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Petitioner: MAHMOOD KHAN VS Respondent: NASIMA KHATOON
Court Name: Sindh High Court Judge(s): Z.C. Valiani Title: MAHMOOD KHAN vs NASIMA KHATOON Case No.: Second Appeal No, 87 of 1977 Date of Judgment:1980-11-22 Reported As: 1982 CLC 1807 Result: NOT
JUDGMENT
JUDGMENT ' This appeal is directed against the judgment dated 10th February, 1977 passed by the learned Vth Additional District Judge, Karachi in Rent Appeal No, 359/1976 by which respondent's said appeal was allowed and order dated 12th July, 1976 passed by the learned Ilnd Rent Controller, Senior Civil Judge and Assistant Sessions Judge, Karachi passed in rent case No, 834/1974 was set aside. ' The appellant had been tenant of one Mrs. Afsar Ausaf in respect of premises No, 1963/2, K. D. A. Scheme No, 16, Federal 'Er Area, Karachi at monthly rent of Rs, 130. Mrs. Afsar Ausaf is said to have sold the premises in question to the respondent. The respondent gave notice under section 13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959, dated 4th March, 1974 to the appellant which was served on the appellant on 5th March, 1974. The appellant alleged that being unaware of the change of ownership, the appellant went on paying and paid rent upto the month of February, 1974 to Mrs. Afsar Ausaf, previous landlady. On receipt of the notice dated 4th March, 1974 the appellant tendered rent for the month of March, 1974 to the respondent by cheque which was refused by the respondent. Then again on 14th May, 1974 the appellant tendered rent to the respondent through money order which too was refused by the respondent. In the meantime, the respondent filed ejectment case No, 834/1974 before the learned Rent Controller IInd Senior Civil Judge and Assistant Sessions Judge, Karachi who was pleased to reject the said application of the respondent. The respondent went in appeal and the learned Vth Additional District Judge, Karachi was pleased to reverse the finding of the learned Rent Controller and allowed the appeal of the respondent, ordering the appellant to vacate the premises and hand over its vacant possession to the respondent within 2 months vide his judgment dated 10th February, 1977 passed in 1st Rent Appeal No, 359/1976 and being aggrieved by the said order appellant has filed present appeal.
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' In the ejectment application the respondent stated that the appellant had failed to pay rent of the premises in question to the respondent from December, 1973 till she filed ejectment application on 6th April, 1974, in spite of repeated demands and registered A. D. Notices dated 4th. March, 1974 and 19th March, 1974 respectively. The respondent further alleged in the said ejectment application that she required the disputed premises for her own occupation. The appellant filed his written statement before the learned Rent Controller in which he admitted the tenancy and the rate of rent but he denied the other allegations of respondent regarding default and personal need of the applicant for premises in question. The appellant in his written statement further stated that one Mrs. Afsar Ausaf was the original owner of the premises in question and as he was unaware of the transfer of the ownership, he paid rent of the premises upto February, 1974 to the previous landlady and after the receipt of notice dated 4th March. 1974 under section 13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959 from the respondent, he tendered rent for the month of March, 1974 through cheque dated 1st April, 1974 which was refused by the respondent without lawful ground. Appellant further stated in his written statement that he sent copy of his reply dated 1st April, 1974 by which he sent the cheque for the rent for the month of March, 1974 to the respondent, to the previous landlady who refused to accept the said notice. The appellant further alleged in written statement that he had paid a sum of Rs, 1,040 to the previous landlady as security deposit and the question of adjustment of this amount was not yet settled. The appellant further alleged in his written statement that he tendered rent for 2 months, i.e, March, April, 1974 by money order on 14th May, 1974 to the respondent which money order also was refused by the respondent without any lawful reason. The appellant further contended that, as he had tendered the rent to the respondent within 30 days from the receipt of letter dated 4th March, 1974 regarding change of ownership, he has committed no default. The appellant further alleged in his written statement that respondent does not need the disputed premises for her own use and prayed that the respondent's application therefore, be dismissed with costs. ' On the above pleadings of the parties the following issues were settled on 4th July, 1974 by the predecessor of the learned IInd Rent Controller, Senior Civil Judge and Assistant Sessions Judge, Karachi :- (1) Whether the .Opponent (appellant) is wilful defaulter in the payment of rent ? (2) Whether the applicant (respondent) requires the premises in question for her own occupation in good faith ? (3) What should the order be ? ' The learned Rent Controller answered issues Nos. 1 and 2 in the negative and consequently he dismissed respondent's application for ejectment with costs. ' The respondent had examined P. Ws. Madood Ahmed Siddiqui and Mehboob Ali Khan on her side while the appellant had examined himself only. The learned Rent Controller examined the evidence produced by the parties in the light of the issues already framed by his predecessor. ' While determining issue No, 1 the learned Rent Controller stated that according to P. W. Madood Ahmed Siddiqui, the appellant did not pay rent from December, 1973 up to the filing of ejectment application on 6th April, 1974 and in support of his statement produced letter dated 4th March, 1974 Exh. A/2 and letter of attornment Exh. A/3. The learned Rent Controller further stated that the appellant in his statement has deposed that he paid the rent upto February, 1974 to the previous landlady and tendered rent for March, 1974 to the respondent through cheque vide his letter dated 1st April, 1974 within the statutory period which was refused by the respondent and the appellant further deposed that he again remitted the rent for the month of March, 1974 and April, 1974 by money order dated 14th March, 1974 to the respondent which was also refused by her. The learned Rent Controller stated that in support of this evidence the appellant produced cheque Exh. A-4 and the letter of refusal of the respondent's Advocate dated 8th April, 1974 Exh.
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9. The learned Rent Controller while discussing this evidence produced by the parties stated that the respondent had not examined previous landlady' to show that appellant was in arrears from December, 1973 to February, 1974 as alleged by her and he further stated that Exh. A/2 notice under section 13-A of the transfer of ownership and Exh. A/3 letter of attornment produced by the respondent did not show at all that the appellant was in arrears from December, 1973 onwards as alleged by the respondent. While discussing the letter of attornment Exh. A/3 the learned Rent Controller stated that the said letter of the previous landlady asked the appellant to pay the rent amount with all arrears. The period of arrears is neither indicated in the letter dated 3rd December, 1973 Exh. A/3 (letter of attornment) nor in the letter .Dated 4th March, 1974 Exh. A/2 (notice under section 13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959 intimating change of ownership) and as such the learned Rent Controller came to the conclusion that the appellant had paid the rent as alleged by him to the previous landlady upto February, 1974 and was liable to pay the rent for the month of March, 1974 only, on receipt of letter dated 4th March, 1974 Exh. A/2. The learned Rent Controller further observed that the appellant had admittedly sent the rent for the month of March, 1974 to the respondent vide his cheque dated 1st April, 1974 Exh. A/4 which was refused by respondent and thus the appellant did not commit any default because he tendered the rent for the month of March. 1974 within the statutory period, which according to the learned Rent Controller, respondent refused without cogent reasons. The learned Rent Controller further observed that if the appellant was in arrears of rent from December, 1973 as alleged by the respondent, the respondent should have communicated such arrears in his notice Exh. A/2 which she had apparently failed to do sc. Then learned Rent Controller went on to discuss the contention of the learned Advocate for the respondent, according to which as the appellant failed to, produce counter files of the cheques showing the payment of rent to the previous landlady for December, 1973. January 1974 and February, 1974, the appellant was a defaulter. The learned Rent Controller did not agree with this contention of the learned Advocate for the respondent and stated that it was for the respondent to have established through the evidence of the previous landlady or through any documentary evidence to prove that the appellant was in arrears from December, 1973 and thereafter it would have been for the appellant to rebut the said evidence and prove the said payments and held that the burden of the proving of the nonpayment of the rent for the months of December, 1973, January, 1974 and February, 1974 was on the respondent which she failed to discharge. In view of this the learned Rent Controller held that appellant had not committed any default in the payment of rent as alleged by the respondent and answered the said issue in the negative. ' The learned Rent Controller while discussing the evidence led by the parties in respect of issue No, 2 stated that the burden of this issue heavily lay on the respondent which she had failed to discharge. While discussing evidence on this issue, the learned Rent Controller stated that P. Ws. Madood