1. ' This is an appeal under section 21 of the Sindh Rented Premises Ordinance (hereinafter called Rent Ordinance) against the order dated 31-8-1991 in Rent Case No,2491/1990, Abdul Jabbar Qureshi and others v. Salim and another whereby the 1st Senior Civil Judge and Rent Controller, Karachi-South allowed the ejectment application of the respondent/landlord and ordered eviction of the appellants directing them to vacate the premises within sixty days from the date of the order, hence this present appeal.
2. ' The brief facts of the case are that the respondents/landlords filed ejectment application against the appellants under section 15 of the Sindh Rented Premises Ordinance, 1979 seeking their ejectment on the ground of default in payment of rent for the month of July, 1990, and on the ground of subletting of the said premises to the appellant No,2. The appellants filed their written statement through their attorney wherein they denied the relationship of landlord and tenant between the parties and stated that the application for ejectment made was not maintainable and that the appellant No,1 was still tenant of Flat No,14 in Qurash Manzil who bought it at the Pagri price of Rs,45,000 in 1976 owned by deceased Ghulam Mustafa Qureshi and the unregistered agreement of tenancy between the parties lapsed as its period expired and same had no legal validity and that the appellant/tenant has made a deposit of Rs,21,000 with the respondent's father and the appellant/tenant has been paying rent regularly at the rate of Rs,191 per month and that rent for the month of July was payable by 10th September, 1990, which was tendered to the respondent who avoided to issue rent receipt and he made several attempts thereafter to pay rent but it was avoided by the respondent, therefore, the appellants remitted the rent through money order on 20-8-1990 but it was refused and then the rent was deposited in MRC No,1438/90 in Court on 7-10-1990 and also denied that he has sublet the premises to the appellant No,2, his real younger brother who was living with him after latter's return from Saudi Arabia since 1982.
3. ' On the pleadings of the parties the learned Rent Controller settled the following issues:--
(1) Whether the applicants are the landlord of the opponent No,1?
(2) Whether the ejectment application is not entertainable in law?
(3) Whether the opponent No,1 committed default in payment of monthly rent i,e, July, 1990, and is, therefore, liable to ejectment as prayed for?
(4) Whether the opponent No,1 has handed over the possession to the opponent No,2 and is, therefore, liable to ejectment as prayed for?
(5) What should the order be?
4. ' The respondent/landlord filed affidavit-in-evidence of Abdul Rasheed Sheikh, attorney of the respondent who has produced photocopy of general power of attorney Exh.A, photocopy from the property extract register in respect of the property in question as Exh.B, photocopy of tenancy agreement 1976 made between Ghulam Mustafa Qureshi and Salim, photocopy of rent receipts dated 6-6-1990 for the month of June, 1990, notice dated 11-10-1990 from Salim and Sozer to Ghulam Mustafa Qureshi Exh.E, photocopy of the reply of the respondent's attorney dated 30th October, 1990. Appellant's attorney M.A. Sozer filed supplementary affidavit-in-evidence on behalf of the appellant and filed his affidavit as well.
5. 'After recording the above evidence and hearing the counsel for the respondent and the attorney for the appellant the learned Rent Controller allowed the eviction application on the ground of subletting under Issue No,4 while the Issue No,1 in respect of default was answered in the negative and Issues No,1 and 2 were answered in the affirmative.
6. ' I have heard the attorney of the appellants and the learned counsel for the respondents perused the record and proceedings and the case-law cited by the respondents' learned counsel.
