' This is an appeal under section 21 of the Sindh Rented Premises Ordinance, 1979. The facts, and the circumstances out of which it arises are a little curious.
2. The respondent is the owner/landlady of commercial premises bearing No,3, Salima Terrace, Block No,6, Gulshan-e-Iqbal, Karachi, which is on lease with the appellant on a monthly rent of Rs,2000, payable in advance on or before 10th of each calendar month. The relations between the parties are regulated by a written agreement of tenancy executed on 29-8-1989. On 21-3-1991 the respondent filed an application against the appellant seeking his eviction from the said premises on the following grounds:-
(i) Violating the terms and conditions of agreement of tenancy by making alteration in the disputed premises;
(ii) Subletting of half of the portion of the disputed premises to some one else without the consent of the landlady;
(iii) causing nuisance to neighbours by playing audio-cassettes loudly;
(iv) committing default in payment of rent for the months of December, 1990, and January 1991;
(v) impairing the material value and utility of the premises; and
(vi) requirement of the premises by the landlady for its use as "Beauty Parlour".
3. The appellant resisted his 'eviction by controverting the allegations based on facts in the written statement filed by him. According to him the respondent wanted to enhance the rent from Rs,2,000 to Rs,3,000 P.M, and on his refusal to do so the grounds for his eviction were cooked up.
4. The appellant, however, did not contest the proceedings after filing of written statement and he and his Advocate preferred to remain absent, with the result that the evidence of the respondent has gone unchallenged and the side of the appellant was closed. On 19-1-1992 the Rent Controller (MRs, Soofia Latif) decided the application of ejectment against the appellant directing his eviction from the demised premises within a period of 60 days. It is in these circumstances that the present appeal has been filed.
5. I have heard Mr. Muhammad Amin Mangi, learned counsel for the appellant and Mr. Muhammad Ali Abbasi, learned counsel for the respondent. I have also gone through the record of this case carefully.
6. It is contended on behalf of the appellant that he has been condemned unheard. Reliance is placed upon the case of Messrs Eastern Steels, Karachi v. National Shipping Corporation, I.I.
Chundrigar Road, Karachi, reported in 1984 CLC 2778, in an attempt to show that a party should not suffer due to negligence or carelessness of his Advocate. To appreciate this argument it is necessary to refer to the chronology of the progress made in the case on different dates of hearing, bearing in mind that the appellant on his own showing did not pursue the case properly and diligently. The perusal of the order-sheets shows that on 15-8-1991 the respondent filed her affidavit-inevidence, with copy to other side. The case was then fixed on 5-9-1991 for the cross- examination of the respondent. The case did not proceed on this date and it was adjourned to 17- 9-1991 by consent. On this date also a prayer was made for adjournment and the case was posted on 6-10-1991, when the Rent Controller passed the following order:- "Case called. Applicant and her counsel are present. None is present for opponent. Case is fixed for cross (examination) of applicant but nobody is present to cross-examine her. Therefore, the side of opponent to cross-examine the applicant is closed. Put off to 24-10-1991 for affidavit-in-evidence of opponent."
7. On 24-10-1991, the Advocate for appellant appeared and he sought time for filing affidavit-in- evidence of the appellant. The prayer was allowed and consequently the case was fixed on 10-11- 1991 for the said purpose. One mere adjournment was sought on behalf of the appellant for filing of his affidavit-in-evidence and his prayer seeking time was granted. It may be noted that during all this period no attempt was made for recalling the respondent for the purpose of cross- examination. On 5-12-1991 the side of the appellant was closed with the following order:-- "Advocate for applicant is present. Advocate for opponent filed application under section 148, C.P.C.
Order passed thereon. Side of opponent is closed. Case is adjourned to 12-12-1991 for final arguments."
8. On this date also an adjournment was sought on behalf of the appellant, which request was also granted. The counsel for appellant, however, remained absent on 11-1-1992 and consequently on 19-1-1992 the case was decided. It will be seen that during all this period the appellant did not appear before the Rent Contrller and although various opportunities were provided his Advocate did not cross-examine the respondent. The affidavit-in-evidence of the appellant was also not filed and consequently his side was closed on 5-12-1991. The facts of the above case relied upon by learned counsel for the appellant are, therefore, clearly distinguishable. The fact that a party engages an Advocate does not absolve him of pursuing his ease diligently. It was in fact a case of gross negligence on the part of the appellant and his Advocate. The appellant should, therefore, thank himself for this situation.
