Find a Lawyer

First Rent Appeal No. 821 of 1980, decided on 3rd August, 1987.

‑‑‑ Ss. 15 & 16‑‑Landlord filing application for ejectment against S‑‑S denying his status as tenant and claiming that a private limited Company E (of which he was the Managing Director) was the tenant and as such no relationship of landlord and tenant existed‑ ‑Landlord thereafter filing another application for ejectment making therein both E & S respondents‑‑Rent Controller hearing both applications simultaneously and arriving at finding on preliminary issue that relationship of landlord and tenant existed between applicant and S‑‑Order for deposit of arrears of rent and future monthly rent passed and finally defence struck off under S. 16(2) in both applications for non‑compliance of order under S.16‑‑Appeal by Company E against such order‑‑Held, there was no evidence on record that any tenancy agreement existed between E and the applicant /landlord; mere fact that payment of rent was made under payment vouchers of company (whose Managing Director was S did not furnish evidence of attornment in favour of E‑‑S being the tenant, defence, held, was rightly struck off.

N. A. Farooqui for Appellant.

Talmeez Burney for Respondent No. 1.

Nemo for Respondent No.2.

Dates of hearing: 7th, 23th April; l1th, 12th, l3thq 17th, 18th, 19th and 20th May, 1987.

This appeal under section 21 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) is directed against an order dated 29‑9‑1980 passed under section 16 (2) of the Ordinance by the learned IIIrd Rent Controller, Karachi in Rent Case No.411/70. The facts in the background are briefly stated below:

2. Respondent No.1, Ghulam Moinuddin, filed the Rent Case No.411/70, on 10‑2‑1970, against the respondent No.2. Sheikh Mohammad Saeed, for his ejectment from a double‑storeyed building on Plot No.12‑D A.M at the corner of Strechen Road and Qazi Khuda Bux Road, Karachi on various grounds. He stated that he was landlord of the said building and the respondent Mohammad Saeed was occupying the entire building as the tenant at the rent of Rs.500 per month exclusive of taxes. He alleged that the respondent Mohammad Saeed had made default in payment of Rent from 1‑2‑1966. He also alleged that the building was let out for residential purpose but it was unauthorisedly converted to commercial use and its value and utility had been impaired by making unauthorised alterations and additions. The respondent Mohammad Saeed resisted the rent case. At the outset, he denied that he was the tenant and advanced the plea that the building was let out to M/s. Eastern Publication Limited and he was their Managing Director. He denied allegations of default in payment of rent as well as other allegations. The learned Controller undertook determination of preliminary issue of relationship of landlord and tenant between the parties. The parties adduced evidence. The issue was decided in favour of the respondent Ghulam Moinuddin that the respondent Mohammad Saeed was his tenant in the building. This order was passed on 17‑11‑1979. Thereafter, an order under section 16 (1) of the Ordinance was passed on 4‑5‑1980, whereby it was directed that the tenant respondent Mohammad Saeed should deposit arrears of rent upto April, 1980, amounting to Rs.43,230.38 before 15th of July, 1980 and also continue depositing future monthly rent on or before 10th of each succeeding month. This order was not complied with. The learned Controller passed an order under sectiron 16 (2) of the Ordinance, on 9‑2‑1980, whereby defence of the respondent Mohammad Saeed was struck off and he was directed to hand over vacant possession of the rented premises to the applicant respondent Ghulam Moinuddin within one month. The respondent Mohammad Saeed did not challenge the aforesaid orders. The appellant herein, namely, M/s. Eastern Publication Limited, preferred this appeal to challenge the ejectment order dated 2‑9‑1980 and also the previous orders dated 17‑11‑1979 and 4‑5‑1980.

3. It may be mentioned that during the pendency of the aforesaid Rent Case No.411/70, the respondent Ghulam Moinuddin filed another Rent Case No.2884/71, on 1‑12‑1979 in respect of the same rented premises against the same respondent Saeed Qureshi and also the appellants herein on almost the same grounds of default in payment of rent and mischief with the property. In that case too preliminary issue of relationship of tenant and landlord was considered and the decision arrived at in the Rent Case No.411/70 that there existed relationship of tenant and landlord between the respondents Ghulam Moinuddin and Mohammad Saeed was adopted by the order passed on the same day viz. 17‑11‑1979.