7. ' Mr. M.A. Sozer, Attorney of the appellant argued that the application moved under section 15 of the Rent Ordinance was un-Islamic as declared by the Shariat Court, therefore, findings of the learned Rent Controller were not sustainable and liable to be set aside in this appeal. He has further argued that the appellant No,2 was not sub-tenant of the appellant No,1 but was his real brother who was residing with him and further that the respondents/landlords = have not proved passing of consideration (Pagree) from appellant No,2 to appellant No,1, therefore, subletting could not be said to have proved, therefore, the finding of the learned Rent Controller was illegal and liable to be set aside. He has argued that no intimation as required under section 18 of the Rent Ordinance was sent by the legal representatives of the deceased landlord Ghulam Mustafa Qureshi, therefore, the application for ejectment was not maintainable and the finding of the Rent Controller on the said issue was erroneous. He has further argued that in view of Articles 203-DD and 203-J of the Constitution of the Islamic Republic of Pakistan, 1973 the decision of the Federal Shariat Court was binding upon the High Court where section 15 of the Rent Ordinance was held to be repugnant to the tenets of Islam, therefore, the finding holding the ejectment application to be maintainable by the Rent Controller was erroneous. He has submitted that his written argument may also be considered. Mr. K. B. Bhutto, learned counsel for the respondent has argued that there was a written tenancy agreement between the parties whereunder the appellant was to pay the rent in advance before 15th of each calendar though the period stated in the tenancy agreement has expired but the term in respect of the advance payment of monthly rent being not repugnant to the present Rent Ordinance would be operative and effective between the parties hence the rent for the month of July, 1990 was payable by the appellant No,1 by 15th of July, 1990, rent for the month of August, 1990, was payable on 15th of August, 1990, but the appellant has himself admitted that he has deposited rent in Miscellaneous Rent Case on 30th October, 1990, therefore, the appellant/tenant was defaulter within the meaning of section 15 (2) (ii) of the Rent Ordinance. He has further argued that the finding of the learned Rent Controller on the point of service of notice under section 18 of the Rent Ordinance was erroneous in law and liable to be set aside in this appeal was the appellant/tenant after the death of the original landlord deceased Ghulam Mustafa Qureshi in 1985 paid rent till June, 1990 to the respondent and further that the appellant No,2 was in possession of the said flat and that the appellant No,1/tenant was residing at Shah Rukh Apartment with his family, therefore, the finding on the point of subletting of the learned Rent Controller was legal and proper. He has also argued that the appellant No,2 though brother of appellant No,1 would not be tenant within the meaning of word 'tenant' as defined in the Rent Ordinance and further that the decision of Federal Shariat Court of Pakistan in Ashfaq Ahmad and others v. Government of Pakistan (PLD 1992 FSC 286) was to take effect from 1-10-1991, but the instant ejectment application was filed on 23-8-1990, therefore, the decision of the Federal Shariat Court of Pakistan would not effect the decision of the present ejectment application and further an appeal has been preferred by the Government against the said decision of Shariat Court before Supreme Court which appeal was pending for disposal, therefore, the operation of the decision of Federal Shariat Court stood suspended under the law. He has placed reliance upon Khuda Bukhsh v. Muhammad Yaqoob etc. (1981 CLC 179), Suhail Ahmad v. Dr. Nisar Ahmad (1989 CLC 1048), Muhammad Yousuf v. District Judge, Rawalpindi (1987 SCMR 307), Muhammad Yaseen v. Shabbir Ahmad (1985 CLC 2111), Ashfaq Ahmad and others v. Government of Pakistan and others (PLD 1992 FSC 286) and Ghulam Akbar v.
8. Abdul Rashid (1991 CLC 959) in support of his contentions.
9. ' The first contention of the attorney of the appellant is that section 15 of the Sindh Rented Premises Ordinance, 1979, is un-Islamic as declared by the Federal Shariat Court in Ishfaq Ahmad and others v. Government of Pakistan (PLD 1992 FSC 286) therefore this ejectment application is not maintainable.
