M.HUSSAIN ADIL KHATRI, J.-- By this judgment I propose to dispose of the First Rent Appeal and Civil Misc. Application No.43/91 and 143/91.
2. The present appeal has been filed challenged the Order dated 27.9.1989, passed by the VIth Senior Civil Judge & Rent Controller, Karachi, dismissing the application of the appellant filed under Section 15 of the Sindh Rented Premises Ordinance, 1979.
3. The appellant has filed the aforesaid Rent Case against Respondents No.1 & 2. According to the Rent Application, Respondent No.1, was the tenant of the appellant and respondent No.2, was a sub-tenant to whom the shop was sublet without prior permission of the appellant. On 20.8.1989, the Advocate of the appellant made a statement before the Rent Controller to the effect that the appellant did not want to proceed with the case against/Opponent No.1, and on that statement the Rent Case was dismissed against Respondent No.1 by an order passed on the said application. The record shows that the evidence in the case also concluded on the same date i.e. 20.8.1989.
4. The Rent Controller, therefore, by the impugned the Rent Case, as being not maintainable against Respondent No.2.
5. The learned counsel of the appellant has not been able to show any illegality in the Order appealed against except that he has relied on Para 5 of the application filed by the appellant under Section 15 of the Sindh Rented Premises Ordinance, 1979 which reads as under:- "5. That the applicant sent legal notice to the opponents on 28.11.87 through registered post with acknowledgment due. The notice of opponent No.1 returned un-served with the remarks "there is no one by this name in the shop"., whereas the opponent No.2 received the notice but failed to reply the same. Photo copies of legal notice, postal receipts are attached herewith and marked "A & B-1 B-2".
6. It is contended that since no person by the name of Respondent No.1, existed, therefore, case was maintainable against Respondent No.2 who according to the learned counsel is in fact a tenant and Appellant had prayed for eviction of both the respondents. In para 3, of the Rent Application, it is stated "the Opponent No.1,has sublet the Shop to Opponent No.2, without permission and or consent of the Applicant which is against the terms of tenancy and against the law." The Appellant has not admitted Respondent No.2 as its tenant in the eviction application, or evidence and has been consistently described as subtenant. Respondent No.2 has also not admitted the Appellant as his landlord. There being no relationship of landlord and tenant between the Appellant and the said Respondent who has been termed as sub-tenant, the rent case cannot be maintained against him and the Rent Controller had rightly dismissed the eviction application after withdrawal of the case against Respondent No.1. The contentions raised by the learned counsel are without any substance. The appeal is, therefore, dismissed.
7. In C.MA.No.43/91 the appellant has prayed that the defence of the respondent i.e Respondent No.2, be struck of as he has failed to deposit rent as ordered by this Court on 1.4.1990. He has relied on the case of Crescent Public Services Vs. S.M. Younus & Others, reported in 1980 SCM R 779.
8. The facts of the reported case are that the tenants had filed Second Appeal before this Court.
During the pendency whereof, an order was passed directing the tenant to deposit monthly rent in terms of the order passed by the Rent Controller. The tenant committed default in payment as ordered by the Court, whereupon the landlord moved an application for striking of the defence which application was allowed by the High Court relying on;
1. Roshan Din Vs. S.M. Badruddin, (PLD 1969 Kar. 546).
2. Abdul Qayyum Ansari Vs. Salahuddin Qureshi, (PLD 1974 Kar. 10).
9. The Supreme Court upheld the judgment of the High Court. The above case was under the provisions of the West Pakistan Urban Rent Restriction Ordinance, 1959, Section 15(5) whereof specifically provides that the appellate authority admitting an appeal for hearing shall have the same power to direct the. Tenant to deposit the rent as are vested in the Controller under the Ordinance and if the tenant makes default in compliance with such an order, then if he is the appellant, his appeal shall be dismissed summarily and if he is the Respondent, his defence shall be struck of. The aforesaid Ordinance was repealed mid replaced by the Sindh Rented Premises Ordinance, 1979, which does not contain the similar provisions. The legislature while re-enacting rent laws under the Sindh Rented Premises Ordinance, 1979, was fully aware of the provisions of the repealed Ordinance and thought it fit not to incorporate the provision akin to Section 15(5) of the repealed Ordinance. In this view of the matter, the authority relied upon by the learned Advocate of the Appellant is not applicable to the facts of the case. Even otherwise the defence of Respondent No.2 cannot be struck of as he has not been admitted by the appellant as its tenant and the rent case has been rightly dismissed as being not maintainable against the said Respondent after withdrawal of the case against Respondent No.1. This application is, therefore, dismissed.
10. C.MA.No.143/91 is an application filed by the appellant for withdrawal of rent deposited with the Nazir of this Court. The Nazir has reported that no amount has been deposited with him. This application is, therefore, dismissed.