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First Rent Appeal No. 765 of -1986, decided on 15th April, 1987.

(a) Sind Rented Premises Ordinance (XVII of 1979)

---S. 15 (2)(ii)--Ejectment of tenant on ground of default--Mere undertaking which otherwise was neither registered nor attested, given by landlord in tenancy agreement to tenant to the effect that premised in dispute would be transferred in the name of tenant after expiry of stipulated period, subject to fulfilment of certain conditions on part of tenant, being not valid sale agreement, tenant who in terms of tenancy agreement continued to be tenant, held, was bound to pay rent of premises in terms of tenancy agreement till execution of final sale agreement in accordance with law.

(b) Civil Procedure Code (V of 1908)--

--O. III, R. 2--Recognized agent--Tenant himself relying upon documents signed by husband and attorney of the owner of premises on her behalf, held, could not later on say that person signing such documents was not Attorney of original owner of premises and that his evidence as Attorney was of no value.

1974 SCMR 388 and PLD 1985 SC 341 ref.

(c) Sind Rented Premises Ordinance (XVII of 1979)--

---Ss. 2(F)(J) & 15--Relationship of landlord and tenant--Pendency of civil suit regarding title of property--Effect--Pendency of civil suit for determining title of landlord in respect of property in dispute, held, would not absolve tenant from payment of rent of that premises.

P L D 1982 Kar. 971; 1974 S C M R 356; 1972 S C M R 588; PLD 1964 S C 466; 1983 S C M R 1064;Khawaja Ammar Hussain v. Muhammad Shabbiruddin Khan PLD 1986 Kar. 74 and Mian Muhammad Abdullah v. District Judge, Sahiwal and 6 others PLD 1985 Lah. 467 ref.

S.D. Rana for Appellant. Ghulam AU Khokhar for Respondent. Date of hearing: 15th April, 1987.

The order dated 30-7-1986 of the III Senior Civil Judge/Rent Controller, Karachi (West) has been challenged by tenant Syed Muhammad Alimullah by this First Rent Appeal.

Briefly the case is that landlady Mst. Seema Begum now respondent filed rent application under section 15 of the Sind Rented Premises Ordinance, 1979 on 8-1-1980 against appellant Syed Muhammad Alimullah on the ground of default in payment of rent from June, 1974 to December, 1980. Appellant is stated to be the tenant of Flat No. 19, Seema Estate, 1-K/7, Nazimabad No. 1, Karachi @ 195 per month and according to rent application an amount of Rs.11,000 was paid by the appellant to the respondent as security deposit and rent deed was executed on 21-2-1974.

The appellant in his written statement disputed the relationship of landlord and tenant on the ground that respondent gave an undertaking on the same day when the tenancy agreement was executed i.e. 21-2-1974 whereby the ownership rights were given to the appellant. It is further stated that appellant paid Rs.22,815 being the remaining amount towards the cost to one Shakir Ali, Manager of Seema Estates.

Before the Rent Controller Razi Ahmed, General Attorney and husband of landlady was examined and he produced tenancy agreement Ex. 5, and undertaking Ex. 6. Appellant examined himself and did not produce any other witness in support.

I have heard Mr. S.D. Rana, for the appellant and Mr. Ghulam Ali Khokhar, for the respondent. The contention of Mr. Rana is that appellant is the owner of the flat, therefore, he is not liable to pay the rent. He has based his arguments on the undertaking given by the attorney of the landlady as well as receipt dated 4-2-1974 signed by one Shakir Ali whereby he received Rs.22,815. It is also argued that Razi Ahmed is not attorney of landlady nor such Power of Attorney has been produced, therefore, his evidence has no value. He has referred to the case reported in 1974 S C M R 388 and PLD 1985 S C 341.

Mr. Rana's next contention is that the appellant has filed Civil Suit for declaration and injunction against the respondent in Civil Court which is pending, therefore, in light of the pendency of the Civil Suit, the Rent Controller has no jurisdiction to determine the title. He has referred to the cases reported in PLD 1982 Karachi 971, 1974 S C M R 356 and 1972 S C M R 588.

Mr. Ghulam Ali Khokhar appearing for the respondent argued that in terms of the tenancy agreement the appellant was bound to pay the rent at the rate of Rs.195 per month therefore he is liable to be evicted. It is contended that undertaking is not an agreement according to the Contract Act. Moreover it is neither registered nor attested. He submitted that Razi Ahmed is husband of landlady, therefore is a competent person to give evidence on her behalf. Mr. Khokhar further argued that pendency of Civil Suit cannot absolve appellant from payment of rent. He has relied upon cases reported in PLD 1986 Karachi 74, PLD 1985 Lahore 467, PLD 1964 S C 466 and 1983 S C M R 1064. It is also argued that Shakir Ali was neither authorised to receive the amount from the appellant nor he was examined.

Razi Ahmad husband of the respondent in his affidavit-in- evidence has admitted that he executed the rent deed on 21-2-1974 by which the amount of Rs.11,000 was received by the respondent as security deposit. The default, as alleged in the affidavit, is to the tune of Rs.12,960 upto the filing of rent case, therefore, it is clear that this amount is much more than the security deposit lying with the respondent. Razi Ahmad in his cross-examination has clearly stated that Shakir Ali is not their manager nor the flat was given to the appellant on the consideration of sale price of Rs.34,000. He has also stated that it was agreed by the respondent that in case the appellant continues to pay the rent and taxes for ten years continuously, then the disputed flat will be transferred in his name. In view of clause 3 of the tenancy agreement the appellant was bound to pay Rs.195 as rent every month in advance on or before 10th of every calendar month to the respondent.

In clause 2 of the undertaking which is not disputed the appellant was duty bound to abide the terms and conditions of the tenancy agreement for a period of ten years and in case of non-compliance of the tenancy agreement, the undertaking shall become void and the relations between the landlady and the tenant shall be governed in accordance with the terms of the tenancy agreement.

I do not like to enter into this controversy as Civil Suit is pending and it is for the Civil Court to decide the title of the, appellant over the flat. The definition of a 'tenant' is given in section 2(j) of Sind Rented Premises Ordinance, 1979 according to which 'tenant' means any person who undertakes or bound to pay rent as consideration for the possession of occupation of any premises by him or by any other person on his behalf. In my view till final sale agreement is executed, the appellant in terms of the tenancy agreement continues to be the tenant and is bound to pay the rent, in the circumstances when respondent has categorically denied to have received the entire consideration of flat. Appellant has failed to examine Shakir Ali. I have seen the photo copy of the receipt which shows that two other attesting witnesses signed the document. First of all A the original document has not been produced and neither Shakir Ali nor any other witness were summoned by the appellant, therefore without prejudice to the case of the parties which they will adjudicate before the Civil Court I am tentatively of the view that this is al point which is yet to be determined. I do not agree with the contention of the learned counsel for the appellant that he was not bound to pay the rent in terms of the tenancy agreement. It is an admitted position that from June, 1978 till today neither the rent was paid nor tendered. This has not been disputed by the appellant.