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Petitioner: GHULAM ABBAS ADAMALI JEEVAJI VS Respondent: N. HASSAN ALI & Co./Opponent
Court Name: Sindh High Court Judge(s): Nasir Aslam Zahid Title: GHULAM ABBAS ADAMALI JEEVAJI vs N. HASSAN ALI & Co./Opponent Case No.: Second Rent Appeal No. 146 of 1973 Date of Judgment:1984-01-23 Reported As: PLD 1984 Karachi 373 Result: Petition dismissed
JUDGMENT
JUDGMENT JUDGMENT ' This is a second rent appeal filed by the appellant landlord against the concurrent finding on the question of default by the Rent Controller and the First Appellate Authority. Rent Case No. 1383/69 was filed on 15.7-1969 by the Managing Trustee of Isrnailje Ameeje Nathani Education Trust, owners and landlords of the premises in question, for the ejectment of the respondent/tenant on the following grounds (a)Default in the payment of rent for 23 months 1. e. From 1-8-1967 to 30-6-1969 ; (b)subletting a part of the premises ; (c) making material alterations in the premises without permission from the appellant. ' The ejectment application was resisted by the respondent, who filed a written statement. On behalf of the appellant, three witnesses were examined. S. M. Yahya, Rent Collector, was the first witness. Ghulam Abbas, Managing Trustee, also gave evidence. Moosa, a neighbour, also gave evidence on behalf of the appellant. On behalf of the respondent firm, Ibrahim, one of the partners of the respondent firm, gave evidence. By order dated 20-10-1972, the ejectment application was dismissed by the Rent Controller. The appellant filed Rent Appeal No. 543/72 but the same was also dismissed by the learned Vth Additional District Judge, Karachi by order dated 12-2-1973. Challenging the orders dated 20-10-1972 of the Rent Controller and 12-2-1973 of the First Appellate Authority, the present second appeal has been filed by the landlord. I have heard at length Mr. Mansoorul Arfin, learned counsel for the appellant and Mr. Mohsin Tayabally, learned counsel for respondent.
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2. It may be observed here that the premises in question comprise of tenement No. 6, tenement No. 7 and some open space. There is a rent agreement dated 6-1-1958 between the parties in respect of open space only. There was no period provided for the period of lease in the agreement dated 6-1-1958. In para. 3 of the ejectment application it was mentioned that the total rent of the two tenements and the open space was Rs. 82.25 per month and this rent was payable by the 5th of the next succeeding month. In para. 3 of the written statement filed by the respondent, para. 3 of the ejectment application was admitted except for the allegation that the rent was payable by the 5th day of the next succeeding month. It was averred as follows :- "The practice was for collection of the rent by the landlord through their "so-called" trustee at the latter's convenience for a few months every time and there was no period fixed for payment of the rent between the parties. Hence, the applicant's allegations in this respect is false to his own knowledge." ' In para. 5 of the ejectment application it was asserted that rent had not been paid from 1-8-1967 to 30-6-1969 amounting to Rs. 1,891.75. Para. 5 of the ejectment application was replied by the respondent in para. 5 of the written statement which is reproduced here :- "That para. No. 5 of the application is also denied in its entirety, inasmuch as the opponent has never failed, refused or neglected to tender or pay the agreed rent to the landlords, or committed default within the meaning of law in payment of rent at any time ; on the contrary, every time the rent was tendered in accordance with the prevailing practice it was refused by the trustee of the landlords with deliberate design to harass the opponent so as to coerce him to succumb to unreasonable demands. Of the landlords in the matter of withholding and blocking existing amenity of the passage facilities to the godown in possession of the opponent and relinquishing his option for raising construction on the open piece of land in terms of the earlier agreement between the parties. The opponent therefore, was compelled to deposit the rent in the Court according to law for safeguarding his interest, and he had advised of this fact to the lendlords at once. The opponent accordingly has deposited upto date rent in the Court and as such there is no question of any default having been committed by him in any manner." 