1. This First Rent Appeal under section 21 of Sindh Rented Premises Ordinance, 1979 (hereinafter called Rent Ordinance) is directed against an order, dated 30-11-1992, passed in Rent Case No. 127 of 1991 (Mst. Inayat Bibi v. Allah Rakha and another) by VIII Senior Civil Judge and Rent Controller, Karachi- South, whereby an application under section 15 of Rent Ordinance filed by respondent No. l against the appellant and respondent No.2 was allowed.
2. Brief facts of the case are that initially respondent No. l filed an application under section 15 of Rent Ordinance against respondent No.2 Allah Rakha on 3-2-1991 for his ejectment on the ground of default in payment of rent from 1-12-1989 to 30-1-1991 in respect of shop premises constructed on Plot No.AK-13-B-148, Atama Pritamdas Road, Massan Road, Bihar Colony, Karachi, which was on rent at Rs.650 per month and that respondent No.2 Allah Rakha has sublet the said shop.
3. Respondent No. 2 filed written statement on 4-3-1991 wherein he denied to be tenant of respondent No. 1 Inayat Bibi and stated that appellant Muhammad Hanif was the tenant of respondent No.1, Inayat Bibi. Respondent No. 1 moved an application through her counsel on 10-3-1991 for impleading appellant Muhammad Hanif as opponent No.2 on the ground that latter has been put into possession of the said shop by respondent No.2 Allah Rakha who was sublettee, which application was allowed and thereby amended ejectment application was filed on 11-5-1991 by respondent No.1. The appellant filed a written statement on 15-7-1991 wherein he stated that he was tenant of respondent No. l since 1984 and was running his business in the name and style of "Al Hanif Refrigeration and Electric Works" while respondent No.2 Allah Rakha was working as Inspector in K.M.C. And the respondent No.1 has been residing in first floor of same building and has been receiving rent from him regularly till December, 1990, but has never issued rent receipt to him so also to other tenants of building and rent for tile month of January, 1991 was sent through money order which was refused by her. In the circumstances, rent was being deposited in Miscellaneous Rent Case No.343 of 1991 by him, therefore, he was not defaulter in payment of rent and further that an amount of Rs.8,000 was paid by him as fixed deposit to respondent No. l .
4. On the pleadings of the parties two issues were settled:---
(1) Whether there exists relationship of landlord and tenant between applicant and opponent No. l or opponent No.2?
(2) Whether applicant has received uptodate rent viz. From 31-12-1989 to 30-1-1990 and no default was committed by opponent No.2?
5. The respondent No.1 filed her own affidavit-in-evidence, produced tenancy agreement dated 19-1- 1987, tenancy agreement dated 11-6-1988, tenancy agreement dated 25-11-1989 and two photographs of the premises as Exhs.A/A and A/B, filed affidavit-in-evidence of Inayat, affidavit-in- evidence of Muhammad Ramzan. Appellant filed his own affidavit-in-evidence and produced photo copies of postal money order as Exh.O/2 dated 18-2-1991 for sum of Rs.650, photo copy of two electric bills in the name of Sade Shah Sweet Centre Exh.O/3 to Exh.O/4, photo copies of four letters addressed to appellant as Eath.O/5 to Exh.O/8, photostat copy of telephone bill in the name of appellant for the month of May, 1988, as Exh.0/9, photo copy of payment in respect of telephone charges as Exh.O/10, photo copy of payment receipt of KMC charges as Exh.O/11, photo copy of admission slip, photo copy of wireman certificate, photo copy of two Katcha receipts, photo copy of one complaint against Allah Rakha dated 8-12-1990, photo copy of gas bill for the month of February, 1992 and photo copies of payment of rent in the office of Rent Controller in Miscellaneous Rent Case No.127 of 1991 on 24-10-1991 as Exh.O/12 to Exh.O/19. Filed affidavit-in-evidence of Allah Rakha who has produced photo copy of identity card of K.M.C., certificate, issued by Director, K.M.C., photo copy referring Allah Rakha for treatment by Medical Officer KWSB, photo copy of the application of respondent No.2 for grant of leave made to Director KMC and other relevant photo copies including photo copy of grant of lease in favour of respondent No. l which is said to have been identified as witness by respondent No.2, filed affidavit-in-evidence of Rab Nawaz, Muhammad Akbar, Malik Muhammad Hassan and Abdul Ramzan.
6. Learned Rent Controller after recording abovesaid evidence and hearing learned counsel for parties, allowed ejectment application of respondent No. l whereby it was held by him that appellant was tenant of respondent No. l and further held that neither the appellant nor the respondent No.2 Allah Rakha tendered rent for the period from 1-12-1989 to 30-10-1991, therefore, appellant was defaulter in payment of rent.
7. I have heard Mr. Shaikh Hamid Hassan, learned counsel for the appellant and Mr. Amir Malik, learned counsel for respondents and perused the record and proceedings of the case and the case-law cited by the learned counsel for the parties.
