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Petitioner: NAJMUDDIN VS Respondent: ZAMIR AHMAD
Court Name: Sindh High Court Judge(s): Naimuddin Ahmed Title: NAJMUDDIN vs ZAMIR AHMAD Case No.: Second Appeal No. 186 of 1975 Date of Judgment:1981-09-01 Reported As: PLD 1982 Karachi 188 Result: Appeal dismissed
JUDGMENT
JUDGMENT This second appeal under section 15(4) of the Sind Urban Rent Restriction Ordinance, 1959 (hereinafter called the Ordinance), is directed against the order dated 8-5-1975, passed by III Additional District Judge, Karachi, in Rent Appeal No. 447 of 1972, whereby he set aside the order of the Controller dated 17-3-1972. The facts giving rise to this appeal briefly stated, are as follows :- That the appellant in this appeal is the landlord of a shop having three portions without intervening walls situated on Plot No. SB-7/95, Summerset Street, Saddar, Karachi. He filed an application under section 13 of the Ordinance for eviction of the respondent from the shop on the ground that the respondent had sublet three portions of the shop, had made default in payment of the rent, was using the shop for the purposes other than for which the same was let out, and had made unauthorised constructions, additions and alterations. As to the subletting it is stated in the application that the respondent has sublet three separate portions to three different parties whose names he has not given, without the consent of the appellant. With regard to the default in payment of rent it was claimed that the respondent had not paid rent for five months commencing from 1-3-1969 to 31-7-1969, amounting to Rs. 2,250, rent being at Its. 450 per month. The respondent in the written statement denied that he had sublet the three shops or that he had made default in payment of rent and also denied other grounds. On the pleadings of the parties the following issues were framed. "(1) Has the opponent defaulted in the payment of rent ? If so what is the effect ? '
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(2) Whether the opponent has been collecting rent occasionally and irregularly ? (3) Has the opponent sublet the portion of the premises ? If so, to whom and what is the effect ? (4) Has the opponent begun to use the premises for purposes other than for which they were taken, changing the value of the property and its title ? (5) Has the opponent constructed an unauthorised cabin as alleged in para. 4 of the application changing the value of the property and its title ? (6) To what relief is the applicant entitled ?" In support of the claim the appellant examined his brother Imran (E h: 1) who produced several rent receipts (Exhs. 2, 3, 6, 7), and a copy of thenotice dated 21-1-1965 (Exh. 4) sent to the respondent, on behalf of the appellant and its postal acknowledgment receipt (Exh. 5), and Muhammad Hanif so- called a sub-tenant who supported the claim of the appellant on the issue of subletting and produced a copy of the income-tax assessment order dated 17-4-1968 (Exh. 12), and a number of cash memos and order forms (Exhs. 13/1. To 13/23) in support of his claim that he was the sub- tenant of a portion of the shop. The respondent examined himself and produced the correspondence receipts (Exhs. 16, 17/1 to 17/9, 18, 26), his employee Hasan Ali (Exh. 28), and Saeedur Rahman (Exh. 29), who was alleged to be the sub-tenant. The learned Controller after examining the evidence produced by the parties decided all the issues in favour of the appellant and ordered the eviction of the respondent by the order dated 17-3-1972. Aggrieved by this order the respondent filed an appeal under section 15(1) of the Ordinance in the District Court, which was heard by III Additional District Judge and allowed by the order dated 8-5- 1975, now impugned before me in this appeal. I have heard Mr. Saleem Akhtar Shamsi, Advocate for the appellant and Mr. Waheed Farooqui, Advocate for the respondent and have gone through the record including the deposition of the witnesses examined by the parties and the documents produced by them. Mr. Saleem Akhtar Shamsi has raised before me the following grounds in support of this appeal and has not questioned the finding on other issues;-- .(i) that the learned lower appellate Court has not exercised its discretion properly. (if) the questions of estoppel, waiver, and acquiesced were irrelevant in view of the provisions of section 13 of the Ordinance. Now, I will take up the first ground. In relation to this ground I may state that the appellant's case was that the respondent was in arrears of rent with effect from 1-3-1969 to 31-7-1969. On this plea the stand taken by the respondent was that the appellant had been collecting rent in lump sum. It was further pleaded that the appellant had always been inclined in not collecting the rent in time and month to month but used to receive rent after even 14 months. It was also pleaded that last time the rent was collected in May, 1969 and thereafter no one came to collect rent, therefore, the respondent telephoned the