1. ' This First Rent Appeal is directed against order dated 20-10-1993 passed by the Additional Controller of Rents, Clifton Cantonment Board, Karachi passed In Rent Case No,27 of 1992 filed under section 17 of the Cantonments Rent Restriction Act, 1963 filed by the respondents directing eviction of the appellants and to vacate the residential premises bearing No,65/1I, 4th Street, Phase V, Defence Housing Authority, Karachi within 45 days of the order.
2. ' The facts leading to the filing of this appeal, briefly stated, are that the respondent No,1 claims to be lawful owner of the subject premises by virtue of Registered Sub-lease, dated 24-5-1980 executed in her favour by the defunct Pakistan Defence Officers' Cooperative Housing Society, Karachi, such sublease, on account of the absence of respondent No,1 from the country, was executed through the respondent No,2, her mother, in whose favour a power of attorney was executed by her on 2-1-1980 which bears attestation by Embassy of Pakistan at Jeddah and the Consulate General of United States of America at Dehran Saudi Arabia. The subject premises were let out to the appellants, admittedly, under lease agreement dated 1-2-1984 and hire agreement dated 15-2-1984 which were both executed by the respondent No,2. The monthly rental/hire charges was agreed to be Rs,3,500 and Rs,3,000, the total being Rs,6,500. In the year 1987, the respondent No,1 returned to Pakistan alongwith her husband Dr. Iqbal Ali and started living in a rented flat. It is the case of the respondents that the appellants were approached immediately thereafter for vacating the subject premises which was required for personal occupation. The appellants promised to vacate the subject premises by January, 1989 but latter sought further time till January, 1990, extended again till January 1991. Meanwhile, payment of rent was directly made through cheques favouring the said Dr. Iqbal Ali on 26-2-1990 and 24-4-1990 for the sums of Rs,50,000 and Rs,35,000 respectively. According to the respondents, the above payments, through cheques, were towards rent for the period from 1-2-1990 to 31-12-1990 at an increased rate of Rs,7,700 per month. The respondent No,1 further relies on payment through the said cheques as an acknowledgement by the appellants of her title. On 28-2-1991, the respondent No,1 sent a notice to the appellant No,1 calling upon the appellants to vacate the subject premises for the reason that the rented flat, which was under occupation of the respondent No,1, was required to be vacated by February, 1991. Besides, it was mentioned that the appellants had failed to pay full rent and local taxes in respect of the subject premises. Such notice was replied on 9-4-1991 by the appellants' advocate refuting any undertaking to vacate the subject premises. Nothing, however, was stated with regard to non-payment of full amount of rent and the taxes. In the meantime, the Advocate for the appellants, sent undated letter (received by the husband of the respondent No,2 on 3-3- 1991) addressed to the respondent No,2 stating therein that rent had been paid up to February 1991 at the rate of Rs,3,500 and a cheque dated 28-2-1991 for Rs,3,500 stated to be for the month of March, 1991 was forwarded therewith. Such letter was replied to by the husband of the respondent No,2 through letter, dated 10-3-1991 mentioning therein that the respondent No,2 was out of the country and that the premises in dispute were owned by the respondent No,1 who, since her return to Pakistan in 1987, had herself been looking after and collecting rent through her husband from the appellant No,1 and that the monthly rent had been increased to Rs,7,700 per month inclusive of the hire charges for the fittings and fixtures. The cheque dated 28-2-1991 was accordingly returned requiring the appellant No,1 to send the amount of rent directly to the respondent No,1 as the landlady. The address of the respondent No,1 was also mentioned in the said reply. On 3-5-1992, the respondents filed Rent Case NO.27 of 1992 in the Court of Additional Controller of Rents, Clifton Cantonment Board, Karachi seeking eviction of the appellants on the grounds of default in payment of rent at the rate of Rs,7,700 from 1-1-1991 to 31-3-1992 and personal requirement.
3. ' The above proceedings were resisted by the appellants contending that the rate of rent is Rs,3,500 per month and Rs,3,000 per month were paid as hire charges; the rent had been paid up to January, 1991 to the respondent No,2 and that the same was regularly being deposited in M.R.C.