8. Mr. Shaikh Hamid Hassan, learned counsel for the appellant has argued that initially the respondent No. l has filed ejectment application against respondent No.2 Allah Rakha wherein she has stated that said respondent Allah Rakha was her tenant and was defaulter in payment of rent in respect of shop in question for the period from 1-12-1989 to 30-1-1991, whereas the learned Rent Controller in his findings has held that appellant Muhammad Hanif was tenant of respondent No. 1 and was defaulter in payment of rent for the period from 1-12-1989 to 30-10-1990, therefore, the findings are based on misreading of evidence. Learned counsel has further taken me through affidavit-in-evidence of Mst. Inayat Bibi, Muhammad Ramzan, Inayat, Muhammad, Hanif, Allah Rakha, Rab Nawaz, Muhammad Akbar, Malik Muhammad Hassan and Abdul Ranizan to show that in fact the appellant was tenant of respondent No.1 and former has paid the rent to her but no receipt was issued to him while the respondent No. 2 was serving in KMC Department and was not running shop in dispute and was not the tenant of respondent No.1, therefore, there would be no default on his part hence the findings of the eviction on the ground of default was erroneous and not based on proper appreciation of law. He has placed reliance on Haji Faqir Muhammad v. Abdul Razzak and another PLD 1992 Kar. 389, Rahimuddin v. Munny Khan 1989 CLC 994, Abdul Hameed v.
9. Muhammad Shah Khan 1992 M LD 335, Mst. Najma v. Tariq Qadeer Khan 1988 CLC. 1312, Hakim A.I v.
10. Muhammad Salim and another 1992 SCM R 46 and Muhammad Yasin v. A.I Muhammad 1996 CLC 221.
11. Mr. Amir Malik, learned counsel for the respondent has referred to an agreement of tenancy dated 11-6-1988 at page 71 of the record and proceedings of the case and para. 14 of affidavit of Muhammad Hanif, para. 6 of affidavit of Allah Rakha at pages 111 and 153 respectively and cross--- examination of Ramzan at page 90 of record and proceedings. He has placed reliance upon Mst.
12. Fatima v. Mst. Hanifa 1986 CLC 1613, 1986 CLC 1110, Haseen Ahmed Khan v. Irshad Khan PLD 1987 Kar.
13. 16 and Article 119 of Qanun-e-Shahadat.
14. The point for determination in this appeal would be whether appellant Muhammad Hanif was the tenant of respondent No. 1 or respondent No.2 Allah Rakha was the tenant of respondent No. l and further if any one of them was the tenant whether rent for the period from 1-12-1989 to 30-10-1991 was tendered by tenant to the landlady respondent No. 1. In the instant case, only undisputed document between the parties is an agreement of tenancy. Dated 1 I-6-1988 executed between Mst. Inayat Bibi the respondent No.1 and Allah Rakha respondent No.2. Appellant Muhammad Hanif in para. 14 of his affidavit, at page 111 of R & P states that agreement dated 11-6-1988 bears his signature as tenant. Respondent No.2 Allah Rakha in para. 6 of his affidavit-in-evidence, at page 153 of R & P has also admitted the tenancy agreement dated 11-6-1988 but has stated that it was in the name of appellant Muhammad Hanif who was the tenant of respondent No.1 and he had only signed the agreement as witness of the appellant being his brother. It has also come on record that respondent No.1 Inayat Bibi is an illiterate woman and has also affixed her thumb-mark over the agreement dated 11-6-1988 at page 2 of the said agreement. The first para. Of the said agreement would show that respondent No. l Inayat Bibi was party of first party and landlady while Allah Rakha KMC Walia was second party tenant and the said tenancy agreement was thumb- marked by respondent No.1 Inayat Bibi and the agreement bore the signatures of Allah Rakha respondent No.2 and of appellant Muhammad Hanif but it has been mentioned "tenant Allah Rakha". Muhammad Ranizan witness of respondent No. l has also admitted his signature as witness in his cross-examination at page 90 of R & P. This tenancy agreement proves that the respondent No.2 was the tenant of the respondent No. 1. There is no other reliable and satisfactory evidence on record to show as to how after execution of said tenancy agreement dated 11-6-1988, the appellant became tenant of respondent No.1. There is no rebutting satisfactory and reliable evidence against the admitted documentary evidence, i.e. Tenancy agreement executed by respondents Nos. l and
2. The statements made in the affidavits filed by the appellant and his brother respondent No.2 and his witnesses named above would stand excluded by admitted documentary evidence, viz. Tenancy agreement executed between the respondents Nos. l and 2. The documents Exhs. O/3 to O/19 and O-1/1 to O-1/15 do not prove that appellant Muhammad Hanif was the tenant of respondent No. l Inayat Bibi. The said admitted tenancy agreement is corroborated and supported by contents made in the ejectment application as well as contents of affidavit-in-evidence of Muhammad Ramzan and Inayat. The testimony of said witnesses in the cross-examination could not be shaken by the learned counsel for the appellant. Mere fact that the respondent No.2 was in service, therefore, could not be the tenant of respondent No. l has no legal and valid force and merit when respondent No. l has proved by documentary as well as oral evidence that respondent No.2 had entered into agreement with her and had executed the said tenancy agreement. The perusal of the tenancy agreement dated 11-6-1988 would show that same is signed by respondent No.2 as tenant and he being literate and educated person cannot say now that it was signed by him not as a tenant but as a witness, when the tenancy agreement itself showed that it was signed by him as a tenant. Mere fact that the said agreement has also been signed perhaps subsequently by the appellant would not make him tenant of respondent No. l when the tenancy agreement mentioned the respondent No.2 as tenant.