appellant and also sent his man and tendered the rent but the same was refused on one pretext or the other with mala fide intention to create a false ground of default. On this issue the appellant's evidence is that of his brother Imran, who stated that he and his brother used to live together and he was familiar with the facts of the case. He further stated, that the respondent had defaulted in payment of the rent from March, 1969 till August, 1969. According to the witness on 19-3-1969, the respondent paid him rent only for one month i.e. December, 1968 and produced the counterfoil of several receipts. It may significantly be stated that he said not a word about the plea of the respondent taken in the written statement that the appellant used to collect rent from him and used to receive rent after months together. However, in the cross- examination this witness admitted that he himself did not collect rent from the respondent. He expressed his ignorance regarding the suggestion that there were several tent collectors who were collecting rents from the tenants including the respondent. He however, denied the suggestion that
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the appellant had been collecting rent from the tenants for months together. He also denied the suggestion that the rent was accumulated because the appellant bad not collected it. He also, denied the suggestions that the respondent sent the rent regularly through his servant but the appellant did not accept it. It is admitted fact that this witness is neither the attorney of the appellant nor did he collect rent or do anything in relation to the shop. With regard to the receipts of rent he admitted that none of the receipts or counterfoils bore his signatures. On the other band the respondent in his deposition has stated that the appellant recovered the rent from him through his employees in lump sum. In support. Thereof, he produced receipts (Exh. 17/1 to Exh. 17/9). He has deposed that he used to pay rent to the appellant through his employees and the appellant used to sent receipt afterwards. In support of this he produced a `katcha' receipt for payment of Rs. 4,000 in cash (Exh. 18) which was signed by Latif, the rent collector of the appellant. He further stated that whenever the appellant used to demand the rent he used to pay the same and was regular in payment thereof. He further stated that he had sent the rent for the months of March, 1969 to May, 1969 to the appellant but he refused to accept the same saying that he was busy in preparing his declaration and accounts demanded by the then Government after imposition of Martial Law. He further deposed that thereafter he personally contented the appellant and offered the rent to him but he refused to accept the same. He also deposed that no suspicion arose in his mind when the appellant refused to accept the rent because he had always been taking the rent in lump sum. He further deposed that the application had been filed with a view to compel him to enhance the rent or to give the shop to someone else on goodwill. He also deposed that the appellant had taken from him Rs. 45,000 at the time of leasing out the shop, obviously as goodwill, and he was not questioned thereon. From the receipts or the counterfoils produced by the parties in evidence, it appears that rent from December, 1959 to August, 1967 was received in lump sum for 10, 6, 6, 4, 20, 15, 2, 4, 4, 2, 2 months at a time and thereafter, from December, 1967 to February, 1969 it was paid regularly every month. In support of the plea that he had sent rent through his servant, he examined Hussain Ali (Exh. 28) who stated that the landlord used to recover rent from the respondent through his Munshis Samiullah and Latif and some time he personally paid the rent to the appellant at his place. He further deposed that 3 years back he had taken Rs. 900 being the rent of the premises for two months to Munshi Latif but he did not accept the same and asked him to come on the following day and when be went on the next day he told him that they were busy in accounts and they would themselves recover the rent. Thereafter, again he went to the Munshi and offered him the rent but he did not accept 'the same. The cross-examination of this witness is extremely brief and I may here reproduce the same in toto ;- "I do not remember if the rent which I had given to Latif had accrued due are (or) it was in advance. Some times the rents receipts were issued there and then and sometimes the rent receipt was given to us at the shop of the tenant." The Controller did not accept the testimony of the respondent and his servant for the reasons that the oral words of the opponent and his servant did not appeal to reason: According to the Controller they appeared flimsy and cooked up. He further reasoned that if the appellant had refused to accept the rent, the respondent should have remitted the same by postal money order or he should have deposited the same in Court. The explanation given by the respondent was not found by him sufficient and satisfactory. He therefore, came to the conclusion that the respondent was a wilful defaulter. However, the observation of the Controller that the words of the respondent and his servant did not appeal to reason, .In my opinion, is not well founded for since the respondent had taken the plea regarding the offer of rent and its refusal for the reason already stated, in the written statement, it was incumbent upon the appellant to come in the witness-box and also to produce his Munshis to rebut the same. Neither the appellant nor his rent collectors,
