' Respondent No,1 had sought ejectment of the appellant and respondent No,2 from the premises in question on the ground of default. It was alleged that the appellant who was the respondent's tenant and had sublet the premises to respondent No,2, was in arrears of rent with effect from May, 1988 up to the filing of the eviction application before the learned Sixth Rent Controller South, Karachi. The said application was filed on 13-9-1990.
2. The appellant failed to appear and defend the case before the learned Controller even after he had been served by substituted service through publication of notice in the newspaper. The respondent No,2 however, filed a written statement wherein the relationship of the landlord and the tenant between the respondent No,1 and himself was denied, as, according to him, he had taken the premises in question on rent from the appellant.
3. Both the parties adduced their respective evidence before the learned Controller. The appellant examined Col. Abdul Rasheed, his attorney, in support of his case whereas respondent No,2 himself gave evidence before the learned Controller. A plea was taken that the appellant had agreed to purchase the premises in question from the respondent and an agreement had been executed by the appellant and respondent No,1 dated 15th January, 1987 in this regard. Although the said agreement is not available on the record of the learned Controller but reference to the same can be found in the order of the learned Controller and Mr. Muhammad Ahsan Shaikh, learned counsel for the appellant has made a statement at the Bar that a certified copy of the said agreement was issued to the appellant by the learned Controller. It is, however, pertinent to note that the order passed by the learned Controller clearly indicates that respondent No,1's attorney had been confronted with the said agreement but it was denied that any such agreement had been executed by respondent No,1 with the appellant and according to the said attorney, such agreement which had been shown to him during his cross-examination was a forgery. Be that as it may, the learned Controller was of the view that the original tenancy agreement produced by respondent No,1's witness, Col. Abdul Rasheed, and the dishonoured cheques (Annexures C & D) also produced in evidence by the said witness clearly showed that the premises.Had been let out by respondent No,1 to the appellant. It was further observed by the learned Controller in his judgment that if respondent No,2 wanted to prove that he had taken the premises from the appellant then Ejaz-ur-Rehman, the proprietor of the appellant should have at least been examined by him in support of his plea. The learned Controller, therefore, on the basis of the evidence concluded that respondent No,2 was a sublessee and there was relationship of the landlord and the tenant between respondent No,1 and the appellant. The learned Controller on the basis of the evidence adduced on behalf of respondents Nos,1 and 2 held that respondent No,2 had failed to tender monthly rent to respondent No,1 since May,.1988 and consequently, he was a defaulter in payment of rent. The learned Controller, therefore, directed the appellant and the respondent No,2 to hand over vacant possession of the demised premises to respondent No,1 within 30 days from the passing of the impugned order, dated 3-1-1991.
4. Although, before the learned Controller, the case against the appellant proceeded ex parte and only Respondent No,2 had defended the case but before this Court the present appeal has been filed only by the appellant. Respondent No,2 has not challenged the order passed by the learned Controller. The only contention of Mr. Muhammad Ahsan Shaikh, learned counsel for the appellant is that the learned Controller has committed an error while dealing with the forged tenancy agreement dated the 1st November, 1986 and overlooking the supplementary agreement dated 15- 1-1987.
5. So far as the contention of Mr. Muhammad Ahsan Shaikh is concerned, the appellant, as has been pointed out earlier, did not appear before the learned Controller to defend the case or to lead evidence therein. Consequently, the only evidence upon which this appeal can be decided is that which was led on behalf of the two respondents in this appeal. Respondent No,1 had claimed to be the owner and landlord of the building and his case further was that the appellant was his tenant in respect of the demised premises. The parties, according to the case of the first respondent's attorney had executed a tenancy agreement dated 1-11-1986. A photostat copy of this agreement was produced in evidence before the learned Controller but admittedly the same had not been signed on behalf of the appellant by its Chairman Ejaz-ur-Rahman but the same had been signed by one Asif Ali Usmani son of Farhat Ali. Although the appellant did not admit the existence of any tenancy agreement between respondent No,1 and M/s. Al-Rehman International dated 1-11-1986 as alleged by respondent Not but it had relied upon a supplementary agreement dated 15-1-1987 said to have been executed between M/s. Ai-Rehman International and respondent No,1. This agreement admittedly was signed by Ejazur Rehman, both according to respondent No,2 who gave evidence before the learned Controller and Mr. Muhammad Ahsan Shaikh, learned counsel for the appellant.
6. The supplementary agreement dated 15-1-1987 which has been relied upon by the appellant and filed as Annexure with the present appeal clearly establishes that Tariq Rasheed was the owner of the premises in question. It is nobody's case that rent for the period commencing from May, 1988 up to the filing of the ejectment application had been paid for the premises in question to respondent No,1 (Tariq Rasheed). According to the evidence given by respondent No,2, he was in possession of the premises at the relevant time and the same had been let out to him by the appellant. Since the appellant now in the present appeal fully relies upon the said supplementary agreement, a copy of which has been filed as Annexure B, there is no controversy on the point that respondent No,1 was originally the owner of the premises in question. The said supplementary agreement, in paragraph 2 thereof, clearly indicates that the respondent No,1 and the said Ejaz-ur- Rehman, Chairman of the appellant had already entered into a tenancy agreement dated 1-11- 1987. The said agreement further reveals that respondent No,1 had already received various payments from time to time from the said Ejaz-ur-Rehman in advance as consideration for outright sale of the said premises and only Rs,59,500 remained to be paid to respondent No,1 which would bring the total consideration paid to him to Rs,6,00,000 whereafter the said respondent had agreed to execute a proper sale-deed in favour of Ejaz-ur-Rehman. However, neither there is evidence to show nor there is any controversy in regard to the fact that the said balance amount has not been received by respondent No,1 nor a final sale-deed has been executed in favour of the said Ejaz-ur-Rehman or the appellant. Needless to say that unless the property has been transferred to the said Ejaz-ur-Rehman or the appellant by a registered sale-deed, the appellant as tenant of respondent No,1 was liable to pay rent to him regularly for the premises in question.
Since no such rent was claimed to have been paid either by the appellant or respondent No,2 to respondent. No,1, the case of the said respondent against the appellant and respondent No,2 for commission of default in payment of rent was clearly established. The learned Controller, therefore, in my opinion, has rightly ordered the ejectment of the appellant or respondent No,2 from the premises in question.
7. In the result, I find no force in this appeal and the same is, therefore, dismissed. The parties are left to bear their own costs.