3. As observed earlier three grounds were taken in the ejectment application namely default, subletting and material alterations. On the question of subletting tenement No. 7 and material alterations in the premises, I find that there is hardly any evidence adduced by the appellant for proving their case on these two issues. I find no illegality in the orders of the Rent Controller and the First Appellate authority in dismissing the ejectment application on these two grounds. In my view the burden of establishing A their case on these two grounds had not been discharged by the appellant and no interference is called for in respect of the concurrent findings or the Rent Controller and the First Appellate Authority on the issues relating to subletting and material alterations. The only question that requires consideration in this second appeal, therefore, is whether the concurrent finding of th two tribunals on default call for interference. In fact the main arguments in this second appeal were addressed by the counsel for the parties on. The question of default only. 4. Reference has already been made to the defence raised on behalf of the respondent/tenant about the default. According to the respondent, there was a practice of the appellant for collection of the rent at landlords' convenience for a few months at a time and there was no period fixed for payment of the rent between the parties. Then in para. 5 of the written statement it was averred that when the rent was tendered in accordance with the prevailing practice it was refused by the trustee of the appellant and in these circumstances respondent was forced to deposit the rent, with the Rent Controller for safeguarding his interest and that upto date rent had been deposited with the Rent Controller. In his examination-in-chief, S. M. Yahya, the rent collector, stated that the
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respondent had not paid the rent since August, 1967. He further stated that the appellant had never refused to accept the rent. In his cross-examination this witness stated that he used to go every month to receive the rent from the tenants and he issued the receipt at the time of payment. Six receipts were shown to him in his cross-examination and he admitted that these six receipts had been issued by the appellant and the same were brought on record as Exh. P-l/5 to P-1/10. Ghulam Abbas P. W. 2, the managing trustee, stated in his examination-inchief that Yahya (P. W. I) was his rent collector and he was connecting rent of the building on behalf of the trust. He further stated that no letter of appointment had been given to Yahya and that he had personally introduced Yahya to the tenants. It was further stated by him that Yahya was his personal servant and he had also authorised Yahya to collect rent trust of the building. In his cross-examination this witness denied that there was no dispute between the parties prior to 1968. According to the witness, there was a dispute about non-payment of rent and a case was filed previously but he could not say in which Court the previous case was filed. The third witness Moosa was examined in connection with other grounds and not on the issue of default in the payment of rent. As noted earlier, only one witness appeared on behalf of the respondent and he was Ibrahim, a partner of the respondent firm. In his examination-in-chief he has stated that he was the tenant of the premises for the last 40 years and he paid rent on the 5th of every month. According to him the rent collector used to collect rent once after every two or three months and sometimes he used to come after six months and eight months. It was further deposed by him that he was always present on the premises, night and day. He referred to the rent receipts Exh. P-1/5 to P-I/10 and said that these rent receipts were issued to Lim. It was further stated by him that this practice of collecting rent was for all the tenants. He then stated that he had tried to give rent to the appellant but they refused and stated that their rent collector had got the receipt and he would come and collect the rent and when the appellant did not accept the rent this witness deposited the rent in Court. In his cross-examination, this witness stated that he could not say since when he started to deposit the rent in the Court but it was admitted by him that he started depositing rent in Miscellaneous Rent Case No. 20/68. He admitted that he had not given any notice to the appellant that they had refused to accept the rent and as such he was compelled to deposit the same in Court. Notice dated 21-4-1968 (Exh. P- 1/2) is given by the Respondent to the appellant and according to this witness after the rent bad been deposited in Miscellaneous Rent Case this notice was sent to the appellant. This witness knew the correct address of the trustees and stated that he had personally been to their office to pay the rent. He denied that he refused to pay the rent to the rent collector. The witness did not know whether the appellant had filed any D. W. Application against him for recovery, of the rent. It was further stated by him in the cross-examination that entries .Were made but him ,in accounts books about the payment of relit. According to him' the respondent maintained rent account in their account books. It may be observed here that the account books were not produced in evidence. 