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Petitioner: WALI BHAI through General-Attorney VS Respondent: DISTRICT JUDGE, HYDERABAD and 2 JUDGMENT
Court Name: Sindh High Court Judge(s): Nazar Akbar Title:WALI BHAI through General-Attorney vs DISTRICT JUDGE, HYDERABAD and 2
JUDGMENT
Reported As: 2015 YLR 1714 Result: Petition allowed Judgment JUDGMENT ' NAZAR AKBAR, J.---This constitutional petition has been filed by the petitioner against concurrent findings recorded by the learned Rent Controller in Rent Application No,13/2010 as well as learned appellate court in Rent Appeal No,02/2012 by their respective Judgments dated 16-11-2011 and 11-5- 2012 whereby the ejectment of the petitioner was ordered from the commercial premises of 'Palace Hotel' on City Survey No,F/1165, Qazi Abdul Qayoom Road, Hyderabad (hereinafter referred to as the "demised premises"). 2. Briefly stated the facts leading to this petition are that the respondent No,3 filed rent case against the petitioner for his ejectment from the demised premises, which was leased out to the petitioner by its previous owner Mir Khalil ur Rehman and after his death, it was purchased by respondent No,3 from the Administrator of the estate of deceased Mir Khalil-urRehman with the permission of this court. The last rate of rent was Rs,7000 per month. The respondent No,3/applicant on acquiring the ownership served the petitioner with notice dated 22-7-2000 under Section 18 of the Sindh Rented Premises Ordinance (hereinafter SRPO, 1979) regarding change of ownership of the demised premises and requested to enhance the rent from Rs,7000 per month to Rs,75000 per month with effect from June, 2000. The respondent No,3/landlord through the same notice also informed that the demised premises is required for personal bona fide need. Subsequently, the respondent No,3/ applicant served a legal notice dated 28-9-2000 which was replied by the petitioner on 19-10-2000 and ultimately respondent filed Rent Application alleging wilful default in payment of rent since July,2000 along with personal need.
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3. The petitioner/opponent filed his written reply and challenged the jurisdiction of learned Rent Controller, on the ground that the "premises" defined in section 2(h) of SRPO, 1979 does not include "hotel" and the demised premises is Palace Hotel Ground + 4 floors) situated on C.S. No,F/1165, Qazi Abdul Qayoom Road, Gari Khata, Hyderabad. He further averred that the demised premises is a commercial property and it was intended by the previous owner for the purpose of running a business by the name and style of "Al-Khalil Hotel", but later on under construction demised premises was leased to the petitioner/opponent to run commercial business of hotel i,e, Palace Hotel, as such the demised premises is excluded from the provisions of rent laws and this fact has been concealed by the respondent. It was further averred that the lease amount was properly paid timely and up to the month of September, 2000 in the owner's Bank Account No,2125, which was provided to him by previous owner at the time of initial lease agreement. Therefore the petitioner offered monthly lease money of Rs,7000 for the month from October, 2000 to the respondent/opponent which on refusal was remitted through money order and ultimately deposited in the court of IVth Senior Civil Judge, Hyderabad through Miscellaneous Rent Application No,746 of 2000. 4. The Manager of respondent/ applicant namely Ghulam Moinuddin filed his affidavit in evidence at Exh.25. He produced agreement of lease at Exh.26, original Agreement of lease at Exh.27, original lease deed at Exh.28, original lease deed at Exh.29, original notice under section 18 of SRPO 1979 at Exh.30, original reply of notice at Exh.31, original legal notice at Exh.32, reply of legal notice at Exh.33, original lease agreement at Exh.34, original lease agreement at Exh.35, original letter, certified copy of Resolution duly passed by Board of Directors of the company on 1st December, 2009 at Exh. 36 and thereafter closed his evidence side at Exh.47 dated 16-3-2011. 5. The petitioner / opponent filed affidavit in evidence through attorney Mr. Ameen Muhammad at Exh.54. He produced attested copy of letter dated 28-5-1986 at Exh.56, attested copies of bills of Gas company at Exh.57/A to Exh.57/J, Attested copies of receipts of Sindh Employees Social Security institution of "Palace Hotel" for the year from 1977 to 1989 at Exh.58/A to Exh.58/H, 14 attested copies of Form HT4 in respect of Bank paid Challan of property tax of premises in Question (F-1165 Hotel) at Exh.60/A to 60/B, attested copies of reply legal notice dated 19-10-2000 along with copy of registry receipt bearing No, 627, dated 10-10-2000 at Exh.61/A to Exh.61/B, attested copies of Money order No,1918 dated 18-10-2000, money order Nos.804 and 805 dated 14-11-2000 and two money order receipts are attached herewith, Attested copies of receipts dated 8-7-2010 through which monthly lease money/rent of Rs,7000 per month, for the month of June 2010 and July 2010 of premises at Exh.62/A to Exh.62/C. He produced original photograph (59) of premises at Exh.63/1 to Exh.63/59. He produced original sub-general power of attorney executed by Muhammad Ashraf at Exh.64. Petitioner/ opponent also examined witness No,2 namely Muhammad Nadeem at Exh.55 and thereafter closed his evidence side dated 28-5-2011. 