9. The perusal of the record shows that an agreement of tenancy was executed by the parties at the time of creation of the tenancy. The ageement is on record (Annexure A.) It is attested by a Notary Public and is, therefore, not a valid agreement within the meanings of section 5 (1) of the Sindh Rented Premises Ordinance, 1979, which provides:- "The agreement by which a landlord lets out any premises to a tenant shall be in writing and if such agreement is not compulsorily registrable under any law for the time being in force, it shall be attested by, signed by, and sealed with seal of, the Controller within whose jurisdiction the premises is situate or, any Civil Judge or First Class Magistrate."
' Thus, for all practical purposes the tenancy between the parties shall be deemed to be "oral tenancy".
10. Para No,4 of the application for ejectment deals with default in payment of rent in the following words:-- ' That the opponent failed to pay rent for the months of December, 1990, and January, 1991, as such committed wilful default and is liable to be ejected from the premises in question."
11. Para 3 of the affidavit-in-evidence filed by respondent makes it clear that the rent was payable in advance on or before 10th of each calendar month. The phot copy of rent receipt (Annexure A to written statement) filed by the appellant, even if taken on face value proves default of one month in payment of rent, viz. December, 1991. The photo-copies of receipts, which the appellant wants to produce before this Court (CMA No, 113 of 1992) in no way improve the case of the appellant as the default for the month of December, 1991, is proved from the receipt which the appellant had produced alongwith the written statement. It may be recalled that the respondent was not subjected to cross-examination and consequently para 3 of her affidavit-in-evidence, which is reproduced below, has gone unchallenged:-- "That on Ist September 1989 the said shop was let out by the applicant to the opponent on the agreed rent of Rs,2,000 (excluding electric charges, water and sewerage charges, and other misc.), where rent was payable in advance on or before 10th of each calendar month."
' The issue of default in payment of rent was, therefore, rightly decided against the appellant.
12. I now proceed to examine issue No,1, which is as follows:- "Whether the opponent has violated the terms and conditions of the agreement by making alteration in the shop, without seeking permission from the applicant?"
' As indicated earlier the agreement attested by a Notary Public, does not constitute a valid agreement of tenancy within the meanings of section 5 (1) of the Sindh Rented Premises Ordinance, 1979. Section 15 (2) (iii) (c) of the Sindh Rented Premises Ordinance, 1979, however, empowers the Rent Controller to direct the eviction of a tenant if he is satisfied that the tenant has infringed the conditions on which the premises was let out. There is nothing on record to prove the conditions which were infringed by the appellant. The finding of learned Rent Controller on this issue is, therefore, not justified and is accordingly reversed.
13. Clause (iii) (a) of subsection (2) of section 15 of the Sindh Rented Premises Ordinance, 1979, againt empowers the Rent Controller to direct the eviction of a tenant, if he is satisfied that the tenant has handed over the possession of the premises to some other person. A bare perusal of this clause makes it clear that "the possession of premises" includes possession of a portion of permises also. The respondent has alleged in para. 4 of her affidavitin-evidence that the appellant has parted with the possession of a portion of shop rented out to him without obtaining permission from her. This evidence has not been questioned as there was no cross-examination to the respondent. No evidence in rebuttal was also adduced. The finding recorded by learned Rent Controller on issue No,2 is, therefore, affirmed.
14. Admittedly the respondent is in occupation of the commercial premises adjoining to the disputed premises, where she is running a "Beauty Parlour." She, therefore, needs the disputed premises for her own use. Para. No,12 of the affidavit-in-evidence filed by respondent which has gone unchallenged relates to this ground of ejectment and for the sake of convenience is reproduced in extenso:-- "I say that the applicant is running the beauty parlour adjoining the shop in question and present accommodation is not sufficient for the requirement of her own business. That the applicant as well as her clients are facing great difficulties and hardships due to shortage of the accommodation. The applicant's business is seriously affected due to acute shortage of space.
The applicant requires the premises in question is good faith for her personal use."
15. There is no evidence in rebuttal and the most important point that the learned counsel for the appellant has been able to bring out is that, on the evidence given by the respondent that the disputed premises was rented out to the appellant on 1-9-1989 and if her needs were so compelling which prompted her to file ejectment application on 21-3-1991 after only 1/1-2 years of letting out the premises, she could not have rented out it to appellant. There is good deal of force in this observation and I confess that it does seem to me an extremely stupid thing to do. But again, I cannot allow it to overcome the clear evidence of respondent, which has gone unchallenged, that she needs the disputed premises as the accommodation which is in her occupation is not sufficient to cater her needs. No exception can, therefore, be taken to the finding of learned Rent Controller on issue No,4.
16. In the result the appeal fails and is dismissed with no order as to costs. Two months' time is, however, allowed to appellant to vacate the demised premises. As a necessary corollary to the above finding, C.MA. No, 113 of 1992 is also dismissed.