5. The Rent Controller in his impugned order, dated 20-10-1972 referred to the six rent receipts namely Exh. P/1/5 to P-1/10 and then observed that a careful perusal of these rent receipts shows that the rent for the premises in dispute had been received from 1961 upto July, 1967 in lump sum. According to the Rent Controller he was inclined to believe the case of the respondent that it was the custom and habit of the appellant to receive rent from the respondent periodically and in lump sum. It was further mentioned by the Rent Controller in his order that the respondent paid rent upto July, 1967 vide Exh. P-1/6 and thereafter started depositing rent in Miscellaneous Rent Case No. 29/68 and that on 17-41968 the respondent for the first time deposited rent with the Rent Controller for eight months i. e. From August, 1966 to February, 1968 in lump sum and thereafter continued to deposit rent in Court every month without fail till the passing of the tentative rent order. , According to Rent Controller therefore the respondent had only defaulted in the payment of rent when he deposited rent for eight months from August, 1967 to February, 1968 in lump sum on 17-4-1968. The
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Rent Controller took the view that in the circumstances of this case the respondent had not committed wilful default in the payment of rent and it was a fit case to exercise the discretion in favour of the tenant. Reliance, was placed upon P 1, D 1972 Mr. 22. The learned Vth Additional District Judge, Karachi by his order dated 12-2-1973 agreed with the Rent Controller and dismissed the appeal filed by the appellant. According to First Appellate Authority the discretion was properly exercised in favour of the tenant by the Rent Controller, Reliance was also placed on PLD 1973 Kar. 63. Learned counsel for the appellant had argued that on the basis of the evidence adduced by the parties a case of wilful default had been made out. On the other hand it was contended by learned counsel for respondent that although technically the default had been committed in respect of payment of rent for eight months from August, 1967 to February, 1968 as rent for these eight months had been deposited in the Misc. Rent Case by the respondent on 17-4-1968, in the facts of this case, a discretion has been exercised properly by the Rent Controller in favour of the respondent and the concurrent findings, being neither perverse nor arbitrary, this Court may not disturb the concurrent findings in the present second appeal. 6. I may first refer to one contention raised by Mr. Mohsin Tayabally, leal tied counsel for the respondent/tenant, that there is a concurrent finding of the Rent Controller and the First Appellate Authority on the question of default in favour of the tenant, and this being a finding of fact, it is not liable to be disturbed in second appeal by the High Court. Reliance was placed on the following judgments :- (i) Muhammad Kamil v. Mst. Imtiaz Fatima 36 I A 210. ' In this judgment the Privy Council did not disturb a concurrent finding of fact on the point of existence of a custom. (ii) Raja of Ramnad v. Mangalam I A 264. ' In this judgment also the Privy Council did not disturb a concurrent finding of the Courts below regarding existence of a custom. (iii) Masjid Chah Ferozewala v. Talib Husain PLD 1961 Lah. 918. ' In this judgment by a Division Bench of the Lahore High Court it was observed that concurrent findings by the two Courts below on the question of possession and that a party was governed by custom, being findings of fact, could not be challenged in second appeal. (iv) Australasia Bank v. Muhammad Din PLD 1963 Kar. 105. ' In this judgment by a Division Bench it was observed that a finding on custom of trade was a finding of fact and it could not be disturbed in a second appeal filed under section 100 of the Civil Procedure Code except when the finding is unreasonable and based on no evidence at all. (v) Abdul Majid v. Khalil Ahmed PLD 1955 FC 38. ' In this judgment the Federal CoUrt observed that the High Court has no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however gross and inexcusable the error may seem to be, unless there is an error in the procedure provided by law, which may possibly have produced an error or defect in the petition of the case on the merits. (vi) Nighat Yar Khan v. Hamida Khatoon 1982 CLC 593. ' In this judgment a learned Single Judge of the Lahore High Court observed that the High Court never interferes with a finding of fact though the High Court may differ from the conclusions arrived at on facts by the lower Courts. However, in that case the learned Single Judge thereafter proceeded to examine the evidence and came to the conclusion that on merits also a correct decision had been taken by the Courts below.
