' By this appeal filed under section 21 of Sind Rented Premises Ordinance, 1979. The appellant has challenged the order dated 22nd February, 1982 passed by the learned VIIth Senior Civil Judge Rent Controller at Karachi in Rent Case No,2173 of 1981 whereby he directed the appellant to vacate premises in dispute.
1. The brief facts of the case are that the respondent filed an application under section 15 of the Sind Rented and Premises Ordinance, 1979, inter alia, on the ground that the appellant is his tenant, that he committed default in the payment of rent since February, 1981 to April, 1981, that the appellant sublet the premises to one Ajab Shah and that the premises is required by her for personal use and occupation in good faith.
' The allegations made as above, were denied by the appellant. Upon the pleadings the learned Rent Controller framed the following issues:-
(1) "Whether the tenancy has ceased to be valid?
(2) Whether the opponent No,1 has handed over the possession of the premises in question to the opponent No,2 without the consent of the applicant?
(3) Whether the opponent No,1 has committed default in the payment of rent since February, 1981?
(4) Whether the premises in question is required in good faith for the personal use of the applicant?
(5) What should the order be?"
2. After the evidence was concluded the learned Rent Controller heard the counsel for the parties and answered the Issue No,1 in the negative. Under Issue No,2 it was held that the sending of the rent by money orders by Ajab Shah sufficiently proved that he was in occupation of the premises in question and that the opponent No,1 appellant was not occupying the said premises. Accordingly the learned Rent Controller answered Issue No, 2 in the affirmative.
' The Issue No,3 was answered in the affirmative and it was held that the appellant failed to pay rent due for the month of February, March and April, 1981.
' The Issue No,4 was answered in the negative and it was held that the premises is not required for the use and occupation of the respondent/landlord.
' On the above findings, the learned Rent Controller under Issue No,2 directed the appellant to vacate the premises in dispute.
3. Against the above order passed on 21st February, 1981 by the Rent Controller, this appeal has been filed under section 21 of the Sind Rented Premises Ordinance, 1979.
4. The learned counsel for the appellant as to the findings given under the Issue No,2 contended that in the affidavit of evidence filed by the appellant a Pardahnasheen lady it was expressly stated on oath that she is permanently residing in and is occupying the premises in dispute and that it was false that she had shifted from Karachi to Quetta, or from the rented premises to any other place. She further stated that Ajab Shah is her brother in law who got admission in Engineering University at Karachi and that since due to the death of her husband there was no body to look- after her she permitted him to stay as a guest with her for the period he was actually at Karachi. In para. 5 of the affidavit of evidence and also deposed that during the college vacations Ajab Shah used to go to Quetta and that he would permanently leave the premises after completion of his engineering course. The appellant/tenant was cross-examined at length. The evidence led shows that the relationship of Ajab Shah with the appellant/tenant as deposed by her was not denied.
There appears to be truth in the assertion made that Ajab Shah who came from Quetta as a student to get education in the Engineering College, Karachi, could not get a room in the hostel and thus she allowed him (her brother-in-law) to live with her as a guest. We cannot forget the fact that her husband had died in a road accident and that she lived in the house with small children, with no other male membeRs, The statement of the appellant was fully corroborate by Ajab Shah who was also examined as a witness in the case.
5. The landlord (the respondents) examined S.H.Rehman, her husband, who in his evidence deposed that the appellant/tenant was not residing in the premises in question and that she left the house for some other place and handed over its possession to Ajab Shah. This oral statement of the witness which was denied by the appellant tenant was not supported by any other person or evidence.
' Affidavit of Evidence of one Iftikhar Syed though was filed on behalf of the respondent/landlord but he was given up and was not produced for cross-examination. The non-production of this material witness from the neighborhood raises the presumption that had he been produced he would not have supported the case set up by the respondent/landlord, that the appellant had left the premises and handover its possession or let it out to Ajab Shah.