4. No,15 of 1991; the relationship of landlord and tenant as between the Respondent No,1 and the appellants was denied so also the requirement of the subject premises for the use of respondent No,
1. It was averred in the written-statement and also in the affidavit in evidence filed on behalf of the appellants that no payment through cheques was ever made by the appellants to the respondent No, 1 .
5. ' On behalf of the respondents, the above-referred Dr. Iqbal Ali filed his affidavit-in-evidence as attorney of his wife, the respondent No,1; whereas on behalf of the appellants, the appellant No,1 submitted his affidavit in evidence. Both the above witnesses were duly cross-examined and the learned Additional Controller of Rents, Clifton Cantonment Board, Karachi by his order dated 20-10- 1993, allowed the rent case, as above. The relationship of landlady and tenant was found to exist between the appellants and respondent No,1; the rate of rent was held to be Rs,6,500 per month; the appellants were found to have committed default; and the issue of personal requirement was also decided in favour of the respondents.
6. ' I have heard the learned counsel for the parties. Neither of the parties has questioned the finding of the Additional Controllers of Rents, Clifton Cantonment Board, Karachi, relating to rate of rent which was found to be Rs,6,500 per month. As to the question of relationship between the appellants and the respondent No,1, it is urged by the learned counsel for the appellants that the subject premises were let out to them through lease agreement dated 1-2-1984 by the respondent No,2 who has described herself as the owner thereof. The hire agreement dated 15-2-1984 was also executed by the respondent No,2 and the name of respondent No,2 is shown in the challans of the property tax etc. Issued by the Clifton Cantonment Board. It has further been urged by the learned counsel for the appellants that the title documents pertaining to the subject premises and the power of attorney dated 2-1-1980 executed by respondent No,1 in favour of the respondent No,2 were not shown to the appellants at the time of execution of lease agreement dated 1-2-1984. It is further urged on behalf of the appellants that the impugned decision is based on the power of attorney dated 2-1-1980 which itself appears to be a dubious document inasmuch as it is typed on stamp paper dated 28-2-1980 but is stated to have been executed on 2-1-1980. According to the learned counsel, in view of the respondent No,2 having described herself as owner of the subject- premises and having let out the same, she was the only person entitled to claim the status of landlady and ask for ejectment on the ground of personal requirement. She having failed to appear as a witness nor any other person having appeared on her behalf as a witness, the application for eviction was liable to be dismissed. In support of the above contention, the learned counsel has relied upon an unreported judgment dated 15-4-1992 by Single Bench of this Court in F.R.A. No,470 of 1990, Mrs. Safia Zareen v. M/s. Petrotect Limited Company wherein dismissal of rent case by the Rent Controller was upheld by holding that the applicant therein had not executed the lease agreement wherein a different person was described as owner. On behalf of the appellants the definition of term 'landlord' as contained in section 2(g) of the Cantonments Rent Restriction Act, 1963 was referred to which is as follows: " 'Landlord' means any person for the time being entitled to receive rent in respect of any building whether on his own account or on behalf or for the benefit of any other person, or as a trustee, guardian or receiver and includes a tenant who, being authorised under the terms of his lease so to do, sub-lets the building and every other person for the time being deriving title from the landlord."
7. ' The expression landlord, a fortiori means any person for the time being entitled to receive rent in respect of any building on his own account or on behalf or for the benefit of any other person.
8. However, the said definition does not exclude an owner from asserting the rights as a landlord and moreso, when the person entitled to receive rent himself/herself acknowledges the right of the real owner to receive rent. The present case is totally different from the above-referred unreported case since the respondent No,2 who had let out the subject-premises to the appellants is also a party to the proceedings and had filed the proceedings as co-applicant before the Additional Controller of Rents. In the application filed under section 17 of the Cantonments Rent Restriction Act, 1963, the title of the respondent No,1 and her right to recover rent is clearly acknowledged and paragraphs 1 and 3 of the application contain such narration quite expressly which is reproduced as follows: "1. That the applicant No,1 is lawful owner of the house bearing No,65/1I, 4th Street, Phase V, Defence Housing Authority, Karachi, having acquired the same through registered sub-lease dated 24-5- 1980 executed in her favour by the Pakistan Defence Officers Cooperative Housing Society, Karachi.