6. The learned Rent Controller allowed the rent application by answering all the following four points for determination in affirmative:-- (1) Whether the rent application is not maintainable at law? (2) Whether notice under section 18 of Sindh Rented Premises Ordinance was sent by the applicant to the opponent? (3) Whether petitioner/opponent has committed wilful default in payment of rent of demises premises? (4) Whether the case premises is required by the applicant for personal bona fide use? (5) What should be the order? 7. The petitioner preferred First Rent Appeal No,02/2012 before learned District Jude, Hyderabad, which was dismissed by order dated 11-5-2012. These concurrent findings have been challenged by
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the petitioner on the ground of jurisdictional error in the impugned orders and misreading and non-reading of evidence through this constitution petition. 8. Learned counsel for the petitioner has contended that since the two Courts below have assumed the jurisdiction which was not vested in them by application of ouster of jurisdiction of Rent Controller in terms of Section 2(h) of the SRPO, 1979, this Court can declare impugned orders as nullity in law in exercise of powers under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. He has further contended that this is also a case of non-reading and misreading of evidence by the Court in coming to the conclusion that the demised premises was not a 'Hotel' to exercise its jurisdiction which in fact was not vested in it. The counsel for the respondent has supported the impugned orders and he claimed that there was no illegality in passing of these orders as Rent Controller has relied on the contents of lease agreement between the petitioner and the previous owners in coming to the conclusion that the demised premises was not a "hotel" and thus rightly exercised its jurisdiction. He has further contended that the petitioner himself has invoked the jurisdiction of Rent Controller when he has deposited rent in Court under Section 10 of SRPO 1979. He has lastly contended that the concurrent finding of facts cannot be set aside by this Court in exercise of power under Article 199 of the Constitution of Pakistan. 9. I have heard learned counsel for the parties and perused the record as well as evidence led by the parties in detail with the help of counsel. 10. Learned counsel for the petitioner in order to show misreading and non-reading of evidence has referred to several such instances from the evidence on record and to begin with he has read para-14 of written reply filed by the petitioner in which he has relied and produced, amongst other, the following documents:- (i) The attested copy of letter dated 28-5-1986 sent by the previous owner Mr. Khalil-ur-Rehman of premises in question to opponent namely Wali Bhai at the address of Palace Hotel. (ii) Attested copies of bills of Indus Gas Company of Palace Hotel during the year 1974 to 1988. (iii) The attested copies of receipts of Sindh Employees Social Security Institution of Palance Hotel during the year 1977 to 1989. (iv) The attested copies of form HT4 in respect of Bank paid challans of Palace Hotel Tax/duty during the year 1974 to 1977. (v) The attested copy of form P.T-10, Bank paid challan of property tax of premises in question (F- 1165 Hotel) for the year 2008, 2009 and certificate of No Dues in respect of property/F-1165 Hotel given by the Excise and Taxation Officer, Property Tax-1 Hyderabad. ' And asserted that all these documents were filed by the petitioner with his affidavit-inevidence and even exhibited as Exh.56, Exh.57/A to 57/J, Exh.58/A to Exh.58/H. Exhs.60/A to 60/B along with 59 photographs of the hotel clearly showing that the premises is a hotel premises and in the cross- examination none of these documents were disputed or challenged. The counsel for the petitioner has further argued that even an application was filed under Section 20 of SRPO, 1979 for inspection of the demised premises. It wag allowed on 12-7-2011 by consent of the respondent and the learned Rent Controller on 28-9-2011 practically inspected the demised premises as reflected in the diary of the Trial Court dated 28-9-2011 but the learned Rent Controller has not filed any inspection report nor he has even mentioned in the impugned order that an inspection of the demised premises was carried. Likewise even at the appellate stage on 6-1-2012 after pointing out that the learned Rent Controller has not placed on record the site inspection report a similar application was filed for site inspection under Section 20 of the SRPO 1979 in FRA No,02/2013 on which only notice was ordered but said application has not been disposed of by the appellate authority. 11. In rebuttal Learned counsel for respondent No,3 has not been able to controvert the record available in two R&Ps. However he insisted that the conversion of building to a hotel was