Ali Khan and Mehboob Ali Khan have deposed that respondent required the premises for her own use and this fact is denied by the appellant in his evidence and the appellant in his evidence has deposed that the respondent owns other houses and she does not require the disputed premises for her own use. The learned Rent Controller further went on to state that P. W. Madood Ahmed has deposed that only respondent and her husband are living in one room in the house of a relation at Nazimabad. This version of respondent's said witness is not supported by respondent's husband P. W. Mehboob Ali Khan who has deposed that he, the respondent, the mother/and brother of the said witness are living in one room of the respondent's relation. In view of this contradiction between the two witnesses of the respondent he did not rely upon their testimony. The learned Rent Controller further observed that on account of appellant allegation that respondent owns other houses and properties in Karachi, which is borne out from power of attorney Exh. A/1, he was inclined to accept the version of the appellant that the premises in
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question are not required by the respondent for her own use. According to the learned Rent Controller the burden of proof of this issue lay heavily on the respondent which in the opinion of the learned Rent Controller she failed to discharge. The learned Rent Controller further observed that if the respondent was really occupying one room in the house of a relation as alleged by her, she should have examined that relation of her in Court to substantiate her said allegation which she has failed to do. The learned Rent Controller further went on to state that it is a settled law that mere wish of the landlord is not sufficient to eject the tenant but the landlord has to establish beyond reasonable doubt that he/she requires the premises for his/her own bona fide use. In the opinion of the learned Rent Controller, in the instant case respondent has miserably:lailed to prove that she needs the disputed premises for her own bona fide use by any independent evidence specially when such need is denied by the appellant. The learned Rent Controller in view of his observations and discussions which are based on the evidence on record stated that he was of the considered view that the respondent did not require the disputed premises for her own bona fide use but she needs vacant possession of the said premises to give on higher rent as alleged by the appellant and therefore decided this issue also in the negative and consequently dismissed respondent's application for ejectment, with costs by his order dated 12th July, 1976. ' Being aggrieved by the above decision dated 12th July, 1976 the respondent filed an appeal before the learned Vth Additional District Judge, Karachi which was allowed by the learned Vth Additional District Judge, Karachi, vide his order dated 10th February, 1977 on the following basis :- ' The learned Vth Additional District Judge, having heard the learned Advocate of the parties and having gone through the record and proceedings of the learned Rent Controller stated that according to him the burden of proof of payment of rents to the previous landlady was wrongly placed on the respondent. The learned Vth Additional District Judge stated that the respondent was only entitled to show that she was entitled to receive rent from certain dates and that the same was not received by her. It was for the appellant to prove that he had paid rent to somebody else entitled to receive in absence of any earlier intimation of the transfer of the demised premises. In support of this conclusion the learned Vth Additional District Judge relied upon on section 101 of the Evidence Act and stated that since the previous landlady's letter of attornment dated 3rd December, 1973 and notice dated 4th March, 1974 under section 13-A of the Ordinance claimed payment of arrears the appellant was to pay arrears as well as future rent to the respondent. The learned Vth Additional District Judge further stated that it is not denied by the appellant that the letter dated 3rd December, 1973 of attornment was not written by the previous landlady according to which the stand of the previous landlady was that she had not received rent for December, 1973 onwards. In view of this the learned Vth Additional District Judge came to the conclusion that it was for the appellant to have proved the payment of rent to the previous landlady. The learned Vth Additional District Judge further went on to state that it seems unreasonable to assume that the appellant had paid rent for November, 1973 to February, 1974 in advance in the month of November, 1973 as deposed by him, when it is not denied by him that the rent was payable monthly. The learned Vth Additional District Judge further stated that appellant had alleged payment of rent for these months by cheques and as such there ought to have been no difficulty for him to produce counter files of these cheques or a certificate from his bankers to show that the amounts thereof was so paid to the previous landlady or someone else on her behalf but he has not done so. This was the best evidence available with appellant, which he chose to withhold and as such the learned Vth Additional Distict Judge, Karachi, raised an adverse presumption, thrA, had it been produced in Court, it would not have supported the appellant's contention. Mere fact that attorney of the respondent deposed in cross-examination that he did not know if the appellant had paid rent to the previous landlady does not prove that the rent was actually paid, according to the learned Vth Additional District Judge. The learned Vth Additional District Judge further went on to
