This appeal under section 21 of the Sind Rented Premises Ordinance, 1979, if directed against the order dated 20-5-1981, passed by Civil Judge and Controller Karachi in Rent Case No. 5335 of 1980, whereby he allowed the application under section. 14 of the Ordinance filed by the respondent and directed the appellant to vacate the premises within, two months and put the respondent in possession thereof.
2. I may before examining the grounds urged by the learned Consul for the appellant in support of this appeal, state the relevant facts which are as follows.
3. The appellant is the tenant of a bangalow situated on Plot No. D/27. K. D. A., Scheme No. 1, Shahrah-e-Faisal, Karachi, (hereinafter called `the premises') with effect from 1-8-1970 at a monthly rent of Rs. 950.
4. The respondent claiming to be the owner/landlord of the premises served a notice under section 14 of the Ordinance, dated 19-2-1980, stating that he had entered into an agreement of tenancy with the appellant for a period of 3 years in respect of the premises and further stating that he was to retire from the Karachi Port Trust where he was employed from 31-12-1980 on attaining the age of superannuating and requesting the appellant to vacate the same within the time mentioned therein as he required the same for his own use.
5. In reply to the notice the appellant through his advocate's letter dated 19-3-1980'(Exh. 1-1) denied that the respondent was due to retire from the Karachi Port Trust within the next six months and took up the stand that there was no relationship of landlord and tenant between him and the respondent as the premises in question did not belong to the respondent and he could not take advantage of the provision of section 14 (1) of the Ordinance.
6. Thereupon the respondent's were sent a letter dated 28-4-1980, (Exh. 1-H), informing the appellant that her husband while acting as her attorney had entered into the agreement dated 30-7-1970, and that the notice for vacating the premises was given to the appellant under her instructions and that the premises was required for personal use as the premises at Manora wherein she was residing with her husband was required to be vacated on retirement of her husband from the Karachi Port Trust. A photo-copy of the Certificate from the K. P. T. Was also sent alongwith this letter. This letter was followed by another letter dated 13-7-1980 (Exh. 1-G) from the were of the respondent to the appellant wherein she informed the appellant that her husband was retiring from the Karachi Port Trust service on 31-121980, as already informed and that neither she nor her husband had any house in Karachi and she and her family required the premises for her personal use and requested the appellant to vacate the premises in his possession on or before 12- 9-1980.
7. On appellant's failure to vacate the premises, the respondent filed an application under section l4 of the Ordinance for eviction of the appellant. The appellant in his written statement took up the stand that there was no relationship of landlord aid tenant between the parties and the premises was owned by the respondent's were and, therefore, the respondent was not entitled to maintain the application. He further pleaded that the respondent's were was the landlord of the premises and bad been recovering the rent of the premises from the appellant and that she alone as owner/landlord was entitled to move application under the law.
8. Before the Controller in support of his case, the respondent filed his affidavit and -was cross- examined by the appellant. In the affidavit he states that he was real and ostensible owner of the premises and in support of his claim he filed a photo-copy of the lease deed of the plot, duly registered, and further stated that the appellant had been paying rent of the premises to him through cheques as well and also stated that the appellant paid rent through cross cheque No. CCO. 435030, dated 16-3-1980, drawn on then United Bank Limited and produced the original pay- in-slip of the Habib Bank Limited wherein the same was deposited. He has also annexed to the affidavit a copy of the notice.- dated 19-2-1980, and its acknowledgment due receipt and further deposed to the fact as to his service with and retirement from the Karachi Port Trust. In the cross- examination it was not disputed that the plot on which the premises was constructed was leased out to the respondent in the year 1965. However; it was suggested that subsequently the respondent had transferred the premises to his were by way of gift and that the mutation had taken place in the name of his were but the respondent denied both these suggestions. He also denied the suggestion that the record had been mutated in the name of his were in Karachi Metropolitan Corporation. He has also denied the suggestion that he had let out the premises in the capacity of attorney of his were/owner.
9. The appellant in his affidavit claimed that the premises is owned by Mst. Wazir Begum, were of the respondent and that it was she who had let out the premises to him as a landlady through her husband who according to him, was acting as attorney on her behalf and that she had served a legal notice on him dated 20-4-1980, (1-H), and another notice dated 13-7-1980, (Ex. 1-G), and annexing thereto his reply. He has also filed a photo-copy of the Karachi Metropolitan Corporation Challan and Property Tax Challans in support of his claim that Mst. Wazir Begum the were of the respondent was the owner and he is liable to pay the rent to her. The learned Controller after considering the following points, decided the case by the order impugned in this appeal in favour of the respondent and as already stated above, ordered the eviction of the appellant.
"(1) That he is landlord.
(2) That be has retired from government service and is entitled to claim privilege of one of the class mentioned in section 14 of the said Ordinance.