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subsequent to the demised premises handed over to the petitioner and therefore it was unilateral act. When asked regarding the official documents showing "hotel" his simple reply was that it was liability of the petitioner and it has been shown as hotel in the property taxes by the petitioner. However, it is admitted position that all these documents were in the knowledge of the original owner and the respondent as the property was shown in the wealth tax return by the owners and not by the petitioner. 12. The controversy between the parties was mainly on the point whether the demised premises being Hotel Palace should have been treated so and the Rent Controller should have stayed away from entertaining the rent application in obedience to the law in terms of section 2(h) of SRPO. 1979, which reads as follow:-- ' Section-2 Definitions.---In this unless there is anything in the subject or contex,'' (a)............. (b)............ (c)............ (d).......... (e).......... (f).......... (g)......... (h)"premises" means a building or land, let out on rent, but does not include a hotel; ' However, such issue was not framed by the Rent Controller in so many words but answered in negative in an indirect way while holding that the rent application was maintainable in answer to the point for determination that whether the rent application is not maintainable. 13. The burden of proof was in fact on the respondent/applicant to prove by cogent evidence that the demised premises was converted into a hotel by petitioner since they have brought the case for ejectment of the petitioner who in reply to legal notice has taken the stand that the demised premises is a hotel. The respondent neither in their notice under section 18 of SRPO, 1979 nor in legal notice dated 28-9-2000 has disclosed the nature of business for which the demised premises was let out nor alleged change of use by the petitioner. Even after reply to their legal notice dated 19-10- 2000 (Exh.33) when the stand of the petitioner was known to them, the respondent did not invoke the provisions of Section 15(2)(iii)(b) of SPRO, 1979 for ejectment of the petitioner on the ground of change in purpose for which the demise premises was let out to the petitioner without written consent of respondent. The provision of clause (b) of subsection (iii) of section 15 of SRPO, 1979 which were missing from the pleadings of respondent are:- (iii) the tenant has, without the written consent of the landlord-- (a)------ (b) used the premises for the purpose other than that for which it was let out. ' And yet the Rent Controller accepted the contention of respondent/applicant in the impugned ejectment order that:- "Initially the rented premises was rented, out to the opponent for business residential purpose and not for "Hotel" purpose and the subsequent conversion of building for hotel purpose, unilaterally by the opponent would not alter the nature of premises as it was originally stood so as to exclude same from the provisions of SRPO, 1979." ' However, the learned Rent Controller failed to appreciate that this contention was not borne out from the pleading of respondent as it was not alleged in the rent application that the petitioner has converted the demised premises into hotel subsequently. Once such contention was raised, the initial burden was on the respondent to prove by cogent evidence that some other business was run by the petitioner in the same premises before starting the "Hotel" business. I have also examined affidavit-inevidence of the sole witness of respondent namely Ghulam Moinuddin and
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even in his affidavit-in-evidence it has not been stated by the respondent/landlord that the demised premises was subsequently converted by the petitioner into hotel. The innocent respondent simply averred in the rent application that the petitioner is defaulter (section 15(2)(ii) of SRPO, 1979) and the premises is required for personal bona fide use (section 15(2)(vii) SRPO, 1979) as if the respondent has never visited the famous "Hotel Palace" of Hyderabad nor by 2010 they came to know that the premises which was acquired by them in 2000 was a "Hotel" not only on the ground but even in the official record of various government departments/institutions namely Sui Southern Gas, Property Tax Section of Excise and Taxation Department, Social Security Institution etc right from 1974-75 when the lease agreements were signed by the original owner and the petitioner. The learned Rent Controller on question of maintainability has also referred to lease agreement Exh.26, Exh.27, Exh.28 to find out only one word "business/residential" purposes without appreciating that business was