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' On the other hand Mr. Mansoor-ul-Arfin, learned counsel for the appellant-landlord relied upon the judgment of the Supreme Court in the case of Muhammad Alam v. Noor Muhammad (1) in which it was observed that the question whether there was a default within the preview of section 13 of the Rent Restriction Ordinance, 1959 was a mixed question of law and fact and the High Court could, therefore, displace the concurrent finding of the Courts below on this point. ' There is no doubt a concurrent finding of the. Rent Controller and the First Appellate Authority in the present case to the effect that the respondent is not a defaulter under section 13 of the 1959 Rent Ordinance but this is not a pure question of fact. In view of the decision of the Supreme Court in 1973 SC MR 606, it may be observed that this is a mixed question of law and fact and as such the High Court can in second appeal interfere with the' concurrent finding on this point. I may here very humbly add that the finding on the point whether rent of a particular period has or has not been paid is, however, a finding of fact but the question whether it would amount to a default under section 13 of the 1959 Kent Ordinance for which the tenant is liable to be ejected is a mixed question of law and fact. I may also observe that it is not every finding of fact which is immune from interference in second appeal by the High Court. There can be concurrent findings, which may not be based on any evidence or which might be perverse, in which case the High Courts can and do interfere with such concurrent findings. The preliminary objection of the learned counsel for the respondent that the concurrent finding of the Rent Controller and the First Appellate Authority in this case on the point of default cannot be disturbed is accordingly overruled. 7. Reference may now be made to other judgments relied upon by the two learned counsel in support of their respective contentions on the question of default. Mr. Mansoor-ul-Arfin, learned counsel for the appellant/landlord had argued that, in this case, on the material on record, a case of default had been established by the appellant for which the respondent was liable to be ejected from the premises in question. Reliance was placed on the following reported judgments by the learned counsel for the landlord :- Abdul Rashid v. Saleh Muhammad 1980 SCMR 506. ' In this case plea taken by the tenant on the question of default was that a practice had arisen between the tenant and the landlord that the rent would be paid periodically at intervals of 34 months and in support of this contention the tenant had produced some receipts issued in his favour by the landlord showing that on several occasions rent had been paid for 2 or 3 times at a time. It was further contended on behalf of the tenant that in view of this practice he had not tendered the rent for the 4 months in question in the hope that either the landlord or one of his sons will come and collect the rent and when no one came to collect the rent he sent the rent to the landlord through a money order which was not accepted by the landlord. This contention was repelled by the Supreme Court. Paras: 8, 9, 10 and 11 of this judgment are reproduced here :- '4(8) This plea is based upon a misconception with regard to the legal position on the point. It has been held time and again that in such cases the parties cannot contract themselves out of the provisions of (1) 1973 SCMR 606 ' the law on the subject namely the West Pakistan Urban Rent Restriction Ordinance. Similarly neither party can plead a practice which is contrary to the said law. Moreover, the mere fact that a landlord accepts a delayed payment of rent by the tenant on a number of occasions, cannot be said to have given rise to any practice whiling down the requirement of law that the rent has to be paid by the tenant by the 15th of every month. It was held by this Court in S. Riaz Ali v. Shabbir Ahmed Khan 1971 SCMR 598 that "a tenant cannot lead evidence in variation of the terms and conditions of the written agreement of lease, and moreover the receipt of rent by the landlord/ respondent for several months at a time, showed that the landlord has condoned the detault and not that be had agreed to vary the terms and conditions of the rules regarding payment of rent.