10. By virtue of the above said decision of the Federal Shariat Court of Pakistan sections 8, 9 and 15 of Sindh Rented Premises Ordinance, 1979, have been declared to be repugnant to the Injunctions of Islam and to be in direct conflict with the verses of Holy Qur'an and Sunnah of the Holy Prophet and the said decision was made on the 1st October, 1991 and was ordered to be effective on the expiry of six months from the date of its announcement that would mean that the same would become effective on 1st April, 1992, but the present ejectment application was filed on 23rd day of August, 1990, therefore, the said decision of the Federal Shariat Court would have no effect upon the decision of the instant case. I may further state that the proviso to Article 203 (2d) state that no such decision shall be deemed to take effect before the expiry of period within which an appeal may be preferred to the Hon'ble Supreme Court or where an appeal has been so preferred, before the disposal of such appeal. It has been contended by the learned counsel for the respondents that Government of Pakistan has preferred an appeal to the Supreme Court and the same was pending for disposal before the Supreme Court, therefore, the said decision of Federal Shariat Court could not be said to have become effective so far. This fact has not been denied by the attorney of the appellant, however, in the instant case there has been nothing on record to show that the Government of Pakistan has preferred any appeal against the said decision of the Federal Shariat Court of Pakistan but it is an admitted position on the record that the present ejectment application was filed much prior to the decision of the Federal Shariat Court of Pakistan and the said decision would not have a retrospective effect upon the provisions of section 15 of Sindh Rented Premises Ordinance, 1979. In the circumstances the contention of the attorney for the appellant has no force. The next contention of the attorney of the appellant is that the appellant No,2 is the real brother of the appellant No,1/tenant and the latter has been staying in the disputed flat as well with him whenever there has been dispute between the appellant/tenant and his wife, therefore, there could not be said to be a subletting in favour of the appellant No,2 and further that no consideration (Pagree) has been proved to have been passed on from appellant No,2 to appellant No,1, therefore, no subletting could be said to have taken place. Section 15(2)(iii) (a) reads as under:-- "The Controller shall, make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in order, if he is satisfied that the tenant has, without written consent of the landlord handed over the possession of the premises to some other person."
11. ' The above provisions of the Rented Ordinance state that in order to prove subletting it must be shown that tenant has without' consent of the landlord handed over the possession of the premises in dispute to some other person. In the instant case it has been stated in affidavit-in- evidence by the attorney of the respondents that the appellant No, 1/tenant has shifted to Shah Rukh Apartment while the appellant No,2 was residing in the disputed flat. This fact has not been denied by the appellant No,1. It has been admitted by the appellants' attorney in his affidavit-in- evidence as well as in his cross-examination that the appellant No,1 was residing in Shah Rukh Apartment and he has been staying in the disputed flat whenever there has been some dispute between him and his wife and sometimes appellant No,1 has been staying with him (attorney) because of the dispute between the appellant No,1 and his wife. It has also been admitted by the appellants' attorney that the appellant No,2 has been residing with his family including wife and son in the disputed flat, which would clearly show that the appellant No,1/tenant, has handed over possession of the disputed flat to his brother appellant No,2 who has been residing there with his family while appellant No,1 has been residing in Shah Rukh Apartment. The causal stay in the disputed flat in case of dispute between the appellant No,1 and his wife would not mean that he has not handed over the possession of the disputed flat to appellant No,2. The appellants' attorney admitted that tenant was in possession of appellant No,2 and the explanation given by the attorney was that the appellant No,2 was the brother of the appellant No,1 and that no consideration has been passed on to appellant No,1, therefore, it could not be said that subletting has taken place. Appellant N9.2 is the brother of appellant No,1 but he could not be termed as tenant within the meaning of section 2 (j) of the Sindh Rented Premises Ordinance, 1979 as the appellant No,2 could not be said to be heir of appellant No,1 to be in occupation of premises after death of tenant. The appellant No,2 is residing in the disputed flat without the consent of respondents and the evidence on record proved that the appellant No,1 has handed over possession to the appellant No,2 without the permission of the respondents which fact has also been admitted by the attorney of the appellants in cross-examination wherein he stated that it was not necessary to have the permission of the respondents as appellant No,2 was the brother of the appellant No,1. The evidence adduced on the point of subletting by the respondents/landlords has gone, in fact, unchallenged as no proper defence has been adduced to controvert the statement of the attorney of the respondents and further that passing of Pugree consideration was not necessary to prove subletting, therefore, no exception could be taken to the finding of the learned Rent Controller on the said issue.
12. ' Learned counsel for the respondent has argued that the finding of the Rent Controller on the issue of default is erroneous in law as it was not necessary in the circumstances of the instant case to give notice under section 18 of the Sindh Rented Premises Ordinance, 1979 to the appellants/tenants before filing of the ejectment application against him on the ground of default, as after the death of deceased/landlord in the year 1985, the appellants/tenants continued paying the rent till June, 1990 therefore there would be no bar to the filing of application under section 15 of the Sindh Rented Premises Ordinance, 1979 on the ground of default. In support of his contention he has placed reliance upon Khuda Bukhsh v. Muhammad Yaqoob (1981 SCMR 179) wherein the Hon'ble Supreme Court of Pakistan has held:-- "Be that as it may on page 54 of the paper book we find that the petitioner admits paying rent to the respondent. The reason for a notice under section 13-A is to inform the tenant that the landlord has sold the property to another person so that rent could thereafter be paid by the tenant to the new landlord. In this case knowledge of the transfer admitted by the petitioner and hence even if a notice had not been served under section 13-A, it would not stand in the way of the Court in granting the relief that it has granted."