not specified and hotel business cannot be excluded from the purpose for which the premises was let out unless the landlord/respondent alleges so in his pleading and proves it with cogent evidence. The various agreements of lease simply mention "business/residential". In fact nothing has been said and proved by the respondent/landlord to discharge his burden that how a rent case was maintainable in respect of the demised premises in which hotel was in operation from day one. The respondent has not even pleaded this fact to challenge the stand taken by the petitioner in his reply to legal notice nor the respondent has produced any evidence in order to make a positive assertion that the original owner has rented out the demised premises for any other business than business of hotel. The argument of the respondent's counsel quoted above from the impugned order of ejectment was out of pleadings and devoid of any support from the averments of rent application and evidence. Such argument was of no consequences even if it was supported by case-law. It is by now a settled law that any fact which had not been specifically pleaded could not be proved by leading evidence nor raised during the course of arguments. Anything stated outside the scope of averments in the pleading cannot be looked into. The rule of secundum allegata et probate, not only excludes the element of surprise, but also precludes the party from proving what has not been alleged or pleaded as held by the Hon'ble Supreme Court in the recent judgment reported in 2014 SCM R 914 (Muhammad Nawaz alias Nawaz v. Member Judicial B.O.R). 14. The case of petitioner was that the demised premises has been a "hotel" and in support of his claim the petitioner has placed on record several documents which dates back to 1974 when the demised premises was let out to the petitioner. The claim of the petitioner that he has acquired on lease an incomplete building which was under construction was admitted by the respondent/landlord in cross-examination when his sole witness stated that:- "it is correct to suggest that Mir Khalil-ur-Rehman Khan leased out rented premises to opponent with structure and after that opponent raised some construction and finishing in the structure. I do not know whether 8 rooms constructed on first floor, 10 rooms constructed on every floor from second floor to 4th floor for the use of Hotel ' It is correct to suggest that on 28 May, 1986 Mir Khalil-urRehman Khan wrote a letter to Wali Bhai on the address of Palace Hotel Qazi Abdul Qayoom Road Hyderabad. It is correct to suggest that in that letter only Al-Khalil has been mentioned with (in) respect (of) property No,F/1165 Qazi Abdul Qayoom Road Hyderabad. It is correct to suggest that in that letter Mir Khalil-ur- Rehman Khan has also mentioned that opponent has been authorized to obtain approval from H.D.A. For any amendment, alteration,, addition, in the construction of building. It is correct to suggest that opponent has filed all utility bills, income tax documents, and certificate of income tax in which Hotel Palace is mentioned. (Under lining is provided) ... The courts below not only ignored the evidence of the respondent quoted above but also failed to properly appreciate the contents of Lease agreements which confirmed the stance of the
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petitioner that under construction/structure of building was acquired on lease. The first agreement of lease is dated 18-6-1974 (Exh.26) and the second agreement of lease just after three months of the first one is dated 30-9-1974, (Exh.27) and it contains, amongst other, the following recital:- "AND WHEREAS the LESSOR has constructed (7) rooms with attached bath in about half portion of the big hall on the first floor of the building at his own costs and intends to construct (7) rooms in the remaining portion of the said hall and (4) rooms in the hall on the Mazanine floor of the building at his own costs." ' And in lease deed executed on 8-9-1976 (Exh.28) it has clearly been mentioned that the lessee (the petitioner) has constructed rooms:-- ' AND WHEREAS the lessee has constructed (14) rooms with attached baths in the big hall on the first floor and (4) rooms in the hall on the Mazanine floor of the building at his own costs on the clear understanding that the construction so erected being an accretion to the building shall become the property of the Lessor without payment of any compensation or value of the Lessee and in consideration thereof the Lessor shall not enhance the agreed rent of Rs,4,000 p.m. Upto 31st day of May, 1978. ' Above referred recital was even repeated in the lease agreement dated 1-6-1986 (Exh.29) which was followed by letter dated 28-5-1986 (Exh.33) wherein the previous owner has given written permission to make any addition, alteration in the construction of building with approval of Hyderabad Development Authority. 