' This appeal is directed against the judgment dated 9-7-1990, whereby appellant No,1 has been evicted on the ground of default in payment of rent and on the ground of subletting the premises to appellant No,2. As would appear from the ejectment application, the grounds on which it was moved were that appellant No,1 Daya Ram was the tenant of the shop in dispute at a monthly rent of Rs,70 and that he had defaulted in the payment of rent since Ist November, 1984, upto the date of filing the ejectment application in April, 1987, and that he was not seen in the demised shop since about November or December, 1984, and that, as per information of the respondents/landlords, he had migrated to India alongwith his family and had handed over the demised shop to appellant No,2 in whose favour he executed a power of attorney. It is significant to note that the appellants filed a joint written statement on 14-5-1989 which is signed by one Muhammad Hanif as attorney of both the appellants (respondents in the ejectment application). As for default in the payment of rent since November 1984, it was stated in the written statement that the respondents had refused to accept the same with the mala fide intention of creating the ground of default whereupon the rent was first remitted by Money Order on 3-11-1984 and thereafter it was deposited in Court in Misc.
Rent Case No,3879/84 and was being deposited ever since in the said Misc. Rent case. It was, however, not made clear on what date the appellants had deposited the rent for the first time in this miscellaneous rent case. As for subletting and abandoning the demised premises by appellant No,1, the tenant, it was denied that he had migrated to India or was not doing business in the demised premises, and it was specifically denied that appellant No,1 had handed over possession of the shop to appellant No,2. As such an impression was given that appellant Nod, the tenant, was in possession of the demised premises and doing business there as usual. It was, however, not explained as to why the written statement was not signed by appellant No,1 or even by appellant No,2, but by one Muhammad Hanif. This Muhammad Hanif signed the written statement as attorney of both the appellants but his power of attorney is not available on record of learned Rent Controller although a copy of power of attorney, executed by appellant No,2 (who himself held power of attorney on behalf of the tenant appellant No,1) in favour of this Hanif, is filed with the memo of this appeal. Even at the stage of evidence, appellant No,1 did not come forward and did not examine himself either in person or through affidavit-in-evidence. Again, it was Muhammad Hanif, the attorney of the attorney, who filed his affidavit-in-evidence on behalf of the appellants.
Even so, on the basis of the evidence adduced by the parties, learned Rent Controller vide impugned judgment dated 9-7-1990 decided both the issues in favour of the respondents and directed the appellants to vacate the premises. Aggrieved from this judgment, the appellants have come in appeal.
2. Since the main allegation of the respondents/landlords was that appellant No,1, the tenant, had migrated to India alongwith his family and was no more in Pakistan and had abandoned the demised premises for good and had handed it over to Haji Qasim, who was for all intent and purposes occupying it in his own rights even though under the camouflage of a power of attorney given in his favour by appellant No,1. I directed the learned counsel for the appellants to produce appellant No,1 before the Court in person on the next date of hearing as the Court was given the impression that the appellant No,1 was very much in Pakistan and occupying the demised shop and doing business there. However, on the next date of hearing, appellant No,1 did not appear before the Court and learned counsel stated that due to his indisposition he could not contact appellant No,1 and on that ground sought an adjournment. This request was granted and the hearing was adjourned for today. Now, learned counsel for the appellants concedes that appellant No,1 is not in Pakistan, but it is nevertheless maintained that he has not migrated to India but has gone to Canada. No subsequent whereabouts of appellant No,1 have been disclosed nor it has been explained as to why he went to Canada when he was in fact, under directions to appear before this Court in person. The record of the learned trial Court clearly shows that appellant No,1 did not take part in the proceedings of rent petition even though it was specifically alleged by the respondents that he had migrated to India alongwith his family. Learned counsel for the appellants pointed out to me copy of application in Misc. Rent Case No,3879/84 given by appellant No,1 under Section 10(3) of the Ordinance for the deposit of the rent in Court and pointed out that this application purports to have been signed by appellant No,1 on 14-111984 and that it was verified on oath and, therefore, there is a presumption that appellant No,1 was present in Pakistan on this date.
