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First Rent Appeal No.171 of 1985, decided on 25th May, 1987.

---Ss.15 & 21--Evidence Act (I of 1872), Ss.45 & 73--Ejectment on ground of subletting and default--Tenant in compliance with tentative rent order passed in previous rent case deposited rent up to September, 1972--Such previous rent case having been dismissed in default, landlord not filing any application either for striking off tenant's defence for non-compliance of tentative rent order or for restoration of rent case--Alleged sub-tenant on the other hand, producing rent receipts written by landlord's father covering period from 1-10-1972 to 31-3-1975--Landlord not filing present rent case during lifetime of his father who apparently, had been managing the suit premises--Rent Controller dismissing application under S.45, Evidence Act for examining handwriting expert and on basis of his own comparison of admitted signature of landlord's father with signatures on rent receipts coming to conclusion that receipts were in fact issued by landlord's father--Landlord could not, therefore, urge that his father was not competent, to issue the rent receipts- Contention that after having dismissed application under S.45, Evidence Act, Rent Controller was not competent to record any finding on question of signature on rent receipts, held, was devoid of force as Rent Controller was competent in terms of S.73, Evidence Act to compare admitted signatures with disputed signatures and to record his findings--Findings of Rent Controller that sub-tenant was the tenant and that tenant had not sublet the tenement to sub-tenant maintained.

A. Rauf Khan for Appellant.

Zafar Alam Khan for Respondent No.2.

Dates of hearing: 24th and 25th May, 1987.

This appeal is directed against an order 12-2-1985 passed by the learned Senior Civil Judge and Rent Controller, Karachi in Rent Case No.387 of 1975 dismissing the appellant's application for ejectment which was filed on two grounds namely, subletting and default. The default alleged was for the period commencing from 1-1-1974 to 31-3-1975. The appellant being aggrieved by the above order has filed the present appeal.

2. The brief facts leading to the filing of the above appeal are that the appellant was transferred premises 'bearing No. G-7 and G-7/A, W.0.3/24 II-C-85 by the Settlement Department which is- used as godown. It appears that the appellant had filed Rent Case No.563/1972, hereinafter referred to as the first case, against present respondent No.1 on the ground of default. In the above case the learned Rent Controller passed tentative rent order on 27-7-1972. The respondent No.1 deposited the rent upto September 1972, after that no rent was deposited. The case was dismissed in default on 11-1-1974. It appears that no application for the restoration of the above case was filed. However, the appellant filed the present rent case on 7-2-1975. The respondent No.1 remained ex parte. The case was resisted by respondent No.2. The learned Rent Controller on the basis of the pleadings of the parties framed the following three issues:-

"(1) Whether the opponent No.2 is sub-tenant of opponent No.1

(2) Whether the opponents are wilful defaulter in payment of rent

(3) What should the order be

In support of the application the appellant examined himself, whereas respondent No.2 examined his attorney Mohomed Sadiq, his real brother and one Mr. Khawaja, who was summoned to produce the record of the aforesaid rent case No.563/1972. The learned Rent Controller after hearing the parties dismissed the above application on both the grounds. The appellant being aggrieved by the above order has filed the present appeal.

3. In support of the above appeal Mr.Abdul Rauf Khan, learned counsel for the appellant has urged as follows:

(1) That admittedly the appellant was the landlord of the suit premises and, therefore, in the absence of any power of attorney even the appellant's father was not competent to create any tenancy in favour of respondent No.2.

(2) That respondent No.1 was in fact in occupation of the premises as is indicated from the record of the first case inasmuch as he had put in appearance and had deposited rent in pursuance of tentative rent order, nothing has been brought on record to indicate as to when respondent No.1 surrendered the tenancy to the appellant and as to when the new tenancy was created in favour of respondent No.2.

(3) That respondent No.2 has not participated in the rent case personally but has appeared through his attorney.

On the other hand Mr. Zafar Alam learned counsel for respondent No.2 has submitted as follows:-

(1) That the facts of the first case indicate that respondent No.1 has surrendered tenancy and the same was created in fhyour of respondent No.2.

(2) That during the life time of appellant's father, the appellant had never objected to his authority to manage the suit property and that appellant's father was competent to issue rent receipts in favour of respondent No.2.

4. From the facts on record, it appears that in the first rent case tentative rent order was passed on 27-7-1972. Respondent No.1 deposited rent upto September 1972. After that the above first case was dismissed in default on 11-1-1974. The appellant did not file any application either for striking off respondent No.1's defence for non compliance of the tentative rent order, nor filed an application for the restoration of the aforesaid rent case. On the other hand respondent No.1 has produced rent receipts, written by the appellant's father, namely, Exs.l/2 to 1/6 which cover the period from 1-10-1972 to 31-3-1975 at the rate of Rs.55 and not Rs.30 as mentioned in the rent case. If the above rent receipts are to be read with in context with the above facts, namely that respondent No.1 deposited rent upto September, 1972 and thereafter there was no deposit and no application filed by the appellant for striking off defence and factually the first rent case was dismissed in default, and no application or restoration of the first case was filed, the above rent receipts stand corroborated. However, it was vehemently urged by Mr.Abdul Rauf Khan that an agent cannot act beyond his authority and even if it is to be considered that the appellant's father was an agent, respondent No.2 has not shown that he had the authority either to create the tenancy or to issue the rent receipts. In this behalf, it may be pointed out that during the life time of the appellant's father the appellant did not file the present case. He expired on 20-1-1975 as per death certificate on record. The appellant's father was a practising. Advocate. It appears that he was managing the suit premises.

It was then contended that even the signatures on these receipts are not proved as no handwriting expert was examined. It seems that 'respondent No.2 filed an application under section 45 of the Evidence Act for examining handwriting expert , but the above application was declined by the learned Rent Controller. The learned Rent Controller on the basis of comparison between the admitted signature of the appellant's father which are contained in the first case's record in the form of Vakalatnama and signatures on various applications and the signatures on the above rent receipts has concluded that the receipts were in fact issued by the appellant's B fahter. I have also compared the admitted signatures with the signatures on the above rent receipts Exs.1/2 to 1/6. I am also inclined to take the view that these receipts contain the signatures of the appellant's father which are on record of the first rent case. In my view because of the relationship between the appellant and his father and the facts referred to hereinabove, it is not open to the appellant to urge that his father was not competent to issue the rent receipts.

It was also contended by Mr. Abdul Rauf Khan that the Rent Controller after having dismissed the application a/s 45 was not competent to record any finding on the question of signatures on above rent receipts Exs.1/2 to 1/6 as it amounts to reviewing of his previous order. This contention seems to be devoid of any force. The Rent Controller after having dismissed the above application under section 45 of the Evidence Act was competent in terms of Section 73 of the Evidence Act to compare the admitted signatures with the disputed signatures and to record his finding.

5. The factum that respondent No.2 has not appeared in person in the rent proceedings but was represented by his brother and the attorney, in my view would not make any difference as to the defence taken by him. Once the above rent receipts are accepted as genuine, it must follow that respondent No.2 was the tenant and not respondent No.1 and these receipts could have been produced through attorney.

6. Since I have concurred with the finding of the learned Rent Controller on the question that respondent No.2 is the tenant, the other issue that respondent No.1 had sublet the tenement to respondent No.2, does not arise.

The Appeal has, therefore, no merits. It is therefore dismissed but there will be no order as to costs.

S.Q./M-256/K Appeal dismissed.

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