4. The impugned order of ejectment dated 2‑9‑1980 has been passed in the Rent Case No.411/70 filed against the respondent Mohammad Saeed. He has not challenged it. The appeal has been preferred by the third party, the Eastern Publication Limited, who are opponents in the second Rent Case No.2884/70. The impugned order has not been passed on merits but it has been passed under section 16 (2) of the Ordinance on the b9sis of non‑compliance of the tentative rent order passed on 4‑5‑1980, which was passed on the basis of the earlier order dated 17‑11‑1979 whereby the question of relationship of landlord and tenant between the parties was determined. Accordingly, all the three orders have been assailed in this appeal, although the opening paragraph of the memo of appeal recites that the appeal was directed against the order dated 2‑9‑1980. In any case, the impugned order of ejectment is founded upon the order dated 17‑11‑1979, whereby the preliminary issue of relationship of landlord and tenant between the parties was determined.

5. The learned counsel for the appellants has mentioned certain events in the background of the creation of the tenancy over the rented premises. According to him, the plot whereon the building stands constructed was allotted to Haji Ghiasuddin in 162 and construction of the building was entrusted to the respondent Mohammad saeed, as Manager of the appellant‑company, in 1966 and it was stipulated that in case the cost of the construction was not paid to him within stipulated period, he i.e. Mohammad Saeed would be co‑owner and if full amount were paid, he would retain possession of the building as a tenant at the rent of Rs.500 per month. He has stated that the tenancy stood established between the respondent Ghulam Moinuddin and the appellants from 1‑2‑1966 and the respondent Mohammad Saeed held the position of Managing Director of the appellant‑company. He has further stated that rent was paid upto date by means of debit vouchers issued by the appellant‑company. He has contended that the respondent Mohammad Saeed emphatically denied that he was the tenant in his individual capacity but his stand was that he was associated in the tenancy as the Managing Director of the appellant ‑company and that fact is borne out from the fact that the respondent Ghulam Moinuddin filed another Rent Case No.2884/71 against both‑, the appellants and the respondent Mohammad Saeed. He has therefore urged that the very order of the Controller dated 17‑11‑1979 was not sustainable and consequently the order of ejectment passed against the respondent Mohammad Saeed on the ground of non‑payment of the arrears of rent and further rent against him alone is not sustainable. According to him, any order that was required to be passed could have been passed only in the second case which was proceeding simultaneously. As regards who was or is the tenant, he has made reference to the photostat copies of two receipts Exs.12 & 13 and the evidence of a witness Shamim Ahmed that cheques for payment of rent to the respondent Ghulam Moinuddin. were issued by the appellant‑company; and the evidence of Syed Aftab Ali that taxes of the building were paid by the appellant‑company and tax demand notices were issued to the appellant‑company. He has also made reference to the evidence of the respondent Mohammad Saeed and another witness Mohammad Ahsan to the creation of tenancy between the appellant‑company and the respondent Ghulam Moinuddin. He has also made reference to the vouchers of the appellants‑company where‑under the rent and the taxes were paid for the rented premises.

6. The learned counsel for the respondent Ghulam Moinuddin has urged that the tenancy was established between the respondent Ghulam Moinuddin and the respondent Mohammad Saeed when the appellant company was not in existence. He has made reference to notice dated 22‑8‑1969 wherein the respondent Mohammad Saeed had styled himself as the tenant. He has also made reference to the rent receipts dated 17‑8‑1968, 20‑10‑1968, 15‑4‑1968, 12‑2‑1968, 24‑11‑1967 and 30‑9‑1967 filed in the second Rent case showing that the rent was paid by the appellant company against the account of the respondent Mohammad Saeed. He has next urged that the respondent Mohammad Saeed has adopted different stand in the two rent cases as would be evidence from the written statement filed by him in the two cases. He has submitted that the order dated 17‑11‑1979 correctly decided that there existed relationship of landlord and tenant between the respondent Ghulam Moinuddin and the respondent Mohammad Saeed. He has contended that the issue of relationship of tenant and landlord was determined in both the rent cases on 17‑11‑1979 but the appellants, who were a party to the second Rent Case No.2884/71, did not challenge it in appeal and the appeal is time‑barred. He has relied upon the cases reported in 1980 S C M R 41 and 1985 SCMR 1991. He has also contended that the respondent Mohammad Saeed has not filed appeal against the orders which stand against him.