I am of the view that signatures of appellant No,1 on this application are not sufficient, under the circumstances of the case, to conclude that appellant No,1 had in fact signed this application. Even so this application is dated 14-11-1984 and the case of the respondents is that appellant No,1 was last seen around in November or December, 1984, and since this application pertains to November, 1984, it in no way advances the claim of the appellant. Then, learned counsel for the appellants referred to an application dated 15-11-1987 under Order 9, Rule 13, C.P.C. And to its supporting affidavit. This application is allegedly signed by appellant No,1 and the supporting affidavit is also allegedly signed by him on 15-11-1987 and was duly affirmed before an advocate. The signatures of appellant No,1 on this application and on its supporting affidavit are, in my view, not of any evidential value. There was no order of the Government prohibiting the entry of appellant No,! In Pakistan and, therefore, he might very well have been present in Pakistan on 15-11-1987 and might have signed them, notwithstanding his migration to India after November 1984. However, there is another possibility that he had in fact not signed it and someone else impersonated for him. In this regard, counter-affidavit of respondent No,3 Muhammad Yousuf, sworn by him in reply to the affidavit of appellant No,1, is important. In this counter-affidavit, which was sworn and filed in the Court on 22-11-1987, Muhammad Yousuf had expressed his apprehensions that it appeared that some other person impersonated as appellant No,1 and signed on this application and its supporting affidavit on 15-11-1987 and desired that appellant No,1 may be produced in the Court alongwith his passport and national identity card to confirm as to whether he was in Pakistan and had signed on them. In para 5 of his counter-affidavit, respondent No,3 Muhammad Yousuf affirmed that appellant No,1 was not in Pakistan and he stated that he would have no objection to the grant of the application of appellant No,1 (given under Order 9, rule 13, C.P.C. On 15-11-1987) provided appellant No,1 appeared in Court in person to affirm the contents of his application and affidavit and to show that he was in Pakistan. Respondent No,3, Muhammad Yousuf, further stated categorically that the Vakalatnama allegedly signed by appellant No,1 did not in fact bear his signatures or if at all it did bear his gnatures, he must have signed over it from abroad or before migrating to India. In spite of this categorical assertion of respondent No,3, Muhammad Yousuf, in is counter-affidavit, and in this regard paras 1 and 5 thereof are very relevant, appellant No,1 did not bother to appear in Court in person and he continued to )e represented by his attorney. I am of the considered view that, under these circumstances, learned Rent Controller rightly concluded that appellant No,1 had migrated to India. At any rate, it is today stated at the Bar by learned counsel for the appellants that he has gone to Canada. It was not explained when and for what purpose appellant No,1 has gone to Canada and, apparently, if he has not migrated to India then he has migrated to Canada. Finding of the learned Rent Controller on issue No,2 as regards the subletting is based on cogent reasons and I find no ground to differ from learned Rent Controller.
3. As for default in the payment of rent since Ist November, 1984, I find that as per para 4 of the written statement, the defence of the appellant was that rent was being deposited in the Court in Misc. Rent Case No,3879/84, because the respondents had refused to accept the same. It is worth noting that default is alleged since November, 1984, and the rent is said to have been deposited in Misc. Rent Case No,3879/84, but the appellants did not disclose in their written statement when they commenced depositing rent in the Court in the said Misc. Rent Case. The record rather shows that it was on 17-5-1986 that the appellants made the first deposit in the said rent case and it was in the sum of Rs,1,400. (Report of Court Sirishtaidar dated 15-10-1987 at page 139 of R & P). The rent, if at all it was offered by appellant No,1 and refused by the respondents, then it was for appellant No,1 to prove that it was so offered or tendered. This could have been done by appellant No,1 by filing his own affidavit-in-evidence and allowing himself to be cross-examined. Such tender of rent, and the refusal of the respondents to receive it, could not be proved by an attorney who had not offered it.
Default in the payment of rent stands also sufficiently proved.
4. I find that even the Memo of Appeal is not signed either by appellant No,1 or by his attorney appellant No,2 but by "Muhammad Hanif'. It is thus evident that after appellant No,1 abandoned the possession in favour of appellant No,2, even appellant No,2 has abandoned the premises in favour of the so-called attorney Muhammad Hanif.
5. For the above-noted reasons, I find no merit in the appeal and the same is dismissed in limine.
6. C.M.A. No,955/90. This application has become infructuous and is dismissed.
7. After the conclusion of hearing, this appeal was dismissed in the morning by a short order and above are reasons for the same.