9. True photostat copy of the registered sublease is filed herewith as Annexure 'A'.
3. That the applicant No,2 is a lawful attorney of the applicant No,1 let out the disputed house under a written lease agreement dated 1-2-1984 to the opponent No,1 through its managing director the opponent No,2. The applicant No,2 acting on behalf of the applicant No,1 also executed a higher agreement on the same date in favour of the Opponent No,l. True photo copies of lease agreement and the higher agreement are filed herewith as Annexures C/1 and C/2. It is further submitted that although to the applicant No,2 had wrongly described herself as a owner of the house in the lease agreement, the opponents had full knowledge of the facts that the real owner and landlady of the premises in dispute is applicant No:l."
10. ' Moreover, it has come in evidence that the appellants had made payment of rent in respect of the subject-premises directly to the husband of the respondent No,1 through cross cheques dated 26- 2-1990 and 24-4-1990. Although such payment was initially denied in the written statement and in the affidavit in evidence filed on behalf of the appellants, such fact was admitted during cross- examination and was further established by the certificate of encashment issued by the Bank. The learned counsel for the respondents took me through the record to show that the appellants had acknowledged the respondent No,1 as the landlady through their conduct and had made payment of rent to her. The learned counsel for the appellants was not really able to show anything tangible to take a view different of attorney dated 2-1-1980 which contains some discrepancies between the dates of execution and purchase of stamp paper can hardly be made a ground to deny the status of landlady of the subject-premises to the respondent No, 1 . Indeed, it was argued by the learned counsel for the appellants that such power of attorney from that reached by the Additional Controller of Rents regarding relationship of landlady and tenant between the respondent No,1 and the appellants. The powerwas not even shown to the appellants at the time of execution of lease agreement dated 1-2-1984.
11. ' As to the question of personal requirement the only argument of the learned counsel for the appellants was based on the ground that the respondent No,1 was not the landlady of the subject- premises. As to the respondent No,2, it was urged that she owned other premises and had permanently shifted out of the country. It was further urged that the respondent No,2 had let out other properties during the pendency of the present appeal. In reply, the learned counsel for the respondents has contended that the respondent No,1 was the landlady of the subject-premises ,and her requirement of the subject-premises for personal use had not been rebutted at all. The deposition of attorney of the respondent No,1 Dr. Iqbal Ali regarding requirement for personal use had not been disputed, at all, in the cross-examination, and therefore, is to be treated to have been accepted. According to him, the non-examination of the respondent was also not fatal and the finding contained in the impugned order may be upheld. The learned counsel has relied, in respect of his above submission, on the cases of Hassan Khan v. Mrs. Munawar Begum reported in PLD 1976 Kar. 832; Haji Rasheed Ahmed v. Mst. Akhtari Jehan reported in 1988 CLC 262; Dr. Abdul Rehman Gora v. Mst. Asya Sultana reported in 1986 M LD 1638 and Mst. Sayyeeda Khatoon v. M.A. Agha reported in 1990 M LD 1715.
12. The principle laid down in the above-referred reported judgments, to the effect that the statement made by the landlord or his/or close relative, remaining unshaken is sufficient to justify eviction of tenant on the ground of personal requirement, is quite well-settled and does not require much to be dilated upon. In my view on account of the finding to the effect that the respondent No,1 is landlady of the subject premises, there is hardly anything to dislodge the finding of the learned Additional Controller of Rents contained in the impugned order.
