' This appeal under section 21 of Sindh Rented Premises Ordinance, 1979, hereinafter referred to as the 'Ordinance' is directed against the order dated 24-8-1995 of learned 'Ind Senior Civil Judge/Rent Controller, Karachi (South) in Rent Case No,1508 of 1991 whereby respondent's ejectment application under section 15 of the Ordinance was allowed and appellant's were ordered to vacate the premises and hand over its possession within 60 days.
2. The facts relevant to the filing of this appeal are that the premises situated on plot bearing Survey No,15/1 No,S.B. 1 situated at Dr. Dawood Pota Road, Saddar Bazar, Karachi known as Old Golewala House near Parsi Temple to be mentioned hereinafter as the disputed premises is the respondent Trust property which looks after the affairs of the said Temple. One room on first floor of the disputed premises was rented out to one Noor Muhammad at the rate of Rs,7.69 per month. He died in or about 1979 and his legal heirs, the appellants and one Ghazi did not inform the Trust about his death for many years and were occupying the said premises and were also paying the rent till 1-7-1984. It was averred in the eviction application that since this date the appellant wilfully defaulted to pay the rent to respondent Trust the landlord in spite of repeated demands made by it and also through Attorney. The case of the respondent further is that appellants had also caused additions and alterations in the disputed premises without the permission of the Trust and also caused sufficient damage to the property diminishing its value.
3. Out of 8 appellants, three appellants, namely, Ghazi, Hassan and Shoukat filed their written statements in the rent case and denied the allegations whereas the others remained absent and were declared ex parte. Appellant Shoukat claimed that after the death of his father in 1975, he is living in the demised premises and used to pay the rent to the respondent Trust regularly. As usual he paid the rent of July, August and September, 1984 but receipt whereof were not issued and thereafter, he sent the rent through money order which was not accepted and was returned back.
As such he started depositing rent in the Court of learned Rent Controller in Miscellaneous Rent Case No,3653 of 1984 and has thus, not committed any default. He has also denied additions and alterations and damaging the disputed property. The other two opponents Ghazi and Hassan in their written-statements maintained that they have no concern with the tenement in question.
4. Affidavit in evidence of Razi Ahmed, Attorney of respondent Trust was filed on 15-2-1992 alongwith the photo copy of his power of attorney and rent receipts dated 1-4-1984. The appellant did not cross-examine him, in spite of many chances, hence his evidence remained unchallenged.
Appellant Shoukat alone filed his affidavit in evidence on 8-3-1995. He did not produce any documentary evidence and closed his side, and was cross-examined at length by the counsel for other side. On 6-7-1989 the Nazir of the Court was examined at the request of the respondent but he even was not cross-examined by the appellant's counsel. The learned Rent Controller framed the following issues for determination:--
(1) Whether the ejectment application filed by Syed Razi Ahmed as an attorney of applicant trust is not maintainable in law?
(2) Whether the opponents have defaulted in payment of rent?
(3) Whether the opponent made addition/alteration which impaired the value and utility of the premises in question?
(4) What should the order be?
' On the assessm ent of evidence the ejectment application was allowed as stated above.
5. I have heard Mr. Abdul Majeed Khan, learned counsel for the appellants and Mr. Ghulam Ali Khokhar, learned counsel for the respondent at length.
' Learned counsel for the appellants mainly attacks the very maintainability of the eviction application on the ground that it was by an improper and unauthorised person and Razi Ahmed the Attorney of the respondent Trust was not a legal and proper Attorney as he was not authorised by all the Trustees to file rent case. He next contends that Trust cannot sue and only Trustees can sue as such the very application filed by Trust is also not maintainable. The resolution authorising the Trustees' names to appoint Razi Ahmed as Attorney has not been produced. He further states that according to the case of respondent, appellants did not intimate about the death of Noor Muhammad, the actual tenant in respect of the disputed premises who died in the year 1974 and occupied the same all alone. They have deposited the last rent on behalf of late Noor Muhammad for three months viz. April to July, 1984 a sum of Rs,2,370 against a valid receipt dated 1-4-1984, but wilfully defaulted thereafter, from July, 1984. According to the appellants Shoukat, he simply contested the matter and had been paying the rent to respondent Trust and had also paid the rent for the months of July, August and September, 1984 but no receipt was issued as such he remitted the rent of these months through money order which was refused and then he started depositing rent in Miscellaneous Rent Case No,3653 of 1984 as such he has not defaulted. Learned counsel lastly submits that since ejectment application has been filed beyond the period of three years of alleged default, so the same is not competent and is not maintainaule. In support he has referred to a case reported in 1980 CLC 664(c).
6. On the other hand learned counsel for the respondent vehemently opposes the contentions raised by the learned counsel for appellants and stresses that learned Rent Controller has passed a proper order of eviction of appellants and they have not been able to prove their case. According to him, a proper person had filed the application for ejectment, who was authorised by way of resolution dated 27-8-1989 passed by the respondent Trust which unanimously resolved and authorised Trustees, namely, Dara S. Behrana and Framroze H. Panthakey to execute the power of attorney in favour of Razi Ahmed, the said Power of Attorney was also got registered by Sub- Registrar 'T' Division-I, Karachi as such it cannot be argued that the same was not valid,. He next contends that appellants the legal heirs of Noor Muhammad, the actual tenant not only kept his death secret but was depositing rent in his name and defaulted from 1st July, 1984 onwards, as such they have wiflully and deliberately defaulted. The appellants' contention, that he sent the rent for the months of July to September, 1984 through money order, is without force as they had failed to file coupons of such money order refused by the respondent Trust. He further submits that once it is proved that the party has defaulted in the payment of rent the same is liable to be evicted and the ground that no such application is competent beyond three years of default has no force. The case reported as 1980 CLC 664 referred by appellant's counsel has been overruled by Hon'ble Supreme Court in the case reported as PLD 1990 SC 681. Learned counsel further went on arguing that the word of respondent Trust has got finality as Attorney Razi Ahmed was not cross-examined by the appellants though sufficient opportunities were given to him. When he is not cross- examined there is no other option except to believe his evidence. Appellants first filed application on 20-11-1994 about setting aside the order dated 17-11-1994 of closing his side, but after many chances appellants failed to cross-examine the Attorney of respondent Trust and his side was closed on 20-12-1994. Thereafter, again on 10-1-1995 he filed another application for setting aside the order dated 20-12-1994 but the same was also dismissed on 15-2-1995. As such the word of Attorney is neither contested nor challenged and has to be accepted on the face of it. In support he placed reliance on 1994 CLC 302. He lastly submits that authorities referred by the appellants' counsel are in the civil case and not on rent cases and are not applicable in rent cases.
