The facts giving rise to this appeal arising from the order of the learned IIIrd Senior Civil Judge/Rent Controller, Karachi (East), dated 30-4-1978 dismissing the ejectment application made by the appellant are these.
2. On 13-2-1.988, the appellant filed an application under Section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter called the repealed Ordinance') for eviction of the respondent, the tenant of shop on the ground floor of the premises bearing No.853/C.B., P.E.C.H.
Society, Karachi, (hereinafter referred to as the demised premises') on the grounds of (1) default m payment of rent at the rate of Rs.400 per month from October, 1.977 to January, 1978 and (2) subletting of the demised premises to some other person without the consent of the appellant.
3. The respondent filed written statement in denial of the allegations made in the application. There was, however, no dispute with regard to the rate of rent. It was further pleaded by him that the appellant wanted to enhance the rent to which he was not agreeable and, consequently, in spite of repeated tenders of rent at the agreed rate of Rs.400 the appellant declined to accept the same. It was, however, later on, paid to him. The allegation of subletting was also specifically denied and it was asserted by the respondent that the premises in question were still in his use and occupation wherein he was carrying on the business of Furniture Mart under the name and style of Shabbir Furniture Company, Karachi.
4. It was on 11-10-1978 that the Rent Controller passed an order directing the respondent to deposit the rent in Court. On account of alleged default in payment of rent by the respondent, as per above order of the Rent Controller, his defence, on an application made by the appellant, was struck off, on 31-1-1980.
The respondent challenged the said order by filing an appeal being F.RA. Pro of 1981. The said impugned order of the learned Rent Controller was, however set aside by this Court vide its order dated 22-2-1983 passed thereon and the case was remanded to the Rent Controller with a direction that the respondent be given an opportunity to establish the allegation made by him that the mistake depositing of rent for the period from October, 1979 to February, 1980, in R d Case No.2237 of 1978 was bona fide.
5. Upon receipt of the above orders of the High Court the Rent Controller firstly, allowed the parties to lead evidence pursuant to the order of the 11, Court. Later on, however, with the consent of the parties it was decided that entire case on merits be disposed of.
6. Accordingly the parties were allowed to lead evidence. In support of his application the appellant examined himself as well as produced two witnesses namely, P. W. 2, Muhammad Zameer Hussain, and P.W. 3, Muhammad Azam whereas the respondent besides examining himself also examined his employee Abdul Wahab. On the basis of the pleadings of the, parties the learned Rent Controller formulated the following points for determination: "(1)Whether the opponent has made default in the compliance of the rent order dated 11-10-1978 for the period from October, 1979 to February, 1980 and his, defence is liable to be struck off or not?
(2)Whether the opponent has committed default in payment of rent for the months of October, November and December, 1977 and January, 1978.
(3)Whether the opponent has sublet the premises?
(4)What should the order be?"
Vide his impugned order, he answered the first above-noted three issues in, the negative and, consequently, dismissed the application as stated above. Hence this appeal.
7. Mr. Nazeerullah, learned counsel for the appellant, did not press the appeal on the question of default in payment of rent for the period from October, 1978 till the date of filing of the application.
He, however pressed the appeal the appeal with regard to the default committed in compliance with the Court's order under section 13(6) of the repealed Ordinance as well as on the ground of subletting. Learned counsel on the question of default in compliance of the Court's order made the following submissions: (i)that the allegation of the respondent to the effect that the monthly rent as per tentative order of the learned Rent Controller was wrongly deposited in Rent Case No.2237 of 1978 is unsustainable inasmuch as it was for the respondent to have carefully ascertained that the rent was deposited in the case filed against him; (ii)that it is factually borne out from the cross-examination of the respondent as well as the witness Abdul Wahab that there was a lack of diligence on the part of the respondent in depositing the rent in the case filed against him. The mere fact that the rent receipt issued in the Rent Case No.2237 of 1978 was made the basis for depositing the rent in the said rent case was little justified. He sought to support his contention by an authority of the Supreme Court in the case of Khawaja Mustafa v.