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state that the source of information of the appellant for arrears was previous landlady who had given her a letter of attornment dated 3rd December, 1973 addressed to appellant in which she stated that the rent was in arrear. The Vth Additional District Judge further observed that P. W. Madood Ali Siddiqui in cross stated that it was incorrect that rent upto February, 1974 was paid to the previous landlady. In these circumstances 'the learned Vth Additional District Judge came to the conclusion that the appellant had committed wilful default in payments of rent from December, 1973 onwards by taking deliberately false plea. ' Dealing with the second issue on question of personal and bona fide use, the learned Vth Additional District Judge stated that it seems that the learned Rent Controller was influenced by the fact that there was a contradiction in the statements of two P. Ws. Produced by the respondent regarding number of people staying in one room as well as on account of general power of attorney granted by the respondent in respect of her properties in and outside Karachi. The learned Vth Additional District Judge observed that there was no such contradiction in the statements of two P. Ws. And there was nothing unusual for many persons to reside in one room. He further stated that the statement of P. W. Mehboob Ali Khan was not challenged on this point in cross- examination. The learned Vth Additional District Judge further observed that the appellant in his deposition had stated that respondent owns two houses in Paposh Nagar and three in P. E. C. H. S. But did not put any question in this connection in cross examination to P, W. 1 nor he had raised such plea in his written statement, hence appellant's version in this connection cannot be relied upon. Appellant cannot be allowed to set up a different case at the trial then one mentioned by him in his written statement. The learned Vth Additional District Judge further observed that the statement of P. W. Madood Ahmad Khan that respondent was residing in the house of cousin as licensee and that house in dispute was purchased for respondent's occupation and her marriage was delayed on that account as she did not own and possess any house suitable for her needs has not been challenged in cross-examination at all. The learned Vth Additional District Judge Karachi further observed that the appellant in his cross-examination stated that respondent's husband had informed him that respondent owned three other houses but no such question was put to P. W. Mehboob Ali Khan in cross-examination and as such appellant's evidence in this regard cannot be relied upon. The learned Vth Additional District Judge in view of these observations came to the conclusion that evidence of the appellant was full of contradictions and does not inspire confidence as the only plea taken in the written statement for filing of the ejectment application was to pocket away security deposit and as such the appellant cannot be allowed to set up a different case 'at the trial. ' The learned Vth Additional District Judge Karachi observed that respondent's witnesses have clearly stated in their depositions that respondent does not possess any other house suitable for her needs. The mere ownership of other houses and shops even if proved would not defeat respondent's claim for her own occupation unless it is shown that she is occupying another residential building suitable for her needs at the time in the same urban area in which the demised premises are situated and that she had also not vacated such a building without sufficient cause after commencement of the Ordinance. The learned Vth Additional District Judge further observed that the grant of general power of attorney by the respondent on which the learned Rent Controller has led so much stress does not reflect upon her bona fides and for this he relied upon case reported in P_ L D 1972 Kar. 98. The learned Vth Additional District Judge observed that in a case reported in PLD 1973 Lah. 308 it has been held that protection given to the tenant under section 13(4) of the West Pakistan Urban Rent Restriction Ordinance, 1959 is sufficient safeguard for the false plea of a bona fide requirement of the landlord and as such the learned Rent Controller should have accepted the statement of witnesses of the respondent in this connection specially as the said assertions of the respondent's
