receipt or any attesting witness has been produced. Respondent has admitted the fixed deposit but disputed the declaration signed by Mst. Halima Bai. The default is claimed for 10 months @ Rs.400 per month amounting to Rs.4,000. Umer has also stated in his written statement that he is prepared to take special oath. When he was examined he on special oath deposed as under:-

"I can take special oath that I have deposited Rs. 2, 400 with the applicant. I cannot take oath on quantum of rent.

The rate of rent as alleged is Rs.400. The case of Appellant No.2 is that rate is Rs.200 but he refused to take oath as such there is no reason to disbelieve the respondent about the rate of rent to be Rs.400. Though Umer, as stated above, is not tenant but for a movement if case is considered, lie according to his own contention is defaulter as he sent Money Order @ Rs.200 per month. Although it is not proved if he sent M.O. as no original receipt of M.O. or other document were produced except photo copy of acknowledgement which cannot be treated as the evidence.

For the reasons stated above, I am of the view that the Rent Controller has rightly held that there exists relationship of landlord and tenant between Mst. Halima Bai and Mst. Farida Bano. Mst. Halima Bai has totally denied to have paid the rent or the advance. It is a matter of record -that there is default which has been proved. The case for eviction has been made out and the Rent Controller has rightly allowed the rent application of Mst. Farida Bano. The order of the Rent Controller calls for no interference as such appeal is dismissed with no order as to costs.

S.Q./H-13/K Appeal allowed.

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