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(9) In Muhammad Hasan & Co. v. Mahmood Ahmad Khan 1975 SCMR 355 where the tenant had taken up same position, namely that a practice has grown up to pay rent in lump sum after certain interval it was observed by this Court inter alia that "in any event such a practice was contrary to section 13 of the West Pakistan Urban Rent Restriction Ordinance, and there for the former could not overrule that law." (10) In Messrs Tar Muhammad Janoo (I Co. v. Taherali and others (C P No. 1(116 of 1979) where the tenant/petitioner had raised the same contention as in the present case and while dismissing the petition this Court observed as follows :- "The mere fact that a tenant has made it a habit not to pay the rent regularly every month, and that the landlord has tolerated his default for some time and accepted the rent paid at irregular intervals cannot in any way, be deemed to have established a practice of payment of rent whenever the tenant pleases or affect the liability of the tenant to pay the rent unless the landlord comes and collects it. Nor does it absolve the tenant from paying the rent every month. A landlord's acceptance of the rent paid to him at irregular intervals does not in any way, show that he does not expect it to be paid regularly every month as the reason for receiving the delayed payment might be his decency, his desire to accommodate his tenant, his pre-occupation with his own work, his he hesitation to go to Courts of law or his reluctance to incur the expenses and hazards of his litigation. The tenant cannot be allowed to take advantage of his own negligence or of his having of deliberate non-payment of rent in time very month on the ground that the landlord has been accepting the same and argue that the same had given rise to a practice of irregular payment of rent." (11) In view of the above discussion we feel that the petition has no merit whatsoever and the same is, consequently dismissed." (ii) Syed Warts Ali TirmizI v. Mst. Llaqat Begum 1980 SCMR 601. ' In this case a contention was raised on behalf of the tenant on the question of default that the tenant had - been paying rent at long intervals at the request of landlord's husband to suit his convenience. The Supreme Court found that out of 9 payments, the tenant had twice paid rent of only one month and twice paid rent of two months at a time. On these facts the Supreme Court observed that the tenant's claim regarding landlord having himself desired not to be receive rent at the end of every month or two months stood prima facie belied. It was further observed that if a landlord agrees to accept rent periodically, this can only be the result of a fresh agreement between him and the tenant and if he enters into such an agreement he would no doubt be bound by his representation to the tenant not to pay rent at the end of every month, but the burden of proving such an agreement between the landlord and the tenant is not to be inferred lightly and cannot generally be inferred from the mere fact that the landlord had received rent from his tenant at irregular intervals. It was further observed that the tenant had failed to prove that the landlord had agreed to alter the terms of the tenancy with the petitioner/tenant and to receive rent from him at long intervals. The petition filed by the tenant was dismissed by the Supreme Court. (1) Ali Hassan v. Abdul Qadeer 1980 CLC 912. In this case a learned Single Judge of this Court repelled the contention raised on behalf of the tenant that in every case where the landlord is shown to have accepted rent in lump sum in the past, discretion not to order ejectment follows as a matter of course. 7 rent receipts produced by the tenant were considered by the High Court and then it was observed that this evidence did not establish an implied agreement between the parties for payment of rent with intervals and the best these receipts indicated was that in the past the landlord generously exonerated the defaults in the payment of rent on the part of the tenant and accepted them on occasions after they remained in arrears for long periods. In these circumstances it was held that the default
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committed by the tenant could not be wiped off merely because on the previous occasions the landlord abstained from taking legal action. (iv) Muhammad Hamiduddin v. Feroz Ahmed PLD 1980 Kan 337. ' In this case the landlord had accepted the rent from the tenant on two occasions in lump sum according to the rent receipts produced in evidence. A learned Single Judge of this Court was of the view that the tenant had failed to produce satisfactory evidence to prove that landlord himself accepted the rent periodically as against the clear provision in the agreement that rent was to be paid every month. According to the learned Single Judge if the landlord had accepted rent from the tenant on two occasions as per the receipts, it could be said that it was an act of indulgence on the part of the landlord to condone the default and that the same could not be adopted by the tenant to be a plea to the effect that the landlord has varied the terms of the agreement by his conduct to accept rent periodically. (v) Textile Trading Co. Ltd. v. Jalilur Rehman 1972 SCMR 384. ' In this case a contention was raised on behalf of the tenant that there was no default in the payment of rent as there was an implied agreement that the rent was to be paid in lump sum and only when the rent collector of the respondent would come and collect them. Repelling this contention, the Supreme Court observed that the implied agreement was never pleaded by the petitioner/tenant in his written statement and that such practice of payment of rents in a lump sum had been denied by the rent collector appearing as a witness on behalf of the landlords and the tenant had failed to prove that the practice was SO consistent as to give rise to an implied agreement. (vi) Muhammad Hassan Co. v. Mahmood Ahmed Khan 1975 SCMR 355. ' In this case the…
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