13. ' It is correct that the above decision of Supreme Court of Pakistan relates to section 13-A of the West Pakistan Urban Rent Restriction Ordinance but the said provisions of section 13-A are analogous to provisions of section 18 of the Sindh Rented Premises Ordinance, therefore, the same principles could be applied to the provisions of Sindh Rented Premises Ordinance, 1979. Reference is also made to the case of Muhammad Raghib v. Abdul Razzak (PLD 1994 Karachi 20), where learned Judge in Chamber observed that:- "There are, by now, do dearth of reported judgments of the superior Courts to the effect that notice under section 18 of the Ordinance is not necessary even in cases where eviction is sought on the ground of default in the payment of rent under sub-clause (ii) of section 15 (2) of the Ordinance when it is established that the tenant had knowledge of the transfer, because in that case serving of the notice will serve no purpose and will be superfluous. On this point learned counsel of the appellant had relied on the judgment in the case of Major Muhammad Yousaf v. Mehraj-ud-Din and others 1986 SCMR 751."
14. ' In the above-cited judgment provisions of section 13-A of the repealed West Pakistan Rent Restriction Ordinance were dealt with but the provisions of section 13-A similar to the provisions of section 18 of the Sindh Rented Premises Ordinance, 1979, therefore, the observations in the cited judgment would be applicable on all fours to the instant case. In the instant case attorney of the respondents in his affidavit-in-evidence has stated that the appellant No,1 after the death of original landlord Ghulam Mustafa Qureshi came to condole his death where he was informed that the deceased original landlord has left the respondents as legal heirs to inherit the property left by him which fact has not been challenged in the cross-examination of the respondents' attorney by the attorney of the appellants, therefore, the statement made by the respondents' attorney shall be deemed to have been admitted by the appellants/tenants. Reference is made to Muhammad Yaseen v. Shabbir Ahmed (1985 CLC 2111) wherein learned brother Judge in Chamber observed:- "That if there was no cross-examination on the fact deposed in the examination-in-chief presumption would be that evidence had been accepted by the parties against whom it was given."
15. Accordingly, the finding of the learned Rent Controller that in absence of service of notice, ejectment could not be sought on the ground of default in the stated circumstances has no merit, and is accordingly reversed in view of the evidence on record and the case-law cited above.
16. ' Now there remains to be seen whether the appellant/tenant was defaulter in the payment of rent as alleged by the respondents/landlords for the months of July and August, 1990. Before I proceed to examine the fact, as to whether the appellant was defaulter in the payment of rent or not, it would be necessary to find out as to whether the appellant/tenant would be governed by the written tenancy agreement which has lapsed by time or would be governed by the provisions as regards the payment of rent as laid down in section 15(2)(ii) of Sindh Rented Premises Ordinance.
17. ' Para. 1 of the tenancy agreement dated 1st April, 1976 states that tenant shall pay regularly rent at the rate of Rs,115 as rent of the aforesaid premises in advance on or before 5th of each calendar month. Reference made to Mrs. Zarina Khawaja v. Agha Mahboob Shah (PLD 1988 SC 190) wherein Supreme Court has held:-- "The terms of the so-called expired agreement which are not repugnant to the rent law shall continue to operate. For example, the rate of rent, the mode of payment thereof including its advance payment or deposit, provision for agreed increase in rent provided it is not after determination of fair rent, provision for re-entry of a tenant after he vacates the premises for re- construction all covenants which support the conditions in section 15 of the Sindh Law and section 13 of the law repealed by it, and similar other conditions and covenants."