Waqar Ahmed PLD 1980 SC 9. In the reported case the tenant was directed to deposit rent to the respondent Waqar Ahmed before the Supreme Court whereas he deposited the same in the name of all the heirs and deceased landlord Haji Abdul Rasheed. This deposit was held by the learned Rent Controller to be not in consonance with the orders passed by him and accordingly, on the application of the landlord, he struck off the defence of the appellant Ghulam Mustafa (tenant). On appeal; the learned Additional District Judge remanded the case to the Rent Controller for deciding the question afresh. The landlord thereupon filed second appeal m the High Court where a, learned single Judge, did not agree with the Additional District Judge and came to the conclusion that the tenant had made the admission relied upon by the learned Rent Controller. The learned Judge of the High Court, therefore, set side the remand order and restored the order of the Rent Controller. It led to the filing of a petition for leave to appeal to the Supreme Court at the instance of the tenant.
However, pleas were raised on behalf of the petitioner before their Lordships of the Supreme Court, on the basis of the statement filed by the tenant, which were repelled and the Supreme Court, held that the finding of fact by learned Single Judge that the petitioner had made the admissions in dispute is unexceptionable. It was also pleaded on behalf of the tenant that he (the petitioner) complied with the order of the learned Rent Controller in a substantial manner by parting with the money. Their Lordships of the Supreme Court, however, in the facts of the case before them, did not accept the plea raised on behalf of the petitioner and reached the conclusion that there was intentional disobedience of the order passed under Section 13(6) in a manner which was intended to harm the interest of the landlord. In this connection the next case cited` by the learned counsel was another decision of the Supreme Court in the case of Military Estate Officer Multan Cantonment v. Mirza Muhammad Saleem Baig (1982 SCM R 920). In this case also the defence of the tenant was struck off for non-compliance of the tentative order of the, Rent Controller for payment of rent. The tenant's appeal to the learned District Judge as well as second appeal to the High Court failed. Hence a petition for special leave to appeal was made to the Supreme Court. The tenant's case before the Supreme Court was that the default was not deliberate inasmuch as a cheque had been sent to the address of the landlord in Multan instead of sending it to Rahimyar Khan. Finding that the Courts below had held that this mistake could have been avoided and that it was due to clear negligence on the part of the tenant and hence there was a lack of due care and caution and hence there was no justification to ignore it. Since no point of violation of any principle of law applicable to the case was involved their Lordships dismissed the petition as being without merit. Lastly, the learned counsel cited another judgment of this Court in the case of Mahmood Bashir v. Mst. Jabeen Begun 1984 CLC 2620. In this case the rent was ordered to be deposited in the name of the landlady whereas the tenant deposited it in the name of the husband. It resulted in striking off his defence by the Rent Controller. It was contended on behalf of the tenant that the husband was also the attorney of the landlady and that the order of the Rent Controller was unjustified being of a too technical nature. Reliance was placed on the above cited case of the Supreme Court reported in 1982 SCM R 920 on behalf of the landlord besides several other case's. The learned Single Judge of this Court dismissing the appeal made the following observations: "Even if there was some initial justification for deposit of rent in the name of Zafar who is the husband of the present respondent still that justification was completely gone after the order passed by the Rent Controller on 5th December, 1981. The result is that it was not a mere technical non-compliance with the order of the Rent Controller dated 5th December, 1981, but a contumacious insistence on the part of the appellant that he will continue to do as he likes in spite of the order of the Rent Controller. This appeal, therefore, fails and is hereby dismissed."
8, Mr. Mohsin Tayebally learned counsel for the respondent, on the other hand, supported the impugned order by contending that the facts of the cases are distinguishable from the facts of the reported case cited by the learned counsel for the appellant. In his submission, the rent was actually deposited month by month but it was due to the mistake of the Nazir of the Court that he issued receipt under a wrong rent case, namely, Rent Case No.2237/78, instead of Rent Case No.843/78 (later on renumbered as 792/80).
9. It has come in evidence that rent in Rent Case No. 2237/78 had been deposited by the tenant in that case as well as by the appellant before me. It is thus patently borne out from the record that it was obviously on account of the mistake of the Nazir of the Court that he mentioned a wrong rent case number on the receipts issued to the respondent. The-learned Rent Controller, in my opinion, has rightly appreciated the facts and no exception can reasonably be taken against his finding and the order passed by him. Consequently, I do not find merit in this grievance of the appellant more particularly in view of the fact that the person who was made responsible to deposit the rent by the respondent, namely, Abdul Wahab, has deposed that he is an illiterate person.