7. The main ground for decision of the appeal is as to who is the tenant in the rented premises, the appellants or the respondent Mohammad Saeed. The first Rent Case No.411/70 was filed against the respondent Mohammad Saeed as the tenant in the building. He denied the tenancy with him and advanced the plea that the tenancy was between the respondent Ghulam Moinuddin and the appellants company. The respondent Ghulam Moinuddin was therefore obliged to file another Rent Case No.4884 of 1971 against both Mohammad Saeed respondent and the appellant. Proceedings in both the cases were going on simultaneously when order dated 17‑11‑1979 was passed in both the cases that the relationship pf tenant and landlord was between the respondent Ghulam Moinuddin and the respondent Mohammad Saeed. Further proceedings were taken in the Rent Case No.411170 and the tentative rent order was passed therein on 4‑5‑1980 and the final order of ejectment of striking of the defence was passed on 2‑9‑1980. None of these orders has been called in question by the respondent Mohammad Saeed. The order dated 17‑11‑1979 held that the appellants were not the tenants but the appellants did not challenge that order and it appears that they simply watched the proceedings in Rent Case No.411/70. It is the case of the respondent Mohammad Saeed that he had constructed the building and he came in occupation thereof on the basis of the agreement made with the landlord for the construction of the building. There is nothing in writing. He has given somersault by taking the stand that the tenancy was with the appellants and he was associated in. the matter only as the Managing Director of the Company. It is th"e respondent Mohammad Saeed's case that the tenancy was established in the year 1966. The learned counsel for the appellants has stated that the appellants company was incorporated in the year 1967 and he has made pointation of certificate of incorporation of appellants company filed in Rent Case No.2884/71 at page 160 and it shows that the company was incorporated on 8‑4‑1967. It is stated that there was written agreement between the respondent Ghulam Moinuddin landlord and the respondent Mohammad Saeed but that agreement has not been filed and it is said to have been lost and that fact was given publication in the newspaper. Be that as it may, the fact is that the respondent Mohammad Saeed was associated in construction of the building and he came in occupation thereof as a tenant on the basis of agreement between the parties for raising construction and the appellants company went in picture later. There is no evidence that the respondent Ghulam Moinuddin had made any tenancy agreement with the appellants company or had ever treated them as the tenants., The appellants company seem to have been inducted in the premises by the respondent Mohammad Saeed, who was occupying the position of Managing Director of the company and had the advantage of being in occupation of the building. Some of the vouchers tending to show payment of rent show that the rent was paid against account of the respondent Mohammad Saeed. Since the respondent Mohammad Saeed was Managing Director of the appellant company, the payment of rent under the payment vouchers of the appellant company do not furnish the evidence that the relationship of landlord and tenant was between the respondent Ghulam Moinuddin and the appellant company. The payment of taxes for the building by the appellant company or the tax demand notices issued to the company do not necessarily bear out that there existed relationship of landlord and tenant with the appellant company Evidently the order of the learned Controller dated 7‑11‑1979 that the respondent Mohammad Saeed was the tenant in the rented premises and not the appellant company is not assailable. The order dated 4‑5‑1980 for deposit of arrears of rent and payment of future rent was in accordance with the provisions of section 16 (1) of the Ordinance. Consequent to non‑compliance of that order, the impugned order dated 2‑9‑1980 striking of the defence of the respondent Mohammad Saeed and order of his eviction from the aforesaid building was the appropriate order in accordance with the provisions of section 16 (2) of the Ordinance and is not liable to be disturbed.

For the reasons stated above, the appeal is dismissed with costs. The respondent Mohammad Saeed, who has not contested the appeal, and the appellants who came in occupation of the premises through him, shall hand over vacant possession of the entire building to the respondent Ghulam Moinuddin within three months.

K.B.A./E‑6/K Appeal dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.