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Latif or Samiullah came in the witness-box. He sent Imran in the witness-box who had nothing to do with the shop. He was simply the brother - of the appellant. Even he did not say a word about the plea of the respondent. To me, it appears that the appellant purposely led the respondent into default by telling him that he was busy with preparation of accounts and declaration under the Martial Law as deposed to by the respondent and his servant Hussain Ali and there is no reason not to believe them. From the receipts Exhs. 17;1, 17/2, 17/3, 17/5, 17/8 and 17/9, it appears that the appellant was receiving the rent in lump sum and after August, 1967 the respondent was paying the rent regularly without giving any cause of complaint. During the course of argument the learned counsel filed a chart of certain exhibits and their contents which I may reproduce herein below;-- "Ex. Page Date of receipt Rent for the For Shop No. Of months of No. Months 17/51772-1-1961 December 1959 to1+210 Months, September 1969 17/11691-3-1963 April. 1962 to1+26 Months, September 1962 27527-11-1963 October 1962 to1+26 Months. March 1963 **3777-8-1964 August 1964 to34 Months. November 1964 17/31738-3-1966 July 1964 to1-1-220 Months. February 1966 17/217122-3-1966 December 1964 to315 Months. February 1966 68910-6-1966 March 1966 to All 2 Months. April 1966 17/918521-2-1967 September 1966 to4 Months. December 1966 17/818314-6-1967 January 1967 to094 Months. April 1967 17/517917-7-1967 May 1967 to2 Months. June 1967 17/718110-10-1967 July and2 Months. August 1967 179119-3-1968 December 19671 Month. 211.9518-5-1968 March 19681 Month. 2219724-6-1968 April 19681 Month. 2319916-7-1968 May 19681 Month. 2420117-8-1968 June 19681 Month. 2520318-9-1968 July 19681 Month. 2620516-10-1968 August 19681 Month. 79119-3-1969 December 19681 Month. 188716-4-1969 January 19691 Month. 1919116-5-1969 February 19691 Month." **3 months' advance rent given at the time of letting of shop No. 3. If the plea of the respondent is considered in the background of the above-mentioned documents, the plea of the respondent appears to be correct. Therefore, it cannot be said that the appellant committed wilful default in payment of rent for the months of March, April and May, though, no
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doubt, that the respondent had not paid the rent for the said months in accordance with law by sending the same by money order or by depositing the same in Court. The lower appellate Court accepted the plea that there was default in payment of rent but came to the conclusion that there was no deliberate default on the part of the respondent and in view of the provisions of section 13 of the Ordinance he held that the discretion should not be exercised in favour of the appellant and accordingly reversed the finding of the Controller on the issue of default. According to Mr. Saleem Akhtar Shamsi the learned counsel for the appellants the tender of rent for several months in lump sum was not a proper tender, under the provisions of the Ordinance. In this connection he relied on Hafiz Dairood v. Abdul Ali Khan (1973 SCMR 598), Amanat Khan v. Mst. Begum Jan and another (1979 SCMR 608). He further submitted that if the landlord in the past had accepted payment of rent for several months in lump sum that would not absolve the tenant from the liability incurred by him under the provisions of section 13 of the Ordinance for the tenant could not contract out of the law. In this connection he relied on Abdul Rashid v. Saleh Muhammad (1980 SCMR 506) and a judgment of this Court in His Holiness Dr. Syedna Muhammad Burhanuddin v. Messrs Abdul Rehman Abdul Ghani (PLD 1981 Kar. 164). However, the question before me is not `whether the tender of rent for several months in lump sum is proper tender or not or a party could contract out of the provisions of law or not but whether the discretion exercised by the first appellate Court on the facts and circumstances of the case is proper or not. It is not disputed by Mr. Shamsi that under the provisions of section 13(2) of the Ordinance Controller is not bound to order eviction in every case in which default in payment of rent has been proved. Under the said provisions the Controller has ample discretion and the same, no doubt has to be exercised after taking into consideration all the factors. In this case the finding of the Additional District Judge is that the