10. Mr. Nazeerullah, learned counsel for the appellant, however, insisted that the rent for the said period still remains unpaid to the appellant and hence it should be held that he had committed default in payment of rent. The Court is concerned with the issue as to whether the tenant had in fact complied with the order of the learned Rent Controller or not. The question of non-payment of the amount deposited in a wrong Court will trot lead to the striking of d he defence of the tenant.
However, the learned Rent Controller is directed to see that the amount deposited twice over in Rent Case No.2237/78 is to be paid to the extent of the appellant's claim upon his making an application to that effect inasmuch as it is too well-established a proposition of law to be stated that no person is to suffer on account of any mistake of the Court.
11. It takes me now to the only other issue of subletting. Having heard the arguments of the learned counsel for the parties and upon perusal of the material prevalent on record as well as of the authorities cited by the learned counsel for , the appellant, I have reached the conclusion that the appeal should on this issue also fail, for the reasons to follow immediately.
12. That in the application the statement with regard to subletting was made, in paragraph 3 as under:- "3. That the opponent has also sublet the premises to some other person without the written consent of the applicant."
During his cross-examination on the point of default, as deposed by him in his Affidavit-in- evidence, filed by the respondent Shabbir Hussain on 7-3-1984 he had, inter alia, deposed in reply to 'a question put to him as under:- "My carpenter Abdul Aziz sits on the shop. It is incorrect to say that I have sublet the premises to him."
Notwithstanding the fact that initially the appellant had failed to name the alleged sublettee of the shop, it was specifically stated by respondent during his cross-examination--- as stated above, that Abdul Aziz sits on the shop yet while filing his own affidavit in support of the application, the appellant failed to state the name of the person to whom the premises was allegedly sublet. He also denied the fact that Abdul Aziz is not sublettee but there was some body else. On the contrary from the entire trend of cross-examination it appears that it is he who had claimed to have sublet the premises. At any rate having come to know of the fact that the respondent was doing his manufacturing of furniture business through Abdul Aziz and Abdul Wahab in the demised premises it was for the appellant to have either specifically given the name of the sublettee, if he was a person other than the above-named two persons, or to have deposed that it was incorrectly stated by the respondent during his cross-examination that Abdul Aziz was his employee. Having failed to do so there was no other material available on record on the basis of which it should be held that the premises was let out by the tenant to some other person. Besides, the learned counsel for the respondent has rightly pointed out that it was in the first instance, the duty of the appellant to have specifically pleaded the case of subletting of the premises and of the respondent receiving the rent from the sublettee. None of the two important ingredients has been incorporated in the application. Nor any effort, as stated above, was made at any subsequent stage to place any material before the Court for seeking the relief of the eviction of the respondent on the ground of alleged subletting. There is no averment even in the affidavit of the appellant that the respondent was receiving the rent from the person who was actually in occupation of the demised premises.
The affidavits of the two witnesses filed by the appellant 'in support of his case on this issue, I find, do not also lend support-to his case. Both the said witnesses have stated that they were neighbours of the appellant yet they have failed to name the person who was found to be in possession of the shop in question. Besides, during his cross-examination B.W. Zameer Hussain has stated that he could not give the name of the person sitting in tire shop and that he did not know whether the, person who does the manufacturing work there in the said shop is the employee of the appellant. Likewise, Mohammad Azam has during his cross-examination clearly deposed that "he had heard that the respondent had sublet the shop on goodwill and he did not know whether the person sitting in the shop is employee of the appellant".
On the basis of the above evidence, the learned Rent Controller, I am clearly of the opinion, has not committed any error in deciding the issue of subletting in the negative. I need not, therefore, refer to the following authorities cited by the learned counsel for the appellant inasmuch as they are all distinguishable on their own facts.
2.1981 CLC 669.
3. 1980 SCM R 2.
13. In the result, the appeal fails and is hereby dismissed. The parties are, however, left to bear their own costs.
M.Y.H./M-755/K