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First Rent Appeal No.1050 of 1982, decided on 1st December,1986.

‑‑‑Ss. 15 & 21‑‑Ejectment‑‑Default in payment of rent‑‑Tenant proceeding abroad leaving behind a third person to look after his business and demised premises‑‑Rent tendered by said person refused by landlord who treated him as a sub‑tenant‑‑Rent was then tendered by money order which was also refused by landlord and ultimately rent was deposited in Court‑‑Default, held, only technical in nature and was not wilful in circumstances.

‑‑‑S. 15(2)(ii)‑‑Ejectment‑‑Subletting‑‑Tenant leaving Pakistan after handing over possession of demised premises to some other person without consent of landlord‑‑Such other person defending case on behalf of tenant and claiming to be lawfully constituted‑‑Attorney of tenant Photo‑copy of Attorney produced not attested and its authenticity not established‑‑Circumstances of case clearly raising a strong presumption that premises in question had been sublet by original tenant‑‑Ejectment application allowed on ground of subletting.

Ghulam and another v. Haji Muhammad Jamil 1982 C L C 1042 rel.

.

‑‑‑S.15‑‑Subletting‑‑Mere handing over possession by tenant to another person without consent of landlord, held, was sufficient to make tenant d liable for eviction by landlord.

Maroof Ali Khan for Appellant. K. B. Bhutto for Respondents.

Date of hearing: 28th October, 1986.

This appeal is directed against the order passed by the learned XVIth Rent Controller, Karachi, dated 27‑9‑1982.

2. The appellant is the landlord of a building situated on Shidi Village Road, Karachi, wherein the respondent No.l is his tenant at a monthly rent of Rs.40 in respect of a room on the ground floor. On 21‑1‑1981 the appellant filed an ejectment application against the respondent alleging that the respondent had failed to pay or tender rent to the appellant from October, 1979 to December, 1980 and that the respondent No.l had sublet the premises to the respondent No.2 without the consent of the appellant. Both these grounds failed to find favour with the learned Controller who dismissed the application by the impugned order, and hence the present appeal.

3. As to the first ground, the admitted position is that the respondent No.l had proceeded to India leaving behind respondent No.2 to look after his business as well as the demised premises. The appellant refused to accept rent for the demised premises from the respondent No.2 from October, 1979, with the result that rent was remitted to him by money order on 23‑1‑1980 but the same was also refused by the appellant. Thereafter, the respondent No.2 deposited rent in Court through Miscellaneous Rent Application filed by him on 19‑2‑1980 and thereafter, he continued to deposit rent in the Court. It has been conceded by Mr. K.B. Bhutto, learned counsel for the respondent, that rent was tendered by money order after a lapse of twenty‑three days because if statutory period of sixty days allowed by the law, is allowed to the respondent, rent for the month of October, was payable on 31st December, 1979. As regards deposit of rent in the Court, the contention of Mr.K.B.Bhutto was that, no doubt, default had been committed by the respondent in respect of payment of rent for the months of October and November, 1979, but according to the learned counsel, this default could be condoned as the same was not wilful considering the circumstances of the case. It has not been disputed that after the expiry of the written tenancy agreement between the parties, there was no other agreement executed between the parties and the respondent No.l thereafter, became statutory tenant of the appellant and consequently was entitled to the grace period of sixty days as contemplated by section 15(2)(ii) of the Rented Premises Ordinance, 1979. The argument of Mr. Maroof Ali Khan, learned counsel for the respondent, however, was that in any case, default had been committed by the respondent. After taking into account the admitted factual position in the case, I am inclined to agree with Mr. K. B. Bhutto that the default was of a technical nature and the same was not wilful. I, therefore, see no reason to interfere with the findings of the learned Controller on the point.

4. As regards subletting, the contention of Mr. Maroof Ali Khan is that it has been clearly established by evidence that the respondent No.l had handed over the possession of the premises to the respondent No.2 therefore according to section 15(2)(ii) of the Sind Rented Premises Ordinance, 1979, the respondent No.2 was liable to be evicted from the demised premises. In the affidavit filed in evidence by the appellant, he has stated that the respondent No.1 had transferred the possession of the house in question to the respondent No.2. According to him, the respondent No.2 had shown to him a declaration in regard to surrender of tenancy rights, dated 2‑9‑1979 which had been executed by the respondent No.l In favour of the respondent No.2. Although the alleged execution of the declaration has been completely denied by the respondent No.2, but in the cross‑examination it was admitted by him that the respondent No.l had left for India in October, 1979 and thereafter he had failed to return to Pakistan. He further admitted that the possession of the premises in question had been handed over to him by the respondent No.l and he was keeping material of the cabin of the respondent No.l inside the premises. Mr. Maroof Ali Khan, in view of this evidence, has contended that this is a clear admission on the part of the respondent No.2 that possession of the demised premises had been handed over to him by the respondent No.l and, therefore, the respondents are liable to be ejected from the premises, and consequently, the learned Controller fell into error while deciding the issue in favour of the respondent.

5. The contention of Mr. Maroof Ali Khan does not appear to be without force. The handing over of possession of the premises in question by the respondent No.1 to the respondent No.2 has, no doubt, been admitted by the latter. It has also been admitted that the respondent No.l left Pakistan in 1979 and since then, has not returned, so much so that even the case was defended by respondent No.2 on his behalf. Although the respondent No.2 has claimed to be lawfully constituted attorney of the respondent No. 1, but the photo copy of the power of attorney produced by him is not even attested and its authenticity has not been established. Without going into the question, whether this power of attorney was valid or whether the written statement could be signed by the respondent No.2 on behalf of the respondent No.l, the circumstances indicated above clearly raise a very strong presumption that the premises in question had been sublet by the respondent No.l to the respondent No.2. It, therefore, required proper rebuttal from the respondents. In Ghulam and another v. Haji Muhammad Jamil 1982 C L C 1042, it was held by Ajmal Mian, J. (as he then was) that once the tenant admits possession of somebody else in the tenement, burden of proof then lies upon him to explain in what capacity the other person is occupying the tenement. It was further held that under such circumstances the Rent Controller could be justified in concluding that subletting had been proved. In the instant case, the respondent No.l who is the main tenant has failed to appear and explain the position of respondent No.2 vis‑a‑vis the demised premises, the before, under such circumstances, presumption can be drawn against him which goes unrebutted and the respondents have clearly incurred liability to be ejected from the premise. It may be further pointed out that in the Ordinance, of 1979, the language used by the Legislature in section 15(2)(ii) is different than that used in section 13(2)(ii)(a) of the Sind Urban Rent Restriction Ordinance, 1959 as in the latter statute, the tenant could make himself liable for ejectment from the demised premises if without the written consent of the landlord he had transferred his rights under the lease or sublet the demises premises or any portion thereof, but according to the Ordinance of 1979, the tenant who hands over the possession of the premises to some other person, without the written consent of the landlord would make himself liable for eviction. It may thus, be noted that under the new law, mere handing over of possession by the tenant to another person without the consent of the landlord is sufficient to make him liable for eviction by the landlord. However, entering into this controversy would be futile because whatever be the case, subletting of the premises by the respondent No.l to the respondent No.2 has been sufficiently established. I, therefore, have no hesitation in reversing the findings of the learned Controller on this issue.

6. As a result, I allow this appeal and set aside the impugned order and direct that the respondents shall put the appellant in possession of the demised premises within three months from the date of this judgment. In case the respondent fail to vacate the premises as aforesaid, the execution shall follow without any further notice to them. The parties are left to bear their own costs of this appeal.

M. Y. H. /5178/K Appeal allowed

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