(3) The service of notice upon the opponent ; and
(4) He has no other accommodation in the locality."
10. 1 have beard Mr. M. L. Shabani, learned counsel for the appellant and Mr. Mustafa Lakhani learned counsel for the respondent.
11. It is contended by the learned Counsel for the appellant that the respondent not being the owner and landlord of the premises was not entitled to maintain application under section 14 of the Ordinance. He further contended that the application was also not maintainable as the requirement of the provisions of section 14 of the Ordinance were not fulfilled.
12. In support of the first contention the learned counsel mainly relied on two .Notices dated 28-4- 1980 (Exh. I-H) and 13-7-1980 (Exh. 1-G) sent by the were of the respondent wherein she claimed that her husband had entered into the agreement dated 3C-7-1970, as her attorney and that she and her family members required the premises for their personal use. He also relied on Karachi Metropolitan Corporation challan and property tax challans which are in the name of the were of the respondent and also on a photo state copy of the Rent Case No. 1142 of 1977 (Mst. Wazir Chawdhry v. Mian Afridi, son of Col. M. Y. Afridi).
13. On the other band Mr. Mustafa Lakhani submitted that in the notice dated 19-2-1980, the respondent bad claimed that be was the owner of the premises and that be entered into the agreement of tenancy. He pointed out that in reply dated 19-3-1980, it was not specifically denied that the respondent bad entered into the agreement. He further submitted that the ownership of the premises stands proved by the lease deed (Exh. 1-A) and the appellant has not produced any evidence whatever, in support of alleged Gift. He, therefore, argued that the respondent was owner and landlord and was, therefore, entitled to the benefit of section 14 of the Ordinance.
14. Now, the allegation that the tenancy agreement was entered by the respondent as attorney of his were could have been proved by the production of the lease agreement, which has not been produced by either party. Since the burden of proving the plea was on the appellant and he admittedly had a copy of the same with him and he failed to produce the same, therefore, he failed to prove the plea. His explanation that this copy had been mis-placed could not be accepted particularly, when admission had been made by him in the cross-examination that the respondent had executed-the agreement as first party and he himself as second party, though no doubt subsequently, he voluntarily had added in that the first party had signed the same in the capacity of attorney of his were. If it were so, the agreement would have shown the same if produced. Further, it is admitted fact that the appellant had been paying the rent to the respondent also by cheques drawn in his name. It is also in evidence that electricity bills and Karachi Gas Bills are issued in the name of the respondent and not in the name of his were. The appellant has failed to substantiate the plea that the property was gifted by the respondent to his were. In fact in the cross-examination he has stated that the common friends had told him that the respondent had gifted the premises to his were. Therefore, obviously, the plea was based on hearsay. As regards two challans of Karachi Metropolitan Corporation and property tax it would suffice to say that anybody could, with a little maneuver, obtain the same for they could not generally entail any consequence for the person issuing the same as any could pay tax on behalf of another person. In view of the lease it can safely be said that the respondent is owner/landlord of the premises. His were's claim that the agreement was entered into on her behalf was obviously an attempt to meet the requirement of section 14 of the Ordinance but was not correct. In any case, in the absence of any direct and reliable evidence as to ownership the claim made by the were cannot be held to be binding on the respondent. As regards notice of rent case (Exh. 1-G) no question was put to the respondent concerning the alleged rent case nor was certified copy of the application or and order passed thereon produced. Therefore, mere production of a notice does not in any manner, advance the case of the appellant.
15. Even otherwise, if the respondent was not the owner of the premises, he was authorised and entitled to receive the rent which fact cannot be disputed for the appellant had been paying rent to him by cheques drawn in his name. Accordingly, within the meaning of section 2, Clause (f) of the Ordinance, the respondent was the landlord.
16. With regard to the second contention that the application was no maintainable as the requirement of the provisions of section 14 of the Ordinance were not fulfilled, it was submitted by Mr. Shabani, that the respondent had served the notice dated 19-2-1980 more than six months prior to his retirement on 31-12-1980, and under the provisions of section 14 of the Ordinance notice was required to be given within six months prior to the date of retirement and, therefore, the notice was invalid. This plea firstly, cannot be allowed. To be raised at this stage for no such plea was raised either in the written statement nor the same has been raised in the memorandum of appeal.
Secondly, if it is allowed to be raised at this stage, it may unjustly operate against the respondent because if such a defect was brought to the notice of the respondent early he could have withdrawn that application and filed fresh application after serving requisite notice even after his retirement on 31-12-1980, in. View of the amendment in section 14 of the Ordinance by Ordinance No. XII of 1980.
17. I, therefore, find no substance in this appeal and accordingly dismiss it with costs.
18. The learned Rent Controller has allowed the appellant two months time which has already expired. I nevertheless allow .Him one month more from the date hereof to vacate the premises and put the respondent in possession thereof.