default in payment of rent was not wilful. He has dealt with the circumstances under which the default was committed and I not only share his view but have independently come to the conclusion that in this case the respondent was led to the making of default in payment of the rent, as it was the appellant who had told the respondent that he was busy in preparation of the account and declaration under the Martial Law. I have no doubt that the respondent would have ordinarily followed the course provided by law and would have sent the rent by money order or deposited the same in Court, if he was not told what is stated hereinbefore. I therefore, find no substance in this ground and accordingly reject it. Now, I take up the second ground. It was urged that the premises was sublet by the respondent. On this point the plea of the appellant in the paragraph 3 of the application was that the respondent had sublet three separate portions to three different parties without his consent and knowledge. According to him one portion of the shop was being used for cosmetics sundries, second portion was being used as pan cabin and the third as cabin for the purpose of general store. Significantly the appellant has not given the names of the persons to whom these portions of the shop were sublet and who were using the same as such. On this issue the evidence of Imran, the brother of the appellant was that the respondent had sublet the three separate portions from the premises in dispute without his consent but he again did not give the names of the persons to whom the portion of the shops were sublet. In !He cross-examination the witness could give the name only of Mohammad Hanif as one of the sub-tenant but regarding other subtenants the said witness replied that other sub-tenants were cosmetic seller and a Panwala. On this issue the appellant also examined Mohammad Hanif (Exh. 11) who claimed that he was sub-tenant of the respondent and had a shop known as Bombay General Stores and he was paying the rent of Rs. 150 per month to the respondent. He has stated that he was the sub-tenant of the respondent for the last 9 or 10 years, i.e. From 1962 to 1972. He was examined on 22-1-1972. In support of the claim he produced income-tax assessment order Exh. 12 and some vouchers and
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cash memos of the goods of his shop" Exhs. 13/1 to 13/24. He further stated that he was doing business in the shop He, however, admitted that he did not get rent receipt. He admitted that his shop is on one side of the shop of the respondent and that there was another shop on the other side of the shop of the respondent. This witness admitted that there is an open shop which belongs to the respondent while according to Imran it was sublet. As regards the other sub-tenant he gave the name as Saeedur Rehman. He denied the suggestion that the respondent was partner with him and that after 28th December he had stopped accepting him as partner. He also denied the suggestion that he was deposing at the instance of the landlord. The respondent in his deposition denied that he had sublet any portion of his shop to any one and deposed that pan business had stopped and he had removed the cabin on which the pans were sold. He claimed that Muhammad Hanif was his partner and partnership was oral and that Mohammad Hanif had stopped giving him his share of profit. The respondent also examined Saeedur Rahman (Exh. 29), who stated that he was not sub-tenant of the respondent and he did not pay rent to the respondent. He claimed that he was partner with the respondent in the shop and when partnership is wound up he would give the shop to the respondent. On this issue the learned Rent Controller did not consider the evidence of the respondent that Mohammad Hanif was his partner and not the subtenant. According to the Controller the evidence of Mohammad Hanif appeared to be symbol of truth and accordingly he found that the respondent bad sublet the premises to Mohammad Hanif. As regards other partner of the shop he did not believe the statement of Saeedur Rahman that he was not the sub-tenant for the reasons that his evidence was of scanty and vague in nature. He further observed that the evidence of convincing nature was not produced on behalf of the respondent to show that both Mohammad Hanif and Saeedur Rahman were partners and not the sub-tenants as though the burden was on the respondent. He therefore, held that they were sub-tenants of the respondent. The learned Additional District Judge although accepted the finding of the Controller but referring to the evidence of Mohammad Hanif, who had deposed that he was occupying the shop as sub- tenant for the last 7 or 8 years, and the notice (Exh. 4) which showed that the appellant had knowledge that a portion of the shop was let out to somebody and taking into consideration the fact, that the appellant had kept quiet for a period of about 5 years, came to the conclusion that all that give rise to the presumption that this was done with the