This appeal is directed against the judgment dated 8-9-1987 passed by the learned VIth Senior Civil Judge Rent Controller, Karachi East in Rent Case No.814 of 1985 ordering the ejectment of the present appellant on the ground that no rent for the first floor of the premises was paid.
2. The brief fact leading to the filing of the above appeal are that the respondent on behalf of the two sons Mohammad Yousuf and Muhammad Suleman under a tenancy agreement dated 14-12- 1966 let out double storey Shops Nos.30 and 31 situated at Korangi `K' Area, Market, Sector 36-A measuring 1,465 Sq.'ft. Hereinafter referred to as the property for a period of 5 years at the rate of Rs.300 P.M. A sum of Rs.7,200 was paid as advance rent. It seems that second tenancy agreement was executed on 5-4-1972 at the rate of Rs.500 p.m. And the advance rent Rs.6,000 was paid, again for a period of 5 years. It seems that the respondent filed Rent Case No.727 of 1977 for ejectment.
After that 3rd tenancy agreement dated 24-3-1979 was executed under which the appellant agreed to pay Rs.1,500 p.m. In place of Rs.500 p.m. And also paid a sum of Rs.90,000 as advance rent. It was also agreed that under the above agreement, the lease period was 10 years. It was agreed that Rs.750 would be adjusted against the above advance rent and Rs.750 would be paid by the appellant towards the monthly rent. It appears that after some time of the execution of the above 3rd tenancy agreement, the respondent had come out with the allegation that the first floor of the property was not covered by the tenancy agreement and she was entitled to receive Rs.2,810 p.m. As the rent for the first floor. The above controversy resulted in filing of the above rent case for ejectment. The above rent case was resisted by the present appellant and inter alia it was pleaded that the subject-matter of the tenancy agreement remained the same as was under the previous two agreements. The learned Rent Controller on the basis of the pleadings of the parties, framed the following 3 points for consideration: (1)Whether the entire building was rented out to the opponents by the last agreement of tenancy?
(2)Whether the opponents are liable to vacate the disputed premises (3)What should the order be?
The respondent in support of the rent case filed her affidavit-in-evidence, whereas the appellant opponent filed the affidavit-in-evidence of their employees Syed Taqi Hussaini, a Manager and one Abdul Majeed Khan, an officer in the Bank. The above deponents were cross-examined by the respective counsel. The learned Rent Controller after hearing the learned counsel for the parties and also after visiting the site, allowed the rent application for ejectment for the first floor. The appellant being aggrieved by the above order has filed the present appeal.
3. In support of the above appeal Mr. Sahibzada-Mansoor A.I Khan, learned counsel for the appellant, has vehemently urged that the subject-matter of the 3rd tenancy agreement was the same, which was the subject-matter of the previous two agreements and the learned Rent Controller on the basis of the surmises and conjectures, concluded that the first floor was not covered by the tenancy agreement.
On the other hand Mr. Mohammad Muzaffarul Haque, learned counsel for the respondent, has vehemently contended that a comparison of the schedule to the issue of the tenancy agreement indicates that in the 3rd agreement the first floor was deliberately omitted and, therefore, the first floor was not covered by the tenancy agreement and that the respondent was entitled to receive rent for the first floor separately from the appellant.
4. It may be observed that the learned Rent Controller has referred to the schedule of the first two tenancy agreements and of the 3rd tenancy agreement and on the basis whereof he concluded that the 3rd tenancy agreement did not cover the first floor. It seems that even in the 3rd tenancy agreement in sub-para (2) the subject-matter of the tenancy agreement is the double storey shops- Nos. 30 and 31 as the following words appear "the double storey shops Nos.30 and 31 has been offered." It is true that in the schedule of the 3rd tenancy agreement, there is no reference to "4 rooms, 2 kitchens, 2 W.C. And verandah on first floor" but the above fact is to be considered alongwith the other relevant facts namely (i) it is an admitted position that under the first and the second tenancy agreements, the agreed rent was Rs.300 and Rs.500 per month respectively, whereas under the 3rd tenancy agreement, the rent is Rs.1,500 per month; (ii) that in the 3rd tenancy agreement it has not been stated that any portion of the demised premises was to be surrendered by the tenant and, therefore, it is to be presumed that the same remained the subject-matter of the tenancy, which was the subject matter of the two previous tenancy agreements; (iii) in view of the provisions of the late West Pakistan Rent Restriction Ordinance, 1959 and also of the provisions of the Sind Rented Premises Ordinance, 1979, the respondent was not entitled to get the vacant possession of the first floor without resorting to the provisions of the Ordinance; (iv) that the respondent first time served a notice on 19-12-1982 after the expiry of more than 3 years demanding the rent for the first floor separately, whereas the third tenancy agreement was executed on 24-3-1979; and (v) that the appellant had paid a sum of Rs.90,000 in advance at the time of execution of the 3rd tenancy agreement, which amount they would not have paid if they were to vacate the first floor.
5. That no document has been filed by the respondent to indicate that at tiny point of time, the competent authority in the appellant bank has agreed to surrender the first floor.
6. In my view, the finding of the learned Rent Controller is contrary to the factual position and contrary to record. The omission to mention the detail of the accommodation of the first floor in the schedule seems to be due to over-sight or because of typing error. But at page 1 of the tenancy agreement as pointed out hereinabove is reference to double storey, which was offered for letting out.
7. The appeal is, therefore, allowed. The order of the learned Rent Controller is set aside and the respondent's application for ejectment is dismissed. However, there will be no order as to costs.
M.Y.H./N-191/K