13. ' As to default in payment of rent, the main reason which has weighed with the Additional Controller of Rents, Clifton Cantonment Board, for holding the appellants to have committed default in payment of rent from month of January, 1991, is that the appellant No,1 had failed to produce receipt evidencing payment of rent for month of January, 1991 and that the deposit of rent on 21-4- 1991 in M.R.C. No,15 of 1991 of rent for the months of February and March was beyond time. It has been urged on behalf of the appellants before me that the rent for the month of February, 1991 was sent through cheque dated 28-2-1991 through the undated letter which was received by the husband of respondent No,2 on 3-3-1991 and was returned. It is further urged that after return of the cheque, the Miscellaneous Rent Case No,15 of 1991 was filed on 11-4-1991 and rent for the months from February 1991 was deposited after grant of requisite permission on 21-4-1991. The suggestion made to the appellant No,1 during cross-examination that rent for the period from January, 1991 had not been paid was denied and it was asserted that the appellants were in possession of receipts evidencing payment of rent up to January 1991. In reply, the learned counsel for the respondents has referred to para. 6 of the application for ejectment filed under section 17 of the Cantonments Rent Restriction Act, 1963 which is as follows: "6. It is further submitted that besides the above opponents are also defaulters in payment of monthly rent and have failed and neglected to pay/tender the monthly rent deliberately to the applicants since January, 1991. It is further submitted that on 1-2-1989 the opponents paid Rs,92,000 four hundred to the applicant No,1 towards rent from 1-2-1989 to 31-1-1990 at Rs,7,700 per month for which a receipt dated 1-2-1989 was duly issued to them by the applicant No,1, true photo copy whereof is filed herewith as Annexure 'E'. Thereafter, in March, 1990 the opponents delivered two cross cheques to the applicant No,1 through her husband Dr. Iqbal Ali for Rs,50,000 and Rs,35,000 respectively which were in the name of Dr. Iqbal Ali the husband of the applicant No,1 and total amount being Rs,85,000 were towards the rent for 11 months at the rate of Rs,7,700 per month covering the period from 1-2-1990 up to 31-12-1990. It is submitted that no rent was tendered thereafter to the applicants and hence the opponents are liable to be ejected on the ground of default as well."
14. ' Both the learned counsel have apparently failed to appreciate that in view of payment of Rs,85,000 through the two cheques dated 26-2-1990 and 24-4-1990 favouring Dr. Iqbal Ali which has been treated by the respondent No,1 as payment for the period from 1-2-1990 to 31-12-1990, calculated at the admitted rate of rent shall mean payment or rent for 13 months with effect from 1-2-1990 leaving an over payment of Rs,500. Thus, the receipt of the said sum of Rs,85,000 means the rent up to February, 1991 had been paid to the respondent No,1. The default in payment of rent would, therefore, be only for the month of March 1991 if the grace period for payment thereof is taken to have expired on 15-4-1991. Indeed the tender of rent through cheque dated 28-2-1991 alongwith the undated notice of the appellants' counsel cannot be treated as a valid tender since the amount was far below the rate of rent determined by the Additional Controller of Rents and also for the reason that it was sent in the name of respondent No,2 despite the appellants had attorned to the respondent No,1 by making payment through cheques dated 26-2-1990 and 24-4- 1990. Be that as it may, the finding regarding default contained in the impugned order again, hardly, calls for any interference since deposit of rent in M.R.C. No,15 of 1991 in the name of respondent No,2 cannot absolve the appellants from their liability to pay rent to the respondent No,1 who alone, for the reasons and findings contained hereinabove, was entitled to receive rent.
15. Deposit of rent in the name of respondent No,2 despite attornment to the respondent No,1 as above, cannot be termed as lawful tender of rent.
16. ' In the result this appeal fails and is dismissed accordingly. The appellants are directed to vacate the subject premises and hand over its possession to the respondent No,1 within 60 days of this order subject to tender of rent regularly. The parties shall bear their own costs.
17. (Sd.)
18. ' Dated 7-3-1997 MUSHTAQ AHMAD MEMON, J.
19. ' At this stage the learned counsel for the appellants requests that the time to vacate the subject premises may be extended to six months from the date of this order. Such request is not opposed by the learned counsel for the respondents subject to the condition that the judgment is accepted, the rent is regularly tendered and in case of failure on the part of the appellants to vacate the subject premises, writ of possession may be issued without notice. .