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Constitutional Petition No. S-31 of 1985, decided on 27th December, 1986.

---S.15--Default in payment of rent--Landlord contending that tenant committed default in payment of rent prior to filing of application but failing to specify months for which rent had not been paid- Determination of rent also not made with regard to period of default- Landlord making statement before Rent Controller that he recognised respondent as his tenant after passing of order by Rent Controller in a rent case filed in 1979 but at same time claimed rent since a date in 1977--Held, when no relationship of landlord and tenant existed between parties there would arise no question of any default--Order of Rent Controller, dismissing ejectment application filed on ground of default, maintained.

Khalilur Rehman for Petitioner.

Habibullah Samo for Respondents.

Dates of hearing: 20th and 23rd November, 1986.

This petition calls in question the order passed by the learned District Judge, Karachi, dated 5-3-1985,, allowing the appeal filed by the respondent No.3 and setting aside the order passed by the learned Additional Rent Controller, Cantonment, dated 30-4-1982.

2. The facts of the case, briefly, are that the petitioner is the landlord of bungalow constructed on plot No.268/R. A. Lines, Ingle Road, Karachi: The possession of the ground floor of this bungalow was handed over to the respondent No.3 in December, 1972. On 3^rd February, 1977, the respondent No.3 filed Misc. Rent Application before the learned Additional Rent Controller, Cantonment for permission to deposit rent in the Court, inter alia contending, that the petitioner had been regularly receiving monthly rent from the respondent in respect of ,the premises, but he had failed to issue receipts in respect of the same. Consequently, the respondent No.3 was permitted by the learned Controller to deposit rent in the Court and the same was thereafter deposited by him at the rate of Rs.250 per month. Subsequently on 14-3-1977 the respondent No.3 filed a case (No.22 of 1977) under section 11 of the Rented Premises Ordinance, 1979 for restoration of certain amenities appertaining to the premises which according to him had been discontinued by the petitioner. The petitioner defended the case and one of the pleas raised by him was that the respondent No.3 was not his tenant but was only his licensee. However, the learned Additional Controller by her order, dated 3-5-1977, decided that there was a relationship of landlord and tenant existing between the parties and the application filed by the respondent was allowed. On the same date i.e. 3-5-1979 the respondent filed an application (Ex.37 of 1979) before the learned Additional Rent Controller for eviction of the respondent No.3 on the ground of his committing wilful default in making payment of rent. The prayer made by the petitioner in his own words, in para 7 of his application was as follows:

"7. The opponent has committed a wilful and deliberate default in not making payment of rent to the applicant prior to the making of Misc. Application No.14 of 1977 and was only sending sporadic M.O. to create evidence in his favour. The opponent even after making the said application in Court and obtaining orders thereon to deposit rent in Court; has committed wilful default." '

The respondent No.3 filed written statement wherein the above averments of the petitioner were denied in the following terms:

"7. That the contents of pare 7 of the application are denied being false. The opponent had applied to this Hon'ble Court for depositing the rent while the applicant had refused to receive the same and thereafter the adjustment of rent was made. "

Issues were then framed by the learned Additional Controller and after recording evidence the learned Controller directed the respondent No-3 to hand over vacant possession of the premises in question by 30-4-1982 vide order dated 10-2-1982. The respondent No.3 then filed appeal which was heard by the learned District Judge, Karachi who by the impugned order dated 5-3-1985, allowed, the appeal and set aside the order passed by the learned Controller.'

3. According to the learned District Judge, the allegations made by the Petitioner in respect of default were vague and the evidence recorded by the learned Controller showed that the respondent was all along willing to pay rent but the petitioner had been making uncalled for claims against him. The learned District Judge was, therefore, of the opinion that discretion, under the circumstances, should have been exercised in favour of the respondent.

4. I have heard Mr. Khalilur Rehman, learned counsel for the Petitioner and Mr. Habibullah Samo, learned Counsel for the respondent No.3. None has appeared on behalf of the respondents No.1 and 2 in the Case.

5. It may be pointed out at the very outset that the petitioner application, although, had failed to make specific allegations in respect of the default, but the contention of Mr. Khalilur Rehman was that after filing of the Misc. Rent Application (No.14 of 1977) the respondent No.3 had clearly committed default in respect of the period, from May, 1977 to September, 1977 as instead of depositing rent at the rate of Rs.250/- per month, the same was deposited by the respondent at the rate of Rs.130/- per month. The contention of Mr.Habibullah Samo, on the other hand, was that the petitioner as per his own admission had failed to acknowledge the respondent as his tenant until passing of the order, dated 3-5-1977 by the learned Controller, therefore, he was estopped from alleging default in respect of the period prior to that date. In any case, according to the learned counsel, the evidence recorded by the learned Controller showed that the respondent was throughout ready and willing to pay rent to the petitioner which the latter had avoided to accept from the respondent.

6. In his statement before the learned Controller the petitioner stated that there was no tenancy agreement between the parties. He also stated in the beginning the respondent had been allowed to occupy the premises temporarily, but after about six months he started claiming tenancy rights. He further admitted that it was only after the learned Rent Controller had held vide his order dated 3-5-1979 that relationship of the landlord and the tenant existed between the parties that the appellant started recognising the respondent as his tenant.

7. Turning to the contentions raised by Mr.Khalilur Rehman, the same appear to be without merit. Although in the eviction application the petitioner has alleged that the respondent had committed default by not paying him rent prior to the filing of Rent Application No.14 of 1977 but he failed to specify the months for which rent had not been tendered by the respondent as required under the law. However, Mr. Khalilur Rehman has argued that the statement of account in case No.14 of 1977, filed as Annexure 'B' to this petition, clearly indicates that default in making payment had been committed by the respondent. This statement of account shows that rent deposited against the months of May, July and September, 1977 was Rs.130 for each month. However, the argument does not appear to carry much force as even if assuming that the rent had been deposited short, as contended by Mr. Khalilur Rehman, the statement of account still could not be used as a weapon of attack against the respondent without first determining the amount of rent in respect of which the tenant is said to have committed default. Further, as pointed out earlier, since the petitioner in his statement before the learned Controller had stated that he had recognised the respondent as his tenant after passing of the order, by the learned Controller in Rent Case No.22 of 1977 dated 3-5-1979, 3 there was no relationship of landlord and tenant between the parties until passing of such order. Under such circumstances, the argument of Mr. Khalilur Rehman that the respondent committed default in making payment in 1977 is completely without force. If no relationship of landlord and tenant existed between the parties, then how can they be governed by the provisions of the Rent Ordinance. The contention is therefore, repelled.

8. For the aforesaid reasons, this petition was dismissed by the short order, dated 23-11-1986. The parties are left to bear their own costs.

M.Y . H . / K-34/ K Petition dismissed.

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