18. ' Reference is also made to Syed Asghar Ali Inam v. Muhammad Ali (PLD 1988 SC 228) it was observed that:-- "The last argument of the learned counsel for the respondent has also no force. The date of payment of rent after the expiry of the 1st period of tenancy has been fixed in para. 4 of the agreement as 5-1-1975. It was to be of advance rent, which as held by us in the case of Mst. Zarina Khawaja, is permissible. Taking the liberal view in tenant's favour, we would hold that the use of the word 'monthly' and 'Rs,1,100' in the last sentence of para 4, would make it advance rent only for one month and not for six months. Thus, it was due on 5-1-1975 and would be payable up to 20-1-1975 i,e, within 15 days--it is in case of ' agreement' even if expired but continued by the law as held in the said case of Mst. Zarina Khawaja. The 60 days' rule will not apply. Hence, the 1st default occurred on 21-1-1975. The second on 21-2-1975 and the third on 21-3-1975. Thereafter, the application for eviction was moved in April, 1975. Thus, it was default of three months and not one month. Nor as held regarding the nature of security, was it a technical default. If the eviction application had not been filed, it appears from the pleas taken by the respondent, he would have continued the default. His attitude was one of disregard for solemn agreement and commitment freely made by him with his landlord. The default on all scores was wilful. He is not entitled to any discretionary benefit."
19. ' From the above case-law, it could safely be said that in the instant case the clause in respect of payment advance monthly rent being not repugnant to rent law would be operative. It has been admitted by the appellants' attorney in paras.2 and 4 of his affidavit-in-evidence that the rent for the months of July up to October was deposited in the Court on 29th of September, 1990 in Miscellaneous Rent Case No,1438/90 as the landlords avoided to receive the same and also refused to accept the money order but no such suggestion in cross-examination was made to the respondents' attorney that rent was tendered to them but it was refused so also money order was sent to them but it was refused. So much so that even the appellants' attorney did not care to file any postal receipt or coupon of money-order to support his contention that rent was sent through money order for the months of July and August, 1990 to the respondents but it was refused. No postman is examined in support of the statement of the appellant/tenant that rent was tendered by them. Reference is made to Suhail Ahmad v. Dr. Nisar Ahmad (1989 CLC 1048), wherein learned Judge in Chambers observed:-- "Where the tenant stated that he has sent rent by money order but landlord denied to have received money order and the postman was not examined to show the money order was delivered or was refused the default in payment of the rent stood proved."
20. The respondents/landlords' attorney in his affidavit-in-evidence has stated nonpayment of rent by appellant/tenant and nothing has been suggested in the cross-examination in the negative by the appellant/tenant that the rent was paid to them. Accordingly, the testimony of the respondents' attorney could not be shaken and the same was consistent with the pleadings on the default in payment of rent for the months of July and August, 1990 which stood proved as the rent was neither paid nor tendered in terms of expired tenancy agreement between the parties. In the circumstances the findings of the learned Rent Controller on the point of issue of default is reversed and the appellant/tenant is held to be defaulter in payment of monthly rent for the months of July and August, 1990. Lastly it was contended by the attorney of the appellants that the appellant No,1 have stated that he has paid Pagri amounting to Rs,45,000 in addition to Rs,21,000 as security deposit but so far the amount of Pagri is concerned the appellants' attorney has not produced any evidence in support of his contention even the appellants' attorney has not made any suggestion to the attorney of the respondents in the cross that an amount of Rs,45,000 was paid as Pagri to the respondents whereas the respondents' attorney have denied to have received the same in the affidavit-in-evidence. Learned counsel for the respondents has placed reliance upon the case of Shaikh Muhammad Yousuf v. District Judge, Rawalpindi (1987 SCMR 307), wherein the Hon'ble Supreme Court held:-- "However, alleged payment of Pagri being mutual arrangement between the parties the same would not debar the respondent/landlord from instituting the eviction proceedings on the ground of bona fide personal need."
21. ' In view of the evidence and the case-law cited above, the appeal has no merit which is hereby dismissed and the appellants/tenants are directed to hand over the vacant possession of the premises in question within sixty days from the date of announcement of this order subject to condition that the respondent would refund the security deposit of Rs,21,000 to the appellants as per para.8 of the agreement or deposit with the Controller subject to adjustment of due rent if any.