7. I have given anxious thought to the arguments advanced by the learned counsel for the parties and have gone through the impugned order as well as the evidence adduced by the parties. The respondent M/s Hirja Bahi Dar-e-Mehar (Parsi Temple) filed the ejectment application through its duly constituted Attorney Syed Razi Ahmed and the power of attorney is duly registered with Sub- Registrar 'T' Division-I, Karachi, the said power of attorney includes a clause whereby, the Board of Trustees of respondent Trust vide resolution dated 27-8-1989 authorised Trustees, namely, Dara S. Behrana and Framroze H. Panthakey to nominate, constitute and appoint Syed Razi Ahmed as Attorney to institute, file, conduct, prosecute, defend and contest any suit, action, appeal, application, petition for review and revision including all cases before lower as well as superior Courts including the matters before Rent Controller, about seeking ejectment of the tenants also.
The said Attorney filed ejectment application on behalf of respondent Trust and filed his affidavit in evidence attaching a copy of power of attorney. The appellants have failed to show as to how the said Attorney was not competent to file rent case and also to give evidence on behalf of Trust as such the learned Rent Controller has arrived at proper conclusion to hold that he was the proper person to file eviction application and the same is maintainable. Not only this but the evidence of Attorney went unchallenged as in spite of so many chances afforded to appellants/tenants could not cross-examine him and controverts the case of respondent. This renders the words of respondent to be treated as correct. In the case of K.H. Nohri v. The State (PLD 1988 Karachi 460) this aspect of the matter has been taken into consideration and it has been held that to controvert the facts stated in plaint it would be incumbent upon the defendant to cross examine the plaintiff and to give evidence. Failure to cross-examine plaintiff on facts stated in the plaint and failure to give evidence to controvert such facts, held-could render those facts to be treated as correct. In the case of Muhammad Farooq v. Mst. Khairnunisa (1994 CLC 322) this Court has held that tenants' counsel failed to cross-examine witnesses of landlord/Landlady on a specific date as such the evidence of landlady was closed without her witnesses having been cross-examined. At the request of tenant such order was set aside and he was permitted to cross-examine landlady's witnesses on a date fixed by the Court but her counsel again absented himself and thus could not cross-examine witness again and the side was closed. It is held that such facts clearly indicate that tenant and his counsel were negligent and Rent Controller was justified in closing the cross- examination of the landlady's witness.
8. On the other hand respondent Trust thoroughly cross-examined appellant's Shoukat Ali the only person examined by the appellants.
' It is an admitted fact that the appellant paid the last rent in the name of Noor Muhammad for three months from April, to June, 1984 against receipt dated 1-4-1984 and thereafter, they have wilfully defaulted in spite of so many demands. Learned Rent Controller has examined the Nazir who in his examination-in-chief has said that appellant Shoukat Ali deposited Rs,56.14 on 3-11-1984 in Miscellaneous Rent Care No,3653 of 1984 and thereafter, he deposited the same amount on 15-1- 1985 and then he remained silent and deposited Rs,400 on 26-1-1988 after more than three years. It is pertinent to note that his statement also went unchallenged and appellant did not cross- examine him as such there is no option but to accept Nazir's statement. From this it is apparent that the rent was paid only for three months from April to June, 1984 and thereafter appellants have become defaulters. The contention of appellants' counsel that no case for ejectment can be filed when the period of default falls beyond three years is misconceived, firstly, the citation reported as Muhammad Ahmed v. Mst. Qamar Anwar, 1980 CLC 664 relied by appellants' counsel has been over ruled by Hon'ble Supreme Court in the case of Pervaiz Akhtar v. Additional District Judge, Rawalpindi and 4 others, PLD 1990 SC 681. In this case it is held as "rent due includes time- barred rent". The Hon'ble Supreme Court has observed that the time-barred rent does not procure landlord for the enforcement of his right for eviction of tenant on the ground of default. It is also observed that once it is established that the tenant has defaulted in the payment of rent, he loses his right to occupy the premises. The word default connotes of elements of negligence and failure of tenant to fulfil his obligation under the law. Though pleaded, yet appellant has failed to produce any proof or any coupon of money order by which they had sent the rent for the period of July to September, 1984 through money order. In the case of Muhammad Wali v. Mariam Begum, 1982 CLC 1789 it has been held that tender of rent after default would not wipe out default already committed. The same view has been taken by this Court in the case of Waqf Muhammad Mehar Elahi v. Abdul Razzak, 1983 CLC 3285.
9. As a result of the above discussion, the appeal fails and is dismissed.,The impugned order is upheld. The appellant is, however, allowed further two months' time from today to vacate the premises. The parties are left to bear their own costs.