' It may also be mentioned here that the Rent Controller under Issue No,2 without discussing the relevant evidence held that the appellant had left the premises in dispute and handed over its possession to Ajab Shah for the mere reason that he had sent rent by money orders to the landlord. The learned Controller observed that had the appellant been in actual possession of the premises in question on the date of the sending of money orders there would have been no necessity for Ajab Shah to send rent by money ordeRs, These reasons given are hardly sufficient either to prove that the appellant sublet the premises to Ajab Shah or that the appellant was living somewhere else or that the rent was sent to avoid default in payment of rent. The learned Rent Controller failed to consider the important circumstance that Ajab Shah is a relation and is not a stranger in the family and that the appellant is a widow with minor children and that her husband had died only few years earlier in a road accident and there was no other male member in the family except Ajab Shah (brother-in-law). Thus, sending of money orders by Ajab Shah could not lead to the conclusion that he was a subtenant or the appellant parted with the possession of the property as alleged. The respondent/landlord has no personal knowledge in respect of the allegations made by him. The only witness who claimed to have personal knowledge Iftikhar Syed, who stated that he was neighbor was not produced for cross-examination. From the fact that this material witness was withheld by the landlord adverse presumption can safely be drawn against the respondent.
For the reasons discussed above I am of the opinion that accommo dating her brother-in-law (Ajab Shah) a student who had came from Quetta for higher studies in Engineering College at Karachi for the reason that the said Youngman could not find accommodation in any hostel, does not amount to subletting the premises or parting with the possession of the same. The findings of the learned Rent Controller under issue No,2, therefore, cannot be sustained.
5. The learned counsel for the parties then addressed the Court on issues Nos. 2 and 3 reproduced above, under which the learned Rent Controller found the appellant/tenant a defaulter in payment of rent for the period from February, 1981 till the case was filed on 5-5-1981.
6. A perusal of the record shows that the agreed rate of rent between the parties was Rs,350 per month. For the period for which the default is alleged, the rent payable by the appellant/tenant to the respondent/landlord would amount to Rs,1,050, As against the said amount of the arrears of rent, we find that under the agreement of lease made on 1st July, 1974, the appellant/tenant deposited with the respondent Rs,1,400 out of which Rs,700 were agreed to be adjusted towards the rent for the months of July and August, 1974 and the balance i.e, Rs,700 remained with the lessor/respondent as fixed deposit refundable after adjustments of all the dues on the determination of the tenancy which was for a period of 11 months commencing from 1st July, 1974.
Admittedly in spite of the expiry of the agreed period of tenancy, the aforementioned sum of Rs,700 continued to remain in the hands of the landlord respondent when she filed the case on 5th May, 1981. After giving adjustment for this amount to the appellant/tenant on the date of filing of the case the tenant/appellant would be found liable to pay only Rs,350 representing rent for one month i.e, only for the month of April, 1981, the rent for the months of February and March, 1981, would be found to have stood adjusted and satisfied against Rs,700 in the hands of the landlord as fixed deposit. Thus, on the date when the case was filed on 5th May, 1981, the appellant/tenant would not be deemed to has committed any default in payment of rent within the meaning of section 15(2)(ii) as 60 days had not expired after the rent had become due for payment. I am fortified non-conclusion reached as above by the case Dr.Zahid Hussain v. Syed Wajahul Hassan Hasni, 1981 CLC 1941 in which case the learned Single Judge of this Court held as follows:- "The deposit in question was made under a tenancy agreement for a period of 11 months which had expired in 1972. The respondent had no legal right to hold on the deposit amount after the expiry of the tenancy agreement. In my view if the principle that a security deposit of an expired tenancy agree ment can be adjusted against the arrears of rent is to be accepted, in that event, it follows that quantum of the security amount does not make any difference. In the instant case as pointed out hereinabove if Rs,380 would have been adjusted against the arrears of rent, the appellant would have remained liable to pay a balance amount of Rs,70 for the month of November, 1975. Since the rent application was filed on 1st December, 1975 no default existed as 60 days period provided for under section 13(2) had not expired by the time of the filing of the above application . "
' It may be mentioned here that the learned Single Judge gave the above opinion after discussing and relying upon the cases of Abdul Aziz Baig v. Mushtaq Ahmed Sethi 1980 SCMR 838 and the case of Muhammad Rasool v. Abdullah PLD 1980 SC 298.
7. The upshot of the above discussion is that the findings of the learned Rent Controller on the Issues Nos.2 and 3. which found favour with him, cannot be sustained.
' No other point was argued by any of the learned Advocates for the parties.
8. This appeal accordingly succeeds and the impugned order passed by the learned Rent Controller on 22nd February, 1982, is set aside and the ejectment application filed by the respondent against the appellant, stands dismissed.
' The parties are left to bear with own costs.
' The above are the reasons for the short order passed on 13-9-1983.