GHULAM NABI vs ASHFAQ HUSSAIN S — 2024 YLR 449 KARACHI-HIGH-COURT-SINDH

Fields are extracted from the reported citation and judgment text. Where a detail is not stated in the record, it is not shown.

GHULAM NABI VS ASHFAQ HUSSAIN S.15---Eviction of tenant---Grounds---Willful default in payment of rent and sub-letting--- Not established---Relationship of landlord and tenant, denial of---Concurrent findings were passed against the tenant---Contention of the petitioner/tenant was that he was not defaulter as he was depositing rent without any default and also paying bills accordingly---Validity---Admitted position was that there was no mutual written agreement between the parties for the payment of rent---Case of the respondents Nos. 1 and 2 (co-owners of rented property was that the petitioner (tenant) defaulted in payment of monthly rent from July, 2009; as such the period stipulated under S.10(1) of the Ordinance would have expired on 10.08.2009---Default within the purview of S. 15(2)(ii) of the Ordinance, would arise if the tenant fails to pay, in the absence of mutual agreement between the parties regulating the terms and condition for payment of rent, within sixty days after the rent has become due for payment---In the present case, the due date was 10.08.2009; therefore, the alleged default would have arisen on 10.10.2009---Stance of the petitioner was that respondent No.2 refused to receive the rent for the month of July, 2009, malafidely demanding vacant possession of the rent premises; hence, having no alternative he sent the rent through money order, dated 29.09.2009, which was refused by respondent No.2; hence, the petitioner tendered the rent to respondent No.2 within stipulated period when it was due i.e. 10.08.2009 and, thereafter, he filed rent case on 10th October 2009, which was again within stipulated period; the same was granted by the Rent Controller on 12th October 2009 and on the very next day when Ledger Number was allotted, the petitioner deposited monthly rent in the Court of Rent Controller; hence, the petitioner could not be held to be a defaulter in payment of monthly rent---Findings of the Courts below on the point of default in payment of monthly rent by 12 days being against the law and facts were not sustainable in law---Controller had also allowed the subject rent application on the ground of subletting by petitioner to a doctor running a clinic in the premises by recording his findings that in the Registration Certificate of the Clinic, issued by the Sindh Health Care Commission, the column of Type of Ownership shows 'partnership' and petitioner had admitted in his cross-examination that three doctors were his partners; hence, the petitioner changed the nature of business in rented premises and started a Clinic by entering into partnership with three doctors in violation of S. 15(2)(iii)(a) of the Ordinance by creating interest of other partners in the rented premises without the consent of respondents Nos. 1 and 2---There was no denial to the fact that it was the petitioner who was depositing monthly rent in the Court of Rent Controller and not any of his so-called partners---Tax authority's record showed that the petitioner was the sole proprietor of the Clinic---Nothing was available on record to establish that the petitioner had ceased to remain a tenant and/or he had parted with the possession of the rented premises and/or he had transferred tenancy rights or otherwise created any right, title and interest in the tenancy, goodwill and business in favour of any of the so-called partners through any partnership deed, registration of partnership firm with the Registrar of Firms or any other document---Hence, the right of tenancy was preserved in the name of petitioner and other so-called partners/doctors did not have any right in the tenancy---Circumstances suggested that the impugned order and judgment of the Courts below were contrary to the letter and spirit of law, as the question of default in payment of rent on the part of the petitioner and subletting was required to be determined on the principles employed in Ss. 10, 15(2)(ii) & 15(2)(iii)(a) of the Ordinance---Since the Courts below failed to determine the rights of the parties in lis under the governing laws and as per settled principles of administration of justice, High Court had jurisdiction under Art. 199 of the Constitution to rectify the wrong and upset the erroneous concurrent findings of the Courts below by interfering in the impugned order and judgment---Constitutional petition was allowed by setting aside impugned orders, in circumstances.

GHULAM NABI vs ASHFAQ HUSSAIN S — 2024 YLR 449 KARACHI-HIGH-COURT-SINDH

Case information

Judgment text as reported

Other judgments reported in 2024 YLR