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witnesses have not been shaken in cross-examination or disproved in rebuttal. The learned Vth Additional District Judge has then referred to the authority in PLD 1975 Lah. 200 which was cited by the appellant's Advocate and observed that this authority does not support the appellant. In view of the above-mentioned discussions and observations made by the learned Vth Additional District Judge, he came to the conclusion that the respondent has proved her case of bona fide need in respect of the premises in question for her own occupation. ' In view of the above findings, the learned Vth Additional. District Judge accepted the appeal filed by the respondent and set aside order dated 12th July, 1976 of the learned Rent Controller and allowed respondent's application for ejectment as prayed and granted two months time to the appellant to vacate the premises. ' The learned Advocate for the appeliant after reading orders of both the two learned lower Courts urged before me that according to the evidence of P. W. 1 the property in question was acquired by respondent in May, 1973 and the letter of attornment purporting to be of 3rd December, 1973 Exh. A/3 was only sent by the respondent to appellant by her letter dated 4th March, 1974 Exh. A/2 and as such the legal obligation of the appellant to pay the rent to the respondent (new landlady) was within 30 days from the date of the receipt of the said letter only and as. Such the rent for the month of March, 1974 could have been paid by the appellant upto 30th April, 1974 and the rent for the month of April, 1974 was to be paid within 60 days from the date. When it became due, whereas the ejectment application was filed on 6th April, 1974 and as such ground of default was not at all available to the respondent, if the appellant's contention regarding payment of rent upto February, 1974 to the previous landlady is accepted. As far as averment regarding payment of rent upto February, 1974 to the previous landlady is concerned, the learned counsel for the appellant submitted that in attornment letter dated 3rd December, 1973 nor in notice under section 13-A of the Ordinance dated 4th March, 1974 the period of arrears is specified either by the previous landlady or by the respondent respectively and in the absence of this in the face of the assertions made by the appellant regarding payments of rents to the ex-landlady upto February, 1974 the burden of non-payment of rent for the said period by the appellant, was on the respondent under the provisions of section 102 of the Evidence Act, which the respondent. As rightly held by the learned Rent Controller has failed to discharge and as such the appellant is not wilful defaulter within the meaning of section 13 of the West Pakistan Urban Rent Restriction Ordinance, .1959. ' The learned counsel for the appellant further urged that it is significant to note that though the property is alleged to have been sold in May, 1973 no demand for rent for a period from January, 1973 to November, 1973 has been made by the respondent, but respondent's demand for arrears is only from December, 1973 which also supports the contention of the appellant that the ex-landlady after the sale of property was accepting rent from the appellant. ' As far as the ground of personal and bona fide use is concerned, the learned Advocate for appellant submitted that such demand was not made by respondent in Exh. A/2 her first notice dated 4th March, 1974 sent to the appellant. It was only after appellant had disputed arrears and claimed adjustment of security deposit of Rs, 1,040 in his reply to Exh. A/2 vide his letter dated 11th March, 1974 Exh. 7 that such demand for the first time was made by respondent vide her advocates reply dated 8th April, 1974 Exh. 9, after filing of ejectment application. The learned counsel for appellant further submitted that respondent personally did not come forward in witness box to support her this claim, although she was in Karachi and it is not alleged that she is Pardah Nashin etc. The learned counsel for the appellant relied upon the cases reported in PLD 1976 Kar. 1231, PLD 1975 Lah. 200 and 1968 SCMR 959 and submitted that respondent has failed to substantiate her this ground as well and as such her application for ejectment on this ground has also been rightly rejected by the learned Rent Controller.
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' On the other hand learned counsel for the respondent urged before me that since mutation in K. D. A. Records regarding transfer in question was only made in February, 1974, notice under section 13- A of the Ordinance could not be sent with letter of attornment earlier. He further stated it was not necessary to mention period of default specifically in Exh. A/2, in view of…
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