15. The learned Rent Controller failed to take note of (i) the first ever sui gas bill dated 26-6-1974 for Hotel Palace at Qazi Abdul Qayum Road, Gari Khata, Hyderabad, (2) receipts of Social Security Contribution from June 1977 onwards in respect of the establishment of Hotel Palace (3) Form HT.4 showing payment of taxes and duties on Hotel right from 1974-75, (4) the property tax paid by the petitioner on behalf of owner Mir Khalil-ur-Rehman describing the property as Hotel in the record of Excise and Taxation department and (5) even letter of the original owner Mir Khalil-ur-Rehman dated 28-5-1986 in which he has mentioned address of petitioner as Hotel Palace at Qazi Abdul Qayum Road, Hyderabad. The dates and timing of these documents and the date of beginning of the tenancy are very material to appreciate the business run in the demised premises. The first agreement of lease relied upon by the respondent is dated 18-6-1974 when building was incomplete and it was intended to be used or constructed for Hotel business and that is why even sui gas connection was obtained before the actual start of the Hotel business in the name of Hotel Palace. The registration of demised premises in all relevant official record from 1974-75 is by the name of "Hotel Palace". In the face of documentary evidence it cannot be said that of all the persons Mir Khalil-ur-Rehman, the father of journalism in Pakistan, right from June 1974 till his death some time in 1992 was not aware of the fact that the petitioner was running a hotel business in the demised premises. 16. In his almost two pages of discussion on issue No,1 about maintainability of rent application, the Rent Controller consumed one page in discussion on Section 27 of SRPO 1979 and half page on the definition of hotel. Strangely enough when he referred to definition of hotel he relied on a case-law NLR 1966 UC 546, to explain the concept of hotel and building from the said citation. Unfortunately this citation has never been published. I have been informed by the Librarian of Judges library of Sindh High Court that he was unable to trace this citation because learned Judge has not even mentioned names of the parties so as to enable us to reach to the citation. The Rent Controller has not discussed that how this citation was relevant. The discussion in section 27 of SRPO, 1979 in the impugned judgment was also out of context of the controversy between the petitioner and respondent. The learned Rent Controller has closed his eyes from the several documents which were produced by petitioner and the contents of these documents (Exhibits) were neither challenged in cross nor any other documents were produced by respondent in rebuttal to claim
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that at any point of time the building was used for any other purpose than "hotel" business. Not only that the Rent Controller failed to register his observation on inspection of demised premises on 28- 9-2011 as well as the original photographs which were exhibited by the petitioner in evidence and have not been disputed by the counsel for the respondent. The Rent Controller failed to appreciate that respondent has not discharged his burden on the issue of maintainability of rent .Application. However, the petitioner has proved that from day one "Hotel" was run in the demised premises within the knowledge and consent of previous owner It n d yet the Rent Controller concluded that the rent application is maintainable meaning thereby the demised premises was not "hotel" by ignoring entire evidence of petitioner and, declared that:-- ' Moreover from the entire evidence of opponent and documentary proof opponent has failed to prove that previous landlord Mir Khalil-urRehman was rented out case premises for the business of hotel. In the light of above discussion, I am of the humble view that the present rent application is maintainable at Sindh Rented Premises Ordinance, 1979, hence the point is answered as not proved. 17. The appellate court, too, has ignored evidence of the petitioner and misdirected itself when the learned appellate court observed that the petitioner had not pleaded that prior to his induction, hotel was runs in the demised premises. In the first place the respondent had not pleaded case of "conversion of premises from the purpose for which it was let out" (section 15(2) (iii) of SRPO, 1979). Secondly, as is evident from lease agreements quoted in earlier part of judgment that the petitioner was admittedly inducted in an under construction building and the petitioner was the first tenant and he run hotel business in the premises and the original owner time and again has' allowed him addition and alteration in the construction of the building to suit the requirements of hotel business. Likes Rent Controller the approach of the appellate court on the issue of maintainability of rent application was wrong from the point of view of burden of proof on issue No,1 that the rent case was maintainable. The burden was wrongly placed on the petitioner/tenant by the appellate court in holding that petitioner had not pleaded that the…
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