15. So far the plea of default in payment of rent the respondent No. l has stated in the ejectment application that respondent No.2 Allah Rakha failed to tender rent to her from 1-12-1989 to 30-10- 1991 and the same has been reiterated by her in her affidavit-in-evidence and her testimony could not be shaken in the cross-examination by the learned counsel for the appellant. It will not be out of place to state here, that even the evidence of the respondent No.2 Hllah Rakha is that he is not tenant, therefore, the question of making payment of rent by him will be out of question to consider. Deposit of rent in the Office of Rent Controller by appellant who is not the tenant of respondent No. l would not be due tender of rent by tenant under Rent Ordinance. Accordingly, it is held that the respondent No. 2 being tenant of respondent No. l failed to tender rent for the stated period therefore he was defaulter within the meaning of section 15(2)(ii) of Rent Ordinance.
16. Now there remains the case-law cited by learned counsel for the appellant. There is no cavil about the principle laid down in Haji Muhammad Faqir's case PLD 1992 Kar. 398 that onus to prove relationship between the patties is on the landlady but in the instant case, the landlady has proved that respondent No.2 was her tenant.
17. The next case cited is of Rahimuddin 1989 CLC 994 wherein my learned brother Judge in chambers has held that "failure to state about the payment of rent over the coupon of money order returned to the tenant would not prove the period of default alleged against the tenant." In the instant case, it has been held by me above that respondent No. 2 Allah Rakha was the tenant, who has himself stated that he was not the tenant, therefore, question of payment of rent by him would not arise hence facts of the cited case were different and distinguishable to the facts of the instant case.
18. 1992 MLD 335 the point involved was that rent receipts were not issued to the tenant but in the instant case, the respondent No.2 Allah Rakha has denied to be the tenant of respondent No. l therefore, the case cited has no application to the instant case. In Mst. Najma's case 1988 CLC 1312 tenant has made statement with regard to the payment of rent in the affidavit which was neither controverted nor doubted by the landlord during the cross-examination but the facts of the instant case were quite different and distinguishable. Agreement of tenancy dated 11-6-1988 at least proves that the respondent No.2 was tenant of respondent No. l though other terms and respondent stated in the agreement could not be relied upon as evidence in view of cited case. In Hakim A.I's case 1992 SCMR their Lordships of Supreme Court at page 53 have observed:--- "If the existence of the relationship is otherwise admitted but the agreement is not in writing or executed in the manner provided in section 5 of the Ordinance, the terms and. Conditions which are contained in such an agreement, if they are inconsistent with any provision of the Ordinance, they would be invalid to the extent of inconsistency. In other words if the tenancy is admitted the parties shall be deemed to have held the tenancy in accordance with the provisions of the Ordinance. The object of section 5 seems to avoid any controversy as to the existence of relationship of landlord and tenant between the parties and to provide documentary proof of the terms and conditions on which the premises is let out to the tenant. "
19. 1996 CLC 221 wherein my learned brother Judge in Chambers has held that where tenant has pleaded non-issuance of rent receipt by the landlord in his written statement, then it would be imperative for the landlord to deny that fact in his affidavit-iii-evidence but having failed so, the plea of tenant about the payment of rent to the landlord would stand proved. In the instant case, the facts are quite different and distinguishable as the tenant Allah Rakha has himself denied to be the tenant of respondent landlady, therefore, the question of his payment of rent would not arise.
20. The payment, if any, made by appellant would not be due tender of rent under Rent Ordinance.
21. No issue on the point of subletting is settled by the Rent Controller, therefore, it would not be necessary to discuss and give finding on the said point though it was pleaded by the learned counsel for the respondent No. l that as respondent No.2 was tenant, hence the status of the appellant who has claimed to be in possession would be of sub-lettee. No other plea has been raised before me. There is no substance and merit in the contentions of learned counsel for appellant.
22. However, the respondent No.2 who is held to be the tenant is given sixty days' period to vacate the premises subject to deposit of rent for the said period.