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First Rent Appeal No.532 of 1984, decided on 1st April,1987.

‑‑‑S. 15(2)(ii)‑‑Eviction of tenant‑‑Wilful default‑‑Proof‑‑Where tenant by producing rent receipts of disputed premises undisputedly proved that landlord himself was adopting practice of receiving rent of premises in lump sum after lapse of six or ten months, failure of tenant to pay disputed rent in accordance with requirements of S. 15(2)(ii), held, would not make him wilful defaulter and in light of conduct of landlord, Rent Controller could not be said to have improperly exercised his discretion while disallowing his ejectment application on ground of alleged default in payment of rent.

1986 S C M R 1857 ref.

‑‑‑Ss. 2(f) & 15 (2)(ii)‑‑Eviction of tenant‑‑Tendering rent to owner of premises instead of landlord‑-Validity of‑‑Owner of premises having also been included in definition of landlord under S. 2(f), tendering of rent by money order in name of co‑owner of premises or depositing same in his name, held, could not be considered not to be in the name of landlord.

‑‑‑S . 15 (2)(ii)(a)‑‑Eviction of tenant‑‑Subletting‑‑Proof Premises undisputedly taken on rent in name of minor son by his father who being Doctor, was running his clinic in premises from very beginning, held, could not be said to have been sublet by tenant to his father‑ here fact that tenant had executed power of attorney in favour of his father authorising him to grant general power of attorney to any other person to do certain acts on his behalf, held further, could not be said to an act of subletting of clinic while father of minor tenant had not executed any such power of attorney or transferred tenancy rights to anybody else under that power of attorney.

M.Kamil Shaikh for Appellant.

Hussain Adil Khatri for Respondent.

Date of hearing: 30th March, 1987.

This First Rent Appeal is directed against the order of the learned XVIth Rent Controller, Karachi dated 24‑3‑1984, whereby he rejected the application of eviction filed by the appellant under section 15 of Sind Rented Premises Ordinance, 1979.

I have heard the learned counsel for the parties and also perused the record and proceedings of the case.

The admitted facts of the case appear to be, that the respondent is tenant of the demised premises which bears No. KIA/LY/4/24, Shah Waliullah Road, Memon Society, Karachi, and consists of a shop No.G‑5, on a monthly rent of Rs.75. The appellant claiming as owner of the demised premises, filed eviction application on the ground of non payment of rent since June, 1980, on the ground, that the premises had been sublet by the respondent and on the ground, that he required the premises for bona fide use of his brother Dawood. The eviction application was resisted by the respondent on the ground, that he had obtained the premises on rent from the Contractor of the building and that the rent used to be collected by the Contractor after every six or ten months, as per practice prevailing in the area. It was denied, that the premises were sublet by the respondent, but it was contended that the respondent was a minor and the premises were taken on rent by his father and attorney, who is a doctor and who is running a clinic in the said shop. The bona.fide requirement for Dawood is also denied. On the pleadings of the parties, the learned Rent Controller framed the following Issues.

(1) Whether the respondent has committed any default in payment of the rent to the applicant

(2) Whether the premises in question has been sub‑let

(3) Whether the shop in question is required in good faith by the applicant for the bona fide use and occupation of his brother Dawood

(4) What should the order be

Giving his findings on the Issue Nos.l to 3 in negative, the learned Rent Controller dismissed the application of the appellant.

It is admitted fact, that the rent for June, July, August and September, 1980 was sent by money order dated 27‑10‑1980 in the name of Mst. Hawa Bai, but it was refused and subsequently, the rent has been deposited by the respondent with the Rent Controller in the name of said Mat. Hawa Bai.

It is contended by the learned counsel for the appellant, that the rent for the month of June, became payable on First July and the rent for the month of July was payable on First August, and that under the law the respondent was bound to tender rent within sixty days of its becoming due, but admittedly for the months of June and July, 1980, the rent was tendered by money order after expiry of the sixty days.