consent and prior approval of the appellant and in any case, the appellant had acquiesced in by keeping quiet for a period of 5 years and collecting rent from the respondent in lump sum. Now, it is submitted by Mr. Saleem Akhtar Shamsi that the collection of the rent even after knowledge that a portion of the shop had been sublet or taking no action for several years on the part of the appellant did not amount to acquiescence or waiver as no period of limitation was prescribed. He also submitted that there could be no acquiescence or waiver of right in the case of subletting and in support he relied on Mohammad Hafeez v. Mohammad Suleman and another 1979 CLC 757, and Raja Qurban Khan v. Begum M. M. Sharif and another 1980 SCMR 590. He further submitted that even if it. Believed that Mohammad Hanif and Saeedur Rahman were the partners of the respondent as claimed by him, still that would amount to subletting of the premises. In support of this submission he relied on Manek J. Mobed and another v. Shah Behram and others (PLD 1974 SC 351) and a case from Indian jurisdiction Tansukhdas Chhanganlal v. Smt. Shambai and another (AIR 1955 Nag. 160). I think, before I deal with these submissions of Mr. Saleem Akhtar Shamsi, I should first deal with the question, `whether the appellant had proved that the respondent had sublet any portions of the shop to other persons or not'. It cannot be denied that the burden of proving this issue was on the appellant. The appellant himself did not come in the witness-box and he has neither given the names of any sub-tenants in
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the application nor his witness Imran gave the names of the sub-tenants in examination-in-chief. However, Imran in the cross-examination gave the name of Mohammad Hanif as sub-tenant, but still he did not give the names of other sub-tenants, though he did mention that they were cosmetics seller and Panwala. Now, it is admitted by Mohammad Hanif in his evidence that the pan shop belonged to the respondent therefore, it is clear to that extent the claim of the appellant is proved by his own witness to be false. Mohammad Hanif gave name of other sub-tenant as Saeedur Rahman but he did not state what business Saeedur Rahman was carrying on. While Saeedur Rahman in his evidence has stated that he was dealing in hosiery in the shop for the last 2 years and that he was a partner with the respondent, but according to Imran the other sub-tenant was cosmetic seller. From several cash memos (Exhs. 13/4 and 13/6 etc.) produced by Mohammad Hanif it appears that he himself was dealing in cosmetics. No question was put to Saeedur Rahman that he was cosmetics seller, therefore, the claim that the other portion of the shop was given on rent by the respondent to cosmetics seller was also not proved. Now, remains the evidence of Mohammad Hanif (Exh. 11). Both the Controller and the Additional District Judge failed to address themselves to the question as to why Mohammad Hanif came in the witness-box when by supporting the claim of the appellant he was to be evicted from the premises for if it were held that the respondent had let out a portion of the shop to him without consent of the appellant that would only have resulted in an order of eviction of the respondent and consequently his eviction from the shop. From the evidence it appears that there was a dispute between the respondent and Mohammad Hanif with regard to the partnership and this might be the reason that he came in the witness-box to support the claim of the appellant. No doubt, it was suggested to Mohammad Hanif that he was a set-up witness and that he came to depose at the instance of the appellant. Although he denied the suggestion but from his conduct it is clear that he came to support the appellant in spite of the fact that if his evidence was accepted then that would have as already mentioned led to his own eviction from shop premises and such a risk he could not have taken except either he had some understanding with the appellant or because he had a dispute with the respondent. As regards the income-tax assessment order produced by him that could not be conclusive evidence that he was sub-tenant of the premises. The order does not show him as sub-tenant. It only shows that he was carrying on business in the name of Bombay General Store. He might have shown himself as proprietor of the firm in the Income-tax Department without the knowledge of the respondent or some arrangement with him. As regards the vouchers produced by Mohammad Hanif it may be noticed that the same are in the names of Messrs Bombay Stores and Messrs Bombay General Store and none of them are in his personal name or show him as sole proprietor or even proprietor of the said firm. The respondent's claim that his partnership with Mohammad Hanif was oral may be true for that was possible as there is no obligation under the law to have a written partnership unless partners want to have the benefit of the…
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