1. ' This first rent appeal is directed against the order of Rent Controller No, 13, Karachi, whereby the ejectment application filed by the respondent against the appellant was accepted on the grounds of default and subletting. I have heard Mr. Khalid Hamid and Mr. Khawaja Sharful Islam, Advocates for the appellant and respondent respectively.
2. ' The ejectment application was instituted by the respondent on the ground of default and personal requirement. During the pendency of the rent application, an application for amendment was made to include the ground of subletting on the plea that after institution of the rent case the appellant had sublet the premises. This application was allowed and accordingly 3 issues were framed by the Rent Controller in the case, namely, default, personal requirement and subletting.
3. The default against the appellant is alleged in the paragraph 3 of the application for 15 months.
4. The application was filed in the Court on 22-11-1975 and therefore the period for which the default is alleged against the appellant will be from August, 1974 to October, 1975. The appellant in his written statement denied the allegation of default and contended that he had paid rent for the months of June, July, August and September, 1974, for which no receipts were issued by the respondent and that the rent for the months of October and November was tendered by a money order in December, 1974 which was refused by the respondent. It was further alleged that the appellant was always ready and willing to pay the rent and had again sent another money order covering the rent for 9 months on 31st July, 1975 which too was refused by the respondent. The Rent Controller came to the conclusion after recording the evidence of the parties that default has been established against the appellant and also subletting was proved and he accordingly ordered the ejectment of the appellant both on the grounds of default and subletting.
5. ' Mr. Khalid Hamid, the learned counsel for the appellant contended before me that there was no default committed by the appellant as he had paid rent to the respondent up to September, 1974 and thereafter a money order covering rent for October and November, 1974 was sent which was refused by the respondent. It is further contended that another money order covering rent for the period October to December, 1974 and January to June, 1975 was sent on 31st July, 1975 which was also refused. It is claimed that immediately on service of notice of the ejectment case all the rent due was deposited in Court and therefore there was no wilful and deliberate default on the part of appellant which could result in his ejectment. It is also urged by the learned counsel that the appellant had spent a sum of Rs, 8,000 towards installation of electricity in the premises and for making addition and alteration therein which the respondent had agreed to adjust towards the rent of premises and therefore if the adjustment of this amount is allowed there will be no default on the part of appellant on the date of presentation of ejectment application in Court. It is an admitted position that the tenancy started under a written agreement dated 26-12-1973 which was valid for a period of 11 months. It is also admitted before me that after expiry of period mentioned in the agreement no further agreement was executed between the parties. Under the tenancy agreement dated 26-12-1973, the respondent had taken over the liability of a sum of Rs, 300 which was paid by the appellant to outgoing joint owner of the property Muhammad Idrees as "deposit".
6. This amount according to the terms of agreement was refundable to the appellant at the time of vacating the premises and handing over its possession to the respondent after adjustment of any amount of rent which may be found due and payable. The learned counsel for the appellant contends that after expiry of the lease agreement the respondent was entitled to the refund/adjustment of the sum of Rs, 300 taken as "deposit" in view of decision in the case of Muhammad Yousuf v. Abdullah (1). It is, accordingly contended that if the deposit of Rs, 300 is allowed to be adjusted towards rent which is equivalent to four months rent then the rent due against the appellant on the date of presentation of ejectment application was only from December, 1974. It is contended that the appellant having tendered the rent for the months of October and November on 17th December, 1974 which was refused there was no default on the part of the appellant and if the amount of Rs, 8,000 claimed by the appellant is held to be adjustable towards the rent then the respondent is still liable to pay a huge amount and therefore no allegation of default against the appellant in these circumstances was sustainable. The agreement of tenancy as pointed out earlier was not renewed after it expired and in view of the provision in the tenancy agreement that the amount of Rs, 300 taken as deposit was refundable to the appellant at the time of vacating the premises after adjustment of the amount of rent due against him, the said amount of deposit was liable to be refunded/adjustable after the expiry of the period of lease as held in Muhammad Yousuf's case. However, this amount does not cover the entire period of default alleged against the appellant in the rent application which was from August, 1974 to October, 1975.
7. Mr. Khalid Hamid, contends that the appellant had already paid rent up to September, 1974 and therefore the default if any should be accounted for from October, 1974 onwards and adjustment claimed by the appellant should be allowed against that. Even if this contention of the learned counsel is accepted then after giving adjustment of Rs, 300 which is equal to 4 months the rent was due from December, 1974. Mr. Khalid Hamid contends that the appellant had tendered the rent for B the months of October and November in December, 1974 which was not accepted by the respondent and therefore no default can be attributed to the appellant. The rent for the months of October and November, was tendered in the month of December, 1975 and admittedly thereafter no rent was remitted until 31st July, 1975 when the second money order was sent C covering the rent for the period of 9 months. If this tender of two months rent is also taken into account there was no tender of rent for the period from February, 1975 onwards until 31st July, 1975. In the absence of a contract providing for payment of rent by a specified date, the rent is to be tendered/paid by the tenant within 60 days of the rent becoming due. The tender of rent by money order, by the appellant on 31st July, 1975 for the period from October, 1974 to June, 1975 was not in accordance with D the statutory obligation of the appellant therefore it could not erase the effect of default already committed by the appellant in respect of the months of February, 1975 to May, 1975. The contention of the learned counsel that he was entitled to the adjustment of Rs, 8,000 which he had spent in obtaining electric connection and making construction in, the premises has no substance.
8. The amount was allegedly spent on 10th October, 1973, when the premises was jointly owned by the appellant and Muhammad Idrees..
(1) PLD 1980 SC 296 ' The tenancy agreement between the appellant and respondent was executed on 26th December, 1973 when the respondent acquired the share of Muhammad Idrees in the property and became full owner of the property. No mention of the above amount was made in the tenancy agreement nor any term regarding its adjustment was incorportated therein. The ejectment application was filed on 22nd November, 1975 and before filing of application the appellant at no stage demanded adjustment of that amount towards the rent of the premises. In these circumstances, the contention of the appellant that the respondent had agreed to the adjustment of Rs, 8,000 from the date of agreement cannot be accepted. The Rent Controller therefore was justified in holding that the appellant had committed default in payment of rent and rightly ordered for his eviction on the ground of default.
9. ' In so far the ground of subletting is concerned the Rent Controller's finding on this issue is not supported by the evidence on record. In the application it is alleged that the premises has been sublet by the appellant to Muhammad Afzal. The applicant when examined in Court only asserted that Muhammad Afzal has been seen sitting on the shop in dispute. There is no allegation either in the affidavit or in the evidence that any rent or any other consideration is paid by Mr. Muhammad Afzal to the appellant. Muhammad Afzal was examined by the appellant as a witness in the case and he categorically denied these allegations and stated that he has his own shop at another place and has no concern whatsoever with the shop of appellant. Muhammad Younus brother of Muhammad Afzal also appeared in the evidence and stated that his brother is not running the shop in dispute. In these circumstances there is no cogent evidence available on record to reach the conclusion that the premises has been sublet by the appellant to any other person. Mere fact that the appellant is out of country temporarily and is managing business through his attorney is not enough to show that the premises has been sublet by him specially when there is no allegation that the person who is holding power of attorney is running business in his own right. I accordingly reverse the finding of the Rent Controller on the issue of subletting. As a result of above discussion the appeal is dismissed but the appellant is allowed four months time to vacate the premises.