It is submitted by the learned counsel for the respondent, that practice in the area was, that the rent used to be collected in temp sum after lapse of six or ten months. In support he has produced three receipts which are Exhs. A‑1, A‑2 and A‑3. Receipt Exh.A‑1 shows that for the rent of the months of June, 1978 to December, 1978 one receipt dated 31‑10‑1979 was issued. For the rent of months from January to October, 1979 also one receipt, Exh.A‑2,dated 31‑10‑1979 was issued. For the rent of months from November, 1979 to May, 1980, one receipt, Exh.A‑3, dated 1‑5‑1980 was issued. This clearly shows, that the rent used to be collected in lump sum after every few months. In fact, the rent has been collected for the period from June, 1978 to May 1980 viz. for a period of two years, on three occasions only, for which three receipts were issued. The learned counsel has relied upon 1986 S C M R 1857, where their Lordships have held as under:

"There is sufficient evidence on the record, that it was the landlord, who had adopted a practice of receiving the arrears of rent in lump sum. The perusal of the details of the receipts covering the period July, 1974 to May, 1978 given in the Judgment of the High Court shows, that on two occasions the landlord received the arrears of rent after eight months, on one occasion after ten months and on four occasions after a period of more than two months without any objection. This practice was in vogue from the very beginning of the tenancy. Though the rent had not been paid by the respondent to the landlord as required under the law but the conduct of the petitioner himself , was such which furnished sufficient justification to the appellate Court to exercise its discretion against him in dismissing his eviction petition."

In view of the circumstances of this case and dictum laid down by their Lordships in the above case, the learned Rent Controller cannot be said to have improperly exercised his discretion while disallowing the ejectment application of the appellant, on the ground of this alleged default in payment of rent.

It is further contended by the learned counsel for the appellant, that the rent tendered by money order is not in the name of the appellant, who is the landlord, but it was in the name of Mst. Hawa Bai, who is not landlady. In the application for eviction, the appellant, in para one, has claimed to be owner of the premises in question. The definition of landlord includes owner. However, admittedly, he is not the sole owner, but is one of the co‑owners of the premises. Mst. Hawa Bai, who is his mother is also co‑owner of the premises. P.W . Dawood, brother of the appellant, has admitted in his cross examination, that his mother is owner of the building. Mst. Haws. Bai, who was also examined by the appellant has also admitted, that the building is hers. As such the tender of rent by money order in the name of Met. Hawa Bai or deposit of rent in her name cannot be considered not to be in the name of landlord. Even the receipts Exhs. A‑1 to A‑3 show, that the building is, named Hawa Mahal.

The contention of the appellant, that he alone is entitled to receive the rent, also does not get support from the record. It is admitted by him in the cross‑examination, that the shop was given to the respondent by the Contractor, who constructed the building, and the rent was also collected by him, who also issued the receipts. Under the circumstances, the conduct of the respondent in non tendering the rent to the appellant within time cannot be said to be a wilful default.

It is contended, that the respondent has sublet the premises to his father, Dr. Mohammad Ramzan. It is admitted by the appellant in cross‑examination, that the respondent was minor, when the premises were let out. Apparently, the premises were taken on rent in the name of minor by his father, Dr. Mohammad Ramzan. The clinic is being run in the shop in the name of respondent but it is being run by his father, who is a doctor. A minor cannot enter into any legal binding contract, but his guardian viz. father, can enter in such contract on his behalf D.W. Dr. Muhammad Ramzan, father and attorney, of respondent, had examined himself. He states, that he had taken the shop on rent in the name of his minor son from the contractor and paid him Rs.30,000 as Pagri in June, 1978, and since then he is in possession of the premises and is running a clinic there since the said date. It is also contended, that his statement, that he took the shop on rent in the name of his son and that he is running and using it as clinic from very beginning has not been challenged in the cross examination. Under these circumstances, the premises cannot be said to have been sublet. The mere fact, that the respondent had executed a power of attorney in favour of his father, authorising him therein, to grant general power of attorney to any other person, and that he ratifies of such acts, deeds and things done by his attorney on his behalf or in his name cannot be said to an act of subletting the said clinic. Admittedly, the attorney of the respondent, Gulzar Ahmed, has not executed any power of attorney or transferred tenancy rights to anybody else under this power of attorney.

Ground. No.3, viz. bona fide requirement of the premises for Dawood, father of the appellant, has been dropped by the learned counsel, as he concedes, that under section 15(2)(vii), the appellant could not have got the premises vacated, for use of his brother. Though it appears, that the appellant is not the only owner of premises, but it is not pleaded in the application, that Dawood is also co‑owner, nor he has been joined in this application as co‑owner.

Considering all the facts and law, discussed above, I find no merit in this appeal, which is dismissed with no orders as to costs.

The appeal was dismissed by a short order dated 30‑3‑1987. The above are the reasons in support of the said order.

H.